Cherokee Togs v. Briggs , 444 P.2d 208 ( 1968 )

BLACKBIRD, Justice.

This original proceeding seeks review of an order entered by the State Industrial Court on November 5, 1965, after a hearing on a motion of the Respondent Rhoda I. Briggs (hereinafter referred to as “claimant”) to reopen on account of change of condition.

By its last previous order for compensation to claimant entered March 6, 1963, said court had found that claimant had sustained a “10 per cent permanent partial disability to her back”, and awarded her compensation for such disability, after Dr. M had reported that she had a “35% permanent partial disability to the body as a whole * *

The only evidence showing claimant’s increased disability as the result of a change of condition introduced at the hearing on her motion to reopen, was a report dated June 15, 1965, by the same doctor, expressing the opinion that she then had a “45% permanent partial disability to the body as a whole * * *”.

By its aforementioned order of November 5, 1965, the trial tribunal found that claimant’s disability to the body had increased 25%, and awarded her compensation accordingly.

One of the arguments advanced by petitioners for vacation of the award is that there is no competent medical evidence to support the trial tribunal’s finding that claimant’s disability had increased 25% since said court’s last (aforementioned) order. We agree. On the basis of Dr. M’s above-mentioned reports, claimant’s disability had increased only 10% from the time that he examined her prior to the hearing on her original claim, to June 15, 1965, when he furnished the only evidence of her increased disability. In answer to petitioner’s argument, claimant’s counsel does not contend that Dr. M’s previous report cannot be taken into consideration in determining the proper percentage that claimant’s disability has increased. All that his brief says following a quotation from Wasson v. Tulsa Dairy Supplies, Okl., 315 P.2d 773, is:

“It will be further noted that the Court does not adopt the formula of counsel for Petitioner and states that the difference in the doctor’s original opinion and his subsequent opinion is the statutory rule to follow but that it is the condition, as it exists in the mind of the trial judge based on competent testimony, that is the governing factor. It is obvious in this case, from the claimant’s testimony, her work records, and the specifications as to the changes for the worse set out in Dr. Maril’s report that influenced the decision of the trial judge and the Court en banc and it is amply supported by the evidence submitted herein.”

We have repeatedly held that where an employee’s disability is of such character as to require skilled and professional persons to determine its cause and extent, an award based' upon such disability cannot stand, without evidence from such persons. See Big Four Foundry Company v. Lee, Okl., 398 P.2d 509, and Humble Oil & Refining Co. v. Noble, 161 Okl. 35, 16 P.2d 1072, 1074, 1075: As the only evidence of that character in the present case indicates that claimant’s permanent disability has increased no more than 10% since his award of 1963, the later award, challenged here, must be vacated and this cause remanded to the trial tribunal for further proceedings to determine the nature and extent of the claimed change of condition. Having arrived at this conclusion, we find it unnecessary to mention other asserted grounds for vacating the award.

Award vacated and cause remanded.

JACKSON, C. J., IRWIN,- V. C. J., and DAVISON, BERRY, HODGES, LAVENDER and McINERNEY, JJ., concur. WILLIAMS, J., dissents.