W. C. McBride, Inc. v. Morgan

When put in issue by the pleadings the cause, nature, and extent of an accidental injury must be proven by the claimant under the Workmen's Compensation Act.

I agree that if there is competent evidence to the effect that the joints of the hand are permanently affected as a result of the injury, an award may be made on the basis of the hand in accordance with, but only to the extent of, the proof as to the extent of the permanent disability. I also agree that there is proof in the record before us reasonably showing permanent disability to all the joints of the hand, inclusive of the fingers. So to the extent that the competent probative testimony in its entirety shows that the disability to the hand was the result of the injury, the award may be sustained. In others words, if the evidence shows that there exists a permanent disability to the hand, as a result of the injury, to the extent of 25%, then the instant award should be sustained. The evidence is conclusive that the claimant had suffered for a long time prior to his alleged injury from arthritis which had materially affected various portions of his body and particularly the involved hand. Obviously, therefore, the evidence of the extent of disability to the hand, resulting from the injury, as distinguished from the antecedent disease, should be carefully reviewed. I maintain that the evidence, viewed in the light of all the circumstances but accorded all reasonable inference, does not show a permanent disability to the hand that resulted from the injury in excess of 10%.

Dr. Turlington, testifying on behalf of claimant, estimated the disability to the hand at 50%. He admitted that he did not have a history of the fact that the claimant had been afflicted with arthritis. In fact, he testified that upon inquiry of the claimant as to whether he had had any attacks of rheumatism before his injury, he was informed by the claimant that he had had no such trouble. So his estimation of the extent of the disability could not possibly establish, standing alone, the disability, if any, resulting from the accident. Though he testified that the disability estimated by him was the result of the injury, such estimation must be disregarded for the impelling reason that the essential history of the existence and ravages of arthritis was not available to him, and therefore not considered by him in arriving at his conclusion as to the extent of the disability resulting from the injury. Acme Flour Mills et al. v. Bray, 185 Okla. 516, 94 P.2d 828.

Dr. Pace, the other medical witness for claimant, testified that three fingers were affected, the permanent injury to one he estimated at 50%; he refused to estimate any permanent disability to the other two, and in this connection expressed the belief that the disability thereto was from disuse and temporary. Upon insistence by claimant's attorney and the trial commissioner he finally, but reluctantly, testified that the permanent disability to the hand was 10%. Occasioned, no doubt, by the unsatisfactory state of the proof, in the face of the history of arthritis and other circumstances, the commission vacated the original award of the trial commissioner and appointed, on its own motion, Dr. Moore to examine the claimant. He made a thorough examination and report and testified fully, expressing his opinion that the entire disability was due to arthritis.

Dr. Pace did not testify to any condition of the hand proper that indicated that he thought there was any actual injury to the hand. His testimony as to the existing condition related entirely to the fingers. So when he attributed the existing disability to the injury, he must have been talking about the disability which he had described in the fingers. This being true, the majority is in error in saying that there is competent testimony that the disability to the hand resulted from the injury.

I, therefore, respectfully dissent.