Gregory v. State Industrial Commission

1961 OK 65, 360 P.2d 716, 1961 Okla. LEXIS 340

• Court: Supreme Court of Oklahoma
• Decided: March 21, 1961
• Docket: No. 38721
• Status: Published

Opinions

WELCH, Justice.

This appeal is from an order of the Industrial Court denying award of compensation for claimant.

The pertinent part of the order appealed from states:

“That claimant has not sustained a change of condition for the worse since this commission’s order of July 2, 1956, and therefore, his application to re-open on a change of condition for the worse filed herein on January 14, 1958, should be denied.”

This order was dated March 27, 1959.

'It is contended by the claimant that the findings of fact and conclusions of law of the State Industrial Court, both on the original award arid upori'the denial order on application for additional compensation upon change of condition for the worse, are too indefinite and uncertain for judicial interpretation and should be vacated and declared void for uncertainty.

Claimant argues that he was em titled to a determination of the ultimate facts from the Industrial Court as to the nature, extent and -percentage of his original disability and the amount he -actually collected from a third party and the amount to which the insurance carrier in the compensation case is subrogated. In support of this argument the following authorities are cited in claimant’s brief: Cummins et al. v. State Industrial Commission, Okl., 264 P.2d 721; Butts v. Rose Drilling Co., Okl., 304 P.2d 986; Boen v. State Industrial Commission, 202 Okl. 258, 212 P.2d 457; Devore v. Maidt Plastering Co., 205 Okl. 612, 239 P.2d 520; Fischback & Moore of Texas, Inc. v. State Industrial Commission, 201 Okl. 170, 203 P.2d 422; Special Indemnity Fund v. Knight, 201 Okl. 24, 200 P.2d 766; Special Indemnity Fund v. Hewes, 202 Okl. 356, 214 P.2d 240; Bowling v. Blackwell Zinc Co., Okl., 347 P.2d 1024. In all of these cases -we áre committed to the rule that where the findings of fact and conclusions of law of the State Industrial Court are too indefinite and uncertain for judicial intérpretation, this court, on appeal, will vacate the order for further proceedings.

Upon examination of these authorities we do not find them to be in point or analogous to the present situation. In each of the above cases it was clear that one could not understand from the order what set of facts or conclusion of law the order was based on. Furthermore, none of these cases were based upon the determination- of a change of condition subsequent to prior hearing. Here, in the order appealed from, the Industrial Court had before it for determination' only one question. That was whether from the evidence adduced the claimant’s condition had changed since the prior hearing. From the contents of the order it is clear that the Industrial'Cprirt’s order was based on a’ determination of the fact that claimant’s evidence was insufficient to show a change of condition. This is. neither indefinite nor uncertain and fully determined the only issue presented.

Claimant'has failed to cite any authorities on the question of what finding is necessary where claimant’s application is denied, and through our independent research we have been unable to find any. However, in the case of Poe v. Caswell-Runyan Co., 91 Ind.App. 304, 171 N.E. 223, it was held:

“Industrial Board’s failure to find change in condition of employee’s injury held equivalent to finding against employer asking review because of change.”

Also see 71 C.J. page 1460, Sec. 1436, and 101 C.J.S. Workmen’s Compensation § 867 (d), pp. 281 and 282.

We are of the opinion the above rule may be equally applied where claimant files application, and Industrial Court fails to find a change of condition.

Therefore, the order of the Industrial Court finding that claimant was not entitled to recover because evidence was insufficient to sustain his application and show a change of condition, will not be vacated for uncertainty.

As to the contention of claimant concerning the order of July 2, 1956, we must keep in mind that this order was not appealed from and has now become final. Therefore, the attack on the same in this appeal is in the nature of a collateral attack, and unless the same is void it would not constitute subject-matter for our consideration. Tidal Refining Co. v. Tivis, 91 Okl. 189, 217 P. 163.

It is the contention of the claimant that said order is void because of indefiniteness and uncertainty. The claimant has failed to cite any cases to support this argument, and the only authority which he has called to our attention is the rule enunciated in Sec. 57, Judgments, 30A Amer.Juris. which is to the effect that a judgment may be rendered void for uncertainty when it is so uncertain that the parties are unable to ascertain the extent of their rights from said judgment.

The record reveals that in the order of July 2, 1956, the Industrial Court found:

“That on September 21, 1954, claimant was employed by respondent in a hazardous occupation within the purview of the Workmen’s Law, and on said date sustained an alleged injury to his neck, head, right hip, left knee, left great toe, ribs, and abdomen, arising out of and in the course of his employment.

“That at the time of alleged injury claimant’s average wage was sufficient to fix his compensation rate at $28.00 per week; that claimant was temporary totally disabled from the date of the injury to April 28, 1955, was paid salary until October 20, 1954, and from that date was paid temporary total disability compensation to April 28, 1955, in the amount of $758.00 when his temporary total disability terminated; that claimant was furnished medical care by respondent and insurance carrier.

“That claimant has heretofore pursued his remedy against a third party in a civil action wherein he obtained a judgment in the amount of $8000.00 which amount is in the excess of the amount this Commission would award him under the medical evidence adduced, and therefore claimant’s claim for compensation should be denied.”

In his application for this hearing claimant stated that the purpose for which he sought the hearing was for the Industrial Court to determine the nature and extent of his permanent disability, in order that he may receive the amount in excess of $8,758 from the respondent. He explicitly stated that respondent was entitled to credit for the sum of $8,758.

The Industrial Court apparently determined his percentage of total permanent disability on the basis of $28 per week, and found that his disability was not such as would, when computed on a dollar basis, exceed the amount he had already received.

We agree that the order would have been more explicit and more in conformity with the prayer of the application had it computed the $8,000 into weeks based on $28 per week, which would have amounted to 285 weeks, or 57 percent total permanent disability. However, had the Industrial Court done so, we are unable to see where claimant would have benefitted therefrom, nor has claimant indicated in his brief in what way he would benefit by such detail finding.

It has been held that a judgment is sufficient if it can be made certain by reference to pleadings or papers on file in the case and under the whole record its sense can be clearly ascertained. Section 57, Judgment, 30A. Amer.Jur.; 49 C.J.S. Judgments § 72; State ex rel. Whatley v. Mueller, Mo.App., 288 S.W.2d 405; Vasiljevich et al. v. Radanovich, 138 Cal.App. 97, 31 P.2d 802.

We are of the opinion that in this case the order is sufficient for the parties to determine the nature and extent of their rights without having to refer to pleadings and papers of record.

Therefore, the order of the Industrial Court is affirmed.

WILLIAMS, C. J, and DAVISON, HALLEY, JOHNSON and JACKSON, JJ., concur. BLACKBIRD, V. C. J., and IRWIN and BERRY, JJ., dissent.