Eslinger v. Cole Grain Co., No. 56533

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
Writing for the CourtWILSON
Citation655 P.2d 164
Decision Date04 May 1982
Docket NumberNo. 56533,No. 1
Parties1982 OK CIV APP 24 Clarence ESLINGER, Claimant, v. COLE GRAIN COMPANY, Employer, and State Insurance Fund, Insurance Carrier

Page 164

655 P.2d 164
1982 OK CIV APP 24
Clarence ESLINGER, Claimant,
v.
COLE GRAIN COMPANY, Employer,
and
State Insurance Fund, Insurance Carrier.
No. 56533.
Court of Appeals of Oklahoma, Division No. 1.
May 4, 1982.
Rehearing Denied May 25, 1982.
Approved for Publication by the
Supreme Court Oct. 29, 1982.

Proceeding to review an order of the Workers' Compensation Court; James M. Fullerton, Judge.

Page 165

AFFIRMED ON APPEAL TO THREE JUDGES OF THE COURT SITTING EN BANC. ORDER SUSTAINED.

Don Person, Muskogee, for claimant.

Fred Nicholas, Jr., Sam Hill, Michael E. Utter, Oklahoma City, for employer and insurance carrier.

WILSON, Presiding Judge:

The issue in this proceeding is whether the Workers' Compensation Act of 1977 now authorizes the court to order an award for permanent total disability upon a finding of total economic disability resulting from an accidental personal injury to claimant's left arm causing a 100 percent impairment to that limb.

The trial judge entered such an order; it was affirmed on appeal to a three-judge review panel. The employer and its insurance carrier now challenge the order in this proceeding.

Contending that an award for total permanent disability cannot be made where a member such as an arm is totally impaired, employer and insurer cite cases decided prior to the 1977 Act. 1 In these cases, it was held that an award for the loss of a single major member, for which the schedule of compensation provided an award of a certain number of weeks of benefits, closes the door to further inquiry into the loss of earning power and precludes an award of additional compensation for disability to the body as a whole.

Employer and insurer argue that these pre-1977 cases were predicated on the Act's prior schedule of compensation section, 85 O.S., § 22, which provided that "the compensation for the foregoing specific injuries shall be in lieu of all other compensation." And, they stress that in the 1977 Act, the Legislature amended § 22 to read:

The compensation for the foregoing specific injuries shall be in lieu of all other compensation except the benefits provided in Section 14 [Medical attention] of this title and Section 19 [Rehabilitation and job placement services] of this Act.

A new factor in this problem, however, arises from another provision in the 1977 Act, 85 O.S.Supp.1977, § 3, which supplies definitions to be used in the Workers' Compensation Act. In this section we find:

(12) "Permanent total disability" means incapacity because of accidental injury or occupational disease to earn any wages in any employment for which the employee is or becomes physically suited and reasonably fitted by education, training or experience; loss of both hands, or both feet, or both legs, or both eyes, or any two (2) thereof, shall constitute permanent total disability.

Shedding some light on the issue is an article by the Honorable Chris Sturm, "The Workers' Compensation Act of 1977," 3 Okla. City U.L.Rev. 1 (Fall, 1978). This article covers the legislative history of the 1977 Act, as well as many specific points. In discussing permanent total disability on page 12, the author writes:

The Act provides that permanent total disability means "incapacity because of accidental injury or occupational disease to earn any wages in any employment for which the employee is or becomes physically suited and reasonably fitted by education, training or experience...." This definition abandons the theory of ordinary manual or mechanical labor and focuses only upon the purely economic aspects of whether the employee has been removed completely from the job market by his injury. The important words in the definition appear to be "any wages in any employment." But these words are immediately followed by phrase that may be equally significant. This latter phrase requires that the employee be both physically suited and reasonably fitted to whatever employment one may consider. This introduces, for the first time in Oklahoma, the idea of rehabilitation by providing in the Act that the employee

Page 166

may at some future date become suited or fitted for an employment even though he is not so suited or fitted at the time his claim is heard by the court.

A point worth noting about the present definition of permanent...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT