Hissom Drilling Co. v. Benson

• Decision Date: 17 November 1931
• Docket Number: Case Number: 22452
• Citation: 5 P.2d 393,153 Okla. 157,1931 OK 712
• Parties: HISSOM DRILLING CO. et al v. BENSON et al.
• Court: Oklahoma Supreme Court

1931 OK 712

5 P.2d 393

153 Okla. 157

HISSOM DRILLING CO. et al v. BENSON et al.

Case Number: 22452

Supreme Court of Oklahoma

Decided: November 17, 1931

Syllabus

¶0 Master and Servant--Workmen's Compensation--Total Disability as Question of Fact--Review of Awards.

The question of whether respondent was totally disabled from the performance of ordinary manual labor is a question of fact for the determination of the Commission, and where there is any competent evidence reasonably supporting such findings, this court will not weigh conflicting evidence upon which said finding of fact is based.

Original action in the Supreme Court by the Hissom Drilling Company et al. to review order and award of the State Industrial Commission to D. A. Benson. Award affirmed.

Keaton, Wells, Johnston & Barnes and B. C. Davidson, for petitioners.

Leo J. Williams and M. J. Parmenter, for respondent.

McNEILL, J.

¶1 This is an original proceeding in this court to review an order and award of the State Industrial Commission in favor of respondent, D. A. Benson, made and entered on the 13th day of May, 1931, wherein the Commission found that the respondent was totally disabled from the performance of ordinary manual labor. The respondent was employed by the Hissom Drilling Company and received an accidental personal injury arising out of and in the course of his employment with said petitioner by reason of an explosion that occurred on March 17, 1930, near Maud, Okla., when the respondent was standing a short distance from a steam boiler which exploded. Respondent was knocked over by the force of the explosion, crawled out of the debris, and came over to where some men were taking care of other injured parties. He was bruised, dazed, and was taken to the hospital in Maud, Okla., where he stayed for several hours, after which he went home. He did not recover so rapidly as was expected. He was paid compensation and was called in for further treatment.

¶2 Petitioner admits the employment and that the injury resulted in the course of employment. The material portion of the award is as follows:

"That, as a result of said accidental inclaimant, D. A. Benson, was in the employ of Hissom Drilling Company, and engaged in a hazardous occupation covered by and subject to the provisions of the Workmen's Compensation Law; that, in the course of his employment and arising out of same, said claimant, on or about March 17, 1930, sustained an accidental personal injury, the nature of which was sprained back, right foot, and leg and laceration over left mastoid.

"That, as a result of said accidental injury, claimant has been since March 17, 1930, and was at the time of his hearing, totally disabled from the performance of ordinary manual labor.

"That the average wage of claimant at the time of said accident was $ 40.38 per week.

"The Commission is of the opinion, by reason of aforementioned facts, the claimant is entitled to compensation from October 17, 1930, to April 24, 1931, date of said hearing, less any temporary total already paid, at the rate of $ 18 per week, from the 17th day of March, 1930, to the 24th day of April, 1931, amounting to $ 1,023; and continued thereafter until otherwise ordered by the Commission, and also such reasonable medical expense as has been incurred by claimant by reason of said injury.

"It is therefore ordered: That within 15 days from this date, the respondent or insurance carrier herein pay to the claimant, D. A. Benson, the sum of $ 357, being compensation from December 6, 1930, to April 24, 1931, and any compensation remaining due from April 24, 1931, to date, and continuing thereafter weekly at the rate of $ 18, until otherwise ordered by the Commission, and also pay such a reasonable medical expense as has been incurred by claimant by reason of said injury."

¶3 Petitioner contends for the following assignments of error:

"1. That there is not any substantial evidence or proof to sustain the award made by the Commission and the same is contrary to law.

"2. That the proof adduced in said cause shows that the disability had terminated and that the claimant was able to carry on ordinary and reasonable labor not involving heavy physical exercise, and that claimant, after his recovery, was tendered ordinary employment which he was fully capable of performing, but has failed and refused to accept such employment or to engage in work and enterprise that would afford him reasonable remuneration."

¶4 The award found a total disability from March 17, 1930, to the date of the hearing May 13, 1931, and petitioners contend that the evidence does not support such finding. The record shows that the respondent sustained an injury to his back, hips, and also lacerations on the back of his right ear and bruises on or about the body. It appears that payments of compensation were paid until July 26, 1930, at which the petitioners filed a motion to suspend the payment of compensation thereafter. A hearing on said motion was had on the 3rd day of October, 1930, and an award was made holding that respondent at the date of the hearing was temporarily totally disabled from performing ordinary manual labor, and was entitled to compensation to the date of said order, and to continue thereafter until further order of the Commission. Petitioners objected to the award and sought to have the same reviewed. However, this proceeding was dismissed and petitioners paid respondent the compensation provided for in the order made on the 20th of October, 1930. Subsequent thereto another motion to suspend payment of compensation was filed, wherein it was stated that respondent had been paid compensation at the rate of $ 18 per week from the 17th day of March, 1930, to the 6th of December, 1930, a period of 27 weeks, and it was further alleged therein that, on the 6th day of December, 1930, said respondent was able to return to work. This matter was set for hearing on petitioners' motion to discontinue compensation, and testimony was again heard before the Commission in Oklahoma City on the 20th of April, 1931. The Commission found at the conclusion of this hearing that respondent was temporarily totally disabled from the performance of ordinary manual labor, and made aforesaid order and award to the effect that respondent was entitled to the sum of $ 18 per week until the further order of the Commission. It is from this order that the petitioners have sought to review the action of the Commission.

¶5 Respondent, in reference to whether or not he was able to work, testified as follows:

"Q. Mr. Benson, have you worked any since December 6, 1930? A. Just around my house there and some garden. I tried to work some in the garden. Q. Are you able to do this? A. Just a little while at a time, an hour or something like that. Q. What happened to you when you attempted to work in the garden? A. Pain in my back, did not have the physical strength to stand work, not able to stand it half of the time, not able to work mainly on account of the injury to the leg. Q. Do you feel that you are able to do ordinary manual labor at this time? A. No, I do not. Q. You are still complaining of your back and leg and knee hurting you at this time? A. Yes, sir."

¶6 On cross-examination as follows:

"Q. And, in view of that, you did not go out and try to even make an attempt? A. I think that my own physical condition; I I think that I know my physical condition better than doctors, and I believe that I know whether I am able to do anything or not. Q. You would not be willing to go out and try to do any work? A. I really think I know what I am able to do, and regardless of what the doctors say, that does not make me well. When a man cannot work, he can't work, regardless of what the reason is, if a man is in pain and hurting all the time, I don't think that he can work. Q. You cannot say whether your leg is getting any better or not? A. It is about the same as it was about three months ago, just hurts and doesn't get any better. Q. What are you doing now? A. Just around the house and have tried to work a little gardening."

¶7 Dr. C. C. Shaw testified as follows:

"Q. Doctor, what would be your opinion as to whether or not this man could go out and do hard manual labor? A. I don't think that he could. Q. Would you advise him to go out on a drilling well and attempt to work? A. I would not."

¶8 H. W. Strain testified that if respondent would come to him, he would give him a job, and respondent explained as to why he did not apply for the job as follows:

"Q. Mr. Benson, you heard the discussion given in a testimony here with reference to the respondent giving you a job in drilling a well the other day? A. Yes, sir. Q. Doctor Holly at Maud has been your physician for sometime, has he not, in fact, ever since the accident over a year ago? A. Yes, sir. Q. Since the hearing held here one day about a week ago, have you talked to Dr. Holly and gotten his advice as to what to do about it? A. Yes, sir. Q. What was his advice as to whether or not you should go out and attempt to work on drilling a well? A. He advised that I should not."

¶9 Dr. Holly, who treated the respondent for a period of approximately 30 days immediately following his injury, and on several occasions thereafter up to the time of the hearing, testified as follows:

"Q. What is your opinion from your observation of Mr. Benson, together with your recent examination, as to whether or not he is able to perform any ordinary manual labor at this time? A. He is not able to perform any manual labor. Q. In your opinion, has he been able to at any time since the date of the accident, March 17, 1930? A. No, I don't think so."

¶10 On cross-examination:

"Q. Doctor, this last examination you made of this claimant was at his own solicitation, was it not? A. Yes, sir. Q. What makes you believe that he is unable to work? A. Because of the condition of his knee. Q. Do you think that is in such a condition that he cannot do any kind of hard work? A.

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