Globe Indemnity Co. v. Christian

SWINDALL, J. This is an original proceeding to review an award of the State Industrial Commission. On July 30, 3926, re *79 spondent was in the employment of H. E. Hanna and engaged in a hazardous occupation within the provisions of the Workmen’s Compensation Law. The Globe Indemnity Company is insurance carrier. Claim for compensation was filed and heard by the State Industrial Commission and compensation awarded for a period of eight weeks’ temporary total disability. On March 2, 1929, respondent herein filed a motion to reopen his claim and award additional compensation on the ground of a change in condition. A hearing was had on this motion and evidence taken. Upon consideration thereof the Commission denied the motion, and the claimant, respondent herein, filed proceedings in this court to review said order. On July 1, 1930, this court in an opinion by Commissioner Diffendaffer reversed the decision of the State Industrial Commission holding that the evidence showed a change in the condition of claimant, respondent herein, and remanded the cause to the Commission for further proceedings consistent with the views therein expressed. Christian v. Hanna, 144 Okla. 89, 289 P. 708. Upon the mandate of this court being received by the Commission, the same was ordered spread upon the ■records of the Commission and fu'rther testimony taken. This evidence was considered in connection with the evidence offered in support of the motion to reopen the case on the ground of a change in conditions. At the conclusion thereof, on February 5, 1931, the Commission made the following among other findings: '2. “That the claimant has been temporarily totally incapacitated since March 20, 1929, the date of the motion to reopen claim and award additional compensation to February 3, 1931, a total of 97 weeks and 5 days. “The Commission is of the opinion: By reason of aforesaid facts, that claimant is entitled to compensation from March 20, 1929, to February 3, 1931, being 97 weeks and 5 days, at the rate of $15.39 per week, amounting to $1,492.83, and all medical expenses incurred by claimant as a result of said aforementioned accidental injury.” The amount of the award is for only 97 weeks, according to the sum stated therein, and not for 97 weeks and 5 days, as found. The facts are fully stated in the opinion in Christian v. Hanna, supra, and it is not necessary to restate the same here. We have examined the evidence contained in the record in the first proceedings to review the order refusing- to reopen on the grounds of a change in conditions, and also the evidence taken in obedience to the mandate of this court. AVe are of the opinion that the evidence Js sufficient to sustain the award made by the Commission for additional compensation for 97 weeks and 5 days, but we do not understand why the pommission limited the same to 97 weeks and 5 days, for-the reason the undisputed evidence shows that the condition of the claimant, respondent herein, was just as serious at the conclusion of the hearing as it was at any time from March 20, 1929, to the date of the award. According to the evidence found in the record, he can see to get around and that is about all. Section 13356, among other things, provides: “2. Temporary Total Disability: In cases of temporary total disability, sixty-six and two-thirds per centum of the average weekly wages shall be paid to the employee during the continuance thereof, but not in excess of 300 weeks, except as otherwise provided in this act.” From a consideration of the record it is clear that the respondent at the time of the hearing was temporarily totally disabled, and that he would be either permanently partially disabled, or that his condition would develop into permanent total disability, if it had not done so at the time of the hearing, and he is entitled to compensation during the continuance thereof, not to exceed 300 weeks for temporary total disability, or if it develops into a permanent total disability, not to exceed 500 weeks, or if the injury develops into a permanent partial disability, then compensation should be awarded accordingly. However, it appears that the Commission can now determine from competent evidence the nature and extent of the injury. Each party is entitled to have the nature and extent of the injury determined in accordance with the facts. So, we are forced to the conclusion that the award as entered by the State Industrial Commission did not conform to the evidence and the views expressed by this court in Christian v. Hanna, supra, and the cause is, therefore, remanded to the State Industrial Commission to determine the nature and extent of the disability of the respondent in accordance with the facts disclosed by, the record, and, if it deems proper, to take additional testimony in order that it may determine the condition of the claimant at the present time and otherwise proceed consistently with the views expressed by this court in Christian v. Hanna, supra, and the views herein expressed. RILEY, C. J., CULLTSON. Y. O. ,T„ and *80 OSBORN, BAYLESS, BUSBY, and WELCH, JJ., concur. ANDREWS and McNEILL, JJ., absent.