Continental Oil Co. v. Pitts
| Decision Date | 12 July 1932 |
| Docket Number | 23211. |
| Citation | 13 P.2d 180,158 Okla. 200,1932 OK 536 |
| Parties | CONTINENTAL OIL CO. et al. v. PITTS et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A review of the evidence before the Industrial Commission shows that it was not sufficient to support the award made in this case, and that, if the claimant has any right to compensation for the alleged injury, it must be sought before the Industrial Board of the state of Texas on his claim for the accident of September 20, 1930. The award is accordingly vacated, with the directions to dismiss without prejudice to his right to pursue the claim and recover full compensation as allowed by the laws of the state of Texas.
Original action by the Continental Oil Company and another to review an award of the State Industrial Commission in favor of Ray Pitts, claimant.
Award vacated, with directions.
Owen & Looney, Paul N. Lindsey, and Joe S. Lewis, all of Oklahoma City, for petitioners.
J Berry King, Atty. Gen., Robt. D. Crowe, Asst. Atty. Gen., and Charles D. Reed, of Ponca City, for respondents.
This is an original proceeding to review an award of the State Industrial Commission awarding to the claimant before the commission compensation for an injury, the order being as follows:
"Now on this 27th day of November, 1931, the State Industrial Commission being regularly in session, this cause comes on to be considered pursuant to a hearing held at Ponca City Oklahoma, on October 13th, 1931, and a hearing at Oklahoma City, Oklahoma, on October 31st, 1931, at which hearings the claimant appeared in person and by his attorney Chas D. Reed, and the respondent and insurance company appeared by J. S. Lewis, said hearings being held before Chairman Thos. H. Doyle, to determine liability and extent of disability, and the Commission after reviewing the testimony taken at said hearings and all the records on file, and being otherwise well and sufficiently advised in the premises, makes the following findings of fact:
1. That on the 16th day of March, 1931, the claimant was in the employment of the respondent and engaged in a hazardous occupation subject to and covered by the provisions of the Workmen's Compensation Law, and that on said date he sustained an accidental injury, arising out of and in the course of his employment, consisting of an injured left leg.
2. That the average wage of the claimant at the time of said accidental injury was One Hundred and Fifty Dollars per month.
3. That by reason of said accidental injury the claimant has been temporarily totally disabled from the performance of ordinary manual labor from May 2nd, 1931, and is at this time temporarily totally disabled from the performance of ordinary manual labor.
Upon consideration of the foregoing facts, The Commission is of opinion that the claimant is entitled to compensation from May 2nd, 1931, at the rate of $18.00 per week, or 29 weeks, in the total sum of $522.00, and that said compensation should be continued at the rate of $18.00 per week until otherwise ordered by the Commission.
It is therefore ordered that within fifteen days from this date the respondent or insurance carrier pay to the claimant herein the sum of $522.00 or 29 weeks compensation at the rate of $18.00 per week, and to continue paying the claimant compensation at the rate of $18.00 per week until otherwise ordered by the commission and to pay all hospital, medical and doctor bills incurred by reason of said accidental injury.
It is further ordered that within thirty days from this date the respondent or insurance carrier herein file with the Commission proper receipt or other report evidencing compliance with the terms of this order."
That order is attacked on several grounds, some being technical and one going to the merits, which is that there was not sufficient competent evidence to sustain it. As shown by the record, on the 19th of June, 1931, claim No. 64020 was filed with the State Industrial Commission. The accident was alleged to have occurred March 16, 1931, and the cause of the accident was given as being:
The post office address of the claimant was given as Box 1443, Ponca City, Okl.
On the 15th of July a request was made for an immediate hearing. It appears that the post office of all parties concerned was Ponca City, and for that reason it was set for hearing at Ponca City. Notice of hearing was filed October 5, 1931, and proof was taken the 13th of October, 1931. There was a stipulation that the evidence in case No. A-64086, Ray Pitts v. Continental Oil Company, will be considered as evidence in this case.
The claimant, Pitts, testified about being sent to paint a water cooler, and about the slats sloping about 45 degrees. He described his method of proceeding from one board to another, and hanging under the board with the left leg. He testified as follows:
"A. * * * I worked up against this corner, could not hold on, the muscle in this knee were gone, I had this other hand on the rib below, it must have slipped off, or back towards the corner, or back against this little brace, at that time it felt like some one, just, that something stuck me in the left leg and knee and ripped about three inches away, or felt like I tore something,-I never paid any attention to it at the time, before I got the other side painted, it began to feel like you bumped your elbow, fire burning like, I came on down-
By Mr. Reed: You had finished? A. Yes, sir, come on down to the ground, it felt like it would be similar to a needley, just like your elbow feels, something similar to that, I came down, and had my container and gun-
Q. Twelve o'clock noon? A. Yes, sir.
Q. Did you work that afternoon? A. Well, I got on the compressor after dinner.
Q. Were you on this leg much? A. No, sir.
Q. Was your foreman there at that time? A. Mr. German was the straw boss.
Q. He was in charge of that? A. Yes, sir."
He then described about how he worked after that, and his notice of injury by talking later on to Mr. Stimson, and describes several jobs that he worked on, and how he was later taken to the hospital and an operation was made near the ankle bone on the left leg, and about his leg being put into a cast, and about the lack of feeling in the leg. He detailed injuries in the way of a sprained ankle in 1929, and an injury September 20, 1930, at Wichita Falls wherein he stepped in a hole and wrenched his leg and it bothered him all the time thereafter, and he was questioned about case A-640863.
It appears from this record that for several years the claimant had been in the employ of the Continental Oil Company or its predecessor, and part of the time he had been engaged in painting, and part of the time he had done some of the scraping work preparatory to cleaning off for painting. He claimed to have had two admitted accidents during the time he was in the employ of the petitioners, and he claimed to have received a third, which was denied by the other side.
It is very evident that his wages amounted to more than his compensation would have been, and that he continued to work until the general lay-off of painters in May, 1931. As to the details of the 1929 accident, we are not thoroughly advised, but from the testimony of one of the doctors, who examined an X-ray of one of his ankles at that time, which had been injured by falling off of a stone wall, there were indications in the lower part of the left leg, about the junction of the long bones of the ankle, of a calcareous deposit in 1929, but the party continued to work, and whether he received any compensation or not we are not advised, but the presumption from this record is that he did not, though negotiations for a lump sum settlement were had.
In September, 1930, at Wichita Falls, Tex., he received an accidental injury on the same leg that could have resulted seriously, and probably did so result, from the appearance of this record and his own testimony. However, it does not appear that he ever demanded compensation for that as long as he could draw...
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