SPECIAL IND. FUND v. Kilgore , 203 Okla. 241 ( 1950 )

ARNOLD, V. C. J.

This is a proceeding by the Special Indemnity Fund of the State of Oklahoma to review an award made, by the State Industrial Commission against the Fund in favor of the claimant, Earl Kilgore.

On May 25, 1949, clamant, Earl Kilgore, an employee of the McAlester Fuel Company, filed his claim seeking to recover for a disability caused by accidental injury sustained on January 20, 1945, when a part of a supporting pillar in a coal mine in which claimant was working fell on him injuring his right ankle, right leg, chest, both arms, and right shoulder. Following a hearing by the State Industrial Commission an award was entered finding that claimant was a “physically impaired person” as a result of an accidental injury sustained December 31, 1940, resulting in 15% permanent disability due to a back injury; that as a result of the injury of January 20, 1945, claimant sustained a 10% permanent partial disability .to his right foot for which he was entitled to compensation of 15 weeks at $18 per week; that as a further result of the 1945 injury claimant sustained a 10% permanent partial disability to the body as a whole (chest and shoulder injuries) for which he was entitled to compensation for 50 weeks at $18 per week.

The State Industrial Commission further found that as a result of combining the injuries of January 20, 1945, and the 15% permanent disability to the body as a whole due to the 1940 accidental injury, claimant has a 35% total disability to the body as a whole which is materially greater than the last injury alone; and that “he is entitled to compensation as is now provided by law, to wit; 15 weeks at the rate of $18 per week, or a total of $270, representing 10% to the right foot, to be paid by the respondent and insurance carrier, and 50 weeks at the rate of $18 per week, or a total of $900 to be paid by respondent and insurance carrier, and to .35% to the body as a whole or 175 weeks at the rate of $18 per week, less the 15 weeks to the right foot and less the 50 weeks to the body as a whole and less the 75 weeks disability from the prior injury, being $630 to be paid by the Special Indemnity Fund, commencing at the termination of the period for payment of the award against respondent and insurance carrier.”

The award against the. respondent and its insurance carrier was settled by joint petition and paid. This proceeding is by the Special Indemnity Fund to review the award against it.

The claimant, respondent here, suffered a compensable accidental injury to his shoulder, leg, and foot. The medical testimony for petitioner and respondent describes the injuries and variously evaluates the resulting disabilities therefrom. Claimant had theretofore suffered an old injury covered by the Workmen’s Compensation Law to his back. A so-called 300 week order was made as to his disability resulting from that injury under the “other cases” provision of the Workmen’s Compensation Law. No payments were made under ’this order but a joint petition was filed and settlement made thereon with the approval of- the Industrial Commission. While references are made to the old injury in the testimony, the medical testimony does not show any disability existing by reason of the old injury.. In fact, there is no medical testimony sufficiently describing the old injury from which it might be reasonably concluded that any disability existed therefrom at the time of the hearing. The only medical testimony in the record on which the commission could determine the combined disability resulting from old and new injuries is that of Dr. White. He said:

“Taking the injury to his back which he received December, 1940, and the injuries to his chest, shoulders and ankle into consideration, it is my opinion that he has a greater disability as a result of the combined injuries. It is my opinion that he has 60% permanent disability to the body as a whole as a result of the combined injuries.”

The conclusion from this testimony is inescapable that Dr. White estimated combined disability based upon his combination of injuries to the chest, shoulder and ankle received in the compensable accident and the disability which, in his opinion, resulted from the old back injury.

We have consistently held that disabilities from injuries to unclassified and unscheduled parts of the body, such as the shoulders, chest and back, cannot be combined with disabilities resulting from injuries to classified and scheduled members of the body, such as the legs and feet, in less than permanent total cases. See Special Indemnity Fund v. Lee et al., 200 Okla. 327, 193 P. 2d 305; Special Indemnity Fund v. Wade et al., 199 Okla. 547, 189 P. 2d 609; Special Indemnity Fund v. McMillin, 198 Okla. 412, 179 P. 2d 475; and Special Indemnity Fund v. Bonner et al., 198 Okla. 491, 180 P. 2d 191.

The order of the commission herein could have been based upon no other medical testimony than that of Dr. White. Any order of the commission as to the amount of disability, combined or otherwise, would have to be supported by medical tesitmony. No one contends otherwise. An order could be made, if medical testimony on the point justified it, as to combined disability resulting from the old and new injuries to the body-back, shoulder and chest. In such event, the medical testimony on the point would have to show existing disability from the old injury in combination with existing disability from the new injury to the body, exclusive of and without regard to existing disability to the classified and scheduled major members of the body involved — the leg and foot.

For the foregoing reasons the order made by the commission holding the Special Indemnity Fund liable for the material increase of disability resulting from combination of classified and unclassified members must be vacated. This being true, it is unnecessary to pass upon the other alleged errors raised by the Special Indemnity Fund.

Award vacated.

CORN, GIBSON, LUTTRELL, HALLEY, and JOHNSON, JJ., concur. DAVISON, C.J., and WELCH and O’NEAL, JJ., dissent.