Town of Ryan v. Poage

• Decision Date: 14 July 1964
• Docket Number: No. 40577,40577
• Citation: 394 P.2d 485
• Parties: TOWN OF RYAN and The State Insurance Fund, Petitioners, v. George A. POAGE and the State Industrial Court of the State of Oklahoma, Respondents.
• Court: Oklahoma Supreme Court

Page 485

394 P.2d 485

1964 OK 167

TOWN OF RYAN and The State Insurance Fund, Petitioners, v. George A. POAGE and the State Industrial Court of the State of Oklahoma, Respondents.

No. 40577.

Supreme Court of Oklahoma.

July 14, 1964.

Syllabus by the Court

1. In case of injury resulting in hernia but the claimant is not totally and permanently disabled, the claimant is not entitled to come under the 'Other Cases' subdivision unless he has been twice previously operated for hernia in the same area.

2. Hernia is a separate subdivision under the schedule of specific injuries of 85 O.S.1961 § 22.

3. Scheduled compensation for a specific injury is to be awarded even though there is no loss of earning power.

Original proceeding brought by the Town of Ryan, Oklahoma, and the State Insurance Fund to review an award of the State Industrial Court against them and in favor of George A. Poage. Award sustained in part and vacated in part.

Mont R. Powell and Guy A. Secor, Oklahoma City, for petitioners.

B. E. Bill Harkey and Charles R. Nesbitt, Atty. Gen., Oklahoma City, for respondents.

HALLEY, Vice Chief Justice.

Parties will be referred to by their Industrial Court designations, 'Respondent' and 'Claimant' or by name.

Although claimant set up three injuries for which he sought compensation this appeal has only to do with the claim for compensation for the hernia for which he was allowed 5% permanent partial disability to the body as a whole for his injury, and fourteen weeks temporary total compensation. $750.00 was awarded for the permanent partial disability to the body as a whole and $490.00 was awarded for the temporary total compensation, both payable under 85 O.S.1961 § 22.

As to respondent's first contention we agree and that is the Industrial Court erred in awarding claimant 5% permanent partial disability to the body as a whole for his hernia injury. Prior to the 1957 amendment to 85 O.S.1961 § 22, it was firmly established that where an injury results in a hernia, compensation would not be awarded for permanent partial disability to the body as a whole. In Nelson Electric Mfg. Co. v. Cartwright, Okl., 277 P.2d 163, we said:

'* * * The ultimate award that may be made under 85 O.S.1951 § 22, subd. 3 for an injury resulting in hernia, except under special circumstances and conditions not here involved, is compensation for 14 weeks and costs of the operation, unless the hernia results in permanent total disability. Where an injury results in a hernia, compensation may not be awarded for permanent partial disability to the body as a whole, in addition to the statutory award. Patrick v. City of Tulsa, 200 Okl. 556, 197 P.2d 994; Pioneer Mills Co. v. Webster, 184 Okl. 49, 84 P.2d 642; Barnsdall Oil Co. v. State Industrial Commission, 178 Okl. 242, 62 P.2d 655.'

In our opinion the amendment of 1957 to Section 22, does not authorize an award for permanent partial disability for one hernia. The provision on hernia prior to the amendment was as follows (Laws 1955, p. 492):

'Hernia: In case of an injury resulting in hernia, compensation for fourteen (14) weeks and the cost of the operation shall be payable; provided, that if the hernia results in total permanent disability, then the Commission may so determine said fact and award the claimant compensation for a total permanent disability.'

This paragraph after amendment is as follows:

'Hernia. In case of an injury resulting in hernia, temporary total compensation for fourteen (14) weeks, and the cost of an operation shall be payable; provided, however, in any case where the injured employee has been twice previously operated for hernia in the same area and it is established by opinion of a competent surgeon that further surgery will not result in full relief of the condition, the Commission may then award compensation for disability resulting therefrom under subdivision 1 of this section, or, if not totally and permanently disabled, then...