Brown & Root, Inc. v. Dunkelberger
| Decision Date | 06 November 1945 |
| Docket Number | 32217. |
| Citation | 162 P.2d 1018,196 Okla. 116,1945 OK 280 |
| Parties | BROWN & ROOT, Inc., et al. v. DUNKELBERGER et al. |
| Court | Oklahoma Supreme Court |
Original proceeding by Brown & Root, Inc., and others to review an award of the State Industrial Commission to Leroy Walker Dunkelberger, employee.
Award sustained.
Syllabus by the Court.
1. Where only three members, constituting a majority of the Industrial Commission, sit in the hearing of an appeal from an order of a trial commissioner, a decision concurred in by two of those so sitting is valid.
2. Under the provisions of the Workmen's Compensation Law 85 O.S.1941, § 1 et seq., the statute of limitations does not begin to run against the filing of a claim until the disability arising from such accidental injury becomes apparent.
Looney Watts., Fenton & Eberle, of Oklahoma City, for petitioners.
B. B Wheeler, of Muskogee, and Randell S. Cobb, Atty. Gen., for respondents.
This is an original proceeding brought by petitioners, Brown and Root, Inc., W. S. Bellows Construction Company and Standard Accident Insurance Company, to review an award made by the State Industrial Commission to respondent, Leroy Walker Dunkelberger.
From the record it appears that the following facts were sufficiently established before the Commission. Respondent was injured on May 9, 1943, between 9 and 10 o'clock p. m., while in the employ of W. S. Bellows Construction Company, the injury affecting the elbow of his right arm. He notified L. G. White, the outside electrical foreman of W. S. Bellows Construction Company who was in charge of the work in which respondent was engaged, and was sent to the hospital by White. The next day X-rays of his elbow were taken at the hospital and he was advised that it was only bruised. He returned to work that day and on the next day went back to the hospital where more X-rays were taken and he was advised that the arm was not injured. The arm continued to give him pain while he was working, and three weeks later he went back to the hospital where more X-rays were made and he was again advised that the arm was not injured. He continued to work, but the arm still pained him, and on June 23, 1943, he was sent to the McAlester Clinic where Dr. L. S. Willhour examined the arm and some X-ray photographs were then made and he was advised that he had a fracture of the head of the radius in his right arm; that the fracture was without fragmentation, the bone was in good position and had a good callous formation at that time, and that if he went on using it it would probably straighten out all right. At that time the doctor told him that it would probably be a year before it could be definitely determined whether or not he had a permanent disability and the degree of the disability, if, in fact, he was permamently disabled. On June 24, 1943, Dr. Willhour reported to the Standard Accident Insurance Company that he had treated respondent for the injury; that it was in good condition and would straighten out in time, and that no permanent injury was anticipated. Respondent gave no written notice of the injury. He changed employment on June 30, 1943, and filed his first claim for compensation July 5, 1944. The undisputed medical evidence adduced before the Commission established a 20 per cent disability in the right arm of respondent, and the Trial Commission made an award to respondent. Petitioners appealed to the Commission en banc, and the appeal was heard before three members of the Commission. Two of them affirmed the award; the third dissented.
Petitioners make two contentions; first, that, under our statute, the award must be made by a majority of the Commission, and that an award made merely by a majority of a quorum is void; and second, that the findings of fact upon which the award is based are not supported by competent evidence. We will dispose of these contentions in the order stated.
The statute with reference to the number of Commissioners necessary to act upon an award when the Commission is hearing an appeal en banc is 85 O.S.1941, § 77. It provides as follows: * * *'
It is to be noted that three of the Commissioners, being a majority thereof, may hear appeals and there is no requirement that all must concur in an award made. In the absence of such requirement we know of no reason why a majority of those sitting, where less than the entire...
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