Joseph A. Coy Co., Inc. v. Younger

• Decision Date: 27 April 1943
• Docket Number: 31057.
• Parties: JOSEPH A. COY CO., Inc., et al. v. YOUNGER et al.
• Court: Oklahoma Supreme Court

136 P.2d 890

192 Okla. 348, 1943 OK 160

JOSEPH A. COY CO., Inc., et al. v. YOUNGER et al.

No. 31057.

Supreme Court of Oklahoma

April 27, 1943

Syllabus by the Court.

1. Where the findings and award of the State Industrial Commission are supported by competent evidence, the same will not be disturbed by this court on review.

2. An injury can be said to be accidental when it is the result of a definite, unexpected and undesigned event or mischance or miscalculation as the effect of a voluntary act.

3. Whether subdivision 2 of 85 O.S.1941 § 22 can be reasonably and fairly applied is to be determined from the evidence submitted to the State Industrial Commission, and where there is competent evidence sufficient to support the fair and reasonable application thereof and to establish the average annual income thereunder, the finding will not be disturbed on appeal.

Original proceeding by Joseph A. Coy Company, Inc., and Continental Casualty Company to obtain a review of an award made by trial commissioner and affirmed by State Industrial Commission in favor of Walter R. Younger.

Award sustained.

Pierce & Rucker and Fred M. Mock, all of Oklahoma City, for petitioners.

J. B Underwood, of Tulsa, and Mac Q. Williamson, Atty. Gen., for respondents.

PER CURIAM.

This is an original proceeding in this court brought by Joseph A. Coy Company, Inc., and its insurance carrier, hereinafter referred to as petitioners, to obtain a review of an award which was made by trial commissioner on April 27, 1942, and affirmed by the State Industrial Commission on July 22, 1942, in favor of Walter R. Younger, hereinafter referred to as respondent.

In May 1941, respondent entered the employ of Joseph A. Coy Company as a common laborer and continued in such employment until on or about January 3, 1942, when he reported to his foreman that he had been injured a few days prior thereto and requested medical attention for such injury. The foreman directed him to a clinic where respondent was examined, given preliminary treatment and then sent to a hospital where he was kept and treated for approximately a month and then sent home. Respondent returned to the clinic for further treatment for several days and was then dismissed as being able to return to work. Respondent was dissatisfied with the treatment which he had received and demanded further medical care and, upon failure to get such further treatment as he thought necessary, on February 24, 1942, filed with the State Industrial Commission employee's first notice of injury and claim for compensation in which he alleged that he had sustained an accidental injury on December 30, 1941, when he was carrying some tubes and stepped upon a stack and slipped dislocating his hip and injuring his back. At the same time respondent filed a petition wherein he alleged that petitioner had not furnished sufficient treatment for the injury and he was still in need of further medical attention and prayed that the petitioner be required to furnish such medical care. Petitioners filed an answer in which they denied that respondent had been injured in the manner set forth and further denied that his wage was $4 per day and that petitioners had refused to furnish necessary medical attention. Hearings were held before a trial commissioner to determine liability and extent of disability and as a result thereof the trial commissioner made the following findings of fact:

"1. That on the 31st day of December, 1941, the claimant was in the employ of the respondent and engaged in a hazardous occupation subject to and covered by the provisions of the Workmen's Compensation Law, and that on said date he sustained an accidental personal injury, arising out of and in the course of his employment, consisting of an injury to his back.

2. That the respondent had actual notice of said accidental personal injury, and its rights were therefore not prejudiced by failure of the claimant to give written notice within the thirty days as prescribed by statute.

3. That the average wages of the claimant at the time of said accidental personal injury were $4.21 per day.

4. That by reason of said accidental personal injury, the claimant is now temporarily totally disabled, and has so been since the date of said injury, from the performance of ordinary manual labor, and in need of medical treatment."

Upon the foregoing findings of fact the commissioner entered an award, in favor of respondent, of compensation for temporary total disability and for further medical attention. The appeal had to the Commission sitting en banc resulted in an order amending the first notice of injury and claim for compensation to conform to the proof by making the date of the accident read December 31, 1941. These are the orders which we are called upon to review.

Petitioners as grounds for vacation of said award urge the following propositions:

"1. Industrial Commission's finding is conclusive only where there is competent evidence reasonably tending to support it.

2. The evidence in this case is insufficient to support the finding of the State Industrial Commission that claimant sustained an accidental personal injury on December 31, 1941.

3. The trial commissioner erred in his computation of the compensation rate in this case."

Under the first proposition above quoted the petitioners urge that since a finding of the Industrial Commission must be supported by some competent evidence, this court must review the record to determine whether the Commission had evidence of this character before it and to this extent will review the record and in support of this contention cite Century Indemnity Co. v. Strength, 160 Okl. 161, 16 P.2d 242; Texas Pipe Line Co. v. Watson, 158 Okl. 44, 12 P.2d 521. Petitioners further urge that an examination of the evidence discloses that it was inconsistent, contradictory and therefore insufficient to satisfy the rule relative to the necessity that findings be supported by some competent evidence. The fallacy in the argument of petitioners lies in the definition of what constitutes competent evidence. Competent evidence is that which is relevant and material to the issue to be determined. The evidence adduced at the hearings to determine liability and extent of disability, while in...