Special Indemnity Fund v. Corbin

BAYLESS, J. This is an original proceeding brought by the Special Indemnity:Fufid administered by the State Insurance Fund to review an award to William Corbin made by the State Industrial Commission. Corbin, an employee of the Noble Drilling Company, sustained an accidental injury to his left foot and ankle, arising out of and in the course of his employment on February 15, 1945. In'1927, Corbin received an injury .resulting in the loss of the first finger, half the second finger, and a crooked third finger on his left hand. After receiving the injury of February 15, 1945, Corbin filed a claim for compensation against the Noble Drilling Company, making the Special Indemnity Fund a party thereto. A settlement on joint petition between Corbin and the Noble Drilling Company was approved by the State Industrial Commission on June 5, 1945, but the order provided that the cause remain open as between claimant and the Special Indemnity Fund. Upon a hearing, the trial commissioner found that Corbin was a physically impaired person within the purview of 85 O.S. Supp. 1943 §§ 171-176; that as a result of his accident in 1927, Corbin had suffered a 45 per cent disability to his left hand; that by the injury of February 15, 1945, he sustained a 15 per cent permanent partial disability to his left foot; that by reason of both injuries he had suffered 20 per cent permanent partial disability to the body as a whole; and made an award of $1,800 against the Special Indemnity Fund by reason of the combination of the two injuries. Petitioner contends, first, that under the provisions of section 172, supra, of the statute, the Special Indemnity Fund is entitled to credit for compensation paid for the first or prior injury. The statute in question, prior to the 1945 amendment (H.B. 508, Laws 1945, Title 85, ch. 8, §1), did not authorize such credit or deduction. This question has been decided adversely to such contention a number of times. See Special Indemnity Fund v. Wood, 195 Okla. 357, 157 P. 2d 905; Special Indemnity Fund v. Gambrell, 196 Okla. 203, 164 P. 2d 240; Special Indemnity Fund v. Hobbs, 196 Okla. 318, 164 P. 2d 980. We hold that the order qf the commission was proper in this respect. Petitioner argues that there was a settlement on joint petition between respondent and the Noble Drilling Company, and under the provisions of 85 O.S. 1941 §84, authorizing such settlements, the State Industrial Commission loses jurisdiction to make any further award. The award was made by the trial commissioner on the 28th day of May, 1945. An appeal was taken to the commission en banc on the 1st day of June, 1945. On June 5, 1945, the claimant and Noble Drilling Company settled on a joint petition fixing the disability to the foot at 20 per cent. The award of the trial commissioner was sustained by.the commission on appeal on October 18, 1945. The joint settlement reserved the right to proceed against the Indemnity Fund by the following stipulation: “ . . . but this cause remain open as between claimant and Special Indemnity Fund.” We hold that 85 O.S. 1941 §84, authorizing settlement on a joint petition, is to be construed with and not in conflict with 85 O.S. 1943 Supp. §171 et seq. The cases of Willett v. Industrial Commission of Oklahoma, 129 Okla. 101, 263 P. 664, and Cameo Blackstone Coal Co. v. Purcell, 153 Okla. 21, 4 P. 2d 753, are not applicable. They are authority for the rule that the settlement on joint petition between claimant and Noble Drilling Company is final. Petitioner was not in any way prejudiced by such settlement and we do not see how settlement with the employer by joint petition and reserving all rights to proceed against the Special Indemnity Fund could operate to the prejudice of the Special Indemnity Fund. Petitioner’s next contention, that there is no competent evidence to support the commission’s finding that by reason of combination of the old and néw [7] injuries claimant had a 20 per cent permanent partial disability to the body as a whole, is well taken. The only evidence in the record regarding the increased disability resulting from a combination of the two injuries is the statement of Dr. Dowdy that: “ ... It is my opinion that the combination of these injuries, namely to his left hand and his left foot, would be a 10% disability to the body as a whole.” In Special Indemnity Fund v. McMillin et al., 198 Okla. 412, 179 P. 2d 475, we held that in order to sustain an award against the Special Indemnity Fund under section 172, supra, there must be competent evidence tending to prove that .the combination of the two injuries would result, or actually did result, in a degree of disability materially greater than that which resulted from the subsequent injury alone, and there must be competent evidence as to the extent of the disability resulting from a combination of the two injuries. It is apparent that the award in 1927 was for the loss or loss of use of three fingers on claimant’s left hand. The claimant says he was paid, so we may assume there is no claim pending for disability resulting from the multiple finger injury or loss. There is no pleading alleging a change of condition in claimant’s left hand since the 1927 award and no request that the 1927 case be reopened and additional compensation be awarded for injury to the hand. Title 85 O.S. Supp. 1943 §171 provides: “For the purpose of this Act, the t.erm ‘physically impaired person’ is hereby defined to be a person who ! has . . . any disability which previously has been adjudged and determined by the Státe Industrial Commission.” . The commission, therefore, erred in-finding that Corbin suffered a 45 per cent disability to his left hand as a result of his accident in 1927. We held in Special Indemnity Fund v. Davidson, 196 Okla. 118, 162 P. 2d 1016, that finger injuries may be combined with other injuries to specific members where based upon competent testimony. The award is therefore vacated and the cause remanded to the commission for the purpose of taking testimony concerning the additional disability to the body as a whole, if any, by reason of a combination óf the two injuries, and to make appropriate findings and enter an order based thereon. -HURST, C.J., DAVISON, V.C.J., and RILEY, WELCH, CORN, and LUT-TRELL, JJ., concur. GIBSON and ARNOLD, JJ., dissent.