Special Indem. Fund v. Fite

• Decision Date: 07 March 1961
• Docket Number: No. 38868,38868
• Citation: 361 P.2d 220
• Court: Oklahoma Supreme Court
• Parties: SPECIAL INDEMNITY FUND, Petitioners, v. W. W. FITE and the State Industrial Court, Respondents.

Page 220

361 P.2d 220

1961 OK 56

SPECIAL INDEMNITY FUND, Petitioners, v.W. W. FITE and the State Industrial Court, Respondents.

No. 38868.

Supreme Court of Oklahoma.

March 7, 1961.

Syllabus by the Court

An award cannot be made against the Special Indemnity Fund for total and permanent disability by reason of a combination of prior injuries and a latter injury where part of the disability in the combination is due to hernias.

Original proceeding brought by Special Indemnity Fund to review an award of the State Industrial Court made to W. W. Fite, claimant.Award vacated.

Mont R. Powell, Mary Elizabeth Cox, Oklahoma City, for petitioner.

Hugh M. Sandlin, J. C. Daugherty, Holdenville, Mac Q. Williamson, Atty. Gen., for respondents.

PER CURIAM.

W. W. Fite, hereinafter called claimant, filed his first notice of injury and claim for compensation stating that while employed by Eagle Picher Mining Companyhe sustained an accidental injury arising out of, and in the course of his employment, on the 15th day of November, 1958, when he hurt his back, hip, and sustained a left and right inguinal hernia.He settled on joint petition for $2,500 for the latter injury.A proceeding was thereafter commenced against Special Indemnity Fund, and an award was entered which is in part as follows:

'That on November 6, 1958, claimant was in the hazardous employment of the respondent, Eagle Picher Company, at a wage sufficient to entitle him to compensation for permanent disability at the rate of $30.00 per week; that on said date he suffered an accidental personal injury arising out of and in the course of his hazardous employment with respondent consisting of injury to his back, right hip and a left hernia, and his claim therefor having been settled by Joint Petition for $2500.00, and this Commission's order approving same entered herein on April 22, 1959.

'That on November 6, 1958, the date of claimant's last injury, he was a previously impaired person by reason of an injury in 1958 to his right side and back, resulting in a right hernia which has not been repaired; an injury in 1957 to his right hand resulting in 10 percent permanent partial disability to the right hand for the performance of ordinary manual labor; an injury in 1957 to his left hand resulting in 5 percent permanent partial disability to the left hand for performance of ordinary manual labor; and an injury in 1957 to his lower back resulting in 25 percent permanent partial disability to the body as a whole for the performance of ordinary manual labor; or a combined permanent partial disability to the body as a whole of 40 percent, for the performance of ordinary manual labor, and which disability was obvious and apparent to an ordinary layman; that as a result of his injury of November 6, 1958, to his left side resulting in a left hernia, and to his back and right hip, he has suffered an additional 25 percent permanent partial disability to the body as a whole for the performance of ordinary manual labor, and the said bi-lateral hernias are now unrepairable; that claimant's permanent disability suffered by reason of his last injury, combined with his previous disabilities and unrepairable hernias, is materially greater than that which would have resulted from his last injury alone, and by...