Asplund Const. Co. v. State Indus. Com'n

• Decision Date: 25 April 1939
• Docket Number: 28311.
• Citation: 90 P.2d 642,185 Okla. 171,1939 OK 219
• Parties: ASPLUND CONST. CO. et al. v. STATE INDUSTRIAL COMMISSION et al.
• Court: Oklahoma Supreme Court

90 P.2d 642

185 Okla. 171, 1939 OK 219

ASPLUND CONST. CO. et al. v. STATE INDUSTRIAL COMMISSION et al.

No. 28311.

Supreme Court of Oklahoma

April 25, 1939

Rehearing Denied May 23, 1939.

Syllabus by the Court.

1. An employee coming within the provisions of the Workmen's Compensation Act may be awarded compensation for temporary total disability, even though, while in the service of another employer, he previously suffered an injury for which he was awarded and paid compensation for total, permanent disability.

2. The cause of the injury and the extent thereof are questions of fact to be determined by the State Industrial Commission, and its findings thereon, when reasonably sustained by competent evidence, will not be disturbed.

Original proceeding in the Supreme Court by the Asplund Construction Company, employer, and the Standard Accident Insurance Company to vacate an award of the State Industrial Commission to Theodore J. Hamm, compensation claimant.

Award affirmed.

GIBSON J., dissenting.

Edgar Fenton and Jarman, Brown, Looney & Watts, all of Oklahoma City, for petitioners.

D. D Stull and J. H. Ament, both of Enid, and Mac Q. Williamson Atty. Gen., for respondents.

RILEY Justice.

On November 5, 1937, the State Industrial Commission promulgated an order in Claim No. B-153, entitled, Theodore J. Hamm v. Asplund Const. Co., and Standard Insurance Co., the pertinent portion thereof being: "It is therefore ordered, that the respondent or insurance carrier pay the claimant herein, the sum of $426.12, less any sums heretofore paid, being temporary total compensation from the 27th day of July, 1936, less the five day waiting period, to the 20th day of July, 1937, forty-six weeks and one day at the rate of $9.23, per week, and respondent and insurance carrier pay all reasonable, necessary, and authorized medical bills and expenses, the extent of claimant's permanent partial disability, if any, to be hereafter determined."

This is an original action by petitioners, Asplund Construction Co. and Standard Ins. Company, to vacate the award.

The petitioners' assignments of error are presented under two propositions, the first being: "An award for permanent and total disability is the maximum that may be awarded under the Workmen's Compensation Law."

This raises a question of first impression in this jurisdiction (if not in the United States). As applied to the instant case the question is, can a claimant, who on June 30, 1920, received a fractured vertebrae, for which he was adjudged entitled to and was paid 500 weeks' compensation for permanent and total disability, thereafter receive an award for temporary, total disability for a second injury to the same region received while working for a second employer?

On June 4, 1927, the State Industrial Commission, in Claim No. 18,822, entitled Theodore J. Hamm v. Burbank & Jackson, entered an order wherein it was held that claimant on June 30, 1920, had sustained an accidental injury totally and permanently disabling him from the performance of manual or mechanical labor; that claimant was entitled to compensation for 500 weeks at the rate of $11.54 per week; that claimant had been paid $5200; and that he was entitled to additional payments in the sum of $570, which was commuted to a lump sum and paid to claimant.

On July 27, 1936, claimant was injured in the same region in which he was injured June 30, 1920. The last injury was suffered while operating a slip drawn by a team of mules. The slip struck a clod and threw claimant, wrenching his back.

Claimant testified that over a period of approximately eight years immediately preceding July 27, 1936, he had worked at various mechanical and manual labor jobs, including three years at an elevator, where he unloaded feed, cars of grain, handled sacks of feed, shoveled coal, and took care of the elevator generally; eight months for the Champlin Refining Company doing steel construction work, during which time he used an air hammer to drive rivets; two months in 1935 for a second elevator, where he was constructing bins; and for some time prior to commencement of work for petitioner, claimant had been doing construction work at a state institution.

Petitioners take the position that "* * so long as the first award is not modified, and that adjudication of total and permanent disability stands, it precludes any other or later awards for the reason that total and permanent disability is the ultimate in disability."

In support of their contention they cite Linville v. State Compensation Commissioner, 112 W.Va. 522, 165 S.E. 803, wherein the claimant, in 1920, received a crushed ankle for which he received the maximum provided by statute for the loss of a foot. The ankle responded to treatment and ten years later a second injury was received for which claimant was allowed temporary compensation but was refused an award for permanent disability. On appeal the Commission was sustained.

It must be borne in mind that the order of the Industrial Commission in the instant case provided compensation for temporary total disability from July 27, 1936, less five day waiting period, to July 20, 1937, and expressly reserved for future determination the extent, if any, of claimant's partial permanent disability.

The relief sought in this case, viz., an award for temporary, total disability, was actually granted in the Linville case and only the question of permanent total disability was involved in the decision therein. It further should be borne in mind that only the injury to a member and the loss of use thereof was involved in the Linville case, whereas here the question of total permanent disability was involved in the first injury. Furthermore where a person is adjudged totally and permanently disabled under the West Virginia Compensation Law he is entitled to compensation at the rate of two-thirds of his average weekly wage for the remainder of his life. Official Code of West Virginia 1931, 23-4-6. The case cannot be considered as precedent in this jurisdiction on the issue involved.

The only other case cited by petitioners is Federal Mining & Smelting Co. et al. v. Warman et al., 145 Okl. 281, 292 P. 865. The question there involved was the erroneous allowance of an award for disfigurement in addition to an award for permanent and total disability, and is not authority for the petitioners' contention herein.

Claimant's citations are scarcely more helpful, but independent research convinces us that the paucity of authority in the briefs of both parties is due to the fact that the question is one of first impression. We therefore base our conclusion upon an analysis of our own Workmen's Compensation Law, 85 Okl.St.Ann. § 1 et seq., in the light of constructions we have previously placed thereon.

The theory and nature of our Workmen's Compensation Law was stated in Brooks v. A. A. Davis & Co., 124 Okl. 140, 254 P. 66, 70, as follows:

"* * * The right of action vouchsafed the injured employees under the common law is abolished, and a theory of compensation has been worked out and enacted to take the place of the common-law action. The purpose of the Workmen's Compensation Law is to make the industry prosecuted, if hazardous, bear the burden of human wreckage incident to its operation. * *

Much of the work in the operation of any industry must be carried on by human agencies which become a part and parcel of the machinery and without which the industry could not be prosecuted. Accidents have always happened by which such human agencies have been injured, sometimes utterly wrecked and destroyed, just as inanimate parts of the general machinery may be injured, wrecked, or destroyed. The injured part must be repaired, the part rendered useless must be laid out, and another supplied. Always somebody has been compelled to bear the burden of such repairs and replacements. During all the industrial ages, expenses for repairs and replacements of inanimate parts of the general machinery have been passed on to the ultimate consumer or the industry must cease to function. Before the advent of the Workmen's Compensation Law the workman...