Merrick v. Blackman

• Decision Date: 28 June 1949
• Docket Number: 32976.
• Citation: 207 P.2d 942,201 Okla. 553,1949 OK 150
• Parties: MERRICK et al. v. BLACKMAN et al.
• Court: Oklahoma Supreme Court

207 P.2d 942

201 Okla. 553, 1949 OK 150

MERRICK et al. v. BLACKMAN et al.

No. 32976.

Supreme Court of Oklahoma

June 28, 1949

As Corrected August 15, 1949.

Original proceeding by Ward S. Merrick, employer, and Consolidated Underwriters, insurance carrier, against Glenn T. Blackman and the State Industrial Commission to review an order of the Commission awarding compensation to employee, wherein the Special Indemnity Fund filed a cross-petition.

Award vacated.

Syllabus by the Court.

1.Where in a hearing before the State Industrial Commission for compensation under the Workmen's Compensation Act the only evidence offered by the employee as to the extent of disability sustained by him as a result of an injury to his leg below the knee consisted of testimony of one physician who stated that as a result of such injury the employee suffered such pain as to incapacitate him to the extent of 75 to 80 percent, or practically all of his former occupation that of 'rough neck' for a driller, or any other occupation that would necessitate bending of the body lifting or climbing.Held, evidence insufficient to support the finding of the Commission that the employee as a result of such injury sustained a 40 percent permanent partial disability to the foot.

2.In case of injury to two specific members, percentage of total disability should be determined with due regard to actual cumulative effect of injuries and not by arbitrary application of mathematical formula.

Butler & Rinehart, Oklahoma City, for petitioners.

Champion Champion & Wallace, Ardmore, Mac Q. Williamson, Atty. Gen for respondents.

Mont R. Powell, Don Anderson, Thos. D. Lyons, Oklahoma City, for respondent and cross-petitioner, Special Indemnity Fund.

JOHNSON Justice.

In this caseWard S. Merrick and Consolidated Underwriters, petitioners, seek to vacate an award of the State Industrial Commission awarding compensation to respondent, Glenn T. Blackman.An award was also entered in favor of respondent against the Special Indemnity Fund, hereinafter referred to as the Fund.

The Fund by way of cross-appeal seeks to vacate the award made against it.

The trial commissioner found that on September 4, 1946, respondent while in the employ of petitioner, Ward S. Merrick, sustained an accidental injury arising out of and in the course of his employment consisting of an injury to his right foot; that as a result of said injury claimant sustained a 40 percent permanent partial disability to his right leg (evidently meaning right foot) and upon such finding entered an award against petitioners for compensation on the basis of 40 percent permanent partial disability to the foot.The Commission further found that at the time respondent sustained his last injury he was a physically impaired person in that in early childhood he lost the sight of his left eye; that as a result of both injuries his disability was materially greater than that which he sustained by the last injury alone, and that as a result of his combined disabilities he sustained a 70 percent permanent partial disability to his body as a whole, and after allowing deductions as provided by 85 O.S.1945 Suppl. § 172 entered an award against the Fund accordingly.

Petitioners contend that there is no competent evidence to sustain the finding of the Commission that respondent as a result of his September 4, 1946 injury sustained a 40 percent permanent partial disability to his foot.

The evidence is undisputed that respondent while in the employ of petitioner, Ward S. Merrick, as a rough neck around an oil drilling rig and while engaged in beating a drill bit with a hammer particles of steel escaped therefrom and lodged in his right leg just below his knee, and that as a result of such injury he sustained some disability to the right leg or foot.

It is conceded by counsel that an injury to the leg below the knee under the statute, 85 O.S. 1941 § 22, Par. 3 of subd. 3, constitutes an injury to the foot.

The only other evidence offered in the case consists of evidence...