Skelly Oil Co. v. Standley , 148 Okla. 77 ( 1931 )

Respondent Standley sustained an accidental personal injury arising out of and in the course of his hazardous employment with petitioner on September 12, 1928. On September 18, 1928, employer filed with the Commission its first notice of injury, showing an injured finger, "wrenched lower part of body, slightly scratched face and leg bruised some." On October 26, 1928, the attending physician's report was filed, showing "crushed chest, cut leg, badly bruised face, mashed finger." On December 12, 1928, a stipulation of fact was filed showing "crushed chest, cut leg, bruised face, mashed finger," which stipulation was stamped approved by the Commission on December 13, 1928, and receipt for payment of a total sum of $187.55, on account of the disabilities resulting from injury sustained, is shown.

On November 1, 1929, Standley filed a "Motion of Claimant to Review Award" on the ground of a change in condition based upon the ground "that my arm is worse since I signed final receipt on December 10, 1928."

The Commission heard evidence as to a change in condition.

Dr. Manning testified that on September 12, 1928, he had examined Standley and found a bruised chest, face, bruisedright arm and injured finger. His testimony continues:

"When we discharged him he didn't have the condition of the arm that shows now, and when he came back some days ago I found this condition of the arm — apparently an atrophy or separation of the muscle tissues in the arm, which did not exist at the time he went out of the hospital."

And as to the condition of Standley now, the doctor testified:

"Everything is confined to his right arm, so far as I can see."

As to the condition of Standley's arm at the time of the accident, the doctor testified:

"Q. Do you remember he had his arm hurt? A. The arm at the time was bruised and swollen and the whole right side was bruised."

Dr. D.L. Garrett testified that Standley's present condition of disability was due to the lesion of his right arm, and that about 50 per cent. disability was therein present; that there appeared to be a severed muscle in the right arm, which could have been due to the injury.

Standley testified he had received no injury since September 12, 1928, and that prior thereto his arm was all right with the muscle fully developed.

Dr. White testified also as to the present condition of Standley's arm and said the disability was 20 per cent.; that the disability now present, in his opinion, existed at the time of settlement.

The Commission found a 40 per cent. permanent disability to Standley's right arm resulting from the accident of September 12, 1928, and directed payment therefor, together with the medical expense incurred by the claimant as a result of this accidental injury, of which order and award petitioner Skelly Oil Company seek this review, contending: First:

"The claim of claimant is barred by the one year limitation provided by section 7301, C. O. S. 1921, for the reason that he did not file a claim for compensation for injury to his right arm with the Commission within one year after the date of injury."

Section 7301, C. O. S. 1921, provides:

"The right to claim compensation under this act shall be forever barred unless within one year after the injury a claim for compensation thereunder shall be filed with the Commission."

The memorandum or agreement as to the facts herein entered into by the parties and filed under provisions of section 7294, C. O. S. 1921, as amended by S. L. 1923, ch. 61, p. 125, sec. 7, "is the basis of the award of the Industrial Commission, and an award made thereon has the same force and effect as an award made upon a hearing and may be reviewed under the provisions of section 7296, C. O. S. 1921." St. Joseph Mining Co. v. Pettitt,90 Okla. 242, 216 P. 657.

The stipulation was in lieu of a claim. It would not be compatible with our idea of justice to permit an injured workman to be lulled into a sense of security by an agreement as to the facts of an injury, paid thereon, and when the injury became aggravated by a change in condition, denied the benefits of section 7296, upon the ground that he had filed no claim and was therefore barred by the statute of limitation.

So, then, we hold that the agreement as to the facts substituted for a claim. True this agreement of December 10, 1928, did not mention an injury to the arm, but merely recited an aforesaid "crushed chest, cut leg, bruised face and mashed finger."

The case of Ehrhart v. Indus. Accident Commission. 172 Cal. 621,158 P. 193, Ann. Cas. 1917E, 465, cited in the case of Cagle v. Federal Mining Smelting Co., 112 Okla. 247,240 P. 617, holds that under their statute similar to ours (section 7296, supra, providing for a review of an award by the Commission on ground of change in condition and empowering the Commission on such review to "end, diminish or increase" compensation previously awarded), the Commission having awarded compensation for a leg injury, it could not after the lapse of time provided by their statute of limitation award claimant compensation for a lung injury suffered in the same accident, but which latter injury had not been previously reported.

The Cagle Case, supra, holds a claim made for an injury more than six months after the accident and not reported in the original claim cannot become the basis for modifying an award upon a ground of change in condition (section 7296) when "the later injury is disassociated as an effect from the first injury."

We decline to follow the dictum contained in the Cagle Case, which approves the reasoning in the Ehrhart Case. The dissenting opinion in the Ehrhart Case (Cal.) is in line with our view.

The stipulation and agreement of December 10, 1928, was in contemplation of an accidental injury within the terms of the act.

The extent of the accident was agreed to be "temporary total," the payment was not for any specific injury, as for example "crushed chest, cut leg, bruised face and mashed finger," but "on account of disability resulting from injury sustained by claimant on above date." True, the disability was based upon injuries specifically enumerated.

In this case the injured employee did institute proceedings within the one-year statutory period (said by petitioner to be a bar to recovery for this specific injury to the employee's arm). Jurisdiction was thus vested in the Commission so as to cover any other disability resulting from the accident.

It is insisted that disability resulting from the injury to the arm was not claimed or made a part of the agreed statement of facts, and, therefore, the Commission is without jurisdiction to act in review of the aggravated condition as contemplated by section 7296, supra. This is tantamount to saying that the full effect of the accident must be known by the claimant and reported by him within the statutory period, and, if not, compensation cannot be allowed. Such a holding would be contrary to the spirit of the act as well as the liberal interpretation policy adopted. Moreover, section 7296 provides for a review of an award "on the ground of a change in conditions." A liberal interpretation impels us to hold that the change in condition, when proven, permits a continuing jurisdiction to end, diminish, or increase compensation previously awarded, even though the change in condition manifests itself in injuries not expressly enumerated in the original award, but yet attributable to the original accident.

Section 7325, C. O. S. 1921, prior to amendment, S. L. 1923, p. 128, sec. 13, was considered by this court as warranting a continuing jurisdiction over "each ease." Sun Coal Co. v. State Indus. Com., 84 Okla. 164, 203 P. 1042.

Choctaw Portland Cement Co. v. Lamb, 79 Okla. 109,189 P. 750, so holds:

"The power and jurisdiction of the State Industrial Commission under the Workmen's Compensation Act, ch. 246, S. L. 1915, over each case submitted to it is continuing. * * *"

United States Fidelity Guaranty Co. v. Harrison,125 Okla. 90, 256 P. 752, so holds, in a case where the Commission in its original award had overlooked a "back injury," but made an award for a "leg injury." However, therein claim was originally filed for both injuries.

Consequently we hold that the agreement constituted a claim; that the same was filed within the statutory time; that the claim was one for disability resulting from the accident of September 12, 1928, all of which made a case of which the Commission had continuing jurisdiction, as heretofore recited, so that the statute of limitation urged was not and is not applicable.

Petitioner's second proposition is identical with its first. It is that the motion to reopen the case and for an additional compensation did not constitute a sufficient application to give the Commission jurisdiction to consider the injury to claimant's right arm, which injury is disassociated as an effect from the injuries considered in the previous settlement and compensation.

The second proposition is without merit.

The third proposition is that the evidence adduced did not show a change in condition. It is true section 7296, supra, pre-supposes a prior award allowing compensation for an injury as a condition to review an award. That section prescribes that "on the ground of a change in condition" the Commission may review an award and make a new award ending, diminishing, or increasing compensation previously awarded.

A liberal interpretation policy persuades us that "change in condition" has to do with the disability of the injured workman resulting from the accident rather than a change in condition of specific injuries theretofore compensated, and that compensation to be ended, diminished, or increased is to be considered as a disability resulting from the accident rather than specific injuries theretofore compensated.

The record evidence shows that Standley's disability as a result of his arm injury has increased. The evidence, epitomized, is that when first examined his arm was bruised, whereas now by atrophy the muscles are severed.

The fourth and last contention is that the Commission was without authority of law to direct respondent to pay medical expense incurred by claimant. The petitioner complains that there was no evidence of medical expense. The order was to pay medical expense incurred by claimant. Since no expense was proven, petitioner is not injured. The employer is liable for proper medical expense when and if Standley presents medical expense to petitioner. Should they be improper, the matter may yet be adjudicated by the Commission.

Judgment affirmed.

LESTER, C. J., CLARK, V. C. J., and HEFNER, CULLISON, ANDREWS, and McNEILL, JJ., concur. SWINDALL, J., dissents.