Black, Sivalls and Bryson v. Bass

• Decision Date: 13 February 1973
• Docket Number: No. 45594,45594
• Parties: BLACK, SIVALLS & BRYSON, a corporation, Petitioner, v. Mrs. Warren BASS and the State Industrial Court, Respondents.
• Court: Oklahoma Supreme Court

Page 902

506 P.2d 902

BLACK, SIVALLS & BRYSON, a corporation, Petitioner, v. Mrs. Warren BASS and the State Industrial Court, Respondents.

No. 45594.

Supreme Court of Oklahoma.

Feb. 13, 1973.

Syllabus by the Court

1. An award made against the employer on a properly approved joint petition stipulation may be considered in a subsequent proceeding for further compensation (for the death of the employee) as establishing prima facie claimant's right to compensation for permanent disability from an accidental injury sustained in course of hazardous employment. (383 P.2d 630)

2. Whether a heart attack suffered by a workman resulted from strain and exertion arising out of and in the course of his employment or from other causes which are unrelated thereto and disconnected therefrom presents a question of fact for the determination of the State Industrial Court, whose finding on such issue will not be disturbed on review, when based on competent evidence reasonably tending to support it. (367 P.2d 1018)

Original proceeding by petitioner to review order of State Industrial Court awarding death benefits to claimant, surviving widow and sole dependent; Silas C. Wolf, Trial Judge.

Award sustained.

Garrett & Garrett, by James M. Robinson, Oklahoma City, for petitioner.

J. Clark Russell, Oklahoma City, for respondent.

LAVENDER, Justice:

Warren Bass suffered a fatal heart attack December 19, 1971, approximately eighteen months after a prior attack resulting in total disability. Claimant, surviving widow and sole dependent, filed claim for death benefits. The trial judge found deceased suffered a compensable accidental injury June 29, 1970, resulting in a heart attack which disabled deceased until death and entered an award to claimant. This order was corrected to show deceased died as a result of this heart attack.

This original proceeding for review seeks vacation of the order awarding death benefits. The basic contention asserts lack of evidence to establish the fatal heart attack was the direct and proximate result of an occupational injury sustained while deceased was in petitioner's employ. Determination of matters urged in petitioner's supporting argument requires summation of factual matters which provided basis for the trial judge's order.

Deceased was employed by petitioner as a welder, whose customary duties assembling coils required handling 10 ft. lengths of pipe weighing approximately 100 pounds. There was evidence showing lifting pipe from a rack, and positioning pipe on the bench for welding was not an easy job, but hard, manual labor which required lifting, strenuous effort and strain. Deceased reported for work at 3:42 P.M. on June 27, 1970, performed his customary duties and returned home after midnight. The next morning deceased told claimant of suffering chest pains and nausea upon straightening up after lifting some pipe. Although feeling dizzy, deceased worked the next day, finished his shift, returned home, and went to bed. Deceased reported for work on June 29th (Monday) and while welding began suffering pains in his chest and shoulder, became weak and scarcely able to stand. After reporting to first aid, deceased was removed to a hospital by ambulance and was treated for myocardial infarction. After release and three weeks stay at home, deceased again was hospitalized for a longer period. When released, deceased reported for work but was denied employment, on advice of the company physician, because of inability to work due to his heart condition. Deceased's condition was such he thereafter performed no work, lived a sedentary existence, and was under continuous medication until his fatal attack.

On January 20, 1971, deceased, as claimant, had filed Form 3 alleging the heart attack was the result of occupational activities arising out of and in the course of employment. Petitioner answered denying the heart attack resulted from work connected activities. Following an evidentiary hearing, but before an order was entered, this claim was settled upon joint petition, and a compromise order settling permanent total disability was entered with approval of State Industrial Court.

The only medical evidence is the report, dated February 16, 1972, by the physician who examined deceased at time of the original heart attack. This report reflects deceased's 'on the job injury by myocardial infarction resulting in permanent total disability, continuous treatment and limited activity until date of death.' This report concludes death was causally connected to injury received June 27, 1970, resulting in myocardial damage which, coupled with damage from attack December 19, 1971, resulted in death.

Petitioners first contend the joint petition settlement did not encompass judicial determination of any fact, which (they argue) resulted in entire absence of material facts indicating any work related strain or exertion connected with the fatal heart attack. From this petitioners conclude there is no basis for the medical finding deceased's death was work connected, and thus there is no competent evidence supporting the trial judge's findings of fact.

Cited as authority that a joint petition settlement is not a judicial determination of any fact are Cavender v. Wofford Drilling Co. (1942), 190 Okl. 291, 123 P.2d 261, and National Gypsum Co. v. Brewster (1969), Okl., 461 P.2d 593. Examination of each decision discloses that neither provides authority for petitioner's initial expression. In the Cavender case we pointed out the approval of such settlement is not a matter of right, but within discretion of the State Industrial Court after full and complete investigation of all the facts, and subject to review as in case of any other award.

As urged by respondent, we are of the opinion the joint petition settlement is no different from any final award of State Industrial Court. This was settled in the case of St. Joseph Mining...