Special Indem. Fund v. Liggens

• Decision Date: 30 September 1964
• Docket Number: No. 40506,40506
• Citation: 395 P.2d 805
• Parties: SPECIAL INDEMNITY FUND, Petitioner, v. Don LIGGENS and the State Industrial Court, Respondents.
• Court: Oklahoma Supreme Court

Page 805

395 P.2d 805

1964 OK 209

SPECIAL INDEMNITY FUND, Petitioner, v. Don LIGGENS and the State Industrial Court, Respondents.

No. 40506.

Supreme Court of Oklahoma.

Sept. 30, 1964.

Syllabus by the Court

1. An antecedent, unadjudicated permanent partial loss of vision, medically evaluated as 'almost' industrial blindness as result of disease, standing alone, does not establish physical impairment within definition of 85 O.S.1961 § 171, and may not be considered as a factor in evaluating aggregate disability as basis of liability against Special Indemnity Fund.

2. An award against the Special Indemnity Fund will be vacated on review when its liability is based upon medical evaluation which takes into account a disability factor whose combination with the last injury standing alone is unauthorized by law.

Original proceeding by Special Indemnity Fund to review compensation award for permanent total disability based upon finding that claimant was a physically-impaired person and that particular impairment was combinable with last injury. Award vacated with directions.

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

Harold Dodson, Rinehart, Morrison & Cook, Oklahoma City, for respondent Don Liggens.

Charles Nesbitt, Atty. Gen., Oklahoma City, for State Industrial Court.

BERRY, Justice.

This is an original action to review an order of the State Industrial Court entered March 12, 1963, awarding Don Liggens, hereinafter called claimant, permanent total disability compensation. This cause previously was heard and determined by ths Court in an earlier proceeding. Therein was vacated an order of the Industrial Court denying compensation upon the ground that it is incumbent upon this Court to make independent determination as to whether a claimant is a physically-impaired person within the meaning of 85 O.S.1961 § 171. See Liggens v. Special Indemnity Fund et al., Okl., 370 P.2d 303.

Upon further hearing in the industrial Court, responsive to this Court's mandate in the cited case, it was stipulated claimant was a physically impaired person within the meaning of the Act, supra, by reason of multiple sclerosis in the left hand or arm. Thereafter claimant offered the testimony of lay witnesses to show that claimant suffered from previous disability by reason of the condition of his eyes, which condition was obvious and apparent to a layman.

Claimant's asserted position was that this was not a total loss of vision but was a partial loss of vision under the medical evidence. The trial judge reserved ruling and allowed claimant to introduce lay testimony bearing upon partial loss of vision, subject to same being stricken under the Fund's objection thereto. The lay testimony established that claimant's vision was defective and evidenced by inability to get around in close places, and principally in the summertime his eyes were noticeably coated with mucous and he lacked side vision.

Medical evidence in claimant's behalf found permanent total disability based upon 'almost completely industrially blind in both eyes' combined with disability of the left arm, together with additional disability to right arm resulting from accidental injury. The medical report was objected to for the reason it combined partial loss of vision with other injuries in fixing total disability. A medical report by respondents' doctor was objected to by claimant because it failed to combine partial loss of vision with other injuries.

After hearing the evidence the trial judge entered an order which, insofar as pertinent, found:

'-2- That at the time of said injury claimant was a previously impaired person due to multiple sclerosis, causing marked impairment of claimant's left arm, obvious and apparent to an ordinary layman; that in addition thereto claimant as a further result of said disease was almost industrially blind; that as a result of claimant's multiple sclerosis, affecting claimant's left arm and vision, he has suffered 85% permanent partial disability to his body as a whole prior to his last injury. That as a result of claimant's last injury combined with his previous disability, he is now permanently and totally disabled for the performance of ordinary manual labor, for which he is entitled to receive from the Special Indemnity Fund 500 weeks' compensation, less 71 weeks' compensation paid claimant by reason of his last injury of February 25, 1960, or 429 weeks at $30.00 per week, or the total amount of $12,870.00.' (Emphasis supplied.)

This award was fixed by combining the adjudicated permanent partial disability to the right arm resulting from the last injury (20%) with 85% permanent partial disability to the body as a whole, resulting from multiple sclerosis existing prior to the last injury and causing marked impairment of the left arm, together with 'almost industrial blindness' as a further result of such disease.

The petitioner, hereafter referred to as the Fund, urges four propositions in seeking vacation of the order here for review. Disposition of the proceeding turns upon the question whether partial loss of vision constitutes previous physical impairment within the meaning and intent of 85 O.S.1961 § 171, which defines a physically impaired person. If partial loss of vision does not constitute physical impairment, then it follows that an award entered upon the basis of combining partial loss of vision with other injuries was erroneous and cannot stand.

The statute, supra, defining physically impaired persons enumerated four conditions, and a finding of physical impairment is dependent upon existence of one of these conditions or qualifications:

(1) Loss of sight of one eye;

(2) Loss by amputation of whole or part of a member of the body;

(3) Total or partial loss of a specific member as is obvious and apparent from observation or examination by an ordinary layman, a person not skilled in the medical profession;

(4) A disability which previously has been adjudged and determined by order of the State Industrial Court.

See Special Indemnity Fund v. Keel, 196 Okl. 315, 164 P.2d 996.

No evidence was introduced, and no contention is made, that claimant's right to compensation could have arisen under Subdivisions (1), (2) or (4), thus leaving for consideration only a case properly falling within the 3rd qualification. Because of the language of the 3rd qualification and certain earlier decisions, claimant contends that total or partial loss of any...