Sanders v. Rock Island Coal Mining Co.

• Decision Date: 05 March 1929
• Docket Number: Case Number: 19397
• Citation: 280 P. 290,138 Okla. 45,1929 OK 105
• Parties: SANDERS v. ROCK ISLAND COAL MINING CO. et al.
• Court: Oklahoma Supreme Court

1929 OK 105

280 P. 290

138 Okla. 45

SANDERS v. ROCK ISLAND COAL MINING CO. et al.

Case Number: 19397

Supreme Court of Oklahoma

Decided: March 5, 1929

Syllabus

¶0 1. Master and Servant--Workmen's Compensation Law--Compensation for Temporary Total Disability--Effect of Aggravation of Prior Injury.

Where claimant performed manual labor in a hazardous employment and sustained an injury in the course of such employment, resulting in temporary total disability, held, he is entitled to recover compensation during the continuance of such disability, but not in excess of statutory limitation. Further held, the fact that such employee had sustained a prior injury, after which he returned to labor and performed labor equal to his fellow workmen, which prior injury was aggravated by the recent injury, the prior injury does not prevent the claimant from recovering compensation for the entire time of his recent disability or until such lesser time as it can be definitely determined that disability caused by such recent injury has ceased.

2. Same--Claimant not Estopped to Question Award on Review by Accepting Benefits.

The doctrine of estoppel by acceptance of benefits of an award of the State Industrial Commission is inapplicable so as to prevent a review of an award.

Action by E. L. Sanders to review award of workman's compensation by the State Industrial Commission against the Rock Island Coal Mining Company. Reversed and remanded.

W. N. Redwine and Erman S. Price, for petitioner.

Keaton, Wells, Johnston & Barnes and Edwin Dabney, Atty. Gen., for respondents.

RILEY, J.

¶1 Petitioner Sanders was injured on December 22, 1926, while employed in the coal mine of the respondent. His left arm was caught between a pit car and a prop in the mine. He has been unable to use his arm for manual labor since the date of the injury.

¶2 Petitioner's left arm was previously injured by being broken in the year 1915, when he was working in a coal mine in Alabama. He was disabled from the prior injury for several months; however, he resumed work and later labored in the coal mines of Pennsylvania. Subsequently he came to Oklahoma and continued to earn wages by his labor in the coal mines equal in amount to those of his associates who were similarly employed.

¶3 The Industrial Commission found:

(1) That petitioner, in the course of and arising out of his employment, on December 22, 1926, sustained an accidental personal injury, as a result of which he was temporarily totally disabled from the date of said injury to March 6, 1927 (approximately 10 weeks); and,

(2) That claimant's permanent disability, if any, is not the result of, or directly attributable to the injury of December 22, 1926, but to a prior injury.

¶4 The petitioner appeals, contending that he is entitled, under the evidence, to recover for loss of use of his left arm as a permanent specific injury resulting from the accident of December 22, 1926.

¶5 Dr. L. S. Williams testified that he was the attending physician, that he had an X-Ray picture taken of the injured arm; that there was a strain at the site of the old fracture; that the deformity was not due in any wise to the accident of December 22, 1926, and there was no recent fracture.

¶6 Dr. Johnston (R. 126) testified:

"The X-Ray findings do not show signs of recent fracture, dislocation or disease.

"* * * No, I saw no evidence of recent displacement or fracture or disease of the bone. * * *"

¶7 Dr. S. R. Cunningham testified:

"Q. Your opinion is that it is due to this old injury sustained along in 1915. A. Yes, sir. Q. You stated that disability from strain would last about four weeks or thirty days? A. From three or four days to thirty days, I should say, is a pretty liberal margin on strains."

¶8 Under section 7290, C. O. S. 1921, the fact that an employee has suffered disability or received compensation therefor shall not preclude him from compensation for a later injury. Fitzsimmons v. State Industrial Commission, 108 Okla. 276, 236 P. 616; Id., 120 Okla. 31, 250 P. 111.

¶9 This claimant, prior to the recent injury, was performing day labor and received $ 5 a day therefor; without the injury he would no doubt be working to-day. The accident disturbed that condition of his arm and the resulting situation of employment.

¶10 Dr. Willour testified that there was a break in the region of the old fracture and petitioner's arm was put in plaster splints. The X-Ray exhibits are contained in the record.

¶11 Considering all of the testimony of all the witnesses, we find a complete loss of use of the arm, except that Dr. Cunningham estimates a loss of use of 50 per cent. There was an earning power of 100 per cent. prior to the injury--then it was nil.

¶12 Dr. Johnston and Dr. Cunningham testified a total loss of use of the arm might be caused from a "decidedly marked and tear-up of a number of...