Skelton Lead & Zinc Co. v. State Indus. Comm'n

• Decision Date: 16 September 1924
• Docket Number: Case Number: 14903
• Citation: Skelton Lead & Zinc Co. v. State Indus. Comm'n, 1924 OK 749, 229 P. 255, 100 Okla. 188 (Okla. 1924)
• Parties: SKELTON LEAD & ZINC CO. et al. v. STATE INDUSTRIAL COMMISSION et al.
• Court: Oklahoma Supreme Court

1924 OK 749

229 P. 255

100 Okla. 188

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

Case Number: 14903

Supreme Court of Oklahoma

Decided: September 16, 1924

Commissioners' Opinion, Division No.

Original action by Skelton Lead & Zinc Company and Associated Employers' Reciprocal, as petitioners, against the State Industrial Commission and Lee Nutt, as respondents, to reverse an order of the state Industrial Commission refusing to modify an award of compensation theretofore made to Lee Nutt.Order reversed.

An examination of the record in this proceeding discloses that Lee Nutt was in the employ of the Skelton Lead & Zinc Company as a shoveler in its mine, and that on April 3, 1922, he was struck on the back by falling rock while at work in the mine, resulting in injuries for which he made a claim for compensation under the Workmen's Compensation Law.Thereafter, on June 16.1922. the State Industrial Commission, after a hearing, determined that the claimant had suffered a temporary total disability, and awarded him compensation at the rate of $ 11.54 per week, beginning April 3, 1922, and continuing until termination of disability, or until otherwise ordered by the commission.Thereafter, on May 7, 1923, the claimant, Lee Nutt, accepted employment as city marshal in his home town of Gramby, Mo., at a salary of $ 50 per month and thereupon petitioners herein filed their motion with the State Industrial Commission asking for a modification of the award theretofore made to the said Lee Nutt so that the payments thereafter to be made should be one-half of the difference between what the claimant earned prior to his injury and the amount he is earning as city marshal.On October 16, 1923, the Industrial Commission, after hearing, entered its order denying this motion and refusing to modify the award theretofore made.Its findings of fact in said order read as follows:

(1) "That the claimant was injured April 3, 1923, while in the employ of the Skelton Lead & Zinc Company.

(2) "That the claimant had a fracture of the left hip bone near the sacro iliac synchondrosis, with tearing of the ligaments in this region; that he has laceration of the fascia and muscles; that he has not recovered or has improved for a number of months.

(3)"That the insurance carrier has paid compensation at the rate of $ 11.54 per week up to May 7, 1923; that on May 7, 1923, the claimant accepted an official position in his home town Gramby, Missouri.Said position is that of city marshal; that his duties are not manual and require no physical exertion; that frequently he does not leave his home for several days at a time."

To reverse this order this proceeding was commenced.Petitioners will hereafter be referred to as petitioners, the State Industrial Commission as respondent, and Lee Nutt as claimant.

Syllabus

¶0 1.Master and Servant--Workmen's Compensation Law--Theory--Earning Capacity--Partial Restoration.

Our Workmen's Compensation Law is based upon the theory of protection against hardships resulting from impaired earning capacity through accidental injury in hazardous employment, and not upon indemnity for physical injury as such.An injury resulting in temporary total disability (Comp. Stat. 1921, sec. 7290, subdiv.2) to earn a living is compensated for under our law only so long as such total disability continues, and where there is partial restoration of earning capacity, and this fact is brought to the knowledge of the Industrial Commission as provided for by section 7296, supra, a new classification should be given claimant and a corresponding amendment of the award made.

2.Same--Changed Conditions--Order of Commission--Review By Court.

Where an injured workman is given by the Industrial Commission a classification of "temporary total disability" and awarded compensation for that class of disability, which is paid for more than a year, and thirteen months after the injury the claimant is able to earn a substantial salary at other and lighter employment, this constitutes "a change in conditions" within the purview of section 7296, and a refusal by the commission to give the claimant's disability a new classification and to diminish the award in conformity with such new classification is legally erroneous.

Burford, Miley, Hoffman & Burford, for petitioners.

Geo. F. Short, Arty.Gen., and Baxter Taylor, Asst. Atty. Gen., for respondents.

Opinion by LOGSDON, C.

¶1 It is the contention of petitioners that the provisions of our Workmen's Compensation Law contemplate earning capacity as a basis for the determination of the degree of disability resulting from any injury sustained.It is contended that an injury which may result in temporary total disability to work in the particular employment in which the injury is sustained is not the proper basis of an award of compensation for temporary total disability if it be shown that the injured employe is actually earning wages in some other line of employment with which such injury does not interfere.In other words, it is insisted that compensation is to be based upon wage earning capacity either in the same or some other employment.The Attorney General has conceded that this view of the law is correct, and his brief in behalf of respondent practically amounts to a confession of error.

¶2 By the provisions of subdivision 1 of section 7290,Comp. Stat. 1921, loss of both hands, or both feet, or both legs, or both eyes, or any two of such members, was made to constitute permanent total disability in the absence of conclusive proof to the contrary.In all other cases permanent total disability is to be determined in accordance with the facts.No rule is fixed for the determination of temporary total disability, for permanent partial disability, nor for the temporary partial disability, so that it was the evident intention of the Legislature that these degrees of disability should also be determined "in accordance with the facts."Subdivision 3 provides a schedule of compensation for certain specific injuries, and in the last paragraph of this subdivision it provides for compensation in all other cases of permanent partial disability not specifically provided for, and the basis upon which such compensation shall be fixed is thus stated:

"In other cases in this class of disability the compensation shall be 50 per centum of the difference between his average Weekly wages and his wage earning capacity thereafter in the same employment or otherwise, payable during the continuance of such disability."

¶3 Subdivision 4 of said section provides for compensation in cases of temporary partial disability and uses similar language to the above provision, i. e., that the compensation shall be based upon the difference in his earning capacity thereafter "in the same employment or otherwise."Under subdivision 2 it is provided...