90 P.2d 398 | Okla. | 1939
The Indian Territory Illuminating Oil Company, hereafter referred to as petitioner, seeks a review of an award which was made by the State Industrial Commission on April 18, 1938, in favor of Robert A. Warren, hereafter referred to as respondent.
On August 19, 1929, the respondent sustained a compensable injury as the result of a pipe jack slipping and striking him. The petitioner furnished medical attention *73 and paid compensation for the period of time respondent was totally disabled. The State Industrial Commission, on October 1, 1929, commenced proceedings to determine liability and extent of disability. On August 8, 1932, the commission entered an order wherein it found that respondent had suffered a permanent partial disability on account of his injury and for which he was entitled to compensation under the "other cases" provision of subdivision 3, section 13356, O. S. 1931, 85 Okla. St. Ann. sec. 22, subd. 3, and awarded compensation for such disability at the rate of $17.31 per week for a period not to exceed 300 weeks. This order and award was vacated, however, on August 24, 1932, upon motion of the petitioner in order to afford it an opportunity to submit further evidence to the commission. Thereafter the parties apparently decided to settle the matter between themselves, and on October 31, 1932, they filed with the Industrial Commission a Form 14 stipulation and agreement wherein they recited that respondent had a permanent partial disability as the result of his injury which had decreased his wage-earning capacity to the extent of $1.40 per day and for which settlement had been agreed upon the basis of $1,755 to be paid in a lump sum and which represented compensation for 300 weeks for the decrease in wage-earning capacity which the respondent had sustained such payment being in addition to the amount which had theretofore been paid on account of temporary total disability. The Industrial Commission, on November 14, 1932, approved the foregoing stipulation. This order became final and the payments were made. On May 8, 1937, the respondent requested the Industrial Commission to reopen the cause and to award him further compensation on account of an alleged change in condition; hearings were held; the Industrial Commission entered the award which we now review. The commission found that the condition of the respondent had changed since the last prior order from a permanent partial one to a permanent total disability and awarded compensation at the rate of $17.31 per week for the unexpired 500 week period, or for a period of 185 weeks and two days subsequent to May 8, 1937.
The petitioner assigns five specifications of error:
"(1) The only evidence in the record which is competent to show a change in condition is that of Dr. Dewey Walden and R.A. Warren.
"(2) The evidence of R.A. Warren, claimant, and Dr. Dewey Walden, fails to show a change in condition.
"(3) Under the facts of this case, no change of condition can be shown.
"(4) The condition now asserted by the claimant has already been adjudicated.
"(5) The finding of the State Industrial Commission that the claimant has suffered a change in condition is not supported by the evidence."
The petitioner relies chiefly upon the fact that Dr. Walden had, at the hearings held prior to August 8, 1932, testified that respondent was then permanently and totally disabled, and that hence his testimony relative to a change in condition thereafter is not worthy of belief and should have been disregarded by the Industrial Commission. Upon much the same basis petitioner further argues that, since the respondent attempted to establish a condition of permanent total disability prior to the approval of the stipulation and agreement, this became an established fact and no change in condition could thereafter be shown. The cases cited by petitioner are addressed to situations where a permanent total disability has been established and a change in condition was thereafter sought to be shown. Such cases differ both in fact and principle from the situation here presented. The proceeding being one for an additional award under a change in condition, the burden was upon the respondent to establish such change in condition and that the same was attributable to the original injury and had occurred since the last prior order of the commission, and the only competent witness who appeared for the respondent and testified in this connection was Dr. Dewey Walden. (Barnsdall Oil Ref. Co. v. State Industrial Commission,
Award sustained.
BAYLESS, C. J., and RILEY, CORN, HURST, and DANNER, JJ., concur.