Nease v. Hughes Stone Co.

• Citation: 244 P. 778,114 Okla. 170,1925 OK 713
• Decision Date: 15 September 1925
• Docket Number: Case Number: 16265
• Parties: NEASE v. HUGHES STONE CO. et al.
• Court: Supreme Court of Oklahoma

1925 OK 713

244 P. 778

114 Okla. 170

NEASE v. HUGHES STONE CO. et al.

Case Number: 16265

Supreme Court of Oklahoma

Decided: September 15, 1925

Syllabus

¶0 1. Master and Servant--Workmen's Compensation Law--"Permanent Total Disability"--Loss of Eye by One-Eyed Employe.

Under section 1290, subdivisions 1 and 6, C. O. S. 1921, where an employe who had previously lost the sight of his left eye, received an injury in the course of his employment destroying his right eye, thereby leaving him permanently and totally disabled, held, that he is entitled to compensation for permanent total disability.

2. Same -- "Total Disability" -- Previous Partial Disability--Effect.

Total disability, as used in the Workmen's Compensation law of this state, takes no account of a state of partial disability or impaired health existing in the claimant previous to the happening of the accident claimed to have caused such total disability.

Error from State Industrial Commission.

From an award of workmen's compensation to W. A. Nease, he brings action to review decision. Reversed and remanded, with directions.

J. A. Edwards and Blanton, Osborn & Curtis, for petitioner.

George F. Short, Atty. Gen., Fred Hansen, Asst. Atty. Gen., and Burford, Miley, Hoffman & Burford, for respondents.

CLARK, J.

¶1 This action was commenced in this court by W. A. Nease, as petitioner, against the Hughes Stone Company, Associated Employers' Reciprocal, James W. Gullett, and Clifford Ireland, and the State Industrial Commission, as respondents, to reverse and vacate an award made on the 7th day of March, 1925, awarding petitioner compensation for the loss of an eye, and denying petitioner compensation for total disability. The agreed statement of facts upon which this matter was heard is as follows:

"That W. A. Nease, claimant herein, was blind in one eye prior to his employment by the Hughes Stone Company; that for the year prior to September 13, 1922 on which date the accident complained of herein occurred, his average daily wage was $ 5.77; that on the 13th day of September, 1922, while in the course of his employment, and arising out of same, there was an explosion which totally destroyed the sight of his remaining eye. Prior to his employment he had lost the use of his left eye; this accident destroyed the use of his right eye.

"It is further stipulated that claimant herein has received compensation at the rate of $ 16.15 per week from September 13, 1922, to date, paid semimonthly; that respondent and insurance carrier admit liability for the loss of use of the right eye and deny further liability; that the claimant claims as a result of said accident, he is permanently and totally disabled, and that he is entitled under the statute to an award for permanent total disability."

¶2 The respondents admit liability for compensation for a period of 100 weeks for the loss of the right eye, but deny further liability.

¶3 A careful reading of the opinion by Commissioner Fenton, in which he holds that the petitioner was entitled to compensation for a period of 100 weeks under subdivision 3 section 7290, C. O. S. 1921, convinces us that said holding places an erroneous construction on the clear intent of the Legislature in enacting the Workmen's Compensation Law. Said opinion recites that the petitioner is permanently disabled. The statute under which the petitioner is entitled to compensation is section 7290, C. O. S. 1921, subdivision 1, as amended by chapter 61, sec. 6, Session Laws of 1923, and reads as follows:

"Permanent Total Disability: In case of total disability adjudged to be permanent, 66 2-3 per centum of the average weekly wages shall be paid to the employe during the continuance of such total disability not exceeding 500 weeks; loss of both hands, or both feet, or both legs, or both eyes, or any two thereof, shall, in the absence of conclusive proof to the contrary, constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts."

¶4 Subdivision 6 of said section as amended by chapter 61, Session Laws of 1923, reads as follows:

"Previous Disability: The fact that an employe has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury; but in determining compensation for the later injury his average weekly, wages shall be such sum as will reasonably represent his earning capacity at the time of the later injury."

¶5 The award was made petitioner under subdivision 3 of section 7290, C. O. S. 1921, which is as follows:

"For the loss of an eye, 100 weeks."

¶6 In this case the petitioner, who had previously lost an eye, was employed by the Hughes Stone Company, and as a result of an accident in the course of his employment his remaining eye was destroyed, rendering him totally blind and permanently disabling him as a wage earner. This question has been before the Supreme Court of Massachusetts in the case of In re Branconnier, 111 N.E. 792, and that court said:

"The employe when he entered the service of the subscriber, had that degree of capacity which enabled him to do the work for which he was hired. That was his capacity. It was an impaired capacity as compared with the normal capacity of a healthy man in the possession of all his faculties. But, nevertheless, it was the employe's capacity. It enabled him to earn the wages which he received. He became an employe under the act and thereby entitled to all the benefits conferred upon those coming within that description. The act affords a fixed compensation for a limited time 'while the incapacity for the work resulting from the injury is total.' It establishes no other standard. It fixes no method for dividing the effect of the injury and attributing a part of it to the employment and another part to some pre-existing condition, and it gives no indication that the Legislature intended any such division. The total capacity of this employe was not so great as it would have been if he had had two sound eyes. His total capacity was thus only a part of that of the normal man. But that capacity, which was all he had, has been transformed into a total incapacity by reason of the injury. That result has come to him entirely through the injury. In principle this case is concluded by the reasoning and the decision of Madden's Case, 111 N.E. 379 where the subject of pre-existing infirmities of the employe as bearing upon the right and extent of compensation under the act, was discussed at large. Brightman's Case, 220 Mass. 17, 107 N.E. 527. This conclusion is in harmony with Ball v. William Hunt & Sons, Ltd. (1912) A. C. 496, Lee v. William Baird & Co., Ltd., 45 Scotch Law Reports, 717, and Schwab v. Emporium Forestry Co., 167 A.D. 614, 153 N.Y.S. 234. The statute under consideration in Weaver v. Maxwell Motor Co., 152 N.W. 993, appears to have been so different as perhaps not to make that decision inconsistent with our views. But if, and so far as, it is inconsistent, we are constrained not to follow it. Decree affirmed."

¶7 In Re Madden, 111 N.E. 379, the Supreme Court of Massachusetts in passing on this character of a case said:

"It has been argued with force on behalf of the insurer that since the harm to the employe was not wholly the effect of the work, but came in large part from the previous weakened condition of the employe's heart, hence either there can be no award of compensation, or it should be restricted to that part of the injury which resulted directly from the work, and the part of the injury which flowed from the previous condition should be excluded. Even though the premise be sound, the conclusion does not follow. The act makes no provision for any such analysis or apportionment. It protects the 'employe.' That word is defined in part 5, sec. 2, as including 'every person in the service of another under any contract of hire,' with exceptions not here pertinent. There is nothing said about the protection being confined to the healthy employe. The previous condition of health is of no consequence in determining the amount of relief to be afforded. It has no more to do with it than his lack of ordinary care or the employer's freedom from simple negligence. It is a most material circumstance to be considered and weighed in ascertaining whether the injury resulted from the work or from disease. It is the injury arising out of the employment and not out of disease of the employe for which compensation is to be made. Yet it is the hazard of the employment acting upon the particular employe in his condition of health and not what that hazard would be if acting upon a healthy employe or upon the average employe. The act makes no distinction between wise or foolish, skilled or inexperienced, healthy

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