Stoldt Builders, Inc. v. Thomas

• Decision Date: 02 June 1964
• Docket Number: No. 40346,40346
• Citation: 393 P.2d 875,1964 OK 127
• Court: Oklahoma Supreme Court
• Parties: STOLDT BUILDERS, INC., and United States Fidelity and Guaranty Company, Petitioners, v. Larry Orville THOMAS and the State Industrial Court of the State of Oklahoma, Respondents.

Page 875

393 P.2d 875

1964 OK 127

STOLDT BUILDERS, INC., and United States Fidelity and Guaranty Company, Petitioners, v. Larry Orville THOMAS and the State Industrial Court of the State of Oklahoma, Respondents.

No. 40346.

Supreme Court of Oklahoma.

June 2, 1964.

Rehearing Denied July 14, 1964.

Syllabus by the Court

1. The loss of use of an ankle, where the impairment does not extend to or above the knee, is considered, for workmen's compensation purposes, 'as an injury to the foot'. 85 O.S.1961, Sec. 22, Subdiv. 3.

2. The back is not a specific member of the body and its impairment must be compensated under the Workmen's Compensation Act on the basis of disability to the body as a whole.

3. Under the facts in this case, impairment from an injury to a specific member of the body may not be considered in combination with disability to unclassified portions of the body in order to allow compensation for the aggregate condition on the basis of disability to the body as a whole, but such classified and unclassified disabilities must be determined separately in accordance with the applicable statutory schedules.

Proceeding by employer to review an award of the State Industrial Court. Award vacated with directions.

Fenton, Fenton, Smith & McCaleb, Oklahoma City, Sellers & Woodson, Drumright, for petitioners.

Charles R. Nesbitt, Atty. Gen., for respondents.

BERRY, Justice.

The award under review adjudicates claimant's overall condition from an accidental injury to the mid portion of his back and to the left ankle in terms of 12 per centum permament (partial) disability to the entire body. Employer asserts the trial tribunal adopted an erroneous method in calculating the amount of compensation to be allowed. We are urged in a single proposition that 'an injury to the foot may not be combined with an injury to the back * * * for the purpose of awarding compensation * * * on the basis of permanent partial disability to the body as a whole.'

The medical evidence in the record consists of letter-reports by two physicians. Dr. F., an expert for the employer, found no permanent impairment to the back. He evaluated claimant's condition in the left ankle at 5 per centum permanent (partial) loss of use of the foot. According to the other physician, Dr. McD., claimant's 'multiple involvement of the ankle and the back' produced in the aggregate 15 per centum permanent (partial) disability to the body as a whole. The trial tribunal's award is predicated upon the opinion of Dr. McD.

There is nothing in the medical evidence to suggest that the functional loss of the ankle did, in any manner, affect claimant's back so as to produce, in its cumulative effect, increased disability to the entire body. In fact, the medical evaluation by Dr. McD. militates against viewing the two conditions--in the back and in the ankle--as related or interconnected pathology.

Under the provisions of 85 O.S.1961 § 22, subdivision 3, the loss of use of an ankle which does not result in functional impairment at or above the knee, is considered as a 'scheduled' or specific injury to a member and is compensated on the basis of disability to the foot. American Tank Co. v. State Industrial Commission, 153 Okl. 117, 5 P.2d 137, 139; and Merrick et al. v. Blackman et al., 201 Okl. 553, 207 P.2d 942, 943.

The back is not classified or 'scheduled' as a specific member of the body. An impairment thereof, which falls under the 'other cases' clause of 85 O.S.1961 § 22, subdivision 3, must be compensated on the basis of disability to the body as a whole. Corbus Spring Service et al. v. Cresswell et al., Okl., 359 P.2d 219, 222; Special Indemnity Fund v. Roberts et al., Okl., 356 P.2d 561, 562; Special Indemnity Fund v. Kilgore et al., 203 Okl. 241, 219 P.2d 1001, 1002; Special Indemnity Fund v. Wade et al., 199 Okl. 547, 189 P.2d 609, 611; and Henry Schafer, Inc. et al. v. Mitchell et al., 200 Okl. 510, 198 P.2d 397, 399. The impairment of a specific or 'scheduled' member of the body may not be considered in combination with the disability to an unclassified portion of the body in order to allow compensation for the aggregate condition on the basis of percentage of disability to the body as a whole. The classified and unclassified disabilities must be determined separately in accordance with the applicable statutory schedules. State Insurance Fund v. Sharp et al., 200 Okl. 579, 198 P.2d 431, 432; Special Indemnity Fund v. McWhorter et al., 200 Okl. 469, 196 P.2d 689, 691; Special Indemnity Fund v. Lee et al., 200 Okl. 327, 193 P.2d 305; Falcon Seaboard Drilling Co. et al. v. McGehee et al., 198 Okl. 232, 177 P.2d 127; Mudge Oil Co. et al. v. Wagnon et al., 193 Okl. 466, 145 P.2d 185, 187; J. E. Trigg Drilling Co. et al. v. Daniels et al., 193 Okl. 644, 145 P.2d 944, 948. See also Special Indemnity Fund v. Wade, supra; Special Indemnity Fund v. Fite et al., Okl., 361 P.2d 220, 222; and Wilkerson Chevrolet, Inc. et al. v. Mackey et al., Okl., 367 P.2d 165, 168. The rule announced in the cited cases does not apply where an unclassified injury directly affects and produces...