Special Indem. Fund v. Bonny
| Decision Date | 05 April 1966 |
| Docket Number | No. 41712,41712 |
| Citation | 431 P.2d 391 |
| Court | Oklahoma Supreme Court |
| Parties | SPECIAL INDEMNITY FUND of the State of Oklahoma, Administered by State Insurance Fund, Petitioner, v. Nath BONNY, Jr., and the State Industrial Court, Respondents. |
Syllabus by the Court
Where a cause is reversed and remanded by the Supreme Court with directions to proceed in accordance with the decision of the appellate court and the court below proceeds in substantial conformity with such direction, its action will not be reversed on a second appeal.
Original proceeding by Special Indemnity Fund to review an award by the State Industrial Court to Nath Bonny, Jr., claimant. Award sustained.
Mont R. Powell, Sam Hill, Moraul Bosonetto, Oklahoma City, for petitioner.
Albert M. Morrison, Oklahoma City, Charles R. Nesbitt, Atty. Gen., for respondents.
This is an original action to review an award of the State Industrial Court and the second time this cause has been before this court.
On July 11, 1963, Nath Bonny, Jr., hereinafter referred to as claimant, filed a claim for compensation before the State Industrial Court alleging that on January 16, 1963, while in the employment of Bryan Cole Transfer Company, he sustained an accidental injury to his right eye. On the same date, claimant and employer entered into a joint petition settlement on the basis of 25 per cent permanent partial disability to said eye as a result of the injury. The settlement was approved by the court.
On August 15, 1963, claimant's claim against the Special Indemnity Fund, hereinafter referred to as the Fund, was heard at which time the parties stipulated that claimant had sustained his last injury on January 16, 1963, while employed by Bryan Cole Transfer Company and that it resulted in 25 per cent permanent partial disability to the right eye. They further stipulated that claimant was a previously impaired person within the meaning of the Workmen's Compensation Act by reason of the total loss of his left eye resulting from an explosion of a dynamite cap in 1943. There was also testimony that the explosion caused a partial loss of vision of the right eye.
The trial judge found that claimant was a previously imparied person by reason of the accident in 1943, which 'resulted in total loss of the left eye and partial loss of vision of the right eye' and entered an order finding that as a result of a combination of claimant's previous disability with the disability sustained from the last injury, he was permanently and totally disabled for the performance of ordinary manual labor and entitled to 500 weeks compensation, less credit of 200 weeks for the total loss of both eyes. The order was affirmed on appeal by the court en banc.
The Fund brought an original action for review of that order. It contended the State Industrial Court erred in failing to find the degree of disability claimant sustained as a result of the last injury; that the court erred in failing to find the extent of claimant's disability prior to his last injury; that claimant was either permanently and totally disabled before the last injury by reason of industrial blindness in both eyes, or he was not permanently and totally disabled at the time of the award; and that the court made no finding with reference to the temporary total compensation paid and allowed on credit therefor.
On reviewing the record and considering the briefs of the parties we held in our previous opinion (Special Indemnity Fund v. Bonny, Okl., 397 P.2d 152) that the settlement on joint petition and approval by the State Industrial Court was an adjudication and determination of a 25 per cent permanent partial disability to the right eye resulting from the last injury within the meaning of 85 O.S.1961, Sec. 171. We held there was sufficient competent evidence to support the lower court's finding that claimant was not totally disabled prior to the last injury but that by a combination of the previous disability with the disability resulting from the last injury he was now permanently and totally disabled. We held the lower court erred in not allowing the Fund credit for the eight weeks temporary total compensation paid claimant as a result of the last injury. We further held it was the duty of the State Industrial Court to fix the degree of disability which made the claimant a previously impaired person.
In our opinion on page 157, we said:
'Therefore the award is vacated and the cause Remanded for further proceedings For the express purpose of the Industrial Court determining and adjudging the percentage of disabislity sustained by the claimant by reason of the impairments constituting him a previously impaired person, and on such determination to deduct the compensation for that percentage of disability, the compensation for percentage of disability resulting from the last injury, and the eight weeks temporary total disability compensation paid, from the maximum compensation scheduled for one who is permanently and totally disabled and to assess the balance or remainder, if any there be, against the Special Indemnity Fund.' (emphasis ours).
After the mandate was issued, the State Industrial Court, in compliance with this court's order, set the cause for hearing and on September 27, 1965, entered its order, the pertinent parts being as follows:
'That on January 16, 1963, claimant sustained an accidental personal injury consisting of injury to his head, aggravating a cataract of the right eye, arising out of and in the course of his hazardous employment with respondent, Bryan Cole Transfer Company; that prior to said injury claimant was a physically impaired person by virtue of having sustained an accidental personal injury when he was fourteen years old, which resulted in total loss of the left eye and partial loss of vision of the right eye, which partial loss of vision of the right eye, being adjudicated as to percentage, and less than total loss, is not included in computing claimant's percentage of previous impairment.
'That due to claimant's injury to his right eye on January 16, 1963, he sustained 25 per cent permanent partial loss of vision in said right eye and is now industrially blind in said eye, and the claim arising was settled for the sum of $750.00 on joint petition.
'That as a result of the combination of the claimant's previous disability and the disability resulting from the last injury of January 16, 1963, claimant is now permanently and totally disabled for the performance of ordinary manual labor and is entitled to compensation for 500 weeks at $30.00 per week, or the total amount of $15,000.00, less the sum of $3,990.00, being credit for...
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