Storm v. Taystee Bread Co.

HALLEY, Justice. On the 5th day of February, 1953, Ben. H. Storm, hereinafter called claimant, filed his first notice of injury and claim for compensation stating that while employed by Tay-stee Bread Company, employer, he sustained an accidental injury arising out of and in the course of his employment on the 15th day of May, 1951. The trial commissioner denied an award and the order denying the award was affirmed by the Commission en banc. This proceeding is brought by the claimant to review the order denying an award. The record discloses that claimant was a mechanic who repaired trucks for his employer; that claimant suffered a heart attack May 15, 1951, while on a trip to Tulsa at the direction of the employer to investigate the purchase of trailers. He was taken to the home of a daughter in Tulsa and from there to a Tulsa hospital where he remained for 27 days. He left the hospital approximately June 15th, and went to the daughter’s home where he stayed until July 3rd. He returned to his home in Muskogee where he stayed until he had recovered sufficiently to return to work and returned to the plant approximately the last day of September, 1951. He remained at work and was paid his full salary until November 1, 1952, when he was discharged. He was paid his regular weekly wages to and including December 8, 1952, on the date of his discharge. In April, 1952, he suffered a further heart attack and was hospitalized for 36 hours and returned to work. When he returned to work in September, 1951, he did not resume his regular work except for a period of approximately 30 days. He was unable to perform the work formerly done by him and assisted in training two young men, one of whom assumed his duties as a mechanic. Claimant had sustained a head injury in April, 1951, and listed this in his original claim but at the time of the amendment to his claim his counsel stated that he had completely recovered from the head injury and relied only on the accidental injury of May 15, 1951. The employer carried group insurance for sick benefits in addition to workmen’s compensation insurance and claimant was paid $35 per week out of the benefits provided by this group insurance and the employer paid the balance of his weekly salary. This continued during the disability of claimant while the group policy was in force and until it expired. Thereafter claimant was paid his full salary by the employer until the date of discharge, which was as above stated, December 8, 1952. . Claimant first argues that these payments were made with full knowledge of the accidental injury of May 15, 1951, and that therefore claimant had one year from November 1, 1952, in which to file the claim. The State Industrial Commission found that claimant sustained an accidental injury by reason of which he is now totally and permanently disabled and then found: “During all of the period of the claimant’s disability, from the date of the accident to December 8, 1952, he received a full amount of his wages. For a portion of this time the claimant received benefits under a Health and Accident Policy, and during this period the respondent supplemented the benefits sufficiently to make up the full amount of wages. During the rest of the time the respondent paid the full wages. But until the filing of his claim for Workmen’s Compensation on February 5, 1953, the respondent had not been advised by the claimant and did not know of the accidental injury of May 15, 1951, and although the failure of the claimant to give the Statutory 30 days’ written notice did not otherwise prejudice the respondent and should be excused, as hereinabove found, the failure to notify the respondent of the accidental injury precluded the respondent from making a choice between the payment of wages in lieu of compensation or leaving the claimant to his legal remedy. Consequently, it is specifically found that the wages paid by the respondent to the claimant dur [666] ing the period from the date of the accident to December 8, 1952, were not paid as a substitute for payments due the claimant under the Workmen’s Compensation Law [85 O.S.1951 § 1 et seq.].” Claimant testified that he got to the Wynn Trailer Yard, where he intended to purchase the trailers, at about 9:30 and worked for about an hour pulling heavy trailers to determine whether they would properly fasten on his truck. He then sat down on the end of a trailer and was talking to Mr. Wynn. In about 20 minutes he suffered the heart attack. He drove his own car to the home of his daughter. The daughter called the manager of the employer .and informed him that her father had suffered a heart attack; that thereafter, about 21 days after he entered the hospital, the manager visited him and told him that he had nothing to worry about, that his wages would be paid until he was able to return to work; that frequently the manager informed claimant that he had nothing to worry about. No claim was ever filed by claimant prior to the filing of the claim on the 5th day of February, 1953, and the State Industrial Commission found that the payments were made without knowledge of any accidental injury. In Sinclair Prairie Oil Co. v. Stevens, 194 Okl. 109, 148 P.2d 176, 181, it is stated: “The point is that the payment of the money allowance must have been for disability arising from accidental personal injury, as in this case distinguished from disability arising from sickness. It is the real purpose of the payment as distinguished from the name given it which controls. On this point the knowledge (actual or imputed) and the intent (proven or inferable) of the employer are important factors.” It was also stated therein: “Thus when there is conflicting evidence or different inferences can be drawn from the evidence, the question of whether the payments called ‘wages' or ‘sick benefits’ were in reality payments of ‘compensation or remuneration paid in lieu of compensation’ becomes one of fact. The finding of the commission on the point should be approved in this court if the record reflects evidence reasonably tending to support it. * * * ” The employer offered testimony to support the finding that the payments were made as sick benefits and that the employer did not know the heart attack arose out of and in the course of his employment. There is evidence in the record from which the State Industrial Commission was authorized to find that neither the manager nor claimant knew what caused the heart attack and there is other evidence supporting the finding of the State Industrial Commission as above set out. In Bassett v. Magnolia Petroleum Co., 190 Okl. 480, 124 P.2d 984, it is stated: “The question, whether payments made to an injured employee, subsequent to the injury, are made as wages or compensation, under the Compensation Act, is, as a general rule, one to be determined by the Industrial Commission ; and this court will not disturb its finding thereon, on petition to review, where there is any competent evidence reasonably tending to sustain the same.” Claimant also argues that by its conduct the employer is estopped to deny that the payments were made in lieu of compensation and cites in support thereof Consolidated Gas Utilities Co. v. Thomason, 167 Okl. 81, 26 P.2d 923; Logan County v. York, Okl., 270 P.2d 968 and related cases. The finding of the State Industrial Commission that the employer did not know that claimant had sustained an accidental injury arising out of and in the course of his employment is sustained by the evidence. In such event it could not be held that the above cases are applicable. We approve the finding by the State Industrial Commission. There was no error in denying the award. Order sustained. [667] JOHNSON; C. J., and CORN, JACKSON and HUNT, JJ., concur. WILLIAMS, V. C. J., and BLACKBIRD, J., dissent.