Allen v. Oklahoma Turnpike Authority

1968 OK 119, 445 P.2d 263, 1968 Okla. LEXIS 440
CourtSupreme Court of Oklahoma
DecidedSeptember 10, 1968
DocketNo. 42443
StatusPublished

This text of 1968 OK 119 (Allen v. Oklahoma Turnpike Authority) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Oklahoma Turnpike Authority, 1968 OK 119, 445 P.2d 263, 1968 Okla. LEXIS 440 (Okla. 1968).

Opinion

LAVENDER, Justice:

There is involved here for review an order of the State Industrial Court sitting en banc denying the claimant Workmen’s Compensation benefits. Parties will be referred to as they appeared before the State Industrial Court.

Claimant on September 9, 1964, while working for respondent at a hazardous occupation coming within the provisions of the Oklahoma Workmen’s Compensation Act sustained an accidental personal injury. He testified that while lifting guard rails he felt a sharp pain in his groin, hip, and back. He reported to his employer, “I think I have ruptured myself, I am down in my back and I can’t make it.”

On September 22, 1964, claimant, with the consent and approval of the respondent was operated on by Dr. Ba. for the repair of a left inguinal hernia. Respondent paid claimant the statutory fourteen weeks compensation for the hernia disability. Claimant returned to work for respondent on December 1, 1964, and worked irregularly during the year 1965. His employment was terminated on December 22, 1965.

Soon after the hernia operation, claimant developed infection in the hernia incision. [264]*264He was' medically treated for the infection by various doctors during 1964, 1965, and 1966.

Claimant on December 28, 1965, filed his Form 3 and on January 3, 1966, his amended Form 3. In each of these forms claimant alleges that his injuries were sustained on September 9, 1964, and were as follows, “Hernia and back — hernia still drains.” Respondents in their answer admit the hernia claim, but specifically deny that claimant sustained any other accidental injury, deny that claimant gave notice of any other injury, and alleged that “if it be determined that claimant sustained some injury other than is here admitted, the same is barred by the statute of limitations.”

The first hearing of this case occurred on March 8, 1966. The trial court outlined the issues to be tried as agreed upon by the parties:

“* * * the claimant reserves his right of compensation or medical treatment, in any form, as to the back injury and the back injury will not be tried at this time except some testimony which claimant may show, * *

On March 28, 1966, the trial court en-' tered an order directing that the payment of temporary total compensation be resumed and claimant be furnished additional medical treatment solely for the hernia disability. “The issue of an alleged back injury was held in abeyance.” Payment of temporary total compensation was suspended on May 19, 1966, by agreement of the parties.

The second hearing of this case occurred on December 19, 1966. The trial court stated the issues to be tried as follows:

“* * * Let f-jjg record further show that this case is now in issue in regard to the back injury only, and the issue that the claimant desired to try this on is temporary total disability and medical payment on the back injury and reserves his permanent partial disability to be tried at a later date — and you may state your defense on the back injury.”
“* * * All'.we need to go into is this back injury — that is the sole question.”

On February 8, 1967, the trial judge entered an order denying the claimant compensation for .injury to his back on the grounds that the claim was barred by the statute of limitations. Petitioner-claimant prosecuted an appeal to the Industrial Court sitting en banc. The Industrial Court sitting en banc on March 15, 1967, entered an order modifying the order of the trial judge by denying the claim of the claimant on the grounds “that the claimant did not sustain an injury to his back in the accident occurring on September 9, 1964.”

Claimant contends the Industrial Court sitting en banc was without jurisdiction and exceeded its authority to enter its order modifying the order of the trial judge; 85 O.S.1961 § 77(9) outlining the duties of the Industrial Court, sitting en banc in reviewing orders of the trial judge, provides as follows:

“* * * Upon the filing of such appeal, the entire Commission, or a majority thereof, sitting as a body shall hear such appeal, and upon completion thereof shall issue such order, decision or award as it may deem proper, just and equitable. * * ⅜ Such appeals shall be allowed on a question of law or a question of fact, or a mixed question of law and fact, and shall be determined on the record made before the trial Commissioner.”

The Industrial Court sitting en banc on appeal is authorized “to enter such award as was warranted by the evidence.” Sullivan-Anderson Well Servicing Co. v. Sullivan (1957), Okl., 312 P.2d 943. It is the duty of the court sitting en banc to review the record and enter such order as it “may deem proper, just and equitable as between the parties.” Rodriquez v. Utilities Engineering & Construction (1955), Okl., 281 P.2d 946.

The State Industrial Court, sitting en banc has the same authority originally vested in the trial judge. It is required to review the entire record and is authorized [265]*265to “make a new and independent order, or award based on the record.” Bryant-Hayward Drilling Company v. Cook (1968), Okl., 439 P.2d 480; Edmonds v. Skelly Oil Co. (1951), 204 Okl. 471, 231 P.2d 360.

The order of the court sitting en banc was properly entered. No error was committed in entering such order.

Claimant further contends that the order of the Industrial Court denying his claim for injuries to his back is not sustained by the evidence and is contrary to law.

Claimant testified that while putting up guard rails on September 9, 1964, he had a sharp pain and strained his back and continued to have a sharp pain in his back and hip during the night. He reported to Man-ford Fowler, respondent’s superintendent, the next day that he “wasn’t able to come to work on account of my back.” He related his back trouble to Dr. Ba., who examined him a few days later. He was bothered with his back while working for respondent during the year 1965. He has been unable to work since December 7, 1965, because of injuries to his back and hip. He sustained a broken left leg in a fall from a horse in 1963. The broken leg was repaired by Dr. A. inserting a metal pin.

Claimant testified that when examined and treated by Dr. Ba. and Dr. J. in 1964 and 1965 he told the doctors about his back injury.

On cross-examination claimant admitted that Dr. M. examined and treated his back in 1956. Dr. M. in his Form 4 report to the State Industrial Court dated November 26, 1956, states that claimant has a “traumatic exacerbation of osteoarthritis with mild compression of the anterior portion of the body of the eighth dorsal vertebra,” as shown in examination made on November 20, 1956.

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Related

Friendly Chevrolet Company v. Pointer
1967 OK 198 (Supreme Court of Oklahoma, 1967)
Edmonds v. Skelly Oil Co.
1951 OK 134 (Supreme Court of Oklahoma, 1951)
Sullivan-Anderson Well Servicing Co. v. Sullivan
1957 OK 103 (Supreme Court of Oklahoma, 1957)
Lee Way Motor Freight, Inc. v. Highfill
1967 OK 139 (Supreme Court of Oklahoma, 1967)
Rodriquez v. Utilities Engineering & Construction
1955 OK 98 (Supreme Court of Oklahoma, 1955)
Bryant-Hayward Drilling Company v. Cook
1968 OK 36 (Supreme Court of Oklahoma, 1968)

Cite This Page — Counsel Stack

Bluebook (online)
1968 OK 119, 445 P.2d 263, 1968 Okla. LEXIS 440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-oklahoma-turnpike-authority-okla-1968.