Carpenter v. Douglas Aircraft Co.

• Decision Date: 01 November 1966
• Docket Number: No. 41868,41868
• Citation: 1966 OK 218,420 P.2d 911
• Parties: Jim Willis CARPENTER, Petitioner, v. DOUGLAS AIRCRAFT COMPANY, Inc., Industrial Indemnity Company, and the State Industrial Court of State of Oklahoma, Respondents.
• Court: Oklahoma Supreme Court

Page 911

420 P.2d 911

1966 OK 218

Jim Willis CARPENTER, Petitioner, v. DOUGLAS AIRCRAFT COMPANY, Inc., Industrial Indemnity Company, and the State Industrial Court of State of Oklahoma, Respondents.

No. 41868.

Supreme Court of Oklahoma.

Nov. 1, 1966.

Syllabus by the Court

1. In the State Industrial Court the burden of proof resting on a claimant necessary to establish an accidental injury resulting from work connected strain consists of two essential elements: lay testimony as to the nature of the labor performed by the claimant when the injury occurred and expert medical opinion that the exertion attendant upon such activity was sufficient to cause, and did cause, the strain to which disability is sought to be ascribed.

2. In workman compensation cases whether a disability is the result of an accidental injury or a prior injury or disease is a question of fact for the determination of the State Industrial Court whose finding on such issue will not be disturbed on review if based on competent evidence reasonably tending to support it.

3. Appellate jurisdiction of the State Industrial Court sitting en banc may be invoked during a period of ten days subsequent to the day a copy of the order or decision appealed from is sent to the parties affected, and, such jurisdiction having been invoked, the State Industrial Court sitting en banc may vacate or refuse to vacate any order by the trial judge, and the court's action will not be disturbed on review in this court in the absence of an abuse of discretion.

4. In a workman compensation case where a claimant by oversight fails to fully establish by proper medical testimony that his disability is attributable to the injury alleged, claimant should, in the interest of justice, on timely application be allowed by the trial court to reopen the case for the purpose of presenting any evidence he may have to supply such omission.

Original proceeding by Jim Willis Carpenter, claimant, to review an order denying an award against Douglas Aircraft Company, Inc., and its insurance carrier, Industrial Indemnity Company. Order denying award vacated and cause remanded for further proceedings.

Elder & Scott, Tulsa, for petitioner.

Sanders, McElroy & Whitten, Tulsa, Charles Nesbitt, Atty. Gen., Oklahoma City, for respondents.

DAVISON, Justice.

Jim Willis Carpenter filed in the State Industrial Court his claim for compensation on October 1, 1965, and he will hereinafter be referred to as claimant. Claimant asserted he sustained an accidental personal injury while employed by the respondent, Douglas Aircraft Company, Inc., in a pursuit within the purview of the Workmen's Compensation Laws. The respondent, and the insurer of the respondent, Industrial Indemnity Company, filed on October 20, 1965, an answer by general denial admitting only that the employer-employee relationship existed, and that the employment was hazardous and within the provisions of 85 O.S.1961, § 1 et seq.; that the claimant earned salary sufficient to entitle him to maximum rate of compensation; that the claimant reported the injury to the employer and was furnished medical treatment and was paid temporary total disability compensation by the insurer for the respondent.

The cause was tried before a trial judge and an order was made on December 6, 1965, for temporary total disability, part of which has been paid, and an award of 50 weeks of compensation at the rate of $37.50 per week based upon the finding of a ten percent permanent partial disability to the body as a whole.

Upon due notice the respondents invoked the appellate jurisdiction of the State Industrial Court sitting en banc, and upon review, the award of the trial judge was, by order dated January 27, 1966, vacated, and the claim for compensation denied, for the reason the medical evidence adduced by the claimant was not sufficient to support an award.

Counsel for the claimant, by motion duly verified and filed before this court on March 10, 1966, has asserted that at the close of oral argument on appeal to the State Industrial Court en banc he sought to have the cause remanded to...