Special Indemnity Fund of State of Oklahoma v. Mayo

HALLEY, Justice. Lawson C. Mayo, employee-claimant, admittedly sustained on May 26, 1958, an accidental personal injury while in the scope of his employment with Wylie-Stewart Machinery Company, hereinafter called company or employer. In his claim for compensation he alleged to be a physically impaired person by reason of pre-existing disabilities, and sought to recover against the employer and the Special Indemnity Fund. After a hearing participated in by all parties the trial judge found: (a) before receiving his injury on May 26, 1958, claimant was a physically impaired person due to disabilities previously adjudged and determined, and as a result of the combination of all the prior injuries he had 80 per centum permanent partial disability to the body as a whole; (b) claimant suffered additional 10 per centum permanent partial disability to the body as a whole on May 26, 1958, as a result of his last accidental injury, standing alone, for which he was entitled to statutory amount of compensation from the employer; (c) the pre-ex-isting impairments in combination with the injury on May 26, 1958, rendered claimant permanently totally disabled; he was entitled to an award against the Special Indemnity Fund in the sum of $15,000 (for 500 weeks at the rate of $30 a week), less $1,785.83 (the total amount of temporary and permanent compensation allowed against the employer, Wylie-Stewart Machinery Company), or a total of $13,214.17. The award of the trial judge based on the findings as outlined was affirmed on appeal by the State Industrial Court, en banc. The Fund brings the cause before this Court to obtain a review of the award. The employer, Wylie-Stewart Machinery Company and Employers’ Liability Assurance Corporation, Ltd., its insurance carrier, are made parties to the proceeding. No brief was filed on behalf of the Fund which adopted the contentions advanced by the employer. In a single proposition it is urged that the State Industrial Court was without authority to enter an award inasmuch as medical evidence disclosed claimant was permanently totally disabled prior to the last injury on May 26, 1958, Special Indemnity Fund v. Prewitt, 201 Old. 308, 205 P.2d 306. Undisputed proof in the record reveals a lengthy history of multiple pre-existing impairments: (a) claimant receives a pension from the Veterans Administration for 30 per centum service-connected disability due to a kidney infection; (b) on February 3, 1955, while employed by a transport company, he suffered an industrial injury to his head, neck and arm for which he obtained an award for 25 per centum per [1010] manent partial disability to the body as a whole; (c) on July 28, 1955, he sustained a severe accidental injury to the back consisting of a ruptured disc which required a laminectomy. A sizeable award for permanent partial disability was entered in his favor in New Mexico; (d) in 1956 he received another industrial injury to the upper portion of his back which also aggravated' the previous condition and resulted in an award for permanent partial disability of 25 per centum to the body as a whole; (e) in July 1957, claimant suffered an injury to the low back. He received an award for 10 per centum permanent partial disability to the body as a whole; (f) the last accident occurred on May 26, 1958, and resulted in injury to his neck, shoulders and head. Claimant originally sought to recover against the Fund after receiving an award for the preceding injury of July 1957, which, he maintained at the time, in combination with all of his pre-existing impairments, as outlined, had rendered him permanently totally disabled. The issue was then determined adversely to him. The order denying recovery against the Fund was affirmed by the State Industrial Court, en banc. The instant proceeding was commenced following claimant’s last injury on May 26, 1958. Prior to the last accident, the record discloses, claimant was engaged by the employer following a period of convalescence from the preceding injury which lasted several months. He was earning $1.25 per hour and satisfactorily performed “light work” consisting of cleaning machinery equipment preparatory to painting. Dr. G, a neutral examiner, testified that although virtually unfit before the last injury for “full unrestricted labor”, claimant was neverthless capable of performing work “lighter than ordinary manual labor.” Following the accident of May 26, 1958, Dr. G stated, his condition was such that there no longer was any work “light enough” which he could do. As a result of the last injury standing alone, the physician continued, he suffered additional 5 per centum permanent partial disability to the body as a whole. Dr. H, (an expert witness for the employee) after making due allowance for interim amelioration evaluated the condition prior to the last accident at approximately 80 per centum permanent partial disability to the body as a whole, and at 20 per centum due to the injury of May 26, 1958, standing alone. All the prior injuries combined with the latter, the physician followed, had rendered claimant permanently totally disabled. It is not amiss to note that the two physicians who gave testimony for the Fund both stated claimant, before his last accident, had considerably less than total permanent disability. The record, viewed in its entirety, amply shows employee possessed a modicum or residuum of capacity to engage in gainful occupation prior to sustaining the last specific injury for which compensation was awarded. Under the Workmen’s Compensation Law, 85 O.S.1951 § 22, par. 6, a disability cannot be ordinarily classified as total where the earning power of the workman is not wholly destroyed and there remains some capacity to perform remunerative employment without material discomfort or pain. Oklahoma Gas & Electric Co. v. Hardy, 179 Okl. 624, 67 P.2d 445; Dierks Lumber & Coal Co. v. Lindley, 182 Okl. 185, 77 P.2d 44; Starr Coal Co. v. Evans, 199 Okl. 342, 184 P.2d 638; Clyde’s Auto Salvage & Coal Operators Cas. Co. v. Hughes, 204 Okl. 467, 231 P.2d 356; Special Indemnity Fund v. Long, Okl., 281 P.2d 933. In Starr Coal Co. v. Evans, supra [199 Okl. 342, 184 P.2d 640] we said: “Petitioner also contends that by reason of respondent’s prior injury he was totally permanently disabled within the meaning of the Workmen’s Compensation Act and he could not therefore recover compensation because of a future injury. This contention cannot be sustained. The evidence discloses [1011] that notwithstanding respondent’s previous injury he was still able to perform and did satisfactorily perform manual labor. His earning capacity was not entirely destroyed by reason of his prior injury. Such earning capacity as he still had was further impaired by his present injury. He was therefore entitled to recover compensation by reason of such injury notwithstanding the previous injury. 85 O.S.1941, § 22, suhd. 6.” We followed the above case in Special Indemnity Fund v. Gentile, Okl., 350 P.2d 306. The record reveals claimant was still able to, and did, without injury or danger to his health, perform manual labor required in his work for the company. Whatever modicum of capacity for gainful employment he then possessed, was thereafter completely destroyed by the ultimate injury. Award sustained. DAVISON, C. J., WILLIAMS, V. C. J., and JOHNSON, BLACKBIRD, JACKSON and BERRY, JJ., concur. WELCH and IRWIN, JJ., dissent.