68 P.2d 497 | Okla. | 1937
The parties will be referred to as petitioner and respondent.
On the 21st day of August, 1933, respondent sustained an accidental injury by reason of rocks falling on his back while in the operation of machinery about the mines of petitioner. Five ribs were broken. On the 21st day of November, 1934, by an order the respondent was paid $92.32, for temporary total disability. On the 11th day of November, 1936, an award for permanent partial disability was entered finding that respondent suffered a disability permanent and partial in its nature resulting in a decrease in earning capacity of $1 per day and ordered payment not to exceed 300 weeks from October 21, 1933, at $6 per week, ordering a lump sum payment of $955 computed from October 21, 1933, to November 12, 1936, being 159 weeks, and further payments thereafter at $6 per week during such disability not to exceed 300 weeks. The award must be affirmed. It is urged that the award at the rate of $6 per week is not in conformity with the findings of said commission and said award is contrary to the law and the evidence. The basis of an award in "other cases" under subdivision 3 of section 13356, O. S. 1931, is the loss of earning power or earning capacity or ability to make money. There is competent evidence from which the commission was justified in finding that the respondent suffered a decrease in earning capacity of $1 per day. Under subdivision 5 of section 13356, O. S. 1931, he is entitled to the minimum of $8 per week for he was drawing $3 per day at the date of the injury, and therefore more than $8 per week. An award for permanent partial disability under the "other cases" provisions shall not be less than $8 per week, except in cases where the employee's wages at the time of the injury are less than $8 per week. Hyde Construction Co. v. O'Kelley,
It is next urged that there is no competent evidence that the respondent was engaged by the petitioner for the substantial part of a year, and that by taking the amount shown by the books of petitioner, to wit, $368.98, and dividing by $3, the amount of daily wage of respondent, it will be seen that he worked not more than 123 days. We have said that the process of determining the annual earnings of an employee is not by division, but is by multiplication. If the wage is to be determined by subdivision 1 of section 13355, O. S. 1931, it is 300 times the daily wage of the employee, which in this case was $3. If it is under subdivision 2, it is 300 times the daily wage of a like employee. In Nichols Transfer Storage Co. v. Pate,
It is urged that there is no competent evidence in the record supporting the finding of an award against Tom Phillips. Since the petitioner Superior Smokeless Coal Mining Company joins with the petitioner Tom Phillips in the application to vacate the award, so far as Tom Phillips is concerned and does not object to such proceeding, we are of the opinion and hold that there is no competent' evidence that Tom Phillips was in any way connected as an employer in this proceeding. The award is vacated in so far as it purports to enter an award against Tom Phillips, and in all other respects is affirmed.
OSBORN, C. J., BAYLESS, V. C. J., and BUSBY, PHELPS, and GIBSON, JJ., concur.