Tibbs-Dorsey Mfg. Co. v. State Industrial Com.

CLARK, V. C. J. This is an original action filed in this court to review a judgment and award of the State Industrial Commission made and entered on the 10th day of May, 1,930, in favor of ihe respondent Mike Casey. The record discloses that a joint petition was filed by petitioners and respondent on February 13, 1929, and said joint petition set out and stated that a lump sum settlement had been agreed upon between respondent Mike Casey and petitioners in the sum of $118.51, and all medical bills up to and including that date were paid by petitioners. Said joint settlement was approved by the State Industrial Commission on said date. On July 24, 1929, a motion was filed to set aside said joint petition and settlement on the ground of fraud. On July 30, 1929, this motion was overruled without further hearing or notice to either party. On November 6, 1929, a second motion to set aside said joint petition and award of February 13, 1929, was filed. A hearing was had thereon, resulting in the award complained of. Petitioners in their brief, at page 4, contend that the award was erroneous on certain grounds, as follows: (1) That no evidence was produced to show any fraud or oppression. (2) That, in ihe absence of fraud, the jurisdiction of the Commission had ceased, and it did not have authority or power to make further orders in the cause. (3) That the proof did not show a compensable injury, but showed that a disease was the direct and proximate cause of the disability; and that the injury did not arise out of the employment. The respondent Mike Casey testified that he was injured the 28th day of December, 1928, at Woodward, Ofcla. It is admitted that he was engaged in a hazardous occupation subject to the Workmen’s Compensation Law of Oklahoma; that he had a badly sprained wrist: that he came from Woodward to Oklahoma City, and that Dr. Cunningham treated him in Oklahoma City. Respondent testified that Dr. Cunningham told him that he had a very badly sprained wrist, but did not tell him that he had a permanent disability. Respondent testified that on February 13, 1929, he had not been paid any1 compensation at the time he entered into the joint petition and settlement. He further testified that he went to Drs. Cunningham and Riley and neither of the doctors told him that he would have a permanent disability to the hand or wrist. He further testified that he asked Dr. Cunningham, “When -will this be in good condition again?” The answer-was: “Casey, all I can tell you is this, you got a badly sprained wrist, and you have an unusual case.. You go ahead and carry it in these *233 metal splints and it will get all right. You have an unusually bad wrist.’’ He further-testified that he thought his disability was just temporary. Witness testified that he talked to Mr. Deselms, the adjuster for the insurance carrier. He said he was personally acquainted with Mr. Deselms and relied' on his statements; that an insurance carrier generally paid four or five weeks on a sprained wrist, and that from the statements of the insurance carrier and insurance doctors he believed his injury would be only temporary and not permanent. He further testified that Dr. Cunningham told him on the second or third day after the joint agreement — the 15th or lGth — that his wrist would be stiff permanently. This testimony is disputed by Drs. Cunningham and Riley. The record further discloses that this man has a permanent, injury! to his wrist, and the Industrial Commission found that said injury was the result of the accident. The testimony of the petitioners further shows that on the date of the hearing of the joint petition respondent Casey testified that he entered into the agreement with his own free will and accord and that he knew he could have a hearing before the Commission. and that he might be awarded more or less compensation than he was being paid, and that he asked the Commission to approve the joint settlement. The record discloses that the reports of Drs. Cunningham and Riley were filed -with the Industrial Commission at the time the joint settlement was made and approved. It is the contention of petitioners that where a joint petition is filed, a settlement made, and the same approved by the Industrial Commission, as provided in section 7325, C. O. S. 1921, as amended by chapter 61, Session Laws 1923, the Commission is without jurisdiction in the absence of fraud to reopen a cause and award further compensaron. Upon this hearing- the Industrial Commission found that respondent was induced to enter into said joint petition by1 fraud and misrepresentation, and that the approval of the same and the approval of the lump sum settlement of $118.51 was procured by fraud, and the same was of no force and effect and should' be vacated and set aside. An award was made and entered for 50 per cent, for the permanent, partial loss of the use of the left hand. It is the first contention of petitioners that there is no evidence to show any fraud or oppression. The. finding of the Industrial Commission that there was sufficient fraud to invalidate and set aside the joint petition and ’the -judgment entered thereon is a finding of fact,- and the evidence was conflicting, but we think the evidence sufficient to support the finding of the Industrial Commission. It is nest contended, in the absence of fraud, the jurisdiction of the Commission has ceased, and it did not have power to make further orders in the case. Section 7325, C. O. S. 1921, as amended by chapter 61, Session Laws 192S, before it was amended, provided: “The power and jurisdiction of the Commission over each case shall be continuing-, and it may, from time to time, make such modification or change with respect to former findings or orders relating thereto, as in its opinion may be just. * * *” This was the law before the amendment and has been construed by this court in Choctaw Portland Cement Co. v. Lamb, 79 Okla. 109, 189 Pac. 750; Sun Coal Co. v. State Industrial Commission, 84 Okla. 164, 203 Pac. 1042; United States Fidelity & Casualty Co. v. Harrison, 125 Okla. 90, 256 Pac. 752. In the above cited cases the power and jurisdiction of the State 'Industrial Commission, under the Workmen’s Compensation Law, over each case submitted to it is continuing- and the Commission may from time to time, make such modifications or change its former findings or orders, relating- thereto, as in its opinion may be justified'. This is the construction placed on this law before the same was amended. All of the previous laws, so construed, remain in full force and effect. The amendment provides that upon a petition filed by 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. The Commission is authorized and empowered to have a full hearing on the said petition. It also has authority to dismiss the same without a hearing. If the Commission decides it is for the best interest for both parties to said petition that a final award he 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 jurisdiction over any claim for the same injury or from any results arising from the same. Section 7325, supra, as amended, was be *234 fore this court for construction in the case» of Tippin, Gd'n, v. State Industrial Commission, 134 Okla. 179, 272 Pac. 848; the first paragraph of the syllabus is as follows: “1. The Industrial Commission of the State of Oklahoma is without jurisdiction to set aside an award made upon a joint petition of employer and employee under the provisions of section 7325, C. O. S. 1921, as amended by chapter 61, Session Laws 1923, or to make any) further award, where it appears that a hearing as provided in said section was had on said petition, and a final award made and no appeal taken therefrom.” In this case the court was passing on an order of the Commission that refused to vacate the final award entered on a joint petition, and held, where there is any evidence to support the judgment refusing to vacate the award, the same was binding on this court. In Willett v. State Industrial Commission, 129 Okla. 101, 263 Pac. 664, at page 103 of this case, it is said: “The Commission having had said hearing and made the award, we hold that the award is final, in the absence of fraud, unless an appeal is taken therefrom as provvided by the statute. “The next proposition, as set out in the order appealed from in this case, is whether or not the claimant was mentally competent to enter into the joint petition and to appear and testify at the hearing on December 14. 1,925. This was a question of fact to be determined by the Industrial Commission, it having decided that he was mentally competent, and there being testimony- in the record to support said finding. This finding of the Commission will not be disturbed under the well-recognized rule in this state. “It therefore follows that the order of the Industrial Commission denying the claimant, A. E. Willett, any further compensation should be ana is hereby affirmed.” The authorities above cited hold that an award made on a joint petition, approving a lump sum settlement, is final in the.-'absence of fraud. In the instant case fraud was alleged, and from the evidence offered the Industrial Commission found that there was fraud. The industrial Commission found' in favor of the respondent Casey, and there being a conflict in -the evidence, the judgment and finding of the industrial Commission is binding on this court, and the judgment and award is affirmed. LESTER, Y. C. ,T., and HEFNER, CULLISON, ANDREWS, and McNEILL, JX, concur. RILEY and SWINDALL, JJ., dissent.