Fund v. Farmer, Case Number: 31768

• Decision Date: 06 February 1945
• Docket Number: Case Number: 31768
• Citation: 195 Okla. 262,1945 OK 47,156 P.2d 815
• Parties: SPECIAL INDEMNITY FUND v. FARMER
• Court: Oklahoma Supreme Court

1945 OK 47

156 P.2d 815

195 Okla. 262

SPECIAL INDEMNITY FUND v. FARMER

Case Number: 31768

Supreme Court of Oklahoma

Decided: February 6, 1945

Syllabus

¶0 1. WORKMEN'S COMPENSATION-Compensation based on disability to hand in case of loss of more than one finger.

Whether or not the loss of more than one finger constitutes a disability to the hand incapacitating the workman from labor for which he is mentally and physically adapted is a question of fact for the commission, and, where more than one finger is lost and there is competent evidence showing that such loss of more than one finger results in disability to the hand incapacitating the workman from labor for which he is mentally and physically adapted, the commission is authorized to award compensation upon the basis of disability to the hand, and such finding will not be disturbed by this court.

2. SAME-Subsequent injury to ''physically impaired" person-Apportionment of liability between employer and Special Indemnity Fund.

Under the provisions of House Bill No. 249, Sess. Laws, 1943 (Title 85, O.S. Supp. 1943, §172), if an employee, who is a physically impaired person as defined in said act, receives an accidental personal injury compensable under the Workmen's Compensation Law which results in additional permanent disability so that the degree of disability caused by the combination of both disabilities is materially greater than that which would have resulted from the subsequent injury alone, such employee shall be entitled to compensation for such permanent disability caused by the combined injuries and the employer shall be liable only for such per centum of disability resulting from the latter injury, and the remainder of such compensation shall be paid out of the Special Indemnity Fund provided for in such act without credit for the compensation paid for the first or prior injury.

3. STATUTES-Statutes not within constitutional inhibition against amendment or extension of law by reference to title only.

Statute which is in form original and in itself intelligible and complete and does not, either in title or body, appear to be revisory or amendatory of any existing law, is not within the inhibition of Constitution prohibiting amendment or extension of law by reference to its title only.

4. STATUTES-Requirements for statute to be general and have uniform operation-Law general though having local application or applying to designated class.

In order for a law to be general in its nature and to have uniform operation, it is not necessary that it shall operate upon every person and every locality in the state. A law may be general and have local application or apply to a designated class if it operates equally upon all the subjects within the class for which it was adopted. But where a statute operates upon a class, the classification must not be capricious or arbitrary and must be reasonable and pertain to some peculiarity in the subject-matter calling for the legislation. As between the persons included within the operation of the law and those omitted, there must be some distinctive characteristic upon which a different treatment may be reasonably founded and that furnishes a practical and real basis for discrimination.

Original proceeding by the Special Indemnity Fund administered by the State Insurance Fund to review an award of a trial commissioner and the State Industrial Commission affirmed by the Commission in favor of E. H. Farmer. Award sustained.

Mont R. Powell, of Oklahoma City, T. D. Lyons, of Tulsa, and L. B. Moore, of Oklahoma City, for petitioner.

Randell S. Cobb, Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., Bulla & May, and W. F. Smith, all of Oklahoma City, for respondents.

Claud Briggs, of Oklahoma City, amicus curiae.

OSBORN, J.

¶1 This is an original proceeding in this court to review an award made by a trial commissioner and affirmed by the State Industrial Commission in favor of E. H. Farmer, claimant, against Douglas Aircraft Company, Fidelity & Casualty Insurance Company, and Special Indemnity Fund administered by the State Insurance Fund. For the purpose of this opinion E. H. Farmer will be referred to as claimant, Douglas Aircraft Company as employer, Fidelity & Casualty Insurance Company as insurance carrier, Special Indemnity Fund as petitioner, and State Industrial Commission as commission

¶2 On May 19, 1943, claimant suffered an accidental personal injury to the third or ring finger of his left hand by its being cut and the long tendon of that finger severed. Some seven years prior to the date of this injury claimant lost the first phalange of the first or index finger of the left hand and was awarded compensation for 17 1/2 weeks therefor.

¶3 In the instant action, which involves the injury suffered on May 19, 1943, the commission found there was permanent partial disability of 161/2 per cent of the hand, including permanent partial disability of 50 per cent of the third or ring finger, and made an award of compensation for a period of 33 weeks, ordering the employer and insurance carrier to pay for ten weeks thereof, and the petitioner to pay for 23 weeks.

¶4 The determination of the controversy in this action involves construction of House Bill No. 249 of the Oklahoma Legislature of 1943 (Title 85, O.S. Supp. 1943, §§ 171-176), which creates the Special Indemnity Fund and provides for the apportionment of liability between the employer and the Special Indemnity Fund in cases involving injuries to an employee who is a "physically impaired person" as defined by the act.

¶5 The essential parts of Title 85, O.S. Supp. 1943, to be considered in this opinion are as follows:

"Sec. 171. Physically impaired person defined.-For the purpose of this Act, the term 'physically impaired person' is hereby defined to be a person who as a result of accident, disease birth, military action, or any other cause, has suffered the loss of the sight of one eye, the loss by amputation of the whole or a part of some member of his body, or the loss of the use, or partial loss of the use, of a specific member such as is obvious and apparent from observation or examination by an ordinary layman, that is, a person who is not skilled in the medical profession, or any disability which previously has been adjudged and determined by the State Industrial Commission. Laws 1943, p. 258, sec. 1."

"Sec. 172. Compensation for additional disability-Liability of employer -Payment from special indemnity fund -Findings-Failure to secure benefits. -If an employee, who is a 'physically impaired person,' receives an accidental personal injury compensable under the Workmen's Compensation Law, which results in additional permanent disability so that the degree of disability caused by the combination of both disabilities is materially greater than that which would would have resulted from the subsequent injury alone, the employee shall receive compensation on the basis of such combined disabilities, as is now provided by the laws of this State, but the employer shall be liable only for the degree or per centum of disability which would have resulted from the latter injury if there had been no pre-existing impairment. After payments by the employer or his insurance carrier, if any, have ceased, the remainder of such compensation shall be paid out of the Special Indemnity Fund provided for in Section 3 of this Act, in periodical installments and without commutation thereof to a lump sum. In making its award, the Industrial Commission shall specifically find the amount the injured employee shall be paid weekly, the number of week's compensation which shall be paid by the employer, or his or its insurance carrier, the date upon which payments out of the Special Indemnity Fund shall begin, and, if possible, the length of time such payments shall continue; provided, however, the provisions and benefits of this Act shall not be available to any employee, who is a 'physically impaired' person, and who is employed by an employer as defined by the Workmen's Compensation Law who shall fail to secure the payment of compensation benefits as required by law, but such employee shall not be precluded from receiving compensation for a later injury while employed by such employer as is now provided by law, all of such benefits to be paid by such employer, aforesaid; provided, further, that nothing herein shall limit the amount of compensation now provided by the Workmen's Compensation Law for temporary disability, and such temporary disability, together with all medical expenses, shall be paid as now provided by the Workmen's Compensation Law and no part of the same shall be charged against such Special Indemnity Fund. Laws 1943, p. 258, sec. 2."

¶6 The petitioner first contends that the finding of the commission that the claimant has sustained 161/2 per cent disability to his (left) hand as a whole, as a result of both of said injuries, is not supported by the evidence, but is merely an arbitrary conclusion based on a formula used in cases of injuries involving two or more fingers of the same hand, citing in support thereof Cox v. State Industrial Commission et al., 140 Okla. 59, 282 P. 610, and Sampley ( Southwest Const. Co. ) et al. v. Aldridge et al., 164 Okla. 66, 22 P.2d 1036, and cases from other jurisdictions. The Sampley Case relies upon the Cox Case for authority, and the Cox Case was expressly overruled in Planters Gin Co. et al. v. McCurley et al., 157 Okla. 273, 12 P.2d 173, wherein we said:

"The petitioners cite only one case, Cox v. State Industrial Commission, 140 Okla. 59, 282 P. 610, which they contend

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