Special Indem. Fund of Okl. v. Wade

• Decision Date: 06 January 1948
• Docket Number: 32506.
• Citation: 189 P.2d 609,199 Okla. 547,1948 OK 5
• Parties: SPECIAL INDEMNITY FUND OF OKLAHOMA v. WADE et al.
• Court: Oklahoma Supreme Court

189 P.2d 609

199 Okla. 547, 1948 OK 5

SPECIAL INDEMNITY FUND OF OKLAHOMA v. WADE et al.

No. 32506.

Supreme Court of Oklahoma

Jan. 6, 1948

Original proceeding in the Supreme Court by the Special Indemnity Fund of the State of Oklahoma, administered by the State Insurance Fund, petitioner, against J. B. Wade, compensation claimant the Douglas Aircraft Company, Inc., employer, the Fidelity & Casualty Company of New York, insurance carrier, and the State Industrial Commission, to review an award of the State Industrial Commission under the Special Indemnity Fund Act.

Award set aside.

CORN and RILEY, JJ., dissenting.

Syllabus by the Court.

1.A 'physically impaired' person under the Special Indemnity Fund Act, O.S.1943 Supp. Title 85, §§ 171-176, is one who as a result of any cause has suffered the loss of the sight of one eye, the loss by amputation of the whole or a part of some member of his body classified and scheduled in 85 O.S.1941, § 22, Subd. 3(the arms, legs, feet, hands fingers and toes) or the loss of the use, or partial loss of the use, of such specific and classified members which is obvious and apparent from observation or examination by an ordinary layman, that is, a person who is not skilled in the medical profession, or any disability which previously has been adjudged and determined by the State Industrial Commission.

2.Such a disabling condition may be compensated when, and only when it is combinable under any circumstances under the Workmen's Compensation Law with the disability resulting from a compensable accident thereafter occurring and the combined disability of the old condition and the new injury is materially greater than that resulting from the later injury alone.

Mont R. Powell, Thomas D. Lyons and L. B. Moore, all of Oklahoma City, for petitioner.

Tom Durham and Crouch, Rhodes & Crowe, all of Tulsa, and Mac Q. Williamson, Atty. Gen., for respondents.

ARNOLD Justice.

Upon testimony presented the Industrial Commission found that the respondent suffered a compensable accidental injury to his left hip, which had several years theretofore been seriously injured in a football game; that the respondent was at the time of the later injury a physically impaired person under the Special Indemnity Fund Act and the combined effect of both injuries constituted 50% permanent partial disability to the body as a whole; that the later injury resulted in 5% of total disability.

Both injuries appear to have materially and permanently affected the left leg but there is no testimony that any other major specific member was affected directly by either injury.

The commission ordered payment of compensation, in accordance with the above findings, against the employer for 25 weeks at the correct rate of compensation and 225 weeks against the Special Indemnity Fund.The employer paid the award against it.

In this original action by the Fund it is argued that the evidence is not sufficient to show that the respondent was a physically impaired person within the meaning of the Special Indemnity Fund Act and that there is no authority in law for the entry of the award against the Fund for the combined disability found to have resulted from the two injuries less the number of weeks awarded against the employer for the later injury.

The Special Indemnity Fund Act, O.S.1943 Supp., Title 85, §§ 171-176, is not strictly speaking amendatory of the Workmen's Compensation Law.It is supplementary thereto and remedial in character.Liberal construction of the act should be indulged, if necessary, to give effect to the purpose intended by the legislature.It was intended by the legislature to relieve against the inability of many otherwise employables, who suffered previous impairment to obtain work in industry covered by the Workmen's Compensation Law.Many persons who could perform ordinary manual labor efficiently, but who suffered previous impairment, were denied employment, in part at least, by reason of our interpretation and application of the Workmen's Compensation Law in certain instances prior to the enactment of said act.For instance we had held that where one had theretofore lost, or lost the use of, a major member of the body mentioned in 85 O.S.1941 § 22, subd. 1, the eyes, legs, feet, arms and hands, and lost, or lost the use of, another such member by accident in employment covered by the Workmen's Compensation Law was thereby rendered totally and permanently disabled in the absence of conclusive proof to the contrary and his employer was liable as prescribed by the Workmen's Compensation Law for permanent total disability.We had also held that where two or more of said members were injured in the same compensable accident the award therefor should be based upon the combined effects of said injuries on the body as a whole and should, therefore, be expressed in terms of percentage of total permanent disability.We had also held, in effect, that where two or more fingers or toes were permanently impaired as a result of a compensable accident the award...