Special Indem. Fund v. Acuff
| Decision Date | 11 June 1963 |
| Docket Number | No. 40149,40149 |
| Citation | 383 P.2d 630,1963 OK 142 |
| Parties | SPECIAL INDEMNITY FUND of the State of Oklahoma, administered by the State Insurance Fund, Petitioner, v. Zala Ruth ACUFF, Pontotoc Guernsey Farms, and the State Industrial Court of the State of Oklahoma, Respondents. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Where there is no evidence to the contrary, an award made against the last employer on a properly approved joint petition stipulation may be considered in a subsequent proceeding against the Special Indemnity Fund as establishing prima facie claimant's right to compensation for permanent disability from an accidental injury sustained in course of hazardous employment.
2. An antecedent unadjudicated pathology of the spine constitutes claimant a physically impaired person as defined by 85 O.S.1961 § 171, if prior to the last injury, such condition did permanently affect 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.
3. If an unadjudicated antecedent pathology of the spine does permanently affect a specific member of the body so as to constitute claimant a physically impaired person, the entire disability produced thereby may be considered in combination with the last injury standing alone.
Original proceeding by Special Indemnity Fund to review an award of the State Industrial Court in favor of Zala Ruth Acuff, claimant. Award sustained.
Mont R. Powell, Moraul Bosonetto, Oklahoma City, for petitioner.
I. Jake Blevins, Ada, Charles R. Nesbitt, Atty. Gen., for respondents.
The award under review allows claimant benefits against the Special Indemnity Fund (designated herein as the Fund) for permanent total disability from the cumulative effect of her pre-existing impairment considered in combination with disability produced by the last accidental injury standing alone.
While at work for Pontotoc Guernsey Farms, her last employer, claimant sustained on April 27, 1960, an accidental injury to the back. Final disposition of her claim against this employer was effected on October 21, 1960, by an award for $600.00 entered on joint petition stipulation. Claimant's sole pre-existing impairment, which she sought to combine for an award against the Fund with disability from her last accident, consisted of an unadjudicated condition of the spine, either congenital in origin or attributable to a childhood mishap.
Since claimant's last injury occurred in 1960, prior to the 1961 amendment to the Special Indemnity Act (see, S.B. 194 § 1, S.L.1961, p. 640 § 1), the present proceeding against the Fund was correctly tried under the provisions of 85 O.S.Supp.1959 § 172. The latter statute was in effect at the time of claimant's last accidental injury. See in this connection, Special Indemnity Fund v. Reynolds, 199 Okl. 570, 188 P.2d 841; Special Indemnity Fund v. Bramlett, 201 Okl. 415, 206 P.2d 972; and Special Indemnity Fund v. Beller, Okl., 369 P.2d 184.
The Fund urges three propositions: (a) claimant's injury of April 27, 1960, was not 'compensable' because Pontotoc Guernsey Farms, the last employer, was not engaged in hazardous business within the purview of the Workmen's Compensation Act; (b) claimant, at the time of her last injury, was not a physically impaired person as defined in 85 O.S.1961 § 171; (c) the combination of claimant's last injury 'with a previously unadjudicated back disability' was unauthorized by law.
The claim against the Fund was presented in a separate hearing conducted after the award against the employer had become final. The Fund, apparently satisfied with this mode of procedure, made no objection thereto and does not complain here of any prejudice therefrom.
Where liability is sought to be imposed upon the Special Indemnity Fund, neither party to the proceeding is entitled, as a matter of right, to insist on a severance from the claim which the injured workman is concurrently asserting against his last employer. Although the trial tribunal is not precluded from entertaining separate inquiries upon these claims, all the evidence adduced before it, whether elicited against the employer or the Fund, may be considered in resolving the issues formed against either or both parties. Berna v. Maloney-Crawford Tank Co., Okl., 281 P.2d 736; Special Indemnity Fund v. Davis, Okl., 264 P.2d 320; Special Indemnity Fund v. Pool, 198 Okl. 496, 180 P.2d 165.
We are urged that inasmuch as the employer's liability was adjudicated by a prior compromise on joint petition to which the Fund was not a party, the adjudication so made did not operate to vest jurisdiction in the trial tribunal over the Special Indemnity Fund. It is not suggested that claimant did not have an accidental injury on April 27, 1960; nor is it denied that permanent disability resulted therefrom. The sole objection advanced is that there is no competent evidence to establish the hazardous nature of the last employer's business.
An award of the State Industrial Court made upon a stipulation of facts has the same force and effect as an award entered upon an adversary hearing. Such award, when final, becomes binding and conclusive not only upon the parties but also upon the State Industrial Court. Cavender v. Wofford Drilling Co., 190 Okl. 291, 123 P.2d 261; G. S. & C. Drilling Co. v. Pennington, 151 Okl. 61, 1 P.2d 764, 7 P.2d 474. A prior order approving a joint petition settlement with the last employer does not operate to bar claimant from subsequently proceeding against the Special Indemnity Fund. Special Indemnity Fund v. Chambers, Okl., 356 P.2d...
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