Channing v. Payton

• Decision Date: 13 October 1931
• Docket Number: Case Number: 22591
• Citation: 4 P.2d 1,152 Okla. 153,1931 OK 599
• Parties: CHANNING et al. v. PAYTON et al.
• Court: Oklahoma Supreme Court

1931 OK 599

4 P.2d 1

152 Okla. 153

CHANNING et al. v. PAYTON et al.

Case Number: 22591

Supreme Court of Oklahoma

Decided: October 13, 1931

Syllabus

¶0 1. Master and Servant--Workmen's Compensation--Hearing on Discontinuance of Compensation--Presumption That Continuing Disability not Due to Pre-existing Disease.

When, in the application of the Workmen's Compensation Law, the employer or insurance carrier, as the case may be, admits that the workman suffered an accidental injury arising out of and in the course of employment, and pays compensation for a period, and seeks to discontinue payment upon the ground that disability on account of the injury has ceased and that such disability as the claimant may then have is due to a pre-existing disease, the presumption is that such continuing disability is the result of the accidental injury, and the burden is upon the employer or insurance carrier to prove the contrary.

2. Same--Expert Testimony as to Cause of Disability--Findings of Fact --Review of Award.

Where the injury in a case such as above stated is of such a character as to require skilled and professional men to determine the cause thereof at the time of hearing, the question is one of science and must necessarily be proven by testimony of skilled witnesses, but in such cases, where no examination of the claimant has been made by such expert witness for more than five months before giving his testimony, and the last examination made by him was at a time when it was admitted that the then existing disability was a result of the accidental injury, and compensation was actually paid for one month thereafter, the question of the cause of disability at the time of hearing being one of fact for the State Industrial Commission, this court will not, in a proceeding to review an award of the Commission, say, as a matter of law, that an opinion of the expert or medical witness under such condition was binding upon the Commission or sufficient to overcome the presumption in favor of the workman.

Original action by R. H. Channing, Jr., Agent, et al. for review of an order and award of the State Industrial Commission to Amos Payton. Affirmed.

Ray McNaughton, J. Fred Swanson, and Arthur G. Croninger, for petitioners.

William M. Thomas, for respondents.

RILEY, J.

¶1 This is an original proceeding in this court to review an order and award of the State Industrial Commission.

¶2 On September 5, 1930, the respondent, Amos Payton, while in the employ of petitioner Channing, agent of Adams Mine, received an accidental injury in the course and growing out of said employment and covered by the Workmen's Compensation Law. The nature of the injury was "sprained back and injured side."

¶3 Report of the injury was filed with the State Industrial Commission on September 11, 1930. Weekly wages were $ 21, and weekly rate of compensation $ 13.40. Payments were commenced on September 13th. On January 26, 1931, there was presented to the Commission a stipulation and agreement for settlement on form No. 7, prescribed by the Commission, in the total sum of $ 269.20, representing compensation for 20 weeks and five days. This settlement was disapproved by the Commission. However, the $ 269.20 was paid to claimant. On May 28, 1931, the Commission issued notice of the hearing "to determine extent of disability (disapproval of form No. 7 agreement)". Hearing was had, resulting in an order and award for 18 weeks additional compensation computed from January 30, 1931.

¶4 The contention of petitioner is that there was no competent evidence to support the order and award.

¶5 From the record it appears that claimant was working in and about the mine. The cable used in operation of some parts of the machinery came loose and struck him on the back and side. About two days thereafter he was taken to the hospital, where he received treatment, but did not remain therein. The injury was recognized by the employer and insurance carrier as sufficient to justify compensation, which, as stated, was paid regularly until about January 25, 1931, at which time the settlement agreement was signed.

¶6 Dr. Butler appears to have treated claimant at first, and sometime about October 31, 1930, Dr. Albert Aisenstadt examined and treated claimant. Dr. Aisenstadt and the claimant were the only witnesses. Claimant testified that from the date of the injury he had been unable to do any work; that he had tried to do farm work, such as plowing, hoeing, etc., and that he was not able to perform such labor, but had done some little repair work on automobiles where he had the assistance of a helper; that he had never had any disability before except the loss of a thumb about four years prior to the hearing, and that he was still unable to work at the time of the hearing; that he still suffered from his back.

¶7 Dr. Aisenstadt testified, in substance, that he examined and treated claimant about October 1, 1930; that at this examination claimant had some rigidity of the lumbar muscles, in part voluntary; that the muscles relaxed as claimant was placed in different positions; that claimant admitted venereal disease some years before a blood count was taken which proved to be "Four Plus," indicating active syphilis; he was given back treatment--"physo therapy." After discovery of syphilis involvement, neo-salvarsan, commonly known as 606, was administered; subsequently another injection of neo-salvarsan was given; that on January 1st, he had claimant come back with intention of giving him another complete examination; that at that time claimant advised him that he was considerably improved, and believed he would be able to resume his work if not placed at too hard a task to start with; that all symptoms were gone, only leaving general weakness. He then testified at length that it was his opinion...