Macklanburg-Duncan Co. v. Wimmer
| Decision Date | 08 February 1955 |
| Docket Number | No. 36509,MACKLANBURG-DUNCAN,36509 |
| Parties | COMPANY and Aetna Casualty and Surety Company, Petitioners, v. Virginia WIMMER and the State Industrial Commission, Respondents. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Petition to review an award of the State Industrial Commission not filed within the time provided by 85 O.S.1951 § 29 will be dismissed.
2. An award of compensation to an employee who has sustained an accidental injury compensable under Workmen's Compensation Law may not be denied nor diminished on the ground of refusal to accept medical treatment tendered by the employer in the absence of a showing that such refusal was arbitrary or unreasonable.
3. Record examined and Held: The State Industrial Commission did not commit error in denying petitioners' motion to suspend for a specified time temporary total compensation payments awarded respondent.
Petition of Macklanburg-Duncan Company and its insurance carrier Aetna Casualty and Surety Company, to review an award of the State Industrial Commission awarding compensation to respondent, Virginia Wimmer, for temporary total disability and an order denying their motion to suspend temporary total compensation payments awarded for such disability.
Petition in so far as it seeks to review the award for temporary total disability dismissed; order denying motion to suspend payments sustained.
Looney, Watts, Ross, Looney & Nichols, Oklahoma City, for petitioners.
Paul Pugh, Francis G. Morgan, Oklahoma City, Edward H. Ferrish, Midwest City, and William M. Hobbs, Oklahoma City, Mac Q. Williamson, Atty. Gen., for respondents.
On September 22, 1953, Virginia Wimmer, respondent herein, filed her claim for compensation against Macklanburg-Duncan Company and its insurance carrier, Aetna Casualty and Surety Company, referred to as petitioners herein, in which she stated that on July 20, 1953, while in the employ of petitioner, Macklanburg-Duncan Company, she sustained an accidental injury consisting of an injured disc. The injury was caused by a strain while engaged in lifting a keg of iron hinges.
The trial commissioner, at the close of the evidence, found: On the 20th day of July, 1953, respondent while in the employ of petitioner, Macklanburg-Duncan Company, sustained an accidental injury arising out of and in the course of her employment causing an injury to her back; that the injury was sustained while she was engaged in lifting a keg of iron hinges, and, as a result thereof she was totally temporarily disabled from the date of the accident except for the period from August 11, 1953, to September 14, 1953, and for which she was entitled to compensation at the rate of $28 per week from July 26, 1953, not to exceed 300 weeks, and for such medical treatment as may be necessary, until further order of the Commission. An award was entered accordingly. The commissioner further found that respondent did not give written notice of her accident to the employer within 30 days from the date of the accident as required by law. The first information she gave concerning her injury was on September 17, 1953, when she notified the general superintendent, orally. The Commissioner further found, however, from the date of the accident to date, respondent had been under the care of medical doctors, including, since September, 1953, a specialist in orthopedic surgery, so that her present condition is not attributable to lack of medical attention; and concluded that, under the facts found, respondents were not prejudiced by respondent's failure to give notice, and therefore that such failure should be excused.
The findings and award were sustained by the Commission en banc under order made January 26, 1954, but not entered of record until February 6, 1954.
Thereafter, petitioners filed a motion for new trial on the ground of newly discovered evidence. The record does not disclose that this motion was ever ruled on. However, during a subsequent hearing counsel agreed that the motion was overruled by a trial commissioner. Later, petitioners requested that the award above mentioned be held in abeyance until the 10th day of March, 1954, by a motion and affidavit in which it was asserted that, during the time this case was pending on appeal to the Commission en banc, the petitioner and insurance carrier were informed by a doctor on December 19, 1953, that respondent was pregnant and unable to accept medical attention for the treatment and cure of her back condition and that this pregnancy occurred after the accident complained of while she was working for petitioner; that if the award of the Industrial Commission were allowed to become final, petitioners would be responsible for the payment of temporary total compensation when in fact respondent is unable to accept medical treatment, which condition will persist for a period of at least nine months during her pregnancy. It was also alleged that since the award, petitioners have discovered new evidence in the case which was not available to them at the time of the first hearing, and the nature of such evidence was set forth. At the bottom of the motion appears the following notation:
'Motion to hold in abeyance until March 10, 1954, granted, this 26th day of February, 1954.
'/s/ Marx Childers
'/s/ J. W. Hinton.'
It does not appear upon what date this motion was filed. However, from recitals contained in the record and the statement of counsel in the brief it would appear that the motion was filed February 26, 1954, and granted the same day, without an opportunity by respondent to be heard. Under the circumstances, it would appear that said order was void under Pioneer Mills Co. v. Webster, 186 Okl. 616, 99 P.2d 507, and nothing is herein shown to the contrary.
Ignoring said purported order, respondent on March 4, 1954, filed a motion for an order of execution against petitioners in which she recited the Commission's award, and alleged it was then in full force and effect and that there was due under it, the sum of $756; that no appeal had been taken from the award and it was then final; and prayed that the Commission order that a certified copy thereof be filed in the office of the court clerk of Oklahoma County, Oklahoma.
Petitioners filed a response to this motion in which they referred to the order of February 26, 1954, holding in abeyance until March 10, 1954, the previous order and award of the Commission, and alleged that such order was then in full force and effect and prayed that respondent's motion be denied.
On the hearing of the motion and response thereto it was stipulated that, subsequent to the time respondent sustained her accident, she became pregnant; that on December 20, 1953, petitioners tendered her treatment and an operation, if...
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