Special Indem. Fund v. Davidson

• Decision Date: 06 November 1945
• Docket Number: 31936.
• Citation: 162 P.2d 1016,196 Okla. 118,1945 OK 287
• Parties: SPECIAL INDEMNITY FUND v. DAVIDSON et al.
• Court: Oklahoma Supreme Court

162 P.2d 1016

196 Okla. 118, 1945 OK 287

SPECIAL INDEMNITY FUND v. DAVIDSON et al.

No. 31936.

Supreme Court of Oklahoma

November 6, 1945

Original proceeding by the Special Indemnity Fund, administered by the State Insurance Fund, to review an award of the State Industrial Commission in favor of Homer Davidson; Armour & Company being joined as respondent because the award was a joint award.

Award vacated insofar as it relates to additional disability and the attorney fee therefor.

Syllabus by the Court.

1.The statutory authority for computing percentages of total or partial loss of two or more major specific members consisting of eyes, hands, feet, and legs, with relation to the body as a whole based upon a total disability of 500 weeks, under the Workmen's Compensation Law, 85 O.S.1941 § 22(1), does not apply to loss of two or more of the minor specific members, consisting of thumbs, fingers and toes.

2.There is no statutory authority for translating total or partial loss of minor specific members consisting of thumbs fingers and toes into injuries to other specific members or into injuries to the body as a whole without competent evidence in support thereof.

CORN J., dissenting.

Mont R. Powell, T. D. Lyons, and L. B. Moore, all of Oklahoma City, for petitioner.

Hatcher, Hatcher & Taylor, of Oklahoma City, and Randell S. Cobb, Atty. Gen., for respondents.

HURST Vice Chief Justice.

This is an original proceeding brought by the Special Indemnity Fund, to review an award made to Homer Davidson, respondent.Armour and Company is joined as respondent herein for the reason that the award is a joint award under the provisions of the 1943 Act, S.L.1943, page 258, 85 O.S.1943 Supp.§§ 171-176.

On March 3, 1933, the respondent sustained an accidental injury to his right thumb, which the State Industrial Commission found resulted in a 20 per cent permanent disability to said thumb and awarded 12 weeks compensation therefor.That compensation has been satisfied, and said injury has no bearing upon the present action, except as it has become material under the provisions of said 1943 Act, which provides that in case a 'physically impaired person' receives a compensable injury which results in 'additional disability' due to the fact of his previous physical impairment, the 'additional disability' shall be paid by the Special Indemnity Fund.

The claim now under consideration is for a subsequent injury received by the respondent to his left index finger on February 10, 1944, while in the employment of Armour and Company and for which the State Industrial Commission has found a 20 per cent permanent disability to said finger, and has awarded him 7 weeks compensation therefor as provided by 85 O.S.1941 § 22(3).

No difficulty is encountered up to this point.But in addition to allowing the respondent his percentage on his left finger, the State Industrial Commission allowed him for an 'additional disability' of 4 3/4 per cent to his body as a whole, or 4 3/4 per cent of 500 weeks, or 23 3/4 weeks, to be paid by the Special Indemnity Fund and amounting to the sum of $427.50, less the sum of $110.76 paid for the partial disability to the thumb, and less the sum of $126 paid for the partial disability to the finger, leaving the balance of $190.74 to be paid by the Special Indemnity Fund as 'additional disability.'This proceeding is prosecuted to review said award.The question for decision is whether any 'additional disability' should be allowed the respondent from the Special Indemnity Fund by reason of the fact that he had a pre-existing disability to his right thumb due to his previous injury.To answer this question, it is necessary first to consider some preliminary matters.

Said 1943 Act was not amendatory to the Workmen's Compensation Law, but was merely supplementary thereto.Special Indemnity Fund v. Farmer, Okl.156 P.2d 815.It did not create any new benefits or enlarge the right to compensation or increase the amount thereof.It merely shifted the burden of paying the additional permanent disability from...