Opinion
No. 23802
Opinion Filed April 11, 1933.
(Syllabus.)
1. Master and Servant — Workmen's Compensation — Award for Permanent Partial Disability Under Provision for Other Cases — Necessary Showing of Decreased Earning Capacity.
In order to sustain an award for permanent partial disability under the "other cases" paragraph of section 13356, O. S. 1931, it is necessary to show, not only that claimant is partially disabled as a result of a compensable injury, but also that he has thereby sustained a decreased earning capacity.
2. Same — Period for Which Compensation May Be Awarded.
Under the "other cases" paragraph of section 13356, O. S. 1931, providing for compensation for permanent partial disability, "not to exceed 300 weeks", said period begins at the expiration of total temporary disability, and not from the date of the award, and the State Industrial Commission has jurisdiction to determine whether or not claimant has sustained a decreased earning capacity during said period and to make an award for a period of time "not to exceed 300 weeks" from said date; but where the award of the Commission extends beyond a period of 300 weeks from said date, said award void as to such excess.
3. Same — Conclusiveness of Finding as to Date of Decrease in Earning Capacity.
In a proceeding under the "other cases" paragraph of section 13356, O. S. 1931, where the Industrial Commission makes an award and therein finds the date of the decrease in claimant's earning capacity, upon application of claimant, to run for a period not to exceed 300 weeks from the date of claimant's application, said finding is equivalent to a finding by the Commission that claimant sustained no decreased earning capacity prior to said application, and in the absence of appeal from said order by said claimant, said finding and order become conclusive on said claimant.
4. Same — Findings of Fact Sustained.
Record examined, and held, that there is some competent evidence tending to support the findings of fact by the State Industrial Commission, and that said findings will not be disturbed.
Original action in the Supreme Court by the Stanolind Pipe Line Company to review an award of the State Industrial Commission in favor of J.H. Hudson. Award vacated with directions.
Clay Tallman and T.W. Arrington, for petitioner.
J. Berry King, Atty. Gen., Robert D. Crowe, Asst. Atty. Gen., G.A. Holley, and R.H. Mills, for respondents.
This is an original action in this court to review an award of the State Industrial Commission in favor of J.H. Hudson and against the Stanolind Pipe Line Company.
The record shows that claimant was employed by petitioner as a roustabout in the oil field and that on July 17, 1927, while carrying a piece of pipe with another employee of the company, the other employee dropped his end of the pipe, and that when it fell the force knocked claimant down and the pipe fell on his back and side and that he sustained severe bruises. It appears that on August 24, 1927, his injury was healed and he entered into a stipulation of settlement, having received compensation during the period of his temporary total disability.
No November 16, 1931, he filed a motion to reopen the case on account of a change of condition, and on June 3, 1932, the Commission sustained his motion to reopen and made a finding to the effect that he had suffered a change of condition; that his average wage prior to the accident was $4.50 per day and that his present earning capacity was $2.25 per day, and awarded compensation at the rate of $8.65 per week, not to exceed 300 weeks, beginning on November 16, 1931, the date of filing the motion to reopen.
Petitioner contends that the testimony is insufficient to support the finding of the State Industrial Commission that claimant has sustained a change of condition, and that the testimony is insufficient to support the finding of the Commission as to the decreased earning capacity of claimant. In this connection, however, an examination of the record discloses that the evidence is conflicting and that said findings, being findings of fact, are binding on this court, since there is some evidence in the record reasonably tending to support said findings by the Commission. Wise-Buchanan Coal Co. v. Ray, 157 Okla. 197, 17 P.2d 360; Graver Corporation v. State Industrial Commission, 114 Okla. 140, 244 P. 438.
In the case of Industrial Track Construction Co. v. Colthrop, 162 Okla. 274, 19 P.2d 1084, opinion filed February 7, 1933, we determined the further question in this case. See, also, Magnolia Petroleum Company v. Allred, 160 Okla. 126, 16 P.2d 78.
It is therefore apparent that the order of the Commission is excessive and contrary to law. According to the record herein, claimant's permanent partial disability, if any, commenced on the date of August 24, 1927. The Commission, however, found that he had no decreased earning capacity until November 16, 1931. Consequently the award should be modified to provide compensation to claimant at the rate of $8.65 per week from November 16, 1931, for 300 weeks less 222 weeks, representing the period between the date of the commencement of the permanent partial disability and the date of the finding of his decreased earning capacity by the Commission.
The award of the State Industrial Commission is vacated and the cause is remanded to it, with directions to enter an award in conformity herewith.
CULLISON, V. C. J., and SWINDALL, ANDREWS, McNEILL, BAYLESS, BUSBY, and WELCH, JJ., concur. RILEY, C. J. absent.