Mudge Oil Co. v. Wagnon

• Decision Date: 26 October 1943
• Docket Number: 31121.
• Citation: 145 P.2d 185,193 Okla. 466,1943 OK 354
• Parties: MUDGE OIL CO. et al. v. WAGNON et al.
• Court: Oklahoma Supreme Court

145 P.2d 185

193 Okla. 466, 1943 OK 354

MUDGE OIL CO. et al. v. WAGNON et al.

No. 31121.

Supreme Court of Oklahoma

October 26, 1943

Rehearing Denied Feb. 1, 1944.

Syllabus by the Court.

1. 85 S.L.1941, § 3, 85 O.S.1941 § 22, subsection entitled "other cases," has the effect of arbitrarily prescribing that the physical disability resulting from such injuries represents the claimant's loss of earning power and such amendatory act does not affect the rule announced in Eubanks v. Barnsdall Oil Co.,169 Okl. 31, 35 P.2d 873, to the effect that an award must be made for injury to a "specific" member, and also for an "other cases" injury when the facts reveal such multiple injuries.

2.Testimony of medical witness to facts ascertained by examination of an injured employee is competent evidence.This court will not in a compensation proceeding weigh conflicting evidence to ascertain where the preponderance lies as to extent of disability.

Original proceeding by the Mudge Oil Company and the Maryland Casualty Company against Ben D. Wagnon and the State Industrial Commission to review an award by the Industrial Commission of compensation to Ben D. Wagnon.

Award sustained.

RILEY J., dissenting; ARNOLD, J., dissenting in part.

James Dudley, of Oklahoma City, for petitioners.

Williams & Teague, of Oklahoma City, and Mac Q. Williamson, Atty Gen., for respondents.

WELCH Justice.

Petitioners attack the award of compensation in this case first upon the theory that the method of arriving at the amount thereof was not as provided by statute.

The Industrial Commission made an award for permanent partial disability to a "specific" member and also awarded claimant an additional amount under the "other cases" provision of 85 O.S.1941 § 22.

Petitioners in their brief say:

"This situation involves multiple injuries, consisting of a specific scheduled injury, and in addition, an injury to the body generally, or an 'other cases' injury, all of which fall under Sub-section 3,Section 13356,Okla.Statutes 1931, etc.,

The Industrial Commission solved the question of permanent partial disability by the simple formula below:

Schedule for loss of hand, 200 weeks, 15%

Disability--30 weeks

'Other cases' provision, 500 weeks, 5%

Disability--25 weeks

Total --55 weeks.

Our contention is: The 'other cases' clause, as it now stands, is all inclusive of a situation such as we have here, and it is not necessary to resort to any other section of the statute, and the award should have been based on a percentage of disability to the body as a whole, based on 500 weeks, or permanent total disability."

Petitioners concede that the facts in this case are sufficient to bring same within the rule of Eubanks v. Barnsdall Oil Co.,169 Okl. 31, 35 P.2d 873.We observe that the above contention is the same as that made in the Eubankscase, supra.

Petitioners say, however, that because of the 1941amendment to the "other cases" provision of 85 O.S.1941 § 22, the rule announced in that case no longer obtains.

That portion of the statute commonly known as the "other cases" provision which was effective in the Eubanks case then provided as follows: "Other cases: In this class of disabilities the compensation shall be sixty-six and two-thirds per centum of the difference between his average weekly wages and his wage earning capacity thereafter in the same employment or otherwise payable during the continuance of such partial disability, not to exceed three hundred weeks, but subject to reconsideration of the degree of such impairment by the Commission on its own motion or upon the application of any party in interest."

As amended the same now provides: "Other cases: In all other classes of disabilities, excluding only those heretofore referred to in subdivision three, which disabilities result in loss of use of any portion of an employee's body, and which disabilities are permanent in quality but partial in character, the compensation ordered paid shall be sixty-six and two-thirds per centum of the average weekly wage during that portion of the number of weeks which the partial disability of the employee bears to the total permanent disability."

The purpose of the Workmen's Compensation Act is to compensate for loss of earning power from inability to work.United States Casualty Co. v. Steiger,179 Okl. 407, 66 P.2d 55, and cases therein cited.Consequently all inquiries are directed toward ascertaining the extent of such loss.Exact and uniform results in such inquiry are difficult though important.The Legislature in pursuance of that objective has arbitrarily fixed certain factors in the calculation of an award in certain types of injuries, doubtless basing its action upon an average as disclosed from experience.

The law makers have arbitrarily prescribed that in case of the loss of a hand the arbitrary factor to be employed in calculating...