E.G. Nicholas Const. Co. v. State Indus. Com'n

• Decision Date: 12 November 1952
• Docket Number: No. 35314,35314
• Citation: 207 Okla. 428,250 P.2d 221
• Parties: E. G. NICHOLAS CONST. CO. et al. v. STATE INDUSTRIAL COMMISSION et al.
• Court: Oklahoma Supreme Court

Page 221

250 P.2d 221

207 Okla. 428

E. G. NICHOLAS CONST. CO. et al. v. STATE INDUSTRIAL COMMISSION et al.

No. 35314.

Supreme Court of Oklahoma.

Nov. 12, 1952.

Syllabus by the Court.

1. Where fact issue as to cause of disability from accidental injury can be established only by skilled and professional men, the question is one of science and must necessarily be proved by testimony of such men.

2. In the absence of a surviving widow, or the appointment of a personal representative, a claim for death benefits under the provisions of the Workmen's Compensation Law must be filed and prosecuted by the next of kin. All persons of the next of kin are necessary parties.

3. In order for the next of kin to file and prosecute a claim for death benefits, under the provisions of the Workmen's Compensation Law, it is necessary to allege and prove that no personal representative is or has been appointed.

Williams, Williams & Williams, Ardmore, for petitioners.

Clint G. Livingston, Marietta, for respondent.

DAVISON, Justice.

This is an original action in this court to review a death benefit award of $13,500 made by the State Industrial Commission, in favor of Delia Denney, as claimant, for the death by heat stroke of her son, Orvil Eugene Denney, on July 18, 1951, against E. G. Nicholas Construction Company, his employer, as respondent, and Central Surety and Insurance Corporation, its insurance carrier. The parties will be referred to as they appeared before the Commission.

The respondent was engaged in building a filling station in the City of Wilson, Oklahoma, when on July 16, 1951, it employed the deceased. His duties consisted of shoveling chat or gravel into a wheel-barrow and pushing it to a concrete mixer where it was mixed into concrete for use in making the driveway and foundation and walls of the building. It was not weather with the temperature going up to a few degrees under 100 each day. The gravel was in an 'L' shaped pile about four and a half feet high, and the deceased, along with two other employees, was shoveling in the corner of the 'L.' About 2:00 o'clock in the afternoon of his first day at work, deceased told the foreman he was feeling ill and quit work for the remainder of the day. He worked the following two days, but about 4:00 o'clock in the afternoon of the second day, July 18, 1951, he complained several times to a fellow-employee about not feeling well, but he kept on working for ten or fifteen minutes before going over into the shade of a tree. He returned to his working place in a few minutes and said, 'I'm sick and hot.' He then went back to the shade for a few minutes and again returned to the gravel pile. The next time he went to the shade he 'wobbled away like a drunk person,' after telling his foreman several times that he was sick and hot. He wobbled and reeled some 20 to 30 steps and fell. A doctor was called and after an examination had him taken to a hospital, but he was dead on arrival. The doctor who first examined him and the doctor who made the examination at the hospital and signed the death certificate, diagnosed the cause of decedent's death as a heat stroke.

Claimant, as the mother and sole dependent of the deceased, filed a claim with the Commission against the respondent and its insurance carrier and was awarded death benefit compensation in the amount of $13,500 under the provisions of House Bill No. 312 of the 23rd Legislature, S.L.1951, pp. 267 to 270 inc., 85 O.S.1951 §§ 3.1, 11, 12, 22, 24, 43, 44, 48, 84, 109, 122. This action has been filed seeking a review of that award.

The first proposition, urged by the petitioners herein, is that there is no evidence that decedent's death resulted from an accidental injury arising out of the employment, as well as in the course of the employment. The case of McKeever Drilling Co. v. Egbert, 167 Okl. 149, 28 P.2d 579 is cited as authority to sustain this contention. This court has, on numerous occasions, held that a heat stroke is a compensable injury if it arose out of and in the course of the employment in a hazardous occupation. One of the most recent cases to this effect is that of Phillips Petroleum Co. v. Eaves, 200 Okl. 21, 190 P.2d 462. But, as was said in the case of Morgan Drilling Company v. Bower, 199 Okl. 667, 189 P.2d 943, 944,

'We have repeatedly held that in a proceeding to review an award of the State Industrial Commission, where the issue presented to the Commission is one of fact as to the cause and extent of the disability resulting from an accidental injury, and such cause and extent can be established only by skilled and professional men, the question is one of science and must necessarily be proved by the testimony of such skilled and professional persons.'

A careful examination of the record herein discloses no definite reliable evidence to the effect that the location of deceased's work exposed him to the danger of heat stroke in a greater degree than the general public was exposed from claimatic conditions. If the type of work he was doing could or did bring on the heat stroke which caused his death, the doctors should have testified concerning it. Nothing in their testimony touched upon this point. That of the doctor who made the examination at the hospital was no more than that, in his opinion, heat stroke caused the death. That of the doctor who examined the deceased just prior to his death is the same except that it included a description of the symptoms upon which he based this conclusion. It was necessary that some connection between his employment and his injury be proved. This connection could only be established by the testimony of a doctor or physician.

Because the award must be vacated and further hearing had before the Commission, and because the original trial was had and this action was filed herein, prior to the promulgation of the opinions in the cases of Capitol Steel & Iron...