American Oil & Refining Co. v. Kincannon

RILEY, J. This is an original proceeding in this court to review an award of compensation in favor of respondent J. B. Kincannon and against petitioner. It appears that on February 25, 1925, respondent sustained an accidental injury growing out of and in the course of his employment with petitioner herein, American Oil & Refining Company. Thereafter, on June 19, 1925, he filed his first notice of injury and claim for compensation with the State Industrial Commission, in which the *130 nature and extent of his injury was stated as “crushed second finger and mashed left hand.” It was further stated therein that he had “lost second finger from index and use of left hand,” and also “finger was amputated- and my left hand is useless for life.” Hearing was had upon the claim and on October 26, 1926, the Commission made its findings, No. 2 of which was: “(2) That claimant has lost the index 'finger of left hand by amputation; as -a result of said injury, but that he has no permanent disability to the hand or other fingers.” Compensation was awarded fixed at $18 per week for a period of 35 weeks, or $630. Thereafter, on November 4, 1926, the atention of the Commission having been called to the error in its findings and award, wherein it had found that the claimant had lost the Index finger of his left hand, whereas the claim and evidence showed the loss of the second finger, finding No. 2 was stricken, and the following finding substituted therefor : “That as a result of said accidental injury the claimant had lost the middle finger of left hand by amputation and that he has no permanent disability to the hand or other fingers.” Compensation was accordingly reduced from 35- to 30 weeks, at $18 per week, or from $630 to $540. Notice of the original award was sent to the parties on October 20, 1926, and the amended or corrected award on November 4. 1926. Thereafter, and more than 30 days after the notice of original award was sent, Kincannon commenced proceedings in this court to review the award. The proceeding was dismissed because not commenced within 30 days of the date of notice of the original award. 126 Okla. 84, 258 P. 741. In the opinion it was said: “The petitioner herein complains only of that part of the order of the Commission wherein they find ‘that he has no permanent disability to the hand or other fingers,’ and his brief filed in support thereof admits that it was the second finger on the left find that was amputated and makes no complaint of the order of November 4, 1926, changing the finding of fact to show that it was the second finger lost instead of the Index finger, or the change in the -amount of the compensation allowed.” And: “The action which the Commission took in thus making the record sneak the truth could in no wise injure or In any manner impair or affect the right of the petitioner, since he seeks a review only of that part of the award that denied compensation for disability to the hand and other finger.” On August 18, 1927, upon consideration of the mandate from this court, the Commission ordered same spread of record and further ordered: “* * * That the order heretofore made in this cause on the 16th day of October, 1926, as amended on the 4th clay of November, 1926. be and the same hereby remains in full force and effect.” Thereafter, on January 24, 1931, the Commission issued notice of hearing, stating: “A hearing in this case has been requested by some of the parties interested on the following grounds: Motion of claimant to determine extent of disability.” This notice set the hearing for February 6, 1931, and contained a notation thereon as follows: “Copy of motion to insurance carrier.” Hearing was had pursuant to the notice, and on March 2, 1931, the Commission made its finding as to injury having been sustained by accident arising out of and in the course of his employment, the injury consisting of crushed finger and mashed left hand, and that the average daily wage of claimant was $6, and: “(3) That the claimant as result of said accidental injury has lost the index finger of his left hand as result of said injury, and that he has permanent disability to the left hand.” Findings 4 and 5 were as to the facts of the former award having been made and corrected and as to the appeal therefrom by claimant and the dismissal of said appeal and the order made upon the return of the mandate affirming the former award in the sum of $540. The sixth finding is: “(6) That on motion of claimant, ta reopen h'is case, a further hearing was granted, and from medical testimony presented and the Commission finds from said testimony that the claimant has a 50 per cent, permanent partial disability to his left hand by reason of the aforementioned accidental injury.” The order and award concludes: “The Commission is of the opinion: That upon consideration of the foregoing facts, that tin claimant is entitled to permanent partial disability to his left hand of 50 per cent., computed at the rate of $18 for 100 weeks amounts to $1,800, from which is deducted the former award of $540, leaves *131 a 'balance due claimant of $1,260, to be paid in lump sum. “It is therefore ordered, that within 15 days from this date, the respondent or insurance carrier, pay the claimant herein the sum of $1,260, the balance due after deducting $540, heretofore paid on a former order, from 50 per cent, disability to his left hand amounting to $1,800, as result of aforementioned accidental injury.” To review this finding and award this proceeding was commenced. The record does not contain any motion or other application filed by the claimant for the hearing; the notice merely stating that the hearing would be upon the motion of claimant to determine extent of disability. Both parties in the briefs appear to concede that there was no claim made of a change of condition of claimant’s hand between the date of the award made October 16, 1926, and the time of the issuing of the notice of hearing January 24, 1931. The position of petitioner is that the award of the Industrial Commission made in 1926 became final upon the dismissal of the appeal therefrom, and the expiration of 30 days thereafter; that after an award has thus become final it can only be opened upon the ground of a change in condition. It is asserted that no application or motion was filed alleging change of condition, and also that the findings Nos. 3 and 5 are erroneous and not sustained by the evidence. Respondent apparently relies upon the provisions of section 7325, C. O. S. 1921, and cites cases which he contends hold that the Industrial Commission has continuing jurisdiction in each case irrespective of any change of condition of the claimant. He states in his brief: “Therefore, since the Industrial Commission does have continuing jurisdiction, even though a former award has been made and become final, it has jurisdiction in this case to make the award for 50 per cent, permanent partial disability to the left hand, notwithstanding a former order had been made allowing him compensation only for the loss of the second finger.” He makes no contention that the motion for second hearing alleged a change of condition. or that there is evidence in the record showing a change of condition between the dates of the first award in 1926 and the last award March 2, 1931. If he did make the latter contention, it could not be upheld. No witness testified as to such change and respondent himself testified; “By the Court; Q. Now. Mr. Kincannon, was your hand in that condition at both of the hearings before the Commission? A. Tes, sir. Q. The fingers were stiff and ankylosed? - A. Tes, sir. Q. And on these hearings was your hand exhibited as an exhibit before the Commission at the time of the hearing? A. Tes, sir. Q. And you had doctors to testify at that time? A. Tes, sir. Q. What doctors? A. ' Doctor Lee and Doctor Bolend.” J And: “Q. And you never received any money only for the loss of the second finger of your left hand? A. Yes, sir. Q. And you say your hand has stayed in that condition! like it is now, ever since this alleged injury? A. Yes, sir.” . He also testified that the reason for the appeal from the first award was the ruling of the Commission to the effect that he had no permanent disability of the hand or other fingers of the left hand. There can be no doubt but that the question of injury to claimant’s hand, aside from the loss of the finger, was before the Commission in the first hearing, and that the Commission found against claimant as to such alleged injury. From the opinion dismissing proceedings for review of said award, this seems to "have been the only ground (upon which claimant based his proceedings in this court to review. The only question then presented is whether the findings and award made by the Commission in 1926, from which proceedings to review were instituted and dismissed because they were commenced in time, became final and binding so as to preclude any subsequent award for the same alleged injury in the absence of a showing of change in condition arising subsequent to the first award and caused by the original accidental injury, or whether, under section 7325, C. O. S. 1921, the jurisdiction of the State Industrial Commission over the case is continuing to the extent of conferring jurisdiction and authority to reopen the case and award compensation for alleged injury to the hand notwithstanüt-ing the former finding and order of the Commission and without any showing of any change of condition. The applicable provisions of said section, as amended by chapter 61, S. L. 1923, are: “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 examinations as provided for in section 7293, and subject to the same penalties for refusal; provided, “hat upon petition filed by the employer or insurance carrier, and the injured employee, the Commission shall acquire jurisdiction *132 to consider the proposition of wliethjr or not a final settlement may be bad between ibe parties presenting sucb petition.” Whether this section is to be considered as standing alone or in connection with other sections has, been before the court a number of times, and it seems now to be well settled that said section must be considered in connection with other sections of the act. In Marland Production Co. v. Hogan, 146 Okla. 220, 294 P. 116, it was held: “When sections 7296, 7297, and 7325, C. O. S. 1921, are considered together, it must be held that it was the legislative intent that the Commission have a continuing power and jurisdiction to review its award on the ground of a change in conditions only, and, except for a change in conditions, the award is- final and conclusive upon ail questions within its jurisdiction unless suit is commenced in this court within 30 days to review the award or decision.” In Roxana Petroleum Corp. v. Hornberger, 150 Okla. 257, 1 P. (2d) 393, it was held that sections 7296, 7297, 7325, and 7318, C. O. S. 1921, must be considered together, and thus considering said sections it was held: “Where an award has been made by the Commission awarding compensation, and said award becomes final, then there must be a showing that there has been a change of condition since the award was rendered before the Commission acquires jurisdiction to make an additional award of compensation.” And: “Where the Commission renders an award in a case of March 4, 1929, and 'said award becomes final, the Commission would not ’have jurisdiction to reopen said causp and order further compensation on May 17, 1930, without a showing that there had been a change of conditions since the former award.” In Southern Fuel Co. v. St. Indus. Commission, 141 Okla. 127, 285 P. 35, it was held: “Under the Workmen’s Compensation Law of the state, where an application to reopen an award for compensation for an accidental injury is filed after the expiration of 30 days within which an action may be commenced in the Supreme Court, the only! question presented is whether or not there has been a change in condition of the claimant since the making of the original award: and where the Industrial Commission refused to set aside the original award, and there is any competent evidence to support the refusal of the same, it will not be dis-turbed by this .court.” The Attorney General appears for the respondent and ci es and relies largely upon Oklahoma Nat. Corp. v. Ford, 150 Okla. 83, 300 P. 753, and cases therein cited. The first paragraph of the syllabus In the Ford Case clearly recognizes the rule limiting the authority to change or modify an award on the ground of a change in condition. Said paragraph reads: “The power and jurisdiction of the Industrial Commission over each case is continuing, and in the exercise of that power and jurisdiction, 'it may from time to time, on the ground of a change of condition arising out of the same injury, make such modification or change with respect to a former finding or order as 'in its opinion may be just, and the jurisdiction of the Commission, after having once vested, over a claim, being continuing, it 'is authorized to make such orders as in its judgment may meet the ends of justice, either upon its own motion or upon the motion of any 'interested party to rehear, vacate, or modify.” Furthermore, Mr. Justice Clark, speaking for the court, in the body of the opinion, says: “In this case there is sufficient evidence to justify the finding of a change in condition and that the same arose out of the original injury.” The first case cited therein, Choctaw Portland Cement Co. v. Lamb, 79 Okla. 109, 189 P. 750, recognizes the same rule, as the holding therein is: “* * * The Commission may at any time, upon its own motion or upon the application of any party in interest, on the ground of a change 'in conditions, 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 the act.” The next case cited, Sun Coal Co. v. St. Indus. Comm., 84 Okla. 164, 203 P. 1042, holds: “The power and jurisdiction of the State Industrial Commission under the Workmen’s Compensation Law (ch. 246, S. L. 1915) over each ease submitted to it Is continuing, and the Commission may. from time to time, make such modification or change of its former findings or orders relating thereto as, In its opinion, may be just, and under section 12, art. 2, of said act, the Commission may at any time, upon it?- own motion or upon the application of any party in interest, on the ground of a change 'in conditions, 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 the act.” *133 It will be observed that in that case section 12, art. 2, of the Workmen’s Compensation Act (section 7296, C. O. S. 1921) and section 14, art. 4, of the Act (section 7325, C. O. S. 1921) are considered together. Wilkerson v. Devonian Oil Co., 136 Okla. 18, 275 P. 1053, cited in the Pord Case, supra, is a case wherein the order of the Industrial Commission denying a motion for additional compensation upon the sole ground that the evidence was wholly insufficient to show a change of condition was affirmed. Wilkerson v. Devonian Oil Co., 114 Okla. 84, 242 P. 531, is also cited in the Pord Case, supra, but the only question there involved was the power of the Commission to vacate or set aside an order or award upon motion filed by the employer within ten days under Rule 30, promulgated by the State Industrial Commission. United States F. & G. Co. v. Harrison, 125 Okla. 90, 256 P. 753, is the only case cited in the Ford Case, supra, where the ground set up for an additional award was not that of a change of condition, but there the application for modification of the original award was made within 30 days and before expiration of the time allowed for proceedings to review, though not within the ten days provided by Rule 30. It was there held within the power of the Commission to make the additional award under section 7325, C. O. S. 1921, and that the case did not come within the provisions of section 7296, C. O. S. 1921, requiring a showing of change of condition. Except for the Harrison Case, supra, all the cases cited by Mr. Justice Clark in Oklahoma Natural Gas Corp. v. Ford, recognized the rule contended for by petitioner herein, that in order to invoke the continued jurisdiction of the State Industrial Commission so as to justify an additional award as was done in the instant case, there must be a showing of a change of condition arising after the former award and attributable to the original accidental injury. Such is, in effect, the holding in the Pord Case, supra. The evidence wholly failing to show such change of condition, but on the contrary affirmatively showing that there was no such change, the order and award of the State Industrial Commission must be, and is hereby, reversed and the cause is remanded, with directions to set aside the award so made and overrule the motion for additional compensation. CULLISON, SWINDALL, ANDREWS, and McNEILL, JJ., concur. LESTER, C. J., CLARK, V. C. J., and HEFNER and KORNEGAY, JJ., dissent.