Syllabus
by the Court.
By the
provisions of article 2, § 10, of the Workmen's
Compensation Law (chapter 246, Sess. Laws 1915), the decision
of the State Industrial Commission is made final as to all
questions of fact, and, on appeal to this court from an award
of the Industrial Commission, the court is without
jurisdiction to weigh the evidence for the purpose of
determining whether the same preponderates in favor or
against the findings of fact made by the Industrial
Commission.
Under
section 9, c. 14, Sess. Laws 1919, providing for compensation
for loss of hearing in an amount to be determined by the
Industrial Commission, but not in excess of $3,000, and where
the Commission found as a fact that the claimant as a result
of an accident suffered the loss of the hearing in his left
ear, such finding entitled the claimant to the compensation
provided for in the act, and the action of the Commission in
awarding the claimant compensation in the sum of $1,500 is
affirmed.
Under
section 14, art. 4, c. 246, Sess. Laws 1915, the power and
jurisdiction of the Industrial Commission over each case is
continuing, and it may from time to time make such
modification or change with respect to former findings or
orders relating thereto as in its opinion may be just. And
in a case where an appeal is taken from an award of the
Commission to this court, and this court reverses the
Commission and vacates the award, because there was no
evidence to support the same, and remands the cause for
further proceedings not inconsistent with the opinion of the
Supreme Court, the Commission is not divested of jurisdiction
to again hear and determine the cause, and the doctrine of
former adjudication does not apply.
Proceeding
by the Associated Employers' Reciprocal & Missouri Valley
Bridge Company against the State Industrial Commission, to
review an award under the Workmen's Compensation Law.
Award affirmed.
See
also, 83 Okl. 73, 200 P. 862.
JOHNSON
J.
This
proceeding has been regularly commenced in this court to
review an award of the Industrial Commission made in this
cause, which award is as follows:
"Now on this the 28th day of October, 1921, this cause
comes on to be determined on the claimant's claim for
compensation for the injury which he alleges occurred to him
while in the employment of the Missouri Valley Bridge
Company, on the 10th day of July, 1920, in Hughes county
Okl., and the Commission having reset said cause for a
rehearing in pursuance of a decision of the Supreme Court of
Oklahoma, and of its mandate, on the 21st day of October,
1921, at which hearing the claimant appeared in person and
respondent and insurance carrier was represented by C. B.
Pierce, Esq., and the Commission having considered said
testimony then and there given, and having examined all the
records on file in said cause and being otherwise well and
sufficiently advised in the premises, finds the following
facts:
(1) That the claimant herein was in the employment of the
Missouri Valley Bridge Company, and was engaged in a
hazardous occupation within the meaning of the statute, and
while in the employment of said respondent, and in the course
of his employment, the claimant received an accidental injury
on the 10th day of July, 1920, at or near Calvin, Hughes
county, Okl.
(2) That, as a result of said accidental injury, the claimant
sustained the permanent total loss of hearing in the left
ear.
(3) That the Associated Employers' Reciprocal was the
insurance carrier of the Missouri Valley Bridge Company at
the time of said accidental injury.
(4) That the respondent had proper notice of said accidental
injury, and the employé filed his claim for compensation with
the Commission within the statutory period.
(5) That the claimant's average wage at the time of his
accidental injury was $6.50 per day.
The Commission is therefore of the opinion: That by reason of
the aforesaid facts the claimant is entitled under the law to
compensation in the sum of $1,500 for the loss of his hearing
in his left ear, and that he is entitled to compensation at
the rate of $18 per week for the loss of time by reason of
said accidental injury.
It is therefore ordered: That said respondent herein or the
said insurance carrier pay to the claimant compensation for
the loss of time at the rate of $18 a week during his
disability by reason of the said accidental injury."
To
vacate and annul this order and award, the petitioners have
set forth the following grounds:
"(1) That said award is contrary to law.
(2) That said
award is contrary to the evidence introduced at the hearing.
(3) That said award is not supported by any legal evidence.
(4) That said award is contrary to law and contrary to the
evidence.
(5) That the injuries complained of and disability complained
of did not arise in the course of employment as required by
the Workmen's Compensation Act, and therefore the
decision and award is contrary to law.
(6) That the Commission erred as a matter of law in making
said award because there was absolutely no evidence before
said Commission sustaining the claim that said injuries
complained of were received by the said Kuhn arising out of
and in the course of his employment, and therefore the award
is contrary to law and is contrary to the evidence.
(7) Because said Commission erred as a matter of law in
making said award because there was no evidence that said
injury was an accidental injury.
(8) That said Commission erred in its construction of the
Workmen's Compensation Law and in finding that the loss
of hearing in one ear is compensable under said act."
Counsel
for petitioners discuss the foregoing specifications of error
in their brief, under four propositions, which are as
follows:
"Proposition 1. The matter becomes res judicata after
the judgment of this court in the first original action
became final and mandate issued.
Proposition 2. The award is not sustained by any evidence.
Proposition 3. The loss of hearing in one ear is not
compensable under the act.
Proposition 4. The amount of the award is not sustained by
any evidence."
In
arguing proposition 1, petitioners state in their brief as
follows:
"There is no controversy over the fact that the award
entered upon October 28, 1921, is based on the same
circumstances as the one which was set aside by this court in
case No. 12124. No claim of newly discovered evidence was
made as the basis for the second hearing. In fact, no claim
of anything was made, except that, this court not having
given specific directions to do otherwise, the Commission had
power to enter up the same award it had previously entered.
If this were true the opinions of this court are not binding
on the Industrial Commission, except such specific directions
as may be contained in the mandate. The position of the
petitioners in this connection is that this case is just like
a case at law or in equity which has been reversed by the
appellate court for insufficiency of evidence. It will be
noted that this court held in its syllabus in the former case
that there was no evidence to support the award, the burden
of proof cast on the claimant was not carried, and the
evidence or injury was
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