Special Indem. Fund v. Roberts
Decision Date | 01 November 1960 |
Docket Number | No. 38928,38928 |
Citation | 356 P.2d 561 |
Parties | SPECIAL INDEMNITY FUND of the State of Oklahoma, administered by the State Insurance Fund, Petitioners, v. L. L. ROBERTS and The State Industrial Court, Respondents. |
Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. An employee must be a 'physically impaired person', as defined by 85 O.S.1951 § 171, to receive the benefits provided under the Special Indemnity Fund Act. Special Indemnity Fund v. Smith, Okl., 349 P.2d 759.
2. In a proceeding under the provisions of 85 O.S.1951 § 171 and 85 O.S.Supp.1959 § 172, a finding of the State Industrial Court that prior to the time claimant sustained an accidental injury he had, as a result of previous injuries, an unadjudicated disability to his back, which impairment was obvious to an ordinary layman, is not sufficient as a basis upon which the trial tribunal may determine that claimant was 'a physically impaired person' as defined by 85 O.S.1951 § 171. Special Indemnity Fund v. Smith, Okl., 349 P.2d 759.
Original proceeding brought by Special Indemnity Fund, Petitioner, to review an award of the State Industrial Court made in favor of L. L. Roberts, Claimant. Award vacated without prejudice to further proceedings.
Mont R. Powell, Mary Elizabeth Cox, Oklahoma City, for petitioners.
Hatcher & Wilson, Pauls Valley, Looney, Watts, Looney & Nichols, Oklahoma City, Mac Q. Williamson, Atty. Gen., for respondents.
After a joint petition settlement with his last employer claimant instituted proceedings to recover benefits against the Special Indemnity Fund (hereinafter referred to as the Fund) under the provisions of 85 O.S.1951 § 171 and 85 O.S.Supp.1959 § 172. He claimed to be permanently totally disabled as a result of his pre-existing impairments combined with the disability due to the last injury. The trial tribunal entered an award against the Fund for permanent total disability less the amount of compensation paid to claimant by the last employer. The Fund brings this proceeding for review. It contends that (a) the finding of the trial tribunal is insufficient as a basis upon which to determine that claimant was a 'physically impaired person' as defined by 85 O.S.1951 § 171; (b) there is no competent evidence to show that claimant was a physically impaired person within the meaning of the statute.
The evidence discloses that prior to the time claimant sustained the last compensable injury he had, as a result of multiple previous accidents, an unadjudicated disability to his back. The trial tribunal based its award upon the following finding:
'That when claimant sustained his last compensable injury to his low back on February 7, 1959, he was a previously disabled person by virtue of prior injuries to his back, and that such impairement was obvious to an ordinary layman.'
In Special Indemnity Fund of State of Okl. v. Iven, Okl., 284 P.2d 419, 420, it is stated:
'The State Industrial Commission is without jurisdiction to enter an award against the Special Indemnity Fund under the provisions of 85 O.S.1951 §§ 171 and 172, unless it be shown that at the time of he subsequent injury the claimant was a physically impaired person by reason of having (1) suffered the loss of the sight of one eye; (2) the loss by amputation of the whole or a part of some member of his body; (3) total or partial loss of use of a specific member such as is obvious and apparent from observation or examination by an ordinary layman; and (4) any disability which previously has been adjudged and determined by order of the State Industrial Commission.'
The back is not classified or scheduled as a specific member of the body under 85 O.S.Supp.1959 § 22. A prior unadjudicated disability to the back, whether conspicuous to or occult from a human eye, does not constitute the employee a physically impaired person within the meaning of the statute, unless such disability affects a specific member of the body in a manner which makes the loss of use thereof, be it total or partial, obvious and apparent to an ordinary layman. 85 O.S.1951 § 171; ...
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