Kan. Explorations, Inc. v. Wright

Decision Date10 September 1935
Docket NumberCase Number: 24494
Citation1935 OK 756,173 Okla. 411,49 P.2d 65
PartiesKANSAS EXPLORATIONS, Inc. v. WRIGHT et al.
CourtOklahoma Supreme Court
Syllabus

¶0 1. Master and Servant -- Workmen's Compensation -- Hearing on Ground of Change in Condition -- Stipulation of Fact as Evidence.

On a hearing upon the ground of a change in condition, a stipulation of facts as to an employee's condition theretofore entered into and filed with the Commission may be considered as evidence of the facts so stipulated.

2. Same--Review of Awards--Sufficiency of Evidence.

Where there is any competent evidence reasonably tending to support a judgment and award of the State Industrial Commission, the same will not be disturbed by the Supreme Court on review.

3. Same--Award Under "Other Cases" Provision of Statute Based on Change in Condition.

An award under the "Other Cases" provision of section 13356, O. S. 1931, section 7290 C. O. S. 1921, as amended, based upon a change in condition since a former award was made, should not be measured by the difference between the percentage of disability existing at the time of the first award and that existing at the time of last award, but should be based upon the change in earning capacity.

Original action in the Supreme Court by Kansas Explorations, Inc., to review an award by the State Industrial Commission in favor of J. P. Wright. Award affirmed.

Paul E. Bradley, for petitioner.

Wm. M. Thomas, for respondent J. P. Wright.

PHELPS, J.

¶1 This is an original proceeding to review an award by the State Industrial Commission in favor of the respondent J. P. Wright against the petitioner, Kansas Explorations, Inc.

¶2 The record discloses that respondent, while working in the course of his employment at the Ritz Mine of petitioner, in Ottawa county, on September 12, 1929, was injured by being struck by a large slab of rock which fell from the roof of the mine.

¶3 Respondent was taken to the American Hospital, at Picher, Okla., where he was confined for 27 days. He was then taken home where he remained for several weeks longer. He was under the care of petitioner's physician for a period of seven months.

¶4 At the time of the injury respondent's wages were $ 4.75 per day. Under the terms of a stipulation and agreement dated April 29, 1930, he was paid $ 1,309.50 for temporary total disability for 29 weeks and 43 3/4 weeks compensation for a 25 per cent. partial disability to his right leg. His compensation was paid at the rate of $ 18 per week. This stipulation and agreement was not approved by the Commission. On February 9, 1931, petitioner and respondent filed with the Commission a stipulation and receipt covering the matter of the compensation set forth in the former stipulation and receipt, and also provided for compensation in the sum of $ 75 for disfigurement to the left wrist. This stipulation and receipt was approved by the Industrial Commission on February 23, 1931. On May 9, 1931, respondent filed a motion to reopen the case and award additional compensation on the ground of a change of condition. Evidence was taken, and on June 20, 1931, the Commission made an order overruling claimant's motion to reopen, but made an additional award of $ 100 for disfigurement to the face. On November 5, 1932, respondent filed a second motion to reopen on the ground of a changed condition. Evidence was taken upon said motion, and on February 4, 1933, the Commission found that there was a change of condition, and further found:

"That the claimant is entitled to compensation from and after the 9th day of April, 1930, for a period of not to exceed 300 weeks, less a period of 43 3/4 weeks, for which compensation has heretofore been paid for a per cent. injury to a specific member, or up to and including February 8, 1931, and that he is entitled to compensation from and after February 8, 1931, to this date, or for a period of 103 weeks and 4 days, at the rate of $ 8 per week, or the sum of $ 829.33 in one lump sum, and to further compensation at the rate of $ 8 per week, until a total period of not to exceed 300 weeks have been paid, from and after April 9, 1930, or not to exceed 152 weeks and four days from this date, subject, however, to a reconsideration of the degree of such impairment by the Commission on its own motion or upon motion of either of the parties hereto."

¶5 Based on these findings the Commission entered the order appealed from.

¶6 As grounds for reversal, petitioner urges four propositions which we will consider in the order presented, the first of which is that:

"The evidence does not support the award in favor of respondent Wright because (a) it fails to show a change of condition resulting from the injury; (b) it fails to show any change in the permanent partial disability since the date of the order of the Commission of June 20, 1931, denying claimant's motion to reopen."

¶7 Petitioner contends that there is no evidence supporting this claim of a change of condition since the former award of June 20, 1931, was made. With this contention we do not agree. Dr. Aisenstadt, petitioner's medical expert, testified in substance that on June 8, 1931, at the time of his examination of the respondent, the respondent was able to work. He testified as follows:

"Q. Is this man able to work? A. I don't know, sir. Q. Was he able to work at the time of the last examination? A. Yes, sir. Q. When was that? A. June 8, 1931."

¶8 The stipulation and receipts also are evidence of the respondent's former condition. G. S. & C. Drilling Co. v. Pennington, 151 Okla. 61, 1 P.2d 764; Tulsa Lead & Zinc Co. v. Utton, 163 Okla. 192, 21 P.2d 748. The respondent also testified as to his former condition, and also as to the condition just preceding the making of the last order and his evidence clearly shows that his condition had changed. He testified as follows:

"Q. Mr. Wright, have you attempted to perform manual labor? A. Yes, sir. Q. Can you do it? A. No, sir? Q. Why? A. Not able. Q. Describe the difference in the suffering you now have, the feeling in the back of the head as compared to the time you had a trial, June, 1931? A. Seems like kinda stiffing pain, running down the neck, seems like when drawing my head back at times. Q. Mr. Wright, how is the condition of your right arm and shoulder, compared to the condition in 1931, when Mr. Commons heard it? A. Seems like awful pain in the right arm and shoulder, feels numb. Q. Did it feel that way at the former trial? A. No, sir."

¶9 It is true the physician testifying for the respondent as to his condition at the last hearing had not treated him before the time of the original award, but the evidence clearly establishes the condition of the respondent as being totally disabled at the time of the last award and that such condition was due to the injury.

¶10 Dr. McNaughton testified that, in his opinion, his injuries were permanent.

¶11 Dr. Yazel testified as follows:

"Conclusions: From the above findings and the history given me, I made a diagnosis of optic neuritis and degeneration of the nerve and retina in both eyes and of the centers of both ears as a result of intercranial pressure which was brought about by the injury as described in the history of the case. Progressive in nature
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7 cases
  • Bill Hodges Truck Co. v. Gillum
    • United States
    • Oklahoma Supreme Court
    • May 31, 1989
    ...can be considered as evidence. Oklahoma Portland Cement Co. v. Smith, 181 Okl. 313, 73 P.2d 446, 448 [1937]; Kansas Explorations v. Wright, 173 Okl. 411, 49 P.2d 65 [1935] (syllabus p 1); Tulsa Lead & Zinc Co. v. Utton, 163 Okl. 192, 21 P.2d 748 [1933] (syllabus p 1).18 Ferguson v. Ferguson......
  • Colorado Fuel & Iron Corp. v. Industrial Commission
    • United States
    • Colorado Supreme Court
    • November 5, 1962
    ...with the standards of the act. The stipulation is evidence only of the then existing condition of Tamburelli. Kansas Explorations v. Wright, 173 Okl. 411, 49 P.2d 65; Ferraro v. Zurcher, 12 N.J.Super. 23, 79 A.2d 473. It did not pretend to prognosticate change or no change of condition. Ind......
  • Graner Constr. Co. v. Brandt
    • United States
    • Oklahoma Supreme Court
    • March 9, 1937
    ...the time of the injury; that the arthritic condition to which he testified is progressive." ¶11 In the case of Kansas Explorations, Inc., v. Wright, 173 Okla. 411, 49 P.2d 65, it was held: "On a hearing upon the ground of a change in condition, a stipulation of facts as to an employee's con......
  • Okla. Portland Cement Co. v. Smith
    • United States
    • Oklahoma Supreme Court
    • October 26, 1937
    ...disability, constitute the stipulated fact that he was permanently and partially disabled. We have said in Kansas Explorations, Inc., v. Wright, 173 Okla. 411, 49 P.2d 65: "On a hearing upon the ground of a change in condition, a stipulation of facts as to an employee's condition theretofor......
  • Request a trial to view additional results

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