Harter Concrete Products v. Brookey, 43722

• Citation: 471 P.2d 908
• Decision Date: 23 June 1970
• Docket Number: No. 43722,43722
• Parties: HARTER CONCRETE PRODUCTS and Maryland Casualty Company, Petitioners, v. N. B. BROOKEY and State Industrial Court, Respondents.
• Court: Supreme Court of Oklahoma

Page 908

471 P.2d 908

HARTER CONCRETE PRODUCTS and Maryland Casualty Company, Petitioners, v. N. B. BROOKEY and State Industrial Court, Respondents.

No. 43722.

Supreme Court of Oklahoma.

June 23, 1970.

As Corrected June 30, 1970.

Syllabus by the Court

Under the provisions of 85 O.S.1961, § 22(3), both before amendment and as amended in 1968, relating to disabilities for hernias, where the evidence establishes that the claimant sustained two prior left inguinal hernias, then sustains a third left inguinal hernia in the same area and the evidence further ertablishes that further surgery will not result in full relief to claimant, the State, Industrial Court is authorized, if the facts so justify, to enter an award for partial permanent disability to the body as a whole.

Original Proceedings to Review an Order of the State Industrial Court; Silas C. Wolf, Trial Judge.

Petitioners, respondents below, seek review of an order of the State Industrial Court, sitting en banc, affirming an award of the trial judge allowing the respondent N. B. Brookey, claimant below, seventy-five per cent disability to the body as a whole for disability resulting from a third inguinal hernia sustained by claimant in the same area to the left side of his body. Award sustained.

Robert J. Boone, Rex D. Brooks, J. Clark Russell, Oklahoma City, for petitioners.

G. T. Blankenship, Atty. Gen., for respondents.

WILLIAMS, Justice.

This is an original action wherein petitioners, respondents below, seek review of an award entered by a trial judge of the State Industrial Court, affirmed by the State Industrial Court sitting en banc, allowing the respondent N. B. Brookey, claimant below, seventy-five percent permanent partial disability to the body as a whole as the result of a third hernia sustained in the same general area of the body. Parties will be referred to as they appeared before the State Industrial Court.

Respondents contend that the award of the State Industrial Court is not sustained by sufficient evidence and is contrary to law.

Undisputed evidence is as follows: Claimant during the year 1964, while working a gasoline service station, sustained three separate inguinal hernias, two on the right side and on the left. Each of these hernias was corrected by surgery but no workmen's compensation benefits were paid.

In February, 1967, claimant while working for the present employer sustained a second inguinal hernia on his left side. He was operated on by Dr. M. at the expense of respondent, was paid fourteen weeks statutory compensation and returned to work for respondent.

This brings us up to the present litigation. Claimant testified that on the 17th day of October, 1968, he was lifting a heavy wheelbarrow of cement while working for the respondent. He felt a stinging sensation in his left side but did not report it to respondent as he 'thought it would just go away.' His side continued hurting and during the month of December, 1968, he reported the accident to one Taylor, respondent's superintendent, who told him to report the claim to one Bradshaw, the employee of the respondent handling Workmen's Compensation claims and insurance matters.

Both Taylor and Bradshaw admitted the reporting of the claim by the claimant. Bradshaw sent the claimant to Dr. M., the same doctor who had operated on the claimant in 1967. Dr. M. on January 8, 1969, operated on the claimant correcting a third inguinal hernia on the left side. Claimant was paid the statutory fourteen week compensation. Bradshaw told the claimant, 'that under the doctor's direction, the doctor felt that he (claimant) did not maintain the physical characteristics of doing the type of work we had to offer.'

85 O.S.1961 § 22(3) both before amendment and as amended in 1968, relating to disabilities for hernias, provides:

'Hernia: In case of an injury resulting in hernia, temporary total compensation for fourteen (14) weeks, and the cost of an operation shall be payable; provided, however, in any case where the injured employee has been twice previously operated for hernia in the same area and it is established by opinion of a competent surgeon that further surgery will not result in full relief of the condition, the Commission may then award compensation for disability resulting therefrom under subdivision 1 of this section, or, if not totally and permanently disabled, then under the 'Other Cases' subdivision following, and, after a second surgical attempt to repair hernia, the...