Gentry v. State Industrial Commission

PER CURIAM. This is an original proceeding brought to review an award made to the respondent, Roy Bounds, who was employed by the petitioner in its automobile body works at Chick-asha, Okla. Following proceedings conducted to determine the cause and extent of the disability the State Industrial Commission by a single commissioner, under date of January 31, 1946, found that respondent had sustained an accidental injury arising out of and in the course of his employment when he injured his back, and ordered payment for temporary disability in the amount of $415.44, and found that he had sustained a 5 per cent permanent [76] partial disability and ordered payment of $432.75 as payment for such permanent partial disability. The award was affirmed by the entire commission on appeal. This proceeding is brought to review the award and the sole issue presented in three different arguments is one of fact. Petitioner argues that there is no competent evidence reasonably tending to support the finding of the State Industrial Commission that respondent sustained an accidental injury. In support of this proposition petitioner cites and relies upon Indian Territory Illuminating Oil Co. v. Lewis, 165 Okla. 26, 24 P. 2d 647, and Stanolind Pipe Line Co. v. Davis, 173 Okla. 190, 47 P. 2d 163. These cases deal with an uncontested question of fact and are not in point in the case at bar. The facts will be briefly stated. Respondent was employed as a laborer in the Gentry Body Works at Chick-asha, Okla., and he states that on the 3rd day of April, 1945, at about 4:30 in the afternoon, he was assisting in the pulling of a two wheeled cart or truck which was heavily loaded with steel, and that it was necessary to roll the loaded truck up an incline and that the truck jerked and threw respondent in such a position that it injured his back. Assuming the statement of respondent to be correct and based thereon a medical expert witness testified that as a result of the accidental injury sustained by respondent he has a permanent partial disability to the extent of 25 per cent. In Fain Drilling Co. v. Deatherage, 179 Okla. 409, 65 P. 2d 1212, we stated: “Where, in a proceeding before the Industrial Commission, the disability alleged to exist is of such character as to require skilled and professional men to determine the cause and extent thereof, the question is one of science and must necessarily be proved by the testimony of skilled professional persons, and a finding of fact based thereon when reasonably supported will not be disturbed.” Petitioner argues that all of the witnesses with the exception of respondent denied that there was any accidental injury on the date in question; that there was no pulling or jerking of the truck and that therefore there was no accidental injury, and that the rule to be applied is announced in Oklahoma Leader Co. v. Wells, 140 Okla. 294, 296 P. 751, wherein it is stated that there must be an unusual and unexpected occurrence to constitute an accident. However, we have held in many cases that a jerk or sudden strain is within the rule and definition of an accidental injury. National Biscuit Co. v. Lout, 179 Okla. 259, 65 P. 2d 497. Without conceding that there is no other evidence in the record other than the testimony of respondent, we think the case comes clearly within the rule announced in LeFlore-Poteau Coal Co. v. Thurston, 184 Okla. 178, 86 P. 2d 284, and Sinclair Prairie Oil Co. v. Stevens, 194 Okla. 109, 148 P. 2d 176. In the latter case we held, in effect, the question of whether a workman engaged in a hazardous employment actually sustained an accidental personal injury, when one of fact upon which conflicting evidence is presented, the finding of the commission thereon will be accepted by this court if there is any evidence reasonably tending to support the same. Finally petitioner cites and relies upon Continental Oil Co. v. Pitts, 158 Okla. 200, 13 P. 2d 180; Washita County Gin Co. v. Colbert, 162 Okla. 276, 19 P. 2d 1080; Texas Pipe Line Co. v. Watson, 158 Okla. 44, 12 P. 2d 591, and states that the evidence discloses that any disability respondent has is the result of disease and not the accidental injury of April 3, 1945. We are of the opinion and hold that the rule to be applied is announced in Klein Iron & Foundry Co. v. State Industrial Commission, 185 Okla. 424, 93 P. 2d 751; Oklahoma Natural Gas Co. v. White, 187 Okla. 627, 105 P. 2d 225; and Magnolia Pet. Co. v. Watkins, 177 Okla. 30, 57 P. 2d 622, wherein we held that whether the disability is the result [77] of an accidental injury claimed or prior accident or disease is one of fact and if there is any. competent evidence to sustain the finding of the State Industrial Commission, an award otherwise properly made will not be vacated. In Magnolia Petroleum Co. v. Watkins, supra, we said: “In an action to review an award of the Industrial Commission, this court will not review conflicting evidence and determine the weight and value thereof, and, where an award of the commission is supported by competent evidence, the same will not be disturbed by this court on review.” Since there is competent evidence reasonably tending to support the .finding of the State Industrial Commission that the disability is due to the accidental injury of April 3, 1945, the award is sufficiently supported by the evidence. Award sustained. Rehearing Denied. ARNOLD, V.C.J., and GIBSON and HALLEY, JJ., dissenting.