Special Indem. Fund v. England

• Decision Date: 06 March 1951
• Docket Number: No. 33408,33408
• Citation: 228 P.2d 629,204 Okla. 207
• Parties: SPECIAL INDEMNITY FUND v. ENGLAND et al.
• Court: Oklahoma Supreme Court

Page 629

228 P.2d 629

204 Okla. 207

SPECIAL INDEMNITY FUND v. ENGLAND et al.

No. 33408.

Supreme Court of Oklahoma.

March 6, 1951.

Syllabus by the Court

1. An award made by the State Industrial Commission against the Special Indemnity Fund, which is not supported by any competent evidence, but is contrary to the evidence, will be vacated by this Court.

2. A finding by the State Industrial Commission that a claimant is a 'physically impaired person', which is based upon the 'loss of use or partial loss of use of a specific member, such as is obvious and apparent from observation or examination by an ordinary layman', will not be sustained where there is no competent evidence of loss of use of a specific member.

Mont R. Powell, Anthony R. Kane, both of Oklahoma City, for petitioner.

F. L. Arvin, Tom Arvin, both of Enid, Mac Q. Williamson, Atty. Gen., for respondents.

LUTTRELL, Vice Chief Justice.

This is an original proceeding in this court to review an award made by the State Industrial Commission in favor of Norman Edward England against the Special Indemnity Fund of the State of Oklahoma. From the record it appears that respondent on December 17, 1946, filed a claim for compensation with the State Industrial Commission for an injury received by him on November 12, 1946, while in the employ of Tankersley Construction Company. In his claim he stated that he was a physically impaired person in that on February 28, 1937, he sustained a fracture to his right knee as a result of an automobile accident, and that as a result of this accident he had varicose veins.

The trial commissioner heard the evidence and made an award, both against Tankersley Construction Company and against Special Indemnity Fund, and both appealed to the Commission en banc. Before the hearing before the Commission en banc Tankersley Construction Company and claimant settled the claim against Tankersley Construction Company by joint petition.

On the appeal the Commission en banc affirmed the award made against Special Indemnity Fund.

The decisive question presented in this proceeding is whether the award made by the trial commissioner against Special Indemnity Fund and affirmed by the Commission en banc was sustained by sufficient evidence, it being urged by Special Indemnity Fund that the evidence was wholly insufficient to show that claimant at the time of his last injury was a physically impaired person, as defined by 85 O.S.Supp.1947, § 171, S.L.1943, p. 258, § 1. The parties agree that the only category contained in section 171 within which claimant would fall is No. 3, which defines a physically impaired person as one who has suffered 'the loss of the use, or partial loss of the use, of a specific member such as is obvious and apparent from observation or examination by an ordinary layman, that is, a person who is not skilled in the medical profession'.

Examination of the record in the instant case discloses that three physicians testified to claimant's condition, and that claimant also testified in reference thereto. Claimant testified that he received the old injury to the right leg in 1937, when he was in a car accident; that he had surgery to his right knee as a result of that accident; was hospitalized for eight weeks, and that the old injury and the resulting scar on his knee bothered him for some six or eight weeks after he had gotten out of the hospital, and that it was not fully healed until some six months afterwards. Questioned by the trial commissioner, he testified that after that the pain passed away and he was all right to a certain extent, and that the injury did not disable him at all to do ordinary manual labor. He testified that this injury did not result in varicose veins, or that varicose veins did not develop as a result of the injury, but that they began to bother him some four years thereafter. He also testified that after the injury in 1937 he had continued to work in manual labor and that his knee was a little weak as a result of that injury.

Three physicians testified as to the condition of claimant's right leg. Dr. Ray L. Hall, who examined claimant after he received the last injury, testified that claimant had varicose veins in his right leg which were aggravated or made worse by the last injury,...