Special Indem. Fund v. McWhorter

• Decision Date: 22 June 1948
• Docket Number: 32987.
• Citation: 196 P.2d 689,200 Okla. 469,1948 OK 156
• Parties: SPECIAL INDEMNITY FUND v. McWHORTER et al.
• Court: Oklahoma Supreme Court

196 P.2d 689

200 Okla. 469, 1948 OK 156

SPECIAL INDEMNITY FUND v. McWHORTER et al.

No. 32987.

Supreme Court of Oklahoma

June 22, 1948

Rehearing Denied July 13, 1948.

Original proceeding by the Special Indemnity Fund of the State of Oklahoma, administered by the State Insurance Fundpetitioner, against Odus O'Dell McWhorter, compensation claimant, Borden Milk & Ice Cream Company, employer, General Accident Insurance Company, insurance carrier, and the State Industrial Commission, to review an award of the Commission under the Special Indemnity Fund Act.

Award vacated.

RILEY and CORN, JJ., dissenting.

Syllabus by the Court.

1.A back injury may not be combined with a previous leg and arm injury under the Special Indemnity Fund Act, 85 O.S.1943 Suppl. sec. 172, for the purpose of awarding compensation to an injured employee on the basis of permanent partial disability to the body as a whole.

2.Record examined; held, evidence insufficient to sustain the award as against Special Indemnity Fund.

Mont R. Powell, and Don Anderson, both of Oklahoma City, for petitioner.

Sam J Clay, and Maurice Nagle, both of Oklahoma City, and Mac Q Williamson, Atty. Gen., for respondents.

DAVISON Vice Chief Justice.

This is an original proceeding brought by Special Indemnity Fund to review an award of the State Industrial Commission entered in favor of respondentOdus O'Dell McWhorter, An award was also entered against Borden Milk and Ice Cream Company and its insurance carrier which award was thereafter settled by the respondent and his employer on a joint settlement agreement.We are here concerned only with the award made against Special Indemnity Fund.

The trial commissioner after finding that respondent on the 14th day of January, 1945, while in the employ of Borden Milk and Ice Cream Company sustained an accidental personal injury to his back resulting in a 5 per cent permanent partial disability to his body as a whole for which he is entitled to compensation at the rate of $18.00 per week for a period of 25 weeks, or the sum of $450.00, further found: 'That prior to claimant's injury of January 14, 1945, he had sustained previous disabilities from 5 years of prize fighting between the years of 1929 and 1934, resulting in an injury to the central nervous system, and at the time of said injury of January 14, 1945, claimant was a 'physically impaired person' within the meaning of Section 171, Title 85 O.S. 1943, and that such impairment was noticeable to an ordinary layman, and the Commission finds from the evidence in this cause that said impairment and disability to his central nervous system is in the amount of 25% permanent partial disability to the body as a whole or 25% of a permanent total disability, and the 5% permanent partial disability to and loss of use of the claimant's back when taken and considered together in the relation that they bear to a permanent total disability, based on 500 weeks, are equivalent to 30% of a permanent total disability, entitling claimant to compensation at the rate of $18.00 per week for a period of 150 weeks, or the sum of $2,700.00 and that the respondent and insurance carrier herein are liable to claimant for 25 weeks of said compensation, and the Special Indemnity Fund is liable to claimant for the balance thereof, or 125 weeks at $18.00 per week, and that there is accrued on the compensation due claimant by the respondent and insurance carrier herein the sum of $72.00 computed from the date of injury, January 14, 1945, up to February 17, 1945, less the five day waiting period, a period of four weeks' compensation, and that the...