Happel v. Bell

• Decision Date: 10 May 1960
• Docket Number: No. 38807,38807
• Citation: 352 P.2d 400
• Parties: H. J. HAPPEL & Admiral Paving Company and Hartford Accident & Indemnity Company, Petitioners, v. John David Tilton BELL and State Industrial Court, Respondents.
• Court: Oklahoma Supreme Court

Page 400

352 P.2d 400

1960 OK 119

H. J. HAPPEL & Admiral Paving Company and Hartford Accident

& Indemnity Company, Petitioners, v. John David Tilton BELL and State Industrial Court, Respondents.

No. 38807.

Supreme Court of Oklahoma.

May 10, 1960.

Syllabus by the Court

1. The question of whether an accidental injury arose out of and in the course of employment is one of fact to be determined by the State Industrial Court under the particular circumstances of each case. Where there is any competent evidence reasonably tending to support such findings of fact, the same are conclusive and binding upon this court.

2. A thermic injury consisting of a sun stroke, sustained by a workman while engaged in hazardous employment, is compensable under the Workmen's Compensation Law if it arises out of land in the course of his employment.

3. Disability attributable to sun stroke, is considered as arising out of employment, within the meaning of the Workmen's Compensation Act, where sustained by employee, who by reason and nature of his duties, is placed in a position and under circumstances subjecting him to a greater risk of thermic injury than that to which other persons in the vicinity, not engaged in such work, are exposed.

Original proceeding brought by H. J. Happel & Admiral Paving Company, employer, and Hartford Accident & Indemnity Company, insurance carrier, petitioners, to review an award of the State Industrial Court made to John David Tilton Bell, claimant. Award sustained.

Covington, Donovan & Gibbon, Tulsa, for petitioners.

Wilkerson & Wilkerson, Pryor, for John David Tilton Bell, respondent.

Mac Q. Williamson, Atty. Gen., for State Industrial Court, respondent.

BERRY, Justice.

Claimant sought to recover compensation for disability sustained as a result of an accidental injury on June 3, 1958, consisting of a sunstroke.

Petitioners challenge, as unsupported by credible proof, the finding of the State Industrial Court that claimant's thermic injury arose out of and in the course of his employment, within the meaning of the Workmen's Compensation Law, 85 O.S.1951 § 1 et seq. It is argued this Court should weigh the evidence and make an independent determination of the fact issue, which, petitioners urge, constitutes a jurisdictional question. In this we cannot join.

Whether an injury arose out of and in the course of employment is an issue of fact to be resolved by the State Industrial Court under the facts of each particular case. A finding made by that tribunal upon such matter is conclusive and binding on this Court, and will not be disturbed on review where there is any competent testimony reasonably tending to support it. City of Holdenville v. Bise, Okl., 341 P.2d 588; Standish Pipe Line Co. v. Johnson, 197 Okl. 238, 169 P.2d 1018; LeFlore-Poteau Coal Co. v. Thurston, 184 Okl. 178, 86 P.2d 284.

Claimant was engaged in the construction of a four-lane section of State Highway No. 20 through Hominy, Oklahoma. The crew, consisting of several workmen moving in a westerly direction, was laying concrete over the southern portion of the roadway, 22-24 feet wide. Approximately twenty to thirty minutes later curbing was poured along the south side of the slab. Claimant worked as a curb finisher. He performed the duties of his job in a 'bentover' position so that he could reach with a 'short-handled' trowel the top surface as well as the inside wall of the curb which lay below the ground level. His feet remained on the adjacent dirt, off the paved portion. The day was hot and humid, temperature ranging from 90~ to 91~ F. Wind velocity was low. The crew worked continuously at a rapid tempo. Claimant's job required constant physical efforts, as the curb had to be finished before concrete became solidified. The process of hardening, evidence disclosed, takes place faster in hot than in cold weather. Of necessity claimant also had to keep pace with the slab layers. At an opportune moment he took thirty minutes off for lunch. Later in the afternoon he managed to remain in the shade for a few minutes and smoked a cigarette. Close to 5:00 p. m. he collapsed.

When brought to a physician, his temperature rose to 107~ F (by axillary method). After an hour it was reduced to about 101~ F, owing to the application of ice water enemas. A neuro-surgeon called from Tulsa for consultation diagnosed the condition as a sunstroke (after eliminating the possibility of inter-cranial hemorrhage).

At the point where claimant collapsed, the roadway was approximately 44-48 feet wide. There was a sidewalk and a small park area between the highway and a building to the north. Directly...