Asplund Constr. Co. v. Williams
| Decision Date | 23 June 1931 |
| Docket Number | Case Number: 21849 |
| Citation | 150 Okla. 10,300 P. 755,1931 OK 362 |
| Parties | ASPLUND CONSTRUCTION CO. et al. v. WILLIAMS. |
| Court | Oklahoma Supreme Court |
¶0 1. Master and Servant--Workmen's Compensation -- Review of Awards--Procedure for Correction of Record Where Incomplete.
In an original proceeding in this court to review the award of the Industrial Commission, where it is alleged that the transcript on file is incomplete, this court will not refer the case to the referee for the purpose of taking evidence to determine the truth of this allegation. If the record is incomplete, timely application should be made in this court to withdraw the record for the purpose of correcting it under the supervision of the Industrial Commission.
2. Same--Commutation of Periodical Payments to Lump Sum by Industrial Commission.
Under section 7299, C. O. S. 1921, the State Industrial Commission has jurisdiction to commute periodical payments to a lump sum when deemed advisable and in the interest of justice without notice to the employer or insurance carrier where the Commission has acquired original jurisdiction of the parties. In such case it is not necessary that a formal written motion for this purpose be filed by claimant, nor is it essential, in order to authorize the award, that direct evidence be offered showing the life expectancy of claimant.
Original proceeding by the Asplund Construction Company et al. to review an award of the State Industrial Commission to Wesley Williams. Petition to vacate award denied.
James C. Cheek and Albert L. McRill, for petitioners.
J. Berry King, Atty. Gen., and A. G. Morrison & Sons, for respondent.
¶1 This is an original proceeding in this court by Asplund Construction Company and Central Surety & Insurance Company, its insurance carrier, to review an award of the State Industrial Commission awarding compensation to Wesley Williams. It appears that claimant was injured while engaged in highway construction and in the employment of Asplund Construction Company, by being struck above the kidney. Two doctors testified at the hearing that his injury is permanent, and that he will never be able to perform manual labor. The Industrial Commission found that by reason of the injury claimant was permanently totally disabled; that his average daily wage was $ 3.15, and awarded him compensation at the rate of $ 12.12 per week for not exceeding 500 weeks, computed the periodical payments to a lump sum, and awarded claimant compensation in the sum of $ 5,025.31.
¶2 The hearing was concluded on the 15th day of September, 1930, and the award entered on the 27th day of September. On October 7th, petitioner filed a motion before the Industrial Commission to vacate the award on the ground that it was prematurely entered and without giving them an opportunity to produce their evidence. It is alleged in their motion that, at the conclusion of the evidence, the Industrial Commission was requested to continue the hearing for the purpose of permitting petitioners to produce their evidence; that the award was thereafter entered without notice to them and without opportunity to be heard. Claimant filed a response to this motion in which he denied that a continuance was granted petitioners by the Commission. The motion was never acted upon by the Commission. Petitioners contend that the award cannot stand for the reason that they were denied an opportunity to be heard.
¶3 The difficulty with this contention is that the record fails to disclose that a continuance was granted, or that petitioners made an application therefor. It is conceded by petitioners that the transcript fails to disclose that such proceedings were had before the Industrial Commission. They contend, however, that this court should refer the case to a referee for the purpose of determining as to whether the facts alleged in the motion to vacate are true, and, if found to be true, reverse the award. If the transcript does not, in fact, speak the truth, or is incomplete, an application should have been made in this court to withdraw it for the purpose of correction under supervision of the Industrial Commission.
¶4 Petitioners rely on the case of Forrester v. Marland, 142 Okla. 193, 286 P. 302. This case is not applicable to the situation here presented. In that case the award was vacated on motion of claimant. He then filed a written request for permission to introduce additional evidence. This request was denied and a new award entered without further hearing. Thereafter, claimant filed his motion alleging errors in the transcript of the evidence, and requested that it be corrected to speak the truth. This motion was denied by the Commission. This court on petition to review held that the Industrial Commission erred in both rulings and reversed the award. If, in the instant case, the record had disclosed that petitioners' application for a continuance was granted, or that they had filed a motion before the Commission to correct the transcript, in order that it might show that the motion was granted and a hearing had been denied by the Commission, the cited case would be applicable, and this court might grant relief. But, under the record as here presented, the question discussed is not properly before us.
¶5 Petitioners further contend that the Commission was without authority to order a lump sum payment for the following reasons: That no notice of such application was served upon them; that no motion for this purpose was filed before the Commission; that no evidence was offered showing the life expectancy of claimant, and, for the further reason that the evidence is insufficient to support the finding that such award is in the interest of justice. The finding of the Commission in this respect is as follows:
"The Commission finds the claimant is suffering from a disability, which makes it necessary for him to seek a change of climate; that the claimant has a large family, and by ordering a lump sum settlement, claimant can establish himself and family upon a small farm, at some point out of the state, where the climatic conditions will...
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Troup v. Baker
...effect that an award formerly made cannot be commuted without notice to the employer, which modified the rule announced in Asplund Const. Co. v. Williams, 150 Okla. 10. 300 P. 755, and related authorities. We are of the opinion, and hold, that the principle of commuting to a lump sum is not......
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Manahan Drilling Co. v. Bazzel
...under circumstances similar to the circumstances in the case at bar was sustained by this court in the case of Asplund Construction Co. v. Williams, 150 Okla. 10, 300 P. 755. There it is said:"Under section 7299, C. O. S. 1921, the State Industrial Commission has jurisdiction to commute per......
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Muskogee Iron Works v. Bason
...by a unanimous court, and therein prior contrary decisions on this point were expressly overruled, particularly Asplund Const. Co. v. Williams, 150 Okla. 10, 300 P. 755 Manahan Drilling Co. v. Bazzel, 153 Okla. 23, 4 P.2d 745, and Livingston Oil Corp. v. Henson, 90 Okla. 76, 215 P. 1057. ¶8......
- Asplund Const. Co. v. Williams