Geary Mill. & Elevator Co. v. Andis

• Citation: 422 P.2d 466,1967 OK 9
• Decision Date: 06 January 1967
• Docket Number: No. 41880,41880
• Parties: GEARY MILLING & ELEVATOR COMPANY and Argonaut Insurance Company, Petitioners, v. Emmett ANDIS, Jr., and the State Industrial Court of the State of Oklahoma, Respondents.
• Court: Supreme Court of Oklahoma

Page 466

422 P.2d 466

1967 OK 9

GEARY MILLING & ELEVATOR COMPANY and Argonaut Insurance

Company, Petitioners, v. Emmett ANDIS, Jr., and the State Industrial Court of the

State of Oklahoma, Respondents.

No. 41880.

Supreme Court of Oklahoma.

Jan. 6, 1967.

Syllabus by the Court

1. Whether 85 O.S.1961, § 21(2) can be reasonably and fairly applied is to be determined from the evidence submitted to the State Industrial Court and where there is competent evidence sufficient to support the fair and reasonable application thereof and to establish the average annual income thereunder, the finding will not be disturbed on appeal.

2. The question of whether claimant suffered a temporary total disability is a question of fact for the determination of the State Industrial Court, and, where there is any competent evidence reasonably supporting its finding, this court will not weigh conflicting evidence upon which said finding of fact is based.

Original proceeding brought by Geary Milling & Elevator Company, employer, and its insurance carrier, Argonaut Insurance Company, to review an award of the State Industrial Court made to Emmett Andis, Jr., claimant. Award sustained.

Childers & Keller, Oklahoma City, for petitioners.

Carl E. Moslander, Fred M. Hammer, Oklahoma City, Charles Nesbitt, Atty. Gen., for respondents.

BLACKBIRD, Justice.

The petitioners in this proceeding for review were the respondents below and the respondent Andis was the claimant below. Reference to the parties herein will be by their respective designations before the State Industrial Court.

The claimant recovered before the trial judge of the State Industrial Court an award of thirteen weeks of compensation for temporary total disability at the rate of $33.33 per week and an award of sixty-two and one-half weeks of compensation at the same rate based upon twelve and one-half per cent permanent partial disability to the body as a whole. The respondents appealed to the State Industrial Court en banc and on appeal the award of the trial judge was fully adopted and confirmed as being the judgment of the State Industrial Court. The respondent thereupon brought this proceeding for review.

The claim for compensation constituting the gravamen of this action grows out of an injury sustained by the claimant on May 14, 1965, while employed by respondent Geary Milling & Elevator Company, in a pursuit within the purview of the Workmen's Compensation Law. On the same day of the year preceding, claimant had sustained a compensable injury while employed by another employer. This appeal is not concerned with that former injury. The record reflects testimony and evidence concerning this former injury and compensation paid thereunder all of which is incompetent, immaterial and irrelevant, but at the same time harmless, and will be considered only insofar as necessary to clear understanding of the respondents' contention.

The respondents voluntarily paid temporary total compensation to the claimant for the period from August 12, 1965, to September 29, 1965, at the rated $16.26 per week, on the respondents' computation of applicable rate. This claimant sought temporary total disability compensation from the date of injury and permanent partial disability compensation at the rate fixed by the trial court.

As their first ground for contending the award should be modified, respondents urge that the trial court erred in calculating the applicable rate. They argue that the applicable factor should be the average weekly wage while working for his employer as a part time employee. The State Industrial Court established a rate of $33.33 under the provisions of 85 O.S.1961, § 21(2). On the basis of proof that claimant had been paid for a total of only 34 hours of work at the rate of $1.25 per hour (such labor having been performed on April 28, 1965, 8 1/2 hours, April 29, 1965, 6 1/2 hours, May 1, 1965, 5 hours, May 6, 6 hours and May 14, 1965, 8 hours) respondents contend the applicable rate must be...