Standard Oil Co. (Indiana) v. Ervin

• Citation: 44 Wyo. 88,8 P.2d 447
• Decision Date: 01 March 1932
• Docket Number: 1750
• Parties: STANDARD OIL CO. (Indiana) v. ERVIN
• Court: United States State Supreme Court of Wyoming

8 P.2d 447

44 Wyo. 88

STANDARD OIL CO. (Indiana) v. ERVIN

No. 1750

Supreme Court of Wyoming

March 1, 1932

Rehearing denied March 29th, 1932, without opinion.

ERROR to District Court, Natrona County; CORNELIUS D. MURANE Judge.

Proceedings under the Workmen's Compensation Act by Nathan F. Ervin whose name is sometimes written Nathan F. Erwin, employee opposed by the Standard Oil Company (Indiana). To review an order awarding compensation, the employer brings error.

Affirmed.

For the plaintiff in error there was a brief by Hagens & Wehrli, of Casper, Wyoming, and oral argument by Mr. G. R. Hagens.

It was made clear by the evidence that Ervin was able to do the same kind of work, that is janitor work, that he was doing previous to the alleged accident. The compensation law does not, except in specified cases of permanent partial disability, allow an award unless the injury complained of, incapacitates claimant from performing any work at any gainful occupation. 4334 C. S. as amended by Sec. 5, Ch. 111, Laws 1927. The burden was upon claimant to show that his ailment was permanent and would not yield to medical treatment. Standard Oil Co. of Indiana v. Sullivan, 33 Wyo. 223; Carter Oil Co. v. Gibson, 34 Wyo. 53. There was no proof in the record showing that his disability was of a permanent nature.

For the defendant in error there was a brief by James A. Greenwood, Attorney General, Richard J. Jackson, Deputy Attorney General, George W. Ferguson, Assistant Attorney General, and R. Dwight Wallace, and oral argument by Mr. Jackson and Mr. Wallace.

The evidence tended to show that the employee was anxious to work, although suffering from an accident. He continued his work, but experienced considerable pain, and difficulty in getting sufficient sleep. The evidence was sufficient to justify the award. Standard Oil Co. v. Sullivan, 33 Wyo. 223; Carter Oil Co. v. Gibson, 34 Wyo. 53; In re Hibler, 37 Wyo. 332. The award here was made for permanent partial disability, the order of award being sustained by sufficient evidence should not be disturbed.

KIMBALL, Chief Justice. BLUME and RINER, JJ., concur.

OPINION

KIMBALL, Chief Justice.

This is a case under the Workmen's Compensation Law. (Rev. St. 1931, Sec. 124-101 et seq.) The defendant in error, the workman, is about 61 years of age, and had been employed as a common laborer for plaintiff in error for several years preceding the accident. He was injured in the arm and shoulder by a fall from a truck, and claimed compensation for permanent partial disability. His claim, after a hearing without a jury, was allowed by an order of the district judge finding that the workman's arm was fifty per cent permanently disabled; awarding as compensation $ 1000, which is one-half the amount allowable for the loss of an arm above the elbow, and directing payment of the award in monthly installments, as provided by the compensation schedule, paragraph (a), § 124-120, Wyo. R. S. 1931.

The employer contends that the evidence is insufficient to support the finding of disability. In view of the rule announced in Standard Oil Co. v. Sullivan, 33 Wyo. 223, 237 P. 253, and other cases, we cannot disturb the award on this ground if there is any substantial evidence to support the finding.

There is no doubt that the workman's arm and shoulder were injured by the fall, but he continued in his employment doing light labor, such as janitor work, for about six weeks. He testified that he was able to do this work "pretty well using one hand." During this time the injured arm and shoulder were treated about 25 times by the physician in charge of the employer's hospital. When the workman was discharged from this physician's care, he was also discharged from his job. There was evidence tending to show that before the accident the workman had been put at light jobs for the reason that, due to his age and weak physique, he was unfitted for heavy work. At least one of the reasons for his discharge was that he was no longer able to do the work that the employer had for its common laborers. In the language of one of the bosses, "there wasn't any more light work we could pick out for him."

The employer claims that the above evidence shows that the workman, after the injury, was able and willing to do the same kind of light work that he was doing before, and that therefore, he was not disabled. We think the authorities under somewhat similar statutes correctly hold that the ability of the workman to continue in his former employment is not a conclusive test on the question of his disability. As held in Burbage v. Lee, 87 N.J.L. 36, 93 A. 859, the...