Cosmos Mining Co. v. State Indus. Com

• Decision Date: 15 April 1924
• Docket Number: Case Number: 15012
• Citation: 101 Okla. 283,225 P. 720,1924 OK 430
• Parties: COSMOS MINING CO. et al. v. STATE INDUSTRIAL COM. et al.
• Court: Oklahoma Supreme Court

1924 OK 430

225 P. 720

101 Okla. 283

COSMOS MINING CO. et al. v. STATE INDUSTRIAL COM. et al.

Case Number: 15012

Supreme Court of Oklahoma

Decided: April 15, 1924

Syllabus

¶0 1.Master and Servant--Workmen's Compensation Law--Review of Award--Failure of Evidence.

In a proceeding for the award of compensation under the Workmen's Compensation Act, the burden of proof is on the claimant to prove that the injury complained of was caused by an accidental injury arising out of and in the course of the employment, and where there is no evidence reasonably supporting the finding of the Industrial Commission that such injury was caused by an accident sustained by claimant, arising out of and in the course of the employment, the award is contrary to law and will be reversed by this court.

2.Same--Basis of Compensation--Disability to Work.

The indemnity provided by the Workmen's Compensation Act is not for physical impairment, as such, but provides a compensation for disability to work, based upon certain schedules contained in the statute, except where the statute specifically provides for recovery for physical disfigurement.

3.Same--Duration of Award for Temporary Total Disability.

Subdivision 2, sec. 7290,Comp. Stat. 1921, affords the proper measure of an award for a temporary total disability, and this award continues during the period of the total disability, but not to exceed 300 weeks; but after the total disability has ceased, which is to be determined by the ability of the claimant to work at some remunerative occupation, the claimant is no longer entitled to an award under subdivision 2, sec. 7290.

4.Same--Subsequent Partial Disability--Award.

After claimant's temporary total disability has ceased to exist he may still suffer a permanent partial disability, or a temporary partial disability.If it is a permanent partial disability, and does not come under any of the classes specifically named in subdivision 3, sec. 7290,Comp. Stat. 1921, the claimant is entitled to an award under the last paragraph of subdivision 3, sec. 7290.If an award is made under some provision of the statute, it should be for 50 per centum of the difference between claimant's average weekly wage and his wage earning capacity thereafter, in the same employment, or in some other employment.

5. Same.

If an award is made under subdivision 4, sec. 7290, it should be for 50 per centum of the difference between his average weekly wage and his wage earning capacity thereafter in the same employment, or in some other employment.

Error from State Industrial Commission.

From an award of compensation to Press Hulette, the Cosmos Mining Company and another bring action to review order.Reversed, with directions.

Burford, Miley, Hoffman & Burford, for appellants.

George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for respondent.

COCHRAN, J.

¶1 Press Hulette, while an employe of the Cosmos Mine, was injured by a boulder striking him in the small of the back.The claimant filed his first notice of injury on November 9, 1922, and without any order having been entered by the Industrial Commission, the employer and insurance carrier started payment of compensation on December 1, 1922, at the rate of $ 11.54 per week upon an average wage of $ 4 per day.On December 15, 1922, the employer and insurance carrier gave notice that the defendant's temporary total disability had been removed and asked for a hearing thereon.A hearing was had by the Industrial Commission on April 12, 1923, and on June 8, 1923, the commission entered an order overruling the motion of the employer and insurance carrier, and finding that the claimant was receiving $ 6.18 per day and was entitled to $ 17.74 per week from the date of injury to continue until termination of the disability.On June 29, 1923, the employer and insurance carrier moved the Industrial Commission to set aside this order, and on August 17, 1923, the order was vacated and the case set for rehearing.On rehearing on December 3, 1923, the commission entered an order overruling the motion of the employer and insurance carrier to set aside the award, and further found that the claimant at the time of the injury was earning an average daily wage of $ 6.18, and that the claimant had received compensation at the rate of $ 14.43 from the 29th day of October, 1922, to December 15, 1922, and ordered that the employed and the insurance carrier pay the claimant the difference between the amount paid to December 15, 1922, at $ 14.43, and the amount which the commission found he was entitled to at the rate of $ 17.74 per week, and directed that the sum of $ 17.74 from December 15, 1922, should be paid until the termination of the disability.The employer and the insurance carrier filed a petition seeking to have the award of the Industrial Commission reviewed.

¶2The respondent challenges the sufficiency of the evidence to sustain any award.The claimant was employed by the Cosmos Mining Company, and while so employed received an injury, for which he was entitled to compensation.The employer and insurance carrier considered the injury as one resulting in temporary total disability, and for which the claimant was entitled to compensation under subdivision 2, sec. 7290,Comp. Stat. 1921, of 50 per centum of the average weekly wage of the employe during the continuance of the temporary total disability, not to exceed 300 weeks, and that the temporary total disability continued for a period of not to exceed 17 weeks, for which he received compensation.The evidence discloses that the disability complained of by the claimant, at the time of the hearing, was his inability to work at shoveling coal, as he had previously been employed; and the evidence further discloses that this inability was due to the fact that the claimant was afflicted with hemorrhoids.The testimony of the physicians and the other witnesses in the case failed in any manner to connect the existence of the hemorrhoids with the injury sustained by the complainant while employed by the Cosmos Mining Company.

¶3 The burden of proof is on the claimant to prove that the injury complained of was caused by an accidental injury arising out of and in the course of the employment, and where there is no evidence reasonably supporting the finding of the Industrial Commission that the injury complained of was caused by an accident sustained by the claimant arising out of and in the course...