Independent School Dist. No. 89 v. McReynolds

• Citation: 528 P.2d 313
• Decision Date: 05 November 1974
• Docket Number: No. 46737,46737
• Parties: INDEPENDENT SCHOOL DISTRICT NO. 89 and Associated Indemnity Corporation, Petitioners, v. Cordie A. McREYNOLDS and the State Industrial Court, Respondents.
• Court: Supreme Court of Oklahoma

Page 313

528 P.2d 313

INDEPENDENT SCHOOL DISTRICT NO. 89 and Associated Indemnity Corporation, Petitioners, v. Cordie A. McREYNOLDS and the State Industrial Court, Respondents.

No. 46737.

Supreme Court of Oklahoma.

Nov. 5, 1974.

Syllabus by the Court

Rights of survivors of a deceased employee, who dies within five years following accidental injury in covered employment, to claim death benefits under 85 O.S.1971, § 22(7), become fixed upon date of death and are determinable under the law in effect on that date.

Original proceeding to review order, affirmed by State Industrial Court, A. L. Voth, Trial Judge, on en banc appeal awarding death benefits under law in effect on date of death.

Award sustained.

H. W. Nichols, Jr., Watts, Looney, Nichols, Johnson & Hayes, Oklahoma City, for petitioners.

E. W. Keller, and Larry Derryberry, Atty. Gen., Oklahoma City, for respondents.

DOOLIN, Justice.

This proceeding seeks review of a State Industrial Court order, affirming a trial judge's order, awarding respondent, hereafter claimant, compensation for death benefits for death of her husband as result of accidental injury in covered employment. The award was apportioned between claimant and three minor children who suffered pecuniary loss. The factual background which gave rise to the issues reviewed in uninvolved, and requires only brief summation.

Claimant's husband, the deceased, was a 48-year-old roofer with history of heart problems during seven years employment with respondent, a prior episode in 1968 requiring hospitalization, after which deceased returned to work. On November 26, 1969, deceased suffered an attack during work, went home after work feeling bad, was unable to eat or rest, and remained inactive until hospitalized two days later for treatment. Released December 11, 1969, to return home, deceased continued under regular care and treatment of a physician. In February or March, 1970, deceased had attempted to return to work but was forced to quit because he was unable to perform regular work and there was no light work to which he could be assigned.

Claim for compensation was adjudicated upon finding of total permanent disability. This award became final upon joint petition settlement of December 30, 1970. Thereafter deceased continued under a physician's regular care and treatment, was limited to sedentary activities, and suffered other episodes of heart trouble. During a house fire on January 3, 1972, deceased was overcome by smoke, and was hospitalized and treated for smoke inhalation and recurrent myocardial infarction until January 14, 1972, when released.

On April 2, 1972, deceased again was hospitalized for heart condition, shown by tests to be of same pattern as that suffered in 1969. After returning home deceased experienced greater difficulty, which was not relieved by medication. Deceased suffered a further heart episode on June 15, 1972, and immediately was hospitalized, but succumbed within a few minutes after arrival at the hospital.

Claimant made claim for death benefits and, after hearing (December 20, 1972) a trial judge entered and order finding deceased had suffered accidental injury in November, 1969, which resulted in death June 15, 1972. Award was entered for maximum benefits, 85 O.S.1971, § 22, subd. 7(4), apportioned between claimant and minor children who suffered pecuniary loss. See Becknell v. State Industrial Court (Okl.) 512 P.2d 1180.

Respondents appealed from this order to State Industrial Court en banc. That court (June 30, 1973) unanimously affirmed the order and respondent then brought proceedings for review.

Two contentions are presented as grounds for vacating this order. The first urges deceased's death did not result from accidental injury received in November of 1969. Supporting argument rests upon respondents' analysis of the weight and quality of the medical evidence presented.

Whether deceased's death resulted from accidental injury in November of 1969, or resulted from other causes on June 15, 1972, was a question for the State Industrial Court, determination of which question is bindign and conclusive upon review by the Supreme Court. Application of these principles precludes this Court from weighing conflicting medical evidence presented, and the record is examined only to ascertain whether the State Industrial Court determination of the question is supported by any competent evidence. Howey v. Babcock & Wilcox (Okl.) 516 P.2d 821.

After comparison of the medical evidence, respondents insist that the only reasonable conclusion is that deceased suffered a new and distinct accidental heart injury. This is derived from deposition evidence of a physician (Dr C.) who reviewed deceased's medical history. In response to hypothetical question this doctor testified there was no relationship between the original heart attack and death on June 15, 1972, since deceased's primary problem was arteriosclerotic heart disease. However, Dr. C. acknowledged the original attack lessened capacity of deceased's heart.

Claimant introduced medical evidence from deceased's attending physician (Dr. D.), and of Dr. P. who examined deceased in 1970. Dr. D. was the family physician who treated deceased regularly for heart condition, and also was the attending physician who treated deceased during hospitalizations. The physician's records, and those of the hospital, established deceased suffered from recurrent myocardial infarction.

Dr. P.'s medical report was based upon physical examination after original heart attack, and review of deceased's history and hospital records concerning different episodes of hospitalization. Recognizing deceased's continuing symptoms of myocardial infarction, Dr. P. stated deceased never recovered from the original injury but continued to worsen, and expired from this condition which definitely was causally related to injury.

Respondents rely upon Ideal Cement Co. v. State Industrial Court (Okl.) 486 P.2d 712, as grounds for asserting incompetency of Dr. P.'s evidence. This argument is unpersuasive, particularly in view of our decision in Black, Sivalls & Bryson v. Bass (Okl.) 506 P.2d 902, wherein we pointed out Ideal had encroached into an area of settled law. Principles recognized and applied in Vierson & Cochran Drlg. Co. v. Ford (Okl.) 425 P.2d 965, and in Bass, supra, sufficiently answer respondents' argument. Particular emphasis is placed upon the latter decision, which not only presents a closely comparable evidentiary situation, but further directs comparison of medical evidence in Ideal with the quality and extent of medical evidence now reviewed. State Industrial Court determination of the issue is supported by competent evidence.

Respondents' second contention claims the amount of death benefits awarded is incorrect. On the date of the deceased's accidental injury, the applicable statute--85 O.S.Supp.1974, § 22, subd. 7, A--fixed $13,500.00 as the maximum death benefit. On the date of the death the applicable statute by amendment (SL.1972, c. 219, § 1), permitted a total award of $25,000.00 for death benefits. 85 O.S.1971, § 22 subd. 7(4). The parties agree the issue concerns which date controls the amount of recovery, and that the issue is a matter of first impression within...