Reciprocal v. State Indus. Comm'n

• Decision Date: 12 December 1922
• Docket Number: Case Number: 12204
• Citation: 1922 OK 342,212 P. 604,88 Okla. 249
• Parties: ASSOCIATED EMPLOYERS' RECIPROCAL et al. v. STATE INDUSTRIAL COMMISSION et al.
• Court: Oklahoma Supreme Court

1922 OK 342

212 P. 604

88 Okla. 249

ASSOCIATED EMPLOYERS' RECIPROCAL et al. v. STATE INDUSTRIAL COMMISSION et al.

Case Number: 12204

Supreme Court of Oklahoma

Decided: December 12, 1922

Syllabus

¶0 1. Master and Servant--"Accidental Personal Injury" Within Compensation Law.

Section 4 of c. 14, act 1919, amendatory of sec. 1, art. 2, c. 246, of act 1915, providing compensation shall be paid for disability of an injured employe "resulting from an accidental personal injury sustained by the employe arising out of and in the course of his employment, without regard to fault as a cause of such injury, except where the injury is occasioned by the willful intention of the injured employe to bring about injury to himself, * * *" held, where an employe, in the course of his employment, in using a pick digging a sewer ditch, received a bruise to his right hand, which bruise, according to the evidence of a competent physician, resulted in a palmar abscess, and said injury resulted in a permanent disfigurement of the hand and almost destroyed its usefulness, this constitutes an accidental personal injury as contemplated by the statute, and is compensable as in the act provided.

2. Same--Workmen's Compensation Law--Opinion Evidence--Consideration By Industrial Commission--Time to Object--Appeal.

In a proceeding under the Workmen's Compensation Law, where the Industrial Commission, on motion of counsel for the respondents, makes an order directing the claimant to submit to a medical examination by a competent physician for the purpose of determining the present condition of the claimant resulting from his injury and orders the physician making the examination to report his findings in writing to the commission, and the physician pursuant to the order makes such an examination and makes a report of his examination to the commission, and no objections or exceptions to the order are made by the respondents, held, that an objection to the consideration of such evidence for the first time in an original action in this court to review the award comes too late, and the respondents will be deemed to have consented to the consideration of such evidence. Record examined, and held, that the award of the Industrial Commission be affirmed.

Original action by Associated Employers' Reciprocal and N.S. Sherman Machine & Iron Works, a corporation, petitioners, against State Industrial Commission and James Plunkett, respondents, to reverse and vacate award of the State Industrial Commission in favor of Plunkett, claimant. Award affirmed.

Twyford & Smith, John P. Hampton, and Clayton B. Pierce, for petitioners.

S. P. Freeling, Atty. Gen., and R. E. Wood and Kathryn Van Leuven, Assts. Atty. Gen., for State Industrial Commission.

Jas. M. Shackleford and I. H. Ottison, for James Plunkett.

KENNAMER, J.

¶1 The N.S. Sherman Machine & Iron Works, a corporation, while engaged in the work of constructing sewer systems, had employed James Plunkett as a common laborer. Prior to the 3rd day of July, 1920, Plunkett had been digging in ditches, using a pick, and while so engaged bruised his right hand. The bruise to the hand of Plunkett became so painful he was forced to cease work on the 4th day of July, 1920, and was unable to return to work until about the 1st day of September, 1920.

¶2 The N.S. Sherman Machine & Iron Works continued to pay Plunkett his wages during the months of July and August. Plunkett returned to work for the company about the 1st of September, as night watchman.

¶3 On October 24, 1920, pursuant to notice and a claim for compensation by Plunkett, a hearing was had at Okmulgee by one of the commissioners of the Industrial Commission. At this hearing Plunkett, claimant, appeared and testified. Thereafter, on the 14th day of December, 1920, the commission made an award in which it was determined that Plunkett had sustained injury on the 3rd day of July, 1920, while in the employment of the N.S. Sherman Machine Works, resulting from his employment, and that the injury resulted in the disability of the claimant for six weeks. The commission directed that compensation due the claimant of $ 11.54 per week be paid by the Associated Employers' Reciprocal, the insurance carrier, to the N.S. Sherman Machine Works, for the reason the employer had paid the claimant his wages during the period of disability, and awarded the claimant all medial expense he had incurred.

¶4 Motion was filed on the 5th day of January, 1921, by the Associated Employers' Reciprocal, insurance carrier, to vacate the award for the reason the commission had no jurisdiction to order it to reimburse the N.S. Sherman Machine & Iron Works for wages it had paid the claimant during his disability.

¶5 On the 19th day of January, 1921, Plunkett, claimant, filed motion to have the commission review the award made on the 14th day of December, 1920. The motion to vacate the award was overruled by the commission on the 13th day of January, 1921.

¶6 The ruling upon the motion to vacate the award is not important on this appeal. It is true, as counsel for the respondents contend, that the commission was without jurisdiction to make an order directing the Associated Employers' Reciprocal to reimburse the N.S. Sherman Machine & Iron Works for wages it had paid to the claimant during his disability. The commission is only vested with jurisdiction to adjudicate the claimant's claims for compensation against the employer. But the fact that the commission undertook to make an award not within its jurisdiction in no way affected its jurisdiction to make an award subsequently in favor of the claimant against the employer.

¶7 Pursuant to notice the motion to review the award of December 14, 1920, was heard on the 3rd day of February, 1921. The commission, at this hearing, heard the oral evidence of the claimant. The respondents offered no evidence. At the conclusion of this hearing the Associated Employers' Reciprocal, respondent, made a motion that the claimant, Plunkett, be ordered to submit to an examination made by a competent physician. The commission, pursuant to this motion, entered an order requiring the claimant to be examined by Dr. LeRoy Long, at his office in the Colcord Building, Oklahoma City, and ordered Dr. Long to report his findings in triplicate to the commission.

¶8 Pursuant to the order of the commission, Dr. Long examined the claimant on the 3rd day of February, 1921, and filed his report with the commission on the 5th day of February. In this report filed by Dr. Long, he stated in substance that from the history of the case, coupled with the physical examination made by him, he was of the opinion that the claimant had what is known as palmar abscess. That such abscess was situated rather deeply in the hand beneath a stiff, membranous structure known as the palmar fascia, and that the...