Special Indem. Fund v. Doughty

• Decision Date: 19 October 1976
• Docket Number: No. 48283,48283
• Citation: 558 P.2d 396
• Parties: SPECIAL INDEMNITY FUND, Petitioner, v. Harley H. DOUGHTY and the State Industrial Court, Respondents.
• Court: Oklahoma Supreme Court

Page 396

558 P.2d 396

SPECIAL INDEMNITY FUND, Petitioner, v.Harley H. DOUGHTY and the State Industrial Court, Respondents.

No. 48283.

Supreme Court of Oklahoma.

Oct. 19, 1976.

Rehearing Denied Jan. 18, 1977.

Original proceeding to review award of compensation for total permanent disability, alleged to have resulted from injury during covered employment following prior adjudication of total permanent disability.Thomas H. Gudgel, Jr., Judge.

Award vacated and remanded with directions.

Sam Hill, Mary Elizabeth Cox, Oklahoma City, for petitioner.

Ben A. Goff, Oklahoma City, for respondents.

IRWIN, Justice.

The Special Indemnity Fund seeks review of a State Industrial Court order adjudicating Harley H. Doughty(claimant) to be totally and permanently disabled, and entering an award against Fund under 85 O.S.1971 § 172.Fund challenges the order on the grounds that in a previous proceeding claimant was adjudicated totally and permanently disabled and an award was entered against it.Fund contends claimant is not entitled to another award because there could have been no material increase in claimant's total and permanent disability.

In 1969, claimant injured his right shoulder, neck, lower back, right leg and knee and his claim was settled ($3,000.00) by joint petition.In 1971, claimant sustained further injuries to his back and this claim was settled ($4,500.00) by joint petition.Claimant then proceeded against Fund.In July, 1972, claimant was adjudicated to be totally and permanently disabled and an award (83 weeks) was entered against Fund pursuant to 85 O.S.1971 § 172.This award became final and was paid out in February, 1974.

In June, 1973, claimant resumed employment and in September, 1973, sustained injuries to his elbow, shoulder and upper back.The claim for this injury was settled ($4,000.00) by joint petition and claimant again proceeded against Fund.

In the order on review, the Industrial Court found that prior to the September, 1973 injury, claimant had been adjudicated totally and permanently disabled but by 'reason of his physical constitution, he was able to and, in fact, did achieve recovery to the extent that he was no longer permanently and totally disabled at the time of his latest compensable injury.'

The Industrial Court then found that claimant, at the time he sustained his last injury, was 60% Permanently partially disabled; and had sustained 16% Permanent partial disability (80 weeks) for the last injury (settled on joint petition).Based on a finding that claimant was then 100% Totally and permanently disabled an award was entered against Fund for 120 weeks, an increase of 24% Permanent disability to the body as a whole.

Section 172, supra, is applicable only to a 'physically impaired person' as defined by 85 O.S.1971, § 171, (amended in 1975) who 'receives an accidental personal injury * * * which results in additional permanent disability so that the degree of disability caused by the combination of both disabilities is materially greater than that which would have resulted from the subsequent injury alone.'The employee receives full compensation for the disability resulting directly and specifically from such subsequent injury from the employer, '* * * and in addition thereto such employee shall receive full compensation for his combined disability * * * after deducting therefrom the percent of that disability that constituted the employee a 'physically impaired person,' * * * as defined * * *' in the Act.

Where an employee sustained an accidental personal injury and proceeds against the Fund on the theory he was a 'physically impaired person' at the time of the accident, because of a previous adjudication by the State Industrial Court, such previous adjudication 'shall be prima facie evidence that the claimant is a 'physically impaired person' to such an extent that the State Industrial Court * * * shall...