Patterson Steel Co. v. Bailey

KORNEGAX, J. This is an action brought in this court to review an award of the Industrial Commission. The award was made June 2, 1930. The injury occurred on September 20, 1928. Claimant, at the time he received it, was in the employ of the Patterson Steel Company, whose insurance carrier was the United States Fidelity & Guaranty Company. Notice was promptly given by the employer to the Industrial Commission of the accident, and it was received and filed September 27, 1928. It stated that the claimant had been in the employ of the steel company since August 5, 1922. Its statement as to how the accident occurred was, “strained back while handling steel,” and as to the extent of, the injury, “undetermined.” It stated that medical atenda nee was provided, and that Dr. A. Roy Wiley, Medical Arts Building, Tulsa, Okla.,, was the physician. It further stated the injured employee had fully recovered, and had returned to work, and was earning full wages. It was dated September 24, 1928. On January 22, 1929, the claimant filed a claim for compensation. The cause of the accident was given as “handling cold, roll steel, foot slipped on board, fell and injured back. Displacement of fourth lumbar vertebra.” As to quitting work, the answer was, “worked a few days, then was laid off by employer on account of injury.” It further stated that claimant was likely to be-laid off more than seven days, and the injury to the vertebra was permanent; that the employer furnished medical attention and the doctor was Dudley W. Dickson, 305 Palace Building, Tulsa, Okla. Pursuant to notice, a hearing was had April 16, 1929, at Tulsa, conducted by Commissioner L. B. Kyle, “to determine liability and extent of disability.” An o’ der was made on May 24, 1929, which is as follows: “Now, on this 24th day of May, 1929, the State Industrial Commission being regularly in session, this cause comes on to be considered pursuant to hearing held at Tulsa, Okla., April 16, 1929, at which hearing claimant appeared in person and by his attorney, Fred A. Grayhill, respondent, and insurance carrier being represented by W. G. Hawkinson, and the Commission having reviewed the testimony taken at said hearing, all records on file and being otherwise well and sufficiently advised in the premises, finds: “(1) That claimant is alleging a disability resulting from an injury sustained on September 20, 1928; and it also appears from the testimony that claimant sustained other injuries of a similar nature prior to September 20,, 1928, and while previous injury does not preclude the claimant from compensation for a subsequent injury, “The Commission is of the opinion: That the testimony is insufficient to show that any disability resulted from the injury sustained on September 20th. “It is therefore ordered: That the claim of C. E. Bailey for compensation for an injury sustained September 20,1928, be and the same is hereby denied, and this cause dismissed. “Opinion and order by Commr. L. B. Kyle. “G. T. Bryan, Chairman, concurring. “F. L. Roblin, Commr., concurring.” None of the evidence on which this order was made is set out. The next matter appearing is a motion by claimant filed January 5, 1930, to reopen this case under section 7296, and to allow further evidence to be taken. The time and place and cause of the accident and circumstances of it were set out, together with the report of a radiographer as to claimant’s physical condition, Dr. Charles J. Wood. It further set out the inability of the claimant to secure the attendance of an eyewitness to the accident at the first hearing, and also his inability to get the benefit of the testimony of Dr. Cronk, alleging that his testimony was omitted over the. protest of the claimant. It further detailed the reason why the eyewitness did not appear, i. e., he “didn’t want to get in -bad with the Patterson Steel Company.” It set out that another eyewitness had been found. There was an allegation of change in physical condition since April 16, T929, for the worse. His condition was described as being permanently injured and being a cripple, and unable to work. He asked for an opportunity to introduce further testimony. The application was verified. The employer and its carrier, the United States Fidelity & Guaranty Company; on February 26, 1930, filed a demurrer on three *155 grounds, the first being lack of authority in the Commission to grant the relief prayed for, the second because “the issues between the parties are res ad judicata,” the third because the facts set out were not sufficient to constitute a cause of action. A notice was served showing that a hearing would be conducted April 4, 1980, at Tulsa,, before T. H. Doyle, Chairman of the Commission. In the notice is a reference to the motion as follows: “Motion of claimant to reopen cause and award further conpensation.” The evidence was heard. Witnesses, both professional and ordinary, were heard. A former workman for the steel company, without objection, was permitted to testify that he saw the accident, and to describe the details. The claimant was recalled, and permitted to testify without objections, and the • claimant rested. The testimony showed that the claimant, while engaged in carrying a piece of roll steel weighing 300 pounds, and on a gangway 10 inches wide and 26 inches from the ground, missed his footing and that he fell with this weight on him, he carrying it on his shoulder. The piece of steel was 18 feet long and was being handled by two men at the time of the accident. Medical attention was furnished him- by the employer, and after a few days had elapsed, he went back to work, but not in the same employment as before the injury. He was never able to do the same kind of work after the injury as he did before. He was taken back into the employ of the company and put at other work, largely giving directions to other workmen as to what to do. He remained in the employ of the company for a few days, and was dismissed by Mr. Patterson, who ran the company, in order that he might get his back cured. At the time of the hearing and the taking of his testimony, he was engaged in distributing newspapers; however, he could hardly carry them. Up to the time of the injury in 1928, he had carried 15 inch I-beams. He claimed that his condition was worse than it was on April 16, 1929, and that he was more pained and had no strength to carry a small bundle of papers. He was; not cross-examined by the attorney for the carrier. It developed that he had been hurt before, but those hurts were of minor importance so far as breaking him down in the back' was concerned. He could carry the I-beams up to the time of the last injury. When he was recalled he stated about how his earning capacity had dwindled, and it developed that he drove the automobile and the boys delivered the papers. There was ample evidence to support the award made by the Commission. It is hard to see why on April 16, 1929, the Commission held that an injury was sustained on September 20, 1928, a matter that was practically conceded, and that no disability resulted therefrom, as the Commission held at that time. The applicable statutes, as a search of the various acts amendatory of the original reveals, read as follows: “Section 10 of article 2 of the Act of 1915, eh. 246, commonly called ‘The Workmen’s Compensation Law,’ entitled Workmen’s Compensation Law — General Provisions. “An act providing for the compulsory compensation of injured employees in hazardous industries, placing the supervision of the act under a Commission herein created; fixing a schedule of awards, and providing penalties for the violation of this act.’’ As amended by the Act of 1919, Session Laws, ch. 14, page 21, C. O. S. 1921, section 7294, and by the. Act of 1923, Session Laws, page 125, ch. 61, is as follows: “Claim for Compensation. “Section 7. Section 7294, C. O. S. 1921, is hereby amended to read as follows: “Section 7294. Any time after the expiration of the first five days of disability on the part of the injured employee, a claim to • -''mn nsafion may be presented to the Commis ion. If the emnloyer and the injured employee shall reach an agreement as to the facts with relation to an injury, for which compensation is claimed under this, act, a memorandum of such agreement, in form as prescribed by the Commission, and signed by both the employer and employee, may be immediately filed by' the employer with the Commission, and if approved by the Commission, shall, in the absence of fraud, be deemed binding upon the parties thereto; such agreement shall be approved by the Commission only when the terms conform to the provisions of this act. The Commission shall have full power and authority to determine all Questions in relation to payment of claims for compensation under the provision of this act. The Commission shall make, or cause to be made, such investigation as it deems necessary, and upon application of either party shall order a hearing, and as soon as practicable, after a claim for compensation is submitted under this section, or such hearing closed, shall make or deny an award determining such claim for compensation,, and file the same in the of-: fice of the Commission, together with the *156 statement of its conclusion of fact and r.ul-' ings of law. The Commission may,, before making an award, require the claimant to appear before an arbitration committee appointed by it and consisting of. one representative of employees, one representative of employers, and either a member of the Commission, or a .person especially deputized by the Commission to act as chairman, before which the evidence in regard to the claim shall be adduced, and by which it shall be considered and reported upon. Immediately after such filing, the Commission shall send to the parties a copy of the decision. Upon a hearing pursuant to this section either party may present evidence and be represented by counsel. The decision of the Commission shall be final as to all questions of fact, and except as provided in section 7297 of this article, as to all questions of law.” Section 12 of article 2 of the 1915 Act, section 7296, C. O. S. 1921, has not been changed and is as follows: •‘Review of Awards. “Section 12. Upon its own motion, or upon the application of any party in interest, on the ground of a change in conditions, the Commission may at any time review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this act, and shall state its conclusions of fact and rulings of law., and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any money already paid.’’ Section 13 of article 2 of the original act, O. O. S. 1921, section 7297, as modified by the act of 1928 (Laws 1623, c. 61, sec. 8) and the Act of 1929, Session Laws, ch. 30, page 30, is as follows: “State Industrial Commission — Appeals to Supreme Court. “An Act amending section 7297, C. O. S. 1921, relating to appeals to the Supreme Court from orders of the State Industrial Commission, providing- for appeal bond, and declaring an emergency. “Be it Enacted by the People of the State of Oklahoma: “Sec. 1. That section 7297, O. O. S. 1921, be and the same is hereby amended to read as follows: “7297. Appeal to the Supreme Court — Requirements. “The award or decision of the Commission shall be final and conclusive upon all questions within its jurisdiction between the parties, unless within 30 days after a copy of such award or decision has been sent by said Commission to the parties affected, an action is commenced in the Supreme Court of the state to review such award or decision. Said- Supreme Court shall have original jurisdiction of such action, and is authorized to prescribe rules for the commencement and trial of the same. Such action shall be commenced by filing with the Clerk of the Supreme Court a certified copy of the award or decision of the Commission attached to the petition by the complainant wherein the complainant or petitioner shall make his assignments or specifications as (to wherein said award or decision is erroneous or illegal. Provided, however, no proceeding to reverse, vacate, or modify any award or decision of che Commission, wherein compensation has been awarded an injured employee, shall be entertained by the Supreme .Coulrt unless the secretary of the Commission shall take a written undertaking to the claimant, executed on the part of the respondent or insurance carrier, or both, with one or more sureties to be approved by the secretary, to the effect that the appellant will pay the .amount of the award rendered therein, or on the further order of the Commission after the appeal shall have been decided by the Supreme Court. Before the Clerk of the Supreme Court shall accept the action for filing, a certificate from the secretary of the Cc-mmisdon shall be required, showing this provision has been complied with. Said proceeding shall be heard in a summary manner and have precedence over all other civil cases in such court, except preferred Corporation Commission appeals. The Commission shall be deemed a party to such proceeding and the Attorney General, without extra compensation, shall represent the Commission therein. Such action shall be subject to the law and practice applicable. to other civil actions cognizable in said court. Upon the final determination of said action, in which the award or decision of the Commission is sought to be reviewed, the Commission shall make an order or decision in accordance with the judgment (sic) or decision of said court. The Commission shall not be liable for any costs apart from said proceeding, but otherwise the cost shall be taxed as in other cases.” Section 14 of article 4 of the original act, C. O. S. 192.1, sec. 7325, as amended by the Act of 1923, ch. 61, Session Laws, page 118. is as follows: “Sec. 7325. The power and jurisdiction of the Commission over each case shall be continuing, and it may, from time to time, make such modifications or changes with respect to former findings or orders relating thereto if, in its opinion, it may be justified, including the right to require physical examination as provided for in section 7293. and subject to the same penalties for refusal; •provided, that upon petition filed by the employer or insurance carrier, and the injured employee, the Commission shall acquire jurisdiction to consider the proposition of whether or not a final settlement may be had between the parties presenting such petition. *157 •The Commission is authorized and empowered to have a full hearing on the petition. and to take testimony of physicians and others relating to the permanency, or probable permanency, of the injury,, and to take such other testimony relevant to the subject-matter of such petition as the Commission may require. The Commission shall have auhority to consider such petition, and to dismiss the same without a hearing if, in its judgment, the same should not be set for heating; the expenses of such hearing or inve; tigation, including necessary medical •examinations, shall be paid by the employer cr insurance carrier, and such expenses may .be included in the final award. If the Commission decides it is for the best interest of both parties to said petition that a final award be made, a decision shall be rendered .accordingly, and the Commission may make an award that shall be final as to the rights ■of all parties to said petition, and thereafter the Commission shall not have juiisdiction ■over any claim for the same injury, or any results arising from same. If the Commission shall decide the case should not be fin.ally settled at the time of the hearing, the petition shall be dismissed without prejudice to either party, and the Commission shall have the same jurisdiction over the matter as if said petition had not been filed. The same rights of appeal shall exist from the ■decision rendered under such petition as is provided for appeals in other cases before the Commission; provided, there shall he no aplpeal allowed from an order of the ■Commission dismissing such petition as provided in this section.’’ “Award’ is not defined in the act; as defined by Webster’s Revised Unabridged Dictionary, it is: “1. A judgment, sentence, or final decision. Specifically: The decision of arbitrators in a case submitted. “2. The paper containing the decision of arbitrators; that which is awarded.” “Award” is defined in Black's Law Dictionary (2nd Ed.) as follows: “The decision or determination rendered by arbitrators or commissioners, or other private or extra judicial deciders, upon a controversy submitted to them; also., the writing or document embodying such decision. Halnon v. Halnon, 55 Vt. 321; Henderson v. Benton, 52 Tex. 43; Peters v. Peirce, 8 Mass. 398; Benjamin v. U. S., 29 Ct. Cl. 417.” Under these statutes it is clear that on a change of condition the Commission has full power to make the examination and to award the compensation. It is true that,, as stated in one of the provisions concerning the award, any award made by the Commission binds the parties. This, of course, means the claimant, the employer, and the insurance carrier. It is further clear that the term “award” is used by the Legislature as meaning a decision or finding of the Commission, and that the question as to whether or not the claimant was successful in getting the award in his favor, or the insurance carrier or the employer getting the award in their favor, is by no means decisive. It is further apparent that it is immaterial as to which one is the favored one in the award, whether it be the carrier or the employer, and that in any event it is open for further consideration by the Commission, which is practically nothing more than an administrative board. It is further clear that jurisdiction, for the first time, was conferred upon the Commission by the Act of 1923 to consider the question of a final settlement and the ousting of its own jurisdiction. The .theory undoubtedly of the Laborer’s Compensation Law is to give the benefit of any ’change in condition to the one entitled to it, whether it be the laborer or the employer or the carrier. No human agency can determine in advance what the effect of an injury may result in. At best the settling of compensation, that is now allowed instead of the old damages allowed, must be an approximation with a view of eliminating some of the ills arising from the old court system. Very wisely the Legislature enacted the provision about awards. However, in the latter part of the original act, for fear that something might arise leading to an enforcement of some of the old doctrines that were undesirable, the Legislature provided that the jurisdiction of the Commission should be continuing with reference to each case, until a settlement was had upon a full hearing where both the employer and the claimant were represented, and the evidence taken and the amount fixed, followed by payment. In other words, the act insures compensation to the injured workman. When the Commission first had the matter before it, the consequence of the injury had not developed. When it had developed to such an extent that the claimant was practically a wreck, as a result of an injury that everybody concedes had happened, the Commission reviewed its former award, and made an award in accordance with the conditions then existing. It follows, therefore, that the Commission was within its rights in reopening the matter, and in having further investigation, in taking more proof, and in awarding damages for a disability that unquestionably was a result of the injury *158 sustained while in the employ oí the steel company. The cause is therefore affirmed. LESTER, O. J.., CLARK, V. O. J., and McNEILL, JJ., concur. SWINDALL, and HEFNER, JJ., concur in conclusion. RILEY, CULLISON, and ANDREWS, JJ., dissent.