Corbus Spring Service v. Cresswell, 39106

• Decision Date: 31 January 1961
• Docket Number: No. 39106,39106
• Citation: 359 P.2d 219
• Parties: CORBUS SPRING SERVICE and Hardware Mutual Casualty Company, Petitioners, v. Clifford J. CRESSWELL and the State Industrial Court, Respondents.
• Court: Oklahoma Supreme Court

Page 219

359 P.2d 219

1961 OK 18

CORBUS SPRING SERVICE and Hardware Mutual Casualty CompanyPetitioners, v.Clifford J. CRESSWELL and the State Industrial Court, Respondents.

No. 39106.

Supreme Court of Oklahoma.

Jan. 31, 1961.

Syllabus by the Court.

1.Disability to the hip and back resulting from an accidental injury falls within the provisions of the 'other cases' clause of 85 O.S.Supp.1959, Sec. 22, subd. 3, and where the Industrial Court found the injury was to the hip and back and all the expert medical evidence was expressed in terms of permanent partial disability to the body as a whole, the Industrial Court was authorized to make an award to that effect.

2.Where, in a proceeding before the Industrial Court, the disability alleged to exist is of such character as to require skilled and professional men to determine the cause and extent thereof, the question is one of science and must necessarily be proved by the testimony of skilled professional persons, and a finding of fact based thereon when reasonably supported will not be disturbed on review.

3.The State Industrial Court is authorized to excuse the giving of the statutory written notice provided for by 85 O.S.Supp. § 24, either on the ground (1) that notice for some sufficient reason could not have been given; or (2) on the ground that the insurance carrier or the employer, as the case may be, has not been prejudiced by the failure to give the statutory written notice.

Original Proceeding brought by Corbus Spring Service, employer, and Hardware Mutual Casualty Company, insurance carrier, petitioners, to review an award of the State Industrial Court made to Clifford J. Cresswell.Award sustained.

Henry Kolbus, Tulsa, for petitioners.

Joseph E. Mountford, Miami, Mac Q. Williamson, Atty. Gen., for respondents.

DAVISON, Justice.

Clifford J. Cresswell, hereinafter called claimant, filed his first notice of injury and claim for compensation stating that while he was employed by Corbus Spring Service he sustained an accidental injury March 11, 1959.An award was entered by the State Industrial Court in part as follows:

'That claimant sustained an accidental personal injury, arising out of and in the course of his hazardous employment with the above named respondent, within the terms and meaning of the Workmen's Compensation Law, on March 11, 1959, consisting of injury to his left hip and back.That respondent had actual knowledge of claimant's said accidental personal injury, and therefore claimant's failure to give written notice of same as required did not operate to prejudice of respondent, and the failure to give such written notice is excused.

* * *

* * * 'That as a result of said injury, claimant has sustained 20 per cent permanent partial disability to his body as a whole for which he is entitled to compensation * * *'

This proceeding is brought by the employer and the insurance carrier, Hardware Mutual Casualty Company, hereinafter called petitioners, to review the award.

The record discloses that claimant was employed as a welder and mechanic and on March 11, 1959, was pulling on a lever of a manifold bending machine when the lever broke and he fell beckward on the concrete floor striking his left hip and back.He made no immediate report or claim of injury.A short time later he reported to Dr. C., a physician of his own choice, and was sent by him to Veterans Hospital in Muskogee.He underwent surgery for correction of the back by Dr. S.Dr. R. gave a history of the injury and stated claimant had 25 per cent permanent partial disability to the body as a whole.Dr. S. who operated on claimant's back filed a report for petitioners and stated claimant had a 15 per cent permanent partial disability to the body as a whole due to the accidental injury.Dr. J. filed a report for petitioners and stated claimant had a 10 per cent permanent partial disability to the body as a whole.

In three separate but related propositionspetitioners argue there is no competent evidence reasonably tending to support the finding that claimant has a 20 per cent permanent partial disability to the body as a whole due to the accidental injury.We cannot agree with petitioners that the medical evidence is not based on the history as given at the trial.Petitioners cite Acme Flour Mills et al. v. Bray et al., 185 Okl. 516, 94 P.2d 828, andWestern Goods Roads Service Co. et al. v. Coombes et al., 185 Okl. 599, 95 P.2d 633.These cases are readily distinguishable from the case under consideration.In these and related casesthe claimant testified to a different set of facts than that assumed by the medical expert witnesses.

In the present caseclaimant stated that he fell on his left hip and back.Dr. S. operated on claimant's back.Neither can we agree that there is no competent evidence of Dr. R., expert witness for claimant, that claimant has a disability of 25 per cent due to the accidental injury.After giving the history Dr. R. stated:

'In summary this 46 year old man sustained an injury to his back at work 10 months ago.Six months ago he was operated on and apparently nerve roots were decompressed.This has relieved most of his pain and many of his symptoms but he still has symptoms suggestive of mechanical instability of his back.'

Dr. S. testified that claimant had 15 per cent disability due to the accidental injury.Dr. J. after referring to a back injury received March 11, 1959, stated he had a 10 per cent disability to the body as a whole.Although he did not state definitely that it resulted from the accidental injury he gave no other cause for the disability.In City of Kingfisher et al. v. Jenkins et al., 168 Okl. 624, 33 P.2d 1094, 1095, it is stated:

'We have said in Magnolia Petroleum Co. v. Clow, 163 Okl. 302, 22 P.2d 378:

"Where, in a proceeding before the Industrial Commission, the disability alleged to exist is of such character as to require skilled and professional men to determine the cause and extent thereof, the question is one of science, and must...