Special Indem. Fund v. Osborne, 35447

• Decision Date: 15 June 1954
• Docket Number: No. 35447,35447
• Citation: 272 P.2d 392,1954 OK 191
• Parties: SPECIAL INDEMNITY FUND v. OSBORNE et al.
• Court: Oklahoma Supreme Court

Page 392

272 P.2d 392

1954 OK 191

SPECIAL INDEMNITY FUND v.OSBORNE et al.

No. 35447.

Supreme Court of Oklahoma.

June 15, 1954.

Syllabus by the Court

1.Whether claimant is a 'physically impaired person' as defined in 85 O.S.1951, § 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 an ordinary layman, as defined therein, or by other competent persons.

2.In order to arrive at a proper award to be entered against Special Indemnity Fund on a claim for compensation filed by a physically impaired person under the Special Indemnity Fund Act, 85 O.S.1951 § 172, the State Industrial Commission should first find the disability sustained by the employee as a result of his individual injuries and further find the disability sustained by him as a result of his combined injuries and compensation recoverable for such disability, and if the disability resulting from his combined injuries be found to be less than permanent total, subtract therefrom compensation recoverable for each individual injury and the balance will constitute the proper amount to be awarded as against the Fund.

Mont R. Powell, William R. Saied, Sam Hill, Oklahoma City, for petitioner.

Harlan S. Trower, Tulsa, Mac Q. Williamson, Atty. Gen., for respondents.

DAVISON, Justice.

Virginia Osborne, hereinafter called claimant, filed her first notice of injury and claim for compensation stating that on June 15, 1951, while employed by the Sanders Manufacturing Company, she sustained an accidental injury to her foot.Special Indemnity Fund was made a party by reason of claimant being a physically impaired person under the provisions of 85 O.S.1951 § 171 et seq., having previously sustained a disability due to a hand injury.An order was entered on December 27, 1951, for payment of 10 per cent disability to the foot and 17 per cent to the body as a whole.Settlement on joint petition was made under date of February 7, 1952, with Sanders Manufacturing Company and and its insurance carrier.This appeal is from the order made against Special Indemnity Fund, hereinafter referred to as petitioner.The award in part is as follows:

'That as a result of the combination of the pre-existing 10% permanent partial disability to the right hand by reason of the injury of 1949, together with the 10% permanent partial disability to the right foot in June 1951, the claimant has sustained a 17% permanent partial disability to the body as a whole, being 85 weeks or $2,125.00.

'That the claimant is entitled to 17% permanent partial disability to the body as a whole against the Special Indemnity Fund, less the deductions allowed by Law being 15 weeks for the 10% permanent partial disability to the right foot by reason of the injury of June 15, 1951, or $375.00 and less the 10% permanent partial disability to the right hand by reason of the injury of October 12, 1949, or 20 weeks, totaling $500.00, which would equal 50 weeks or 10% to the body as a whole totaling $1,250.00 payable at the rate of $25.00 per week.'

Petitioner first argues that the evidence does not sustain the finding that claimant is a physically impaired person.In Special Indemnity Fund v. Dickinson, 208 Okl. 39, 253 P.2d 161, 163, in considering a very similar question a witness testified that he knew claimant had a knee injury because he saw him constantly limping.Therein we stated:

'* * * However, we see no reason why an injury does not become 'obvious and apparent' when according to the common parlance of a lay witness it is obvious that the person involved is constantly conducting himself as a physically impaired...