Van Ness Const. Co. v. Waltcher

• Decision Date: 03 October 1939
• Docket Number: Case Number: 28837
• Citation: 1939 OK 368,185 Okla. 657,95 P.2d 858
• Court: Oklahoma Supreme Court
• Parties: VAN NESS CONST. CO v. WALTCHER

1939 OK 368

95 P.2d 858

185 Okla. 657

VAN NESS CONST. CO v. WALTCHER

Case Number: 28837

Supreme Court of Oklahoma

Decided: October 3, 1939

Syllabus

¶0 1. WORKMEN'S COMPENSATION--Proceedings to Discontinue Payments for Temporary Total Disability--Questions Presented.

In a proceeding before the State Industrial Commission to discontinue further payment of compensation for temporary total disability, the only questions properly presented for determination are whether the temporary total disability of the employee has ceased and, if so, when and whether any permanent disability has ensued.

2. SAME--Burden of Proof on Party Seeking Discontinuance of Payments.

In such a proceeding the burden of proof is upon the party seeking to discontinue such payments.

3. SAME--Proper Order Where Competent Evidence Supports Finding of Continuance of Temporary Total Disability After Its Apparent Termination.

When in such proceeding competent evidence is introduced which supports a finding of a continuance of temporary total disability after its apparent termination, the Industrial Commission may properly deny the motion to discontinue and direct payment of accrued compensation and the continuance of further payments during the period of ensuing temporary total disability for a period not to exceed that limited by statute.

4. WORKMEN'S COMPENSATION--Right of Employee to Medical Care and Liability of Employer Therefor Regulated by Statute.

The right of an employee to medical care and attention and the liability of the employer therefor are regulated by statute (section 13354, O. S. 1931, 85 Okla. St. Ann. § 14), and the authority of the State Industrial Commission to approve claims for such services is limited to the conditions therein named (section 13364, O. S. 1931, 85 Okla. St. Ann. § 30.)

Original proceeding in the Supreme Court by Van Ness Construction Company and its insurance carrier to obtain review of order made by the State Industrial Commission, which denied an application to discontinue payments for temporary total disability and directed further payments and payment of reasonable medical expenses of Harold K. Waltcher. Order sustained as modified.

Rolland O. Wilson and Orbie E. Slier, both of Oklahoma City, for petitioners.

W. P. Morrison, Ralph H. Schaller, McVey.& Randolph, and Mae Q. Williamson, Atty. Gen., all of Oklahoma City, for respondents.

PER CURIAM.

¶1 In this proceeding, Van Ness Construction Company, hereafter referred to as petitioner, and its insurance carrier seek a review of an order made by the State Industrial Commission which denied its application to discontinue payment of compensation for temporary total disability to Harold K. Waltcher, hereafter referred to as respondent.

¶2 The essential facts are not in dispute. On April 18, 1936, the respondent while in the employ of the petitioner sustained a compensable accidental injury. The petitioner furnished necessary medical attention and hospital care, 'and, on July 3, 1936, applied to the Industrial Commission for authority to pay compensation to respondent on account of his temporary total disability at the minimum rate provided by statute. (Subdivision 5, see. 13356, O. S. 1931, 86 Okla. St. Ann. § 22, subd. 5.) This application was granted by the commission In an order dated July 8, 1936 (subsequently corrected) and which directed the petitioner to pay compensation until the temporary total disability, of the respondent should cease or until otherwise ordered by the commission. Thereafter, on August 13, 1936, the petitioner filed with the commission its application to discontinue any further payments to the respondent for the assigned reason that respondent's temporary total disability had terminated on July 27, 1936. After leaving the hospital the respondent went to the home of a sister at Wellington, Kau., and then to the home of an aunt in Kansas City, and wrote the petitioner advising it that he was still disabled and In need of further medical care and attention, which he requested The petitioner declined this request for the reason that it had theretofore filed its application with the commission to, discontinue any further payments of compensation. Respondent's aunt thereupon bad him examined and given treatments by some physician in Kanas City and paid most of the bills for such services. On December 11, 1936, respondent, without consulting his aunt or taking medical advice, enlisted in the United States Marine Corps and was assigned, to service with the fleet on the Pacific Coast. Shortly after entering such service, respondent was subjected to disciplinary action, and upon informing his superiors that he was not well, he was eonfined in sick bay, and thereafter given a medical survey and honorably discharged from the service, on August 20, 1937, on account of disability to perform his duties. Respondent thereupon returned to Oklahoma and in the fall of 1937 appeared before the commission for the purpose of contesting the application to discontinue which had theretofore been filed by the petitioner. At the various hearings held by. the. commission in this connection, the respondent, produced one doctor and four lay witnesses, and testified in his own behalf and also offered in evidence the depositions of the doctors who had examined him and treated him in Kansas City. The testimony of the doctor who appeared for the respondent as well as that of the doctors who testified by depositions was to the effect that the respondent was unable to perform ordinary manual labor, and that his condition might improve by treatment, and therefore was presumably temporary, and that such condition was attributable to the original injury which respondent had sustained in April, 1936. The petitioner orally objected to the introduction of the depositions for the assigned reason that the proper notice for the taking of same had not been served in the manner provided by statute, and subsequently filed written objections to...