Green v. Mac's Plating Works

1977 OK 71, 563 P.2d 148, 1977 Okla. LEXIS 840
CourtSupreme Court of Oklahoma
DecidedApril 19, 1977
DocketNo. 49465
StatusPublished
Cited by8 cases

This text of 1977 OK 71 (Green v. Mac's Plating Works) 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
Green v. Mac's Plating Works, 1977 OK 71, 563 P.2d 148, 1977 Okla. LEXIS 840 (Okla. 1977).

Opinion

DAVISON, Justice:

This proceeding involves second review of matters related to surviving dependents’ claim for death benefits, found to have resulted from personal injury and subsequent death of Jacob Clef ton Green from occupational disease during covered employment. 85 O.S.1971 § 3(16).

Deceased had been employed over 20 years in respondents’ plant, where items were electroplated by processes involving use of cadmium, zinc, nitric acid, sulphuric acid and hydrochloric acid. In 1970, deceased sought medical treatment for coughing and shortness of breath. After physical examination based upon complaints and history of exposure to acid fumes, Dr. D. B. diagnosed difficulty as chronic obstructive pulmonary disease and hospitalized deceased for extensive lung function studies. Further hospitalization in November, 1970, for diagnostic studies, including lung biopsy, revealed advanced pulmonary lung scarring which confirmed earlier findings and diagnosis of interstitial pulmonary fibrosis. During continuing treatment, the physician learned in- September, 1972, deceased also [150]*150had suffered exposure to zinc and cadmium fumes.

Interstitial pulmonary fibrosis was progressive and in July, 1972, deceased filed a claim for compensation and eventually quit work on September 13, 1972, the last day of exposure. This claim was heard on March 14, 1973, and the trial judge found that long exposure to fumes had aggravated or precipitated occupational disease diagnosed as interstitial pulmonary fibrosis, which resulted in temporary total disability and necessitated further medical treatment. The court entered a 300 week order for temporary total compensation from last day of employment, and continuing medical treatment. While this order was in force, claimant (decedent) filed a motion to require payment of medical expenses incurred after November, 1970, when injury was diagnosed. Respondent had knowledge of hospitalizations and reason therefor, but offered no medical assistance. The motion was not heard, but in some manner was allowed to pend.

Regular treatment continued after September, 1972, interspersed by necessary hospitalizations because the pulmonary condition was progressive after September, 1972. The last hospitalization was in September, 1973. Deceased was discharged to his home terminally ill on September 12th and expired September 17, 1973. Dr. D. B. reported pulmonary fibrosis with lung insufficiency and ultimate respiratory failure as primary cause of death.

Some matters summarized were reviewed heretofore in Case No. 47,377 — In the Matter of the Death of Jacob Clefton Green (not reported officially) May 27, 1975. They are related as pertinent to consideration of issues advanced in the present cause.

On October 23,1973, Mary Adeline Green, surviving widow, filed Form 3A alleging death of decedent, and entitlement of herself and minor children to death benefits. Respondents denied all matters except fact of employment. Claimant also requested hearing on motion pending in compensation case (No. D-84784) for payment of medical expenses. When the case was heard on January 14, 1974, the motion was-not docketed, and respondents required claimant to elect between claim for death benefits and original case. Respondents also declined to stipulate concerning findings entered in that case, but admitted temporary total compensation had been paid until decedent’s death.

Claimant testified as to marriage, minor dependent children, illness and death of decedent, and that no legal representative had been appointed. Counsel then offered Dr. D. B.’s reports of August 10, 1973, and September 24, 1973, together with decedent’s hospital discharge summary. Respondents agreed Dr. D. B. would testify to matters shown if called to testify, but waived cross-examination and objected only to competency of the physician’s reports. Respondents then demurred to the evidence, and in the event overruled, asked for additional time to secure a report from a physician based on hypothetical question. The demurrer was overruled and respondents were advised their report could be furnished and was furnished within two weeks. The trial judge thereafter entered an order sustaining respondents’ demurrer.

Claimant appealed to the State Industrial Court en banc alleging sufficiency of evidence to sustain an award or, alternatively, claimant should have opportunity to reopen for further evidence. After presentation, State Industrial Court vacated the order and remanded the cause for further proceedings. Respondents initiated proceeding for review which was dismissed by Supreme Court, because of an interlocutory order which presented nothing for review. Mac’s Plating Works, et al. v. Mary Adeline Green, No. 47,377 — May 27, 1975 (not reported officially).

On September 24, 1975, another trial judge heard both cases. The first, No. D— 84784, involving medical expenses after illness was diagnosed. In this portion of hearing, claimants introduced Form 19 claims for medical expenses. Respondents stipulated as to necessity and reasonableness of medical bills, but claimed requirements of 85 O.S.1971 § 28 required revivor of claim for medical expenses within one [151]*151year after death, and not having been revived, State Industrial Court lacked jurisdiction. Only claimant filed brief on this issue as directed.

Issue concerning claim for death benefits was presented separately. Claimant testified in support of claim, offered deposition testimony of Dr. D. B., and asked admission of transcript and filed in Case No. D-84784 into evidence. Ruling upon respondents’ objections to admissibility of deposition and ease file was deferred pending trial court examination.

On October 27, 1975, the trial judge entered an order consolidating two cases for disposition, determined deceased had suffered occupational disease from exposure to deleterious substance, which aggravated or precipitated interstitial pulmonary fibrosis and resulted in death. The order further determined medical bills incurred were necessary and recovery therefor was not barred by limitations, approved claims for these expenses as filed, and apportioned death benefits between claimant and minor children.

Upon appeal to the State Industrial Court en banc, the order was affirmed. Respondents brought this proceeding for review, alleging insufficiency of evidence to show death resulted from accidental injury during covered employment. On review however, respondents claim lack of formal opportunity for objection to introduction of evidence in Case No. D-84784, and that testimony introduced at the hearing would not support finding that decedent’s death resulted from occupational disease.

Argument is advanced under two contentions. The first claims proceedings in Case No. D-84784 were not revived within a year following death, therefore State Industrial Court was without jurisdiction to order payment of medical expenses incurred prior to death, and this is jurisdictional question which may be raised initially on review. Decisions cited as authority do not support this argument. As to this argument, it is sufficient to note the revivor statute alluded to by respondents was repealed in 1965. See Palmer v. Belford, Okl., 527 P.2d 589.

Expenses of medical treatment are provided for by § 14 of the Act. In 1968, this section was amended by addition of the following:

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Bluebook (online)
1977 OK 71, 563 P.2d 148, 1977 Okla. LEXIS 840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-macs-plating-works-okla-1977.