97 P.2d 881 | Okla. | 1939
In this proceeding Payne Drilling Company and its insurance carrier, hereafter referred to as petitioners, seek a review of an award which was made by the State Industrial Commission under its continuing jurisdiction on September 19, 1938 (as corrected Oct. 10, 1938), in favor of V. Shoemake, hereafter referred to as respondent.
This cause was here once before (Payne Drilling Co. v. Shoemake,
"6th. The commission finds that since the date of the award and order approving the form 14 agreement and also the order denying compensation, that the claimant has had a change in his condition for the worse, and that since April 2, 1935, the claimant's average daily wage is $2.50 per day or a decrease of $12.50 per day since April 2, 1935, which is a result of the permanent partial disability the claimant now has as a result of said accidental injury.
"7th. That as a result of said permanent partial disability, the claimant is entitled to sixty-six and two-thirds per centum of the difference in claimant's average daily wage at the time of said accidental injury, and his wage-earning capacity since April 2, 1935, during the continuance of said impairment, not to exceed 300 weeks, and the respondent and its insurance carrier to be given credit for the amount heretofore paid."
It will be observed that in the sixth finding, supra, the commission undertakes to find that the respondent had a *346
change in condition between April 8, 1932, when it approved the Form 14 stipulation and agreement, and the entry of its order of April 20, 1934, when it found that he had not had any change in his condition, and also to find a change in condition at some indefinite date thereafter which resulted in a decrease in the wage-earning capacity of the respondent as of April 2, 1935. When the prior award was vacated by this court and the cause remanded to the Industrial Commission, the matter then stood as if nothing had been done subsequent to the order of April 20, 1934. The jurisdiction of the State Industrial Commission to make any further award was then dependent upon a showing by competent evidence that there had been a change in condition of the respondent. Section 13362, O. S. 1931, 85 Okla. St. Ann. § 28; Skelly Oil Co. v. Goodwin,
The evidence adduced by the respondent at the hearings held by the commission wholly failed to sustain the burden which rested upon him. The most that can be said for such evidence is that it shows that the respondent was experiencing more pain and discomfort than he had previously had. This court has repeatedly held that such is not compensable. Texas Company v. Roberts,
The respondent devotes considerable space and argument in his brief to the contention that the Industrial Commission made a mistake when it approved the Form 14 stipulation between the parties in its order of April 8, 1932. It suffices to say in this connection that if such was the case the Industrial Commission has no authority to rectify the same by a subsequent award based on change in condition where there has been no actual change in the physical condition of the employee. See Gypsy Oil Co. v. Roop,
As said in the case of Tulsa Rig, Reel Mfg. Co. v. Case,
"Where there is an entire absence of any competent evidence upon which to base a material finding of the State Industrial Commission necessary to support an award of compensation, this court will declare as a matter of law that an award based upon such unsupported material finding is unauthorized and will vacate the same."
Under the record here presented, the award as made by the Industrial Commission cannot be sustained in that it is unsupported by any competent evidence, and therefore the same is vacated as a matter of law.
BAYLESS, C. J., and RILEY, CORN, HURST, and DANNER, J., concur. *347