Boen v. State Indus. Com'n

• Decision Date: 01 November 1949
• Docket Number: 33957.
• Citation: 212 P.2d 457,202 Okla. 258,1949 OK 232
• Parties: BOEN v. STATE INDUSTRIAL COMMISSION et al.
• Court: Oklahoma Supreme Court

212 P.2d 457

202 Okla. 258, 1949 OK 232

BOEN v. STATE INDUSTRIAL COMMISSION et al.

No. 33957.

Supreme Court of Oklahoma

November 1, 1949

Rehearing Denied Dec. 13, 1949.

Original proceeding by John Calvin Boen to review an order of the State Industrial Commission denying him recovery of compensation against National Livestock Commission and/or Colbert Feed Mills and Tri-State Casualty Company, for an accidental injury sustained in the course of his employment.

The Supreme Court, Halley, J., vacated the order on the grounds that the trial commissioner and the Industrial Commission should have made more specific findings and that claimant was entitled to present further testimony.

Arnold V.C.J., Gibson and Luttrell, JJ., dissented.

Syllabus by the Court

1.It is the duty of the State Industrial Commission to make specific findings of the ultimate facts responsive to the issues as well as the conclusions of law upon which an order is made granting or denying an award of compensation to a claimant.

2.Where the findings of fact and conclusions of law of the State Industrial Commission are too indefinite and uncertain for judicial interpretation, this court, on appeal, will vacate the order for further proceedings.

3.Where an award is vacated by the Supreme Court for further proceedings, the State Industrial Commission has the power to, and should, re-open the case and allow the parties to present any evidence that will assist in determining the issues in the case.

Hatcher & Hatcher, Baxter Taylor, Oklahoma City for petitioner.

Butler & Rinehart, Oklahoma City, Mac Q. Williamson, Attorney General, for respondents.

HALLEY Justice.

This is an original proceeding brought by petitioner, John Calvin Boen, to review an order of the State Industrial Commission denying compensation.

On the first day of April, 1948, claimant filed with the State Industrial Commission his first notice of injury and claim for compensation, stating that while employed as a laborer with the Colbert Feed Mills he sustained an accidental injury arising out of and in the course of his employment, on February 14, 1948, when he injured his back while shoveling cotton seed hulls.The National Livestock Commission was subsequently made a party to the proceeding.They will be referred to herein as respondents.

Claimant was employed to feed cattle in the yards of the respondents and on said date was using a large fork to shovel cotton seed hulls from the bins into a wagon.He testified: 'Well, I was working out there loading cotton-seed hulls off of the ground and putting them up in a high bed wagon about eight feet high, and we had--I had reached down to get one of those pick-loads full and something caught me in the back, one of those eight-tong forks, big old wide forks, and I reached down to get a scoopful of it and started to throw it up and it caught me up there between the shoulders.'

He further testified that a fork-full of hulls weighed approximately twenty pounds; that he rested for awhile and started to reach down for another forkfull of hulls and saw he couldn't do it and sat down.This was shortly before the noon hour, and he sat around until noon.Although he stayed on the job in the afternoon until quitting time, he did not use the fork any more.The next day, he returned to work and stayed on the job until approximately 2:30 P.M., when his brother came for him and he went home.He reported to Dr. Jones and received heat treatments.He went to a hospital sometime in April, 1948, for a week.He stated that he had been examined by Doctors Adams, Rountree, Knight, Maril, Jones, and B. H. Moore.At the time of this hearing on July 19, 1948, he stated that he had not worked since the injury.

Dr. Moore filed a written report for claimant.The Adams Clinic, by Eugene F. Lester, filed an attending physician's report dated February 16, 1948.No other doctors testified or filed any reports, with the exception of Dr. Rountree and Dr. Maril, who filed reports offered by respondents.

Dr. Moore stated that he examined claimant on April 19, 1948, twice in June and on July 19, 1948; that he found him to be suffering from a strain in his back which injured both the upper and the lower back; that because of his injury he was stooped and drawn; that he should have a chairback brace fitted to him to give him proper support to put him in an upright position; that in his opinion claimant is still totally disabled and needs further treatment.He stated that X-ray showed no bony pathology which could be attributed to an injury, and his statement does not disclose any displaced vertebrae or other objective symptoms.Both Dr. Maril and Dr. Rountree stated that after full and complete examinations they found claimant had no physical disability.Dr. Rountree stated that claimant'is an out-and-out malingerer'.Dr. Maril, whose examination included the taking and reading of X-rays, stated that claimant'is a definite malingerer'.Dr. Maril had claimant placed in the Polyclinic Hospital in Oklahoma City, where he remained from April 23 to April 30, 1948.He stated that the claimant was given physiotherapy but was not cooperative, and, on April 25th, walked away from the hospital, but returned the same day.

The testimony of Dr. Moore tended to establish a disability due to a strain caused from shoveling the cotton seed hulls.The testimony of Dr. Maril and Dr. Rountree tended to establish that there was no disability due to a strain.

On November 17, 1948, the State Industrial Commission entered the following findings:

'That claimant alleges to have sustained an accidental personal injury, arising out of and in the course of his employment with respondent, on February 14, 1948, to his back and other injuries.

'That the evidence introduced herein is

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