Wilkerson Chevrolet, Inc. v. Mackey

• Decision Date: 12 December 1961
• Docket Number: No. 39467,39467
• Citation: 367 P.2d 165
• Parties: WILKERSON CHEVROLET, INC., and Universal Underwriters, Petitioners, v. Floyd G. MACKEY and State Industrial Court, Respondents.
• Court: Oklahoma Supreme Court

Page 165

367 P.2d 165

WILKERSON CHEVROLET, INC., and Universal Underwriters, Petitioners, v.Floyd G. MACKEY and State Industrial Court, Respondents.

No. 39467.

Supreme Court of Oklahoma.

Dec. 12, 1961.

Syllabus by the Court

1.Exact precision is not required in describing the nature and extent of accidental injuries in claim of an injured employee filed with State Industrial Court.If the evidence before the Court shows other or additional injuries caused by the same accident, claimant is entitled to a finding thereon.

2.Where, in a proceeding before the Industrial Court, the disability alleged to exist is of such character as to require skilled and professional men to determine the cause and extent thereof, the question is one of science and must necessarily be proved by the testimony of skilled professional persons, and a finding of fact based thereon when reasonably supported will not be disturbed.

3.Hernia, under the provisions of 85 O.S.1957, Supp., Section 22, is a special grant of an award exclusive of other provisions of the Workmen's Compensation Act as to temporary and partial disability.

Original proceeding brought by Wilkerson Chevrolet, Inc., employer, and its insurance carrier, Universal Underwriters, to review an award of the State Industrial Court to Floyd G. Mackey, claimant.Award sustained.

Ungerman, Grabel, Ungerman, Leiter & Unruh, Tulsa, for petitioners.

Claud Briggs, Oklahoma City, George D. Willhite, Sapulpa, Mac Q. Williamson, Atty. Gen., for respondents.

DAVISON, Justice.

Floyd G. Mackey, claimant, obtained an award of compensation for hernias under the provisions of the Workmen's Compensation Act, 85 O.S.1951 § 1 et seq.Employer, Wilkerson Chevrolet, Inc., and its insurance carrier, Universal Underwriters, bring this proceeding to vacate the award.

This is a companion case to Wilkerson Chevrolet, Inc. v. Mackey, No. 39466, 367 P.2d 162, wherein an award was made to Floyd G. Mackey for a back injury.The present award is for hernias occurring at the time of the injury to the back.The present award is in part as follows:

'That claimant sustained an accidental personal injury, arising out of and in the course of his hazardous employment with the above named respondent, January 7, 1960, and January 30, 1960, consisting of injury to his back and groins.

'That claimant's rate of compensation is $35.00 per week for temporary total disability and $30.00 per week for permanent disability.

'That the Court finds from the testimony of the medical experts and complaints of claimant herein, that the herniae occurred on January 7, 1960, and were further torn in the subsequent fall on January 30, 1960; that disability to claimant's back has been awarded in case No. C-92230, and claimant's (sic) for disability to the back herein is denied; but that as a result of the two injuries set out above, claimant did sustain bi-lateral inguinal Hernia, for which he is entitled to compensation for 14 weeks at $35.00 per week, or the total amount of $490.00, same to be paid in a lump sum.'

The claimed injury to the back and the hernia injury were by two separately filed claims, describing two falls to the pavement, one on January 7, 1960, and another on January 30, 1960.Both claims were filed on March 21, 1960, and were separately numbered C-92229 and C-92230.

Petitioners first contend that the award for hernias is void because it was entered in the wrong proceeding.The trial judge ordered that the claims be consolidated for hearing and order 'depending on what testimony develops as to whether or not the cases should be disposed of in the same order or by separate orders.'The trial was conducted without consideration of separation as to numbers.When the award for the back injury was entered it was assigned No. C-92230 and the award for hernias was assigned No. C-92229.

We think the fact that the awards were so numbered is without legal significance unless petitioners can show some prejudice by reason thereof.The claims were consolidated and heard together.Petitioners appealed from both awards attaching each award to the respective petitions for review.There was no effort made by petitioners to correct the alleged error before the trial tribunal.A brief and reply brief were filed in cause No. 39466 and one of the errors there presented, and also here, is that the trial court erred in entering the award for 14 weeks temporary total disability in the hernia case because it constituted double compensation for temporary total disability for the period of 14 weeks.Petitioners point out no substantial error misleading or damaging to them by such alleged errors.

The two claims together described the two accidents and were consolidated for hearing and a joint or several order.Conceding that the numbered claim in question did not describe the hernia injury, still the evidence disclosed the injury was caused by the described accidents and claimant was entitled to a finding thereon.Bowling v. Blackwell Zinc Co., Okl., 347 P.2d 1024.

The only case cited by petitioners as authority for the contended error is Union Indemnity Co. v. Saling, 166 Okl. 133, 26 P.2d 217.That case involved liability on an appeal bond under the wording of the bond and status of the pleading.It is apparent there is no similarity to the present situation where there is liberality in allowing recovery for injuries other than those described in the claim.

Petitioners next argue in effect that there is no competent evidence reasonably tending to support the finding that the hernias resulted from the accidental injury.

Claimant stated that when he fell and sustained the back injury on January 7 and January 30, 1960, he felt sharp pains and swelling in the groin; that he had a previous hernia while working in Arkansas in 1949; that this hernia was repaired and healed and he had no difficulty thereafter until the injury to his back....