185 P.2d 439 | Okla. | 1947
This is a proceeding brought by Kansas Explorations, Inc., a corporation, hereinafter called petitioner, to review an award made to Floyd L. Utton, respondent.
On the 5th day of July, 1945, respondent sustained an accidental injury arising out of and in the course of his employment with the petitioner when he injured his chest and fractured two r.ibs while operating a locomotive in petitioner’s mine. A report of this accident under date of July 5, 1945, was filed by the division manager, Ross Blake. The employee’s first notice of injury and claim for compensation was received May 8, 1946, but the report of the injury made on July 5, 1945, was not received by the State Industrial Commission until August 10, 1945. No satisfactory explanation of the discrepancy in the date of the report by the division manager and the filing of the same with the State Industrial Commission is given.
The record discloses that on the 5th day of July, 1945, the respondent was operating a small electric engine, hauling loaded cars. He started to get on the motor to operate the same and his shirt sleeve caught on the control and he was caught between the motor and one of the loaded cars. Dr. McNaughton testified for the respondent and gave it as his opinion that as a result of the accidental injury the respondent is now 75 per cent permanently disabled. Following hearings conducted by the State Industrial Commission an award was made finding that by reason of the accidental injury the respondent has sustained a 15 per cent disability to the body as a whole. Payment for 75 weeks at the maximum rate of $21 per week was ordered, and this proceeding is brought to review the award.
In the first proposition presented by the petitioner it is claimed that there is no evidence to establish any degree of permanent disability. Petitioner cites and relies upon E. I. duPont de Nemours & Co. v. Spencer, 195 Okla. 300, 157 P.
In a second and final proposition petitioner presents the alleged error bf the State Industrial Commission in not directing an examination of respondent by a disinterested medical expert examiner as provided by 85 O.S. 1941 §25. Petitioner cites and relies on Schneider, Workmen’s Compensation Law, vol. 2, §498, pp. 1657, 1658. We find nothing in the cited text to indicate that it is the mandatory duty of the State Industrial Commission to allow an examination on request under a statute similar to ours. 85 O.S. 1941 §25 provides:
“An employee injured claiming or entitled to compensation under this act, shall, if requested by the commission, submit himself for medical examination at a time and from time to time, at place reasonably convenient for the employee, and as may be provided by the rules of the commission. If the employee or insurance carrier request he shall be entitled to have a physician or physicians of his own selection to be paid by him present to participate in such examination. If an employee refuses to submit! himself to .examination, his right to prosecute any proceeding under this act shall be suspended, and no compensation shall be payable for the period of such refusal.”
The respondent had been examined by two medical examiners on behalf of petitioner. Both of these examiners were present at the trial and one testified . and apparently petitioner was of the opinion that the testimony of its expert witness was sufficient for under Title 85, ch. 4, §1, S. L. 1945, 85 O. S. Supp. §827.1, it is authorized to introduce testimony of at least two medical expert witnesses. This court has many times held that where a complete examination into all of the questions pertinent to the entering of an award has been made by both parties, the State Industrial Commission is then authorized to make the award. No prejudice is shown or suggested by the action of the State Industrial Commission- in the case at bar, and we are of the opinion and hold that there was no abuse of discretion in denying the application for a further examination.
Award sustained.
