Sheffield Steel Corp. v. Barton

• Decision Date: 11 October 1938
• Docket Number: 28397.
• Citation: 84 P.2d 17,183 Okla. 624,1938 OK 513
• Parties: SHEFFIELD STEEL CORPORATION et al. v. BARTON et al.
• Court: Oklahoma Supreme Court

84 P.2d 17

183 Okla. 624, 1938 OK 513

SHEFFIELD STEEL CORPORATION et al. v. BARTON et al.

No. 28397.

Supreme Court of Oklahoma

October 11, 1938

Rehearing Denied Nov. 15, 1938.

Syllabus by the Court.

1. Where compensation is sought under the Workmen's Compensation Act, O.S.1931, section 13348 et seq., as amended, 85 Okl.St.Ann. § 1 et seq., subdivisions 1, 2 and 3 of section 13355, O.S.1931, 85 Okl.St.Ann. § 21, provide exclusive methods for the determination of the annual earnings of the employee and resort thereto must be had in the order given; when the annual earnings of the employee have been ascertained by resort to the applicable one of the three methods provided then the weekly wage is to be ascertained in the manner set forth in subdivision 4 of the above cited section and compensation awarded in accordance therewith.

2. It is the nature of the employment in which the employee is engaged rather than the specific act which he may be performing at the time of an injury that determines his right or lack of right to compensation under the Workmen's Compensation Act. O.S.1931, section 13348 , et seq. as amended, 85 Okl.St.Ann. § 1 et seq.

3. Where the record discloses that the State Industrial Commission has computed compensation under an inapplicable provision of the statute, such award will be vacated in order that a proper award under the applicable provision of the statute may be made by the Commission.

Original proceeding by the Sheffield Steel Corporation, employer, and the Consolidated Underwriters, to obtain a review of an award of compensation by the State Industrial Commission in favor of Isaac Barton.

Award vacated, with directions.

Butler Brown & Rinehart, of Oklahoma City, for petitioners.

Hamilton & Clendinning, of Tulsa, and Mac Q. Williamson, Atty. Gen for respondents.

PER CURIAM.

This is an original proceeding in this court brought by Sheffield Steel Corporation and Consolidated Underwriters as petitioners to obtain a review of an award made by the State Industrial Commission in favor of the respondent, Isaac Barton.

The respondent on February 26, 1937, while engaged in the operation of a switch engine for the petitioner, Sheffield Steel Corporation, sustained an accidental personal injury which resulted in the total loss of his left leg by amputation. The injury and extent thereof is not an issue here. The petitioner furnished necessary medical, surgical and hospital attention and care and paid voluntarily compensation at the rate of $10.46 per week to respondent during the period of his temporary total disability which the parties stipulated ended on August 25, 1937. Upon application of the petitioners to discontinue payment of further compensation for temporary total disability and to determine the extent of respondent's permanent disability the Commission held hearings and on December 29, 1937, entered the award which we are now called upon to review. The pertinent findings made by the Commission are as follows:

"1. That on February 26th, 1937, the claimant was in the employ of the respondent and engaged as a switchman subject to and covered by the provisions of the Workmen's Compensation Law and that on said date sustained an accidental personal injury arising out of and in the course of his employment consisting of the loss of his left leg.

2. That the claimant was not engaged in said employment during substantially the whole of the year next preceding said injury and that the average earnings of employees in the same class of work working substantially the whole of the year next preceding said injury in the same or similar employment in the same or neighboring place was 89¢ an hour for eight hours a day and that claimant's proper rate of compensation therefore is $18.00 per week based on 89¢ an hour for eight hours a day.

3. That claimant was temporarily totally disabled from February 26th, 1937, to August 25th, 1937.

4. That by reason of said accidental injury claimant sustained a loss of his left leg."

In accordance with the foregoing findings the State Industrial Commission awarded the respondent compensation at the rate of $18 per week for his period of temporary total disability less any sums theretofore paid, and at the same rate for the further period of 175 weeks on account of his specific injury. The petitioners contend that the State Industrial Commission erred as a matter of law in finding that the respondent had not worked in the employment in which he was working at the time of the accident for substantially the whole of the year immediately preceding his injury and in finding his average daily wage per hour for an 8 hour day. The uncontradicted evidence in the record shows that the respondent entered the employ of the petitioner, Sheffield Steel Corporation, as a manual and mechanical worker on April 26, 1936, and had remained continuously in such employment, except for a four week lay-off on account of an injured finger, until the date of the injury involved in the award now under review and that the duties of the respondent under his employment were not limited to any particular type of work but consisted of doing practically any type of manual labor...