Makins Sand & Gravel Co. v. Hill

McNEILL, J. On and before tbe 27th day of October, 1929, tbe respondent, John C. Hill, was employed by tbe petitioner, Makins Sand & Gravel Company, as a day laborer, and during tbe time be was employed by them did various and sundry types of work. On October 27, 1929, be was working at what is known as a clam shell machine, which is used in loading trucks witb sand and gravel, and one of his particular jobs was to close a certain door at regular intervals. On that date, be claimed to have suffered a sprained wrist while closing this door. On the next day be reported to bis employer that be bad sprained bis wrist and at tbe direction of tbe superintendent of tbe Makins Sand & Gravel Company, be submitted to an examination by Dr. Riley and Dr. Kernodle, and later was examined by other physicians. An adjuster for tbe insurance carrier investigated bis claim for compensation and agreed to pay him $100, and an agreement was entered into between tbe insurance carrier and respondent by which it was agreed 'that the insurance carrier would pay to the respondent, John C. Hill, tbe sum of $100 and medical expense incurred up to that date. This proposed settlement was submitted to tbe Industrial Commission on form No. 14, which is tbe form used for such purposes, and which showed that tbe parties bad agreed on a settlement and requested tbe approval of same by tbe Commission. Tbe Commission refused to approve tbe settlement and set tbe matter down for bearing. After tbe bearing, on tbe 10th day of January, 1930, the State Industrial Commission made an award, which award, in so far as the same is necessary in the determination of tbe issues presented, is as follows: “That tbe claimant herein was in tbe employment of tbe respondent and was engaged in a hazardous occupation covered by and subject to tbe provisions of tbe Workmen’s Compensation Law, and while in tbe course of said employment and arising out of tbe same tbe claimant sustained an accidental injury on tbe 27th day of October, 1929. “That as a result of said accident and injury tbe claimant suffered a temporary total disability from performing ordinary manual and mechanical labor from October 27, 1929, to December 2, 1929, less the five-day waiting period. * * * “That as a result of tbe injury claimant suffered a permanent loss of 20 per cent, of the use of bis left band. “Tbe Commission is of tbe opinion on consideration of tbe foregoing facts that claimant is entitled to compensation at tbe rate of $15.39 per week for a period of four weeks as temporary total disability in tbe sum of $61.56, and that claimant' is entitled to compensation at tbe rate of $15.39 per week for a period of 40 weeks for 20 per cent, permanent partial disability of tbe left band. “It is therefore ordered: That within 10 days from this date, the respondent, Makins Sand & Gravel Company, or its insurance carrier, tbe Employers Casualty Company, pay to claimant compensation in tbe sum of $677.16, being compensation in full for temporary total disability resulting from aforementioned accidental injury, and in full for 20 per cent, loss of tbe use of bis left band by reason of partial permanent disability, resulting from tbe aforementioned accidental injury, and also pay all medical expenses incurred by claimant for said injury.” The petitioner asks that said award be set aside and vacated on the following grounds: “Tbe finding of tbe State Industrial Commission that the employee suffered a permanent loss of 20 per cent, of tbe use of his left band as a result of an accidental injury is not supported by any evidence and is therefore contrary to law. “It was error for tbe Industrial Commission to force tbe petitioners and tbe respondent Hill to try tbe issue when tbe parties to this cause bad reached an amicable compromise agreement, which was satisfactory to each of tbe parties.” • Apparently tbe real question in this case is whether or not there is any evidence to show that the respondent has received a permanent injury while in the employment of tbe petitioner which arose out of and in the course of bis employment. A careful examination of this record shows that there is no competent testimony concerning tbe permanency of tbe respondent’s injury, ex *216 cept a hypothetical question asked by Commissioner Doyle, and the answer given thereto by Dr. Riley, as follows: “Question. Doctor, assuming you are correct, it might be permanent, on that presumption, what would be the loss of use of that arm? A. I notice that he has impaired dorsal flexion. It has some lack of full dorsal flexion, which is the most important of a man’s hand, give it here (Doctor Riley examines hand), put his hand like that, I would say that he had 20 to 25 per cent, loss of that wrist.” This is not sufficient on the question of the disability, and the amount of the disability calls for testimony. In view of the record we are of the opinion that the cause should be remanded to the Commission to take evidence on the question of the permanency, if any, of respondent’s injury. A hypothetical question propounded to an expert must be based upon all the competent evidence offered on the issue upon which the hypothetical question is founded, to entitle the answer thereto to be given consideration as competent evidence. Petitioner also urges that it was error for the Industrial Commission to force the petitioners and the respondent Hill to try the issue when the parties to this cause had reached an amicable compromise agreement which was satisfactory to each of the parties. This contention of the petitioners is without merit. The Commission is not compelled under the statute to approve every settlement which the employee and employer may reach relative to compensation for injury. The statute specifically provides that agreements or settlements in these cases must be approved by the Commission before they have any force and effect. Section 7294, O. O. S. 1921. The cause is remanded, directing the Commission to determine the question of the permanency, if any, of the respondent’s injury, and take such other proceedings as may be consistent with the views herein expressed. LESTER, C. X, and RILEY, KEENER, CULLISON, SWINDALL, and KORNEGAY, JJ., concur. CLARK, V. C. X, and ANDREWS, X, absent.