Rialto Lead & Zinc Co. v. State Indus. Com'n

• Decision Date: 29 September 1925
• Docket Number: 15818.
• Citation: 240 P. 96,112 Okla. 101,44 A.L.R. 494,1925 OK 788
• Parties: RIALTO LEAD & ZINC CO. et al. v. STATE INDUSTRIAL COMMISSION et al.
• Court: Oklahoma Supreme Court

240 P. 96

112 Okla. 101, 44 A.L.R. 494, 1925 OK 788

RIALTO LEAD & ZINC CO. et al. v. STATE INDUSTRIAL COMMISSION et al.

No. 15818.

Supreme Court of Oklahoma

September 29, 1925

Syllabus by the Court.

Where as the approximate result of an accidental personal injury sustained by an employé arising out of and in the course of his employment, such employé, after all objective and subjective symptoms of actual physical injury are removed suffers from a nervous breakdown and a neurasthenic condition ensues attributable to such injury which precludes the employé from resuming his work in his former occupation, such mental condition is an injury arising out of and in the course of his employment and is compensable under the provisions of the Workmen's Compensation Act.

Where upon the hearing of a motion of the respondent and insurance carrier to discontinue compensation to the complainant or to modify the same, it appears from the undisputed evidence that the injured employé is engaged in performing lighter work than that upon which he was engaged when injured, but at about one-half of the wage he received in his prior employment, it is error to award the employé a weekly sum on the basis of total disability.In such case the award should be based upon 50 per centum of the difference between the employé's wage at the time of the injury and the wage he was receiving at the time of the hearing on the motion.

Commissioners' Opinion, Division No. 5.

Original action by the Rialto Lead & Zinc Company and the Associated Employers' Reciprocal, as petitioners, against the State Industrial Commission and George Johnson, as respondents, to reverse an order of the State Industrial Commission in refusing to discontinue compensation to George Johnson.Order reversed, and cause remanded, with directions.

Burford Miley, Hoffman & Burford, of Oklahoma City, for plaintiffs in error.

George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for defendants in error.

PINKHAM C.

The record in this proceeding discloses that George Johnson was in the employ of the Rialto Lead & Zinc Company, as a machinist and that on October 31, 1922, he was injured by lifting on a machine; the nature and extent of his injury being a badly wrenched back and a swelling in his groin.

Medical attendance was provided by the employer immediately after the accident.The employer and insurance carrier paid compensation until June 1, 1923, without any order having been entered by the Industrial Commission, at the rate of $11.54 per week upon an average wage of $4 per day.

On June 20, 1923, the employer and insurance carrier notified the commission that payment had been suspended or stopped, for the reason that the claimant's disability, as a result of the injury sustained on October 31, 1922, terminated on June 13, 1923, and the claimant is fully recovered and able to return to work.

On October 12, 1923, a hearing was had before the commission on motion of respondent and insurance carrier to discontinue compensation.The commission, after examining the records on file and the testimony taken, denied the motion.

On November 20, 1923, the respondent and insurance carrier again filed a motion with the commission to discontinue compensation, stating in said motion that payment of compensation to the claimant had been stopped as of November 14, 1923, payment having been made to that date, and that the reason that payment had been stopped is that the claimant has fully recovered from the injuries upon which complaint was based in so far as the same are compensable under the Workmen's Compensation Act, and that claimant was, prior to November 16, 1923, able to return to work, and was not then suffering from any injury which was compensable under the Workmen's Compensation Act(Comp. St. 1921, §§ 7282-7340).In support of this motion reference was made to the report of Dr. Blesh, filed with the commission.

On May 12, 1924, a hearing was had on this motion and on the 3d day of September, 1924, the commission made the following findings of fact: "First, that the claimant received an accidental injury arising out of and in the course of his employment with the respondent, Rialto Lead & Zinc Company, on October 31, 1922, by a fall from a pole landing on his back.Second, that the respondent and insurance carrier paid compensation until June 1, 1923, when it was discontinued upon motion, and that a hearing was held in Miami on the 11th day of September, 1923.An order was made on October 11, 1923, overruling said motion.Third, that on November 27, 1923, an examination was made by Dr. A. L. Blesh, of Oklahoma City, and that neurasthenia elements largely predominate; that said neurasthenia is often associated with injury, and must be recognized.Fourth, that the claimant's wages at the time of injury were $4 per day.Fifth, that the claimant worked 3 weeks, from November 16, 1923, to December 8, 1923, at $8 per week, and that he is entitled to 50 per cent. difference in wages, or a total of $24; that he is also entitled to compensation from December 8, 1923, to September 3, 1924, a period of 38 weeks and 3 days at the rate of $11.54 per week," and made its order in accordance with said findings of fact and overruled the motion of respondent and the insurance carrier.

The respondent and insurance carrier filed their petition in this court to reverse the order of the commission of September 3, 1924, alleging numerous grounds for reversal of said order.

The assignments of error are presented under three propositions to the effect: First, that under the evidence the commission should have granted the motion to discontinue compensation; second, that, if the motion to discontinue should have not been granted in toto, then it was error in granting an award as for total disability when all the evidence showed the claimant was working and earning wages; third, that it was an abuse of discretion to make an award in a case of this kind 10 months after the motion was filed and deny the motion, not as of the date of filing, but as of the date of the order.

The only questions to be determined under the record in this case are: First, whether at the date of the last hearing before the State Industrial Commission, on the motion of the respondent and insurance carrier to discontinue compensation, the claimant was or was not suffering from any injury compensable under the Workmen's Compensation Act; and, second, whether, in view of the evidence before the commission at the time of the hearing on the said motion, the commission erred in awarding total disability and denying even a modification of the award.

With respect to the first proposition there is no dispute that the claimant sustained an injury arising out of and in the course of his employment on the 31st day of October, 1922.Medical attendance was immediately provided and compensation was started by the insurance carrier on the 14th day of December, 1922, at a weekly rate of $11.54, based on the complainant's average daily wage of $4.

The claimant has been examined by some six or seven doctors and their reports to the commission are incorporated in the record.These reports, briefly summarized, show that the claimant was under the care of these physicians at a hospital and in his home for approximately a year; that he suffered a good deal of pain; and that a small operation was successfully performed.All of the reports conclude that the claimant was not suffering from any permanent disability.

The commission's medical adviser made a physical examination of the claimant on March 22, 1923, and concluded that, from the symptoms and history of the case, the claimant has been and is suffering from a traumatic injury to the lumbar regions and muscles of his back, and that the injury has developed to a neurosis, but that he is satisfied that with proper care the claimant should be able to return to his work in a short time, "and that there should be no disability."

At the hearing on the motion to discontinue compensation, the claimant testified as to his treatment and operation and stated that so far as the operation was concerned the same was successful, but that his kidney pained him continually and that he was unable to work at his former occupation.The evidence shows that he attempted to do so, and, after working one or two days at his old position, he was obliged to quit work and sought other and lighter employment elsewhere.

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