Special Indem. Fund of State v. Keel
| Decision Date | 20 November 1945 |
| Docket Number | 32114. |
| Citation | 164 P.2d 996,196 Okla. 315,1945 OK 317 |
| Parties | SPECIAL INDEMNITY FUND OF STATE v. KEEL et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 15, 1946.
Original proceeding by the Special Indemnity Fund of the State of Oklahoma, administered by the State Insurance Fund, against Joe Keel, claimant, Choctaw Cotton Oil Company, employer, and its insurance carrier, Associated Employers Lloyds, and the State Industrial Commission of the State of Oklahoma to review an award of the Industrial Commission.
Award vacated.
Syllabus by the Court.
Whether a claimant is a 'physically impaired person' as defined in 85 O.S.Supp.1943 § 171, is a question of fact to be determined by the State Industrial Commission from all the evidence before it. In cases involving 'loss of use' of a specific member 'such as is obvious and apparent from observation or examination by an ordinary layman, that is, a person who is not skilled in the medical profession,' by reason of a prior injury to the body, the determination of such fact by the Commission must be supported by competent evidence of witnesses. The fact that such injury is 'obvious and apparent' may be proved by ordinary laymen, as defined therein, or by other competent persons, and in the absence of such evidence, an award based on said statute will be vacated.
Mont R. Powell, T. D. Lyons, and L. B. Moore, all of Oklahoma City for petitioner.
Sigler & Jackson and H. A. Stanley, all of Ardmore, A. R. Daugherty of Oklahoma City, and Randell S. Cobb, Atty. Gen., for respondents.
This is an appeal by Special Indemnity Fund of the State of Oklahoma hereinafter referred to as petitioner, from an award made to Joe Keel, hereinafter referred to as claimant.
The claimant received an accidental injury to his right shoulder on April 29, 1943, while in the employ of Choctaw Cotton Oil Company. He filed his claim for compensation for such injury and when, at a hearing, it developed that his left shoulder had been injured in an automobile accident in 1937, the Commission ordered the Special Indemnity Fund to be made a party to the proceeding. After further hearings were had, the Trial Commissioner made an award on December 11, 1944, which was affirmed by the Commission en banc on appeal. The Trial Commissioner found that the claimant was a physically impaired person by reason of the injury to his left shoulder in 1937, which impaired the use of his left arm to the extent of 20 per cent. He found that the later injury to claimant while in the employ of Choctaw Cotton Oil Company had impaired the use of his right arm 10 per cent. He found that by reason of both the aforesaid injuries claimant had sustained a 15 per cent permanent total disability, and allowed compensation against the Choctaw Cotton Oil Company for the disability to his right arm, and made an award against petitioner for the disability resulting from the combined disabilities. Petitioner alone appeals.
Petitioner contends that the claimant was not shown to have been a 'physically impaired person' at the time of the accidental injury on April 29, 1943, and that in order to show that he was a physically impaired person within the definition contained in 85 O.S.Supp.1943 § 171, enacted April 12, 1943, the loss of use of his arm must be established by the testimony of laymen.
Section 171, supra, provides as follows:
'For the purpose of this Act, the term 'physically impaired person' is hereby defined to be a person who as a result of accident, disease, birth, military action, or any other 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, or the loss of the use, or partial loss of the use, of a specific member such as 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...
To continue reading
Request your trial