Magnolia Pipe Line Co. v. Smith , 167 Okla. 316 ( 1933 )

This is an appeal from an order and award of the State Industrial Commission made on December 28, 1932.

The Commission found that respondent was in the employ of petitioner and engaged in a hazardous occupation as defined by the Workmen's Compensation Law; that the respondent, on October 19, 1932, while in such employment received an accidental personal injury, the nature of said injury being a strained back while lifting on a six-inch pipe line; and that on December 28, 1932, by reason of said accidental injury, claimant was temporarily totally disabled from October 19, 1931, to January 1, 1932, for which respondent was paid compensation in the total sum of $134.60. The Commission also found that, as a result of said accidental injury, respondent was permanently partially disabled from January 2, 1932, to March 1, 1932, during which period of time he worked and received wages; that since March 1, 1932, respondent had been permanently partially disabled and his wage-earning capacity had decreased from $3.50 per day to $1 per day, by reason of his permanent partial disability, and that he was entitled to compensation for 66 2/3 per centum of the difference between his average daily wages at the time of the accidental injury and his wage-earning capacity since March 1, 1932, in the sum of $2.50 per day, payable during the continuance of said permanent partial disability, not to exceed 300 weeks.

Petitioner urges the following propositions:

"Proposition 1. "That said award is contrary to law, and there is no competent evidence reasonably tending to support the findings of the Commission in its order of the 28th of December, 1932, as said Commission made an order on the 6th day of January, 1932, awarding permanent partial disability in this case, and as said cause should not be reopened unless there was a change of condition of said claimant. The Commission, in its order of December 28, 1932, makes an original order as though the order of January 6, 1932, had not been made in this cause, and does not refer to it in its order of the 28th day of December, 1932. The order of January 6, 1932, was not appealed from. The only grounds for reopening this case would be on a change of condition. The motion to reopen the same does not state a change of condition, no fraud is alleged in the issuance of the order of January 6, 1932, and the Commission in its last order did not find a change of condition. Therefore, said last order was illegal and is void and of no force and effect. "Proposition 2. "There was no competent evidence reasonably tending to support the findings of the State Industrial Commission, as there was no testimony showing that the claimant was suffering from any disability on account of said alleged injury, and no testimony showing that there was a change of condition in the claimant between the issuance of the order of January 6, 1932, and the order of December 28, 1932."

There is really only one question for our consideration, and that is whether or not the respondent was entitled to an award for permanent partial disability due to the original injury. Expert testimony was offered to the Commission on behalf of respondent and by petitioner. This evidence is conflicting. The original injury is admitted and compensation was paid for temporary total disability. It was not necessary to plead or prove a change of condition to establish an award for permanent partial disability attributable to the original injury. Dailey, Crawford Pevetoe v. Rand, 155 Okla. 229, 8 P.2d 738; Geis Price Grain Co. v. Bailey, 155 Okla. 302, 9 P.2d 424; Magnolia Petroleum Co. v. Nalley, 156 Okla. 156,10 P.2d 249; Loffland Bros. Drilling Co. v. State Industrial Commission, 157 Okla. 78, 10 P.2d 1096; Hamilton Hartman v. Badgett, 164 Okla. 31, 22 P.2d 350.

Suffice it to say that there is competent evidence based upon the testimony of respondent and expert testimony to support the award for permanent partial disability. Award affirmed.

RILEY, C. J., and SWINDALL, ANDREWS, and OSBORN, JJ., concur. CULLISON, V. C. J., and BAYLESS, BUSBY, and WELCH, JJ., absent.

On Rehearing.