Fitzsimmons v. State Indus. Com

• Decision Date: 07 April 1925
• Docket Number: Case Number: 15982
• Citation: 236 P. 616,1925 OK 277,108 Okla. 276
• Parties: FITZSIMMONS v. STATE INDUSTRIAL COM. et al.
• Court: Oklahoma Supreme Court

1925 OK 277

236 P. 616

108 Okla. 276

FITZSIMMONS v. STATE INDUSTRIAL COM. et al.

Case Number: 15982

Supreme Court of Oklahoma

Decided: April 7, 1925

Syllabus

¶0 1. Master and Servant--Workmen's Compensation Law -- Finality of Decision Below on Facts.

The findings of facts by the State Industrial Commission are conclusive upon this court and will not be reviewed by this court where there is any competent evidence to support the same, but in the absence of any competent evidence the question of liability becomes a pure question of law for determination by this court.

2. Same -- Compensation for Temporary Total Disability -- Effect of Previous Disease, Aggravated by Injury.

Where claimant was performing manual labor in a hazardous employmemt and sustained an injury in the course of such employment resulting in temporary total disability, held, he is entitled to recover compensation during the continuance of such disability, but not in excess of 300 weeks at the rate of 66 2-3 per centum of his average weekly wage. Further held, the fact that such employed had prior to such injury a disease or bony growth, unknown to him, and such as did not impair him from performing labor, which disease or growth was aggravated by the injury, the presence of such disease or growth would not prevent the injured claimant from recovering compensation for the entire time of his disability and until such time as it can be definitely determined that the disability caused by such injury has ceased.

Error from State Industrial Commission.

Action by Charles Fitzsimmons, petitioner, against Klinglesmith Engineering & Construction Company. State Industrial Commission, and the Aetna Life Insurance Company, respondents, to reverse an order of the State Industrial Commission. Reversed.

James J. Mars, for petitioner.

George F. Short, Atty. Gen., Baxter Taylor, Asst. Atty. Gen., and Ross & Thurman, for respondents.

RILEY, J.

¶1 This cause is presented to the court on an appeal from a finding of facts and an order of the State Industrial Commission awarding the claimant, Charles Fitz-simmons, plaintiff in error, compensation from May 24, 1924, to July 5, 1924, on account of an injury received which rendered the claimant "temporarily totally disabled" during said period of time.

¶2 The undisputed facts, as disclosed by the record, relative to the injury are as follows: The claimant was accidentally injured while employed by defendant Klinglesmith Engineering & Construction Company, and by a wrench to the back of claimant while loading a wheeler or scraper used in removing dirt from the streets of the city of Sapulpa. It is agreed that claimant was engaged in a hazardous employment. On account of physical disability claimant has been unable to work since the date of the injury. The claim of the injury and disability was filed by claimant, in due time, with the State Industrial Commission against the above named employer and the Aetna Life Insurance Company, the insurance carrier. A hearing was had, and the commission made the following finding of facts in its award, over which findings the dispute arose: "That as a result of said injury the claimant was temporarily totally disabled from performing his work from May 24 to July 5, 1924."

¶3 The claimant filed his petition and motion to modify the order of the commission, wherein he set up that evidence had been presented showing conclusively the accidental injury and the continuance of disability up to and including the date of the last hearing before the commission, had on October 14, 1924, and claimed that under the Workmen's Compensation Law he was entitled to continuous compensation at 66 2-3 per centum of his average weekly wage until his disability ceased, not exceeding, however, 300 weeks.

¶4 On November 12, 1924, the commission overruled the petition and motion of claimant on the grounds that "the said petition and motion does not conform to the provisions of Rule 30 of the Rules of the State Industrial Commission." From the order and ruling, claimant perfects his appeal to this court. Rule 30 of the State Industrial Commission is as follows:

"Rehearing. Any party, or parties, aggrieved or dissatisfied with an award, order or decision of the commission may at any time within 30 days after the service of same apply for a rehearing on the grounds that the commission acted without, or in excess of its power; that the order, decision or award was procured by fraud; that the evidence does not justify the findings; that the applicant has discovered new evidence; that the findings do not support the order, decision or award. * * * if the grounds upon which a rehearing is requested are that the evidence does not justify the findings, or that the findings do not support the decision or award, the application or motion shall state specifically wherein the findings are not supported by evidence or wherein the decision or award is not justified by the findings. * * *

"The movant shall file with the commission four typewritten copies of such motion; and if it is desired to present argument thereon, four typewritten copies of brief together with proof of service of a copy thereof upon the adverse party or parties, or attorney of record for such parties. Such motion for rehearing and brief in support thereof will thereupon be examined by the commission and if, in its opinion, justice will be subserved thereby, a rehearing will be granted and the award, order, or decision complained of will be vacated within 25 days from the date thereof."

¶5 The last paragraph of the above rule was added by amendment on November 17, 1924. The petition and motion of claimant was filed with the commission and acted on by it on November 12, 1924, and overruled five days before the amended Rule 30 took effect. No doubt the commission had in mind the amended Rule 30 when it overruled the petition and motion of claimant, in that claimant had not complied with the amended rule in giving notice and furnishing the four copies, as required. It is observed that such was not required by the rule in force at the date of the filing and overruling of the petition and motion of plaintiff. It appears that claimant had complied with the rule of the commission in force at the time the petition and motion was so filed.

¶6 The claimant presents two assignments of error, which are as follows: First, the commission committed an error or mistake in its conclusion that the disability ceased and the compensation to claimant should stop at the date fixed by it, July 5, 1924, and is contrary to its findings of facts and law applicable. Second, the commission was in error in refusing to...