Henry Schafer Inc. v. Mitchell

• Decision Date: 21 September 1948
• Docket Number: Case Number: 32986, 32993
• Citation: 198 P.2d 397,1948 OK 185,200 Okla. 510
• Parties: HENRY SCHAFER Inc. v. MITCHELL
• Court: Oklahoma Supreme Court

1948 OK 185

198 P.2d 397

200 Okla. 510

HENRY SCHAFER Inc. v. MITCHELL

Case Number: 32986, 32993

Supreme Court of Oklahoma

Decided: September 21, 1948

Syllabus

¶0 1.WORKMEN'S COMPENSATION - Cause and extent of disability arising from accidental injury questions of fact for State Industrial Commission - Award based thereon not disturbed where evidence reasonably sustains finding.

The cause and extent of a disability arising from an accidental injury are questions of fact to be determined by the State Industrial Commission and where there is any competent evidence reasonably tending to sustain the finding an award based thereon will not be disturbed on review.

2.SAME - Lack of showing that combination of injuries resulted in permanent total disability.

A hip and back injury cannot be combined with a prior arm and hand injury for the purpose of fixing liability against the Special Indemnity Fund in the absence of a showing that the combination of injuries resulted in permanent total disability.

3.SAME - Insufficient evidence to sustain conclusion that claimant is permanently disabled as a result of combined injuries.

Record examined.Held, evidence insufficent to sustain the conclusion of the commission that claimant as a result of combined injuries is permanently totally disabled.

Separate appeals by Henry Schafer, Incorporated, and Associated Indemnity Corporation and Special Indemnity Fund consolidated, from an order of the State Industrial Commission awarding compensation to Richard L. Mitchell.Award sustained as to petitioners, Henry Schafer, Incorporated, and Associated Indemnity Corporation, and vacated as to Special Indemnity Fund with directions.

George F. Short, Welcome D. Pierson, John N. Singletary, and Margaret Behringer, all of Oklahoma City, for petitioners.

Mont R. Powell and Don Anderson, both of Oklahoma City, for Special Indemnity Fund.

Hatcher & Hatcher and Baxter Taylor, all of Oklahoma City, and Mac Q. Williamson, Atty. Gen., for respondents.

GIBSON, J.

¶1 Separate appeals have been here filed by Henry Schafer, Incorporated, and Associated Indemnity Corporation, its insurance carrier, who will be herein referred to as petitioners, and Special Indemnity Fund which will be herein referred to as The Fund, from an order of the State Industrial Commission awarding compensation to respondent, Richard L. Mitchell.

¶2 The appeals have been here consolidated.

¶3The case was heard by a trial commissioner, who, at the conclusion of the evidence, in substance, found: that the respondent on or about the 8th day of April, 1946, while in the employ of petitioner, Henry Schafer, Incorporated, sustained an accidental personal injury arising out of and in the course of his employment consisting of an injury to his back and left hip resulting in a 60 per cent permanent partial disability to his body as a whole; that he was then a physically impaired person in that on December 5, 1945, he sustained some disability to his right arm (degrees of disability not stated) and that such disability was noticeable to an ordinary layman and had been previously adjudged by an order of the State Industrial Commission under date of March 15, 1946, and that as a result of the combination of injuries he is now permanently totally disabled.Upon such findings an order was entered awarding compensation against petitioners in the sum of $6,300 for a period of 300 weeks payable at the rate of $21 per week, and against The Fund in the sum of $4,200 on the basis of 40 per cent permanent partial disability to the body as a whole, payable in 200 weeks at the rate of $21 per week.

¶4 The award was sustained on appeal to the commission sitting as a whole.

¶5Petitioners contend that the award against them is not supported by the evidence.Respondent testified, and it is conceded, that on the 8th day of April, 1946, while in the employ of petitioner, Henry Schafer, Incorporated, and while working about an oil derrick, a 2x6 board six feet long fell from the derrick a distance of 90 feet striking him on the back, resulting in an injury to his hip and back whereby he sustained some permanent disability to his person.

¶6 The medical experts all agree that as a result of the accident occurring April 8, 1946, respondent sustained an injury to his back and hip which resulted in a permanent disability to his body as a whole.The only disagreement between them is as to the extent or degree of such disability.Two physicians, testifying on behalf of petitioners, testified that as a result of such injury respondent sustained a 20 per cent permanent partial disability to his body as a whole, while one physician, testifying on behalf of respondent, stated that as a result thereof he sustained a 75 per cent permanent partial disability to his body as a whole.The commission found 60 per cent disability.This finding is well within and supported by the evidence.It will therefore not be disturbed by this court on review.

¶7 The Fund contends that the award as against it is contrary...