Liberty Glass Co. v. Lemons

1950 OK 74, 217 P.2d 516, 202 Okla. 667, 1950 Okla. LEXIS 427
CourtSupreme Court of Oklahoma
DecidedMarch 21, 1950
DocketNo. 34028
StatusPublished
Cited by2 cases

This text of 1950 OK 74 (Liberty Glass Co. v. Lemons) 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
Liberty Glass Co. v. Lemons, 1950 OK 74, 217 P.2d 516, 202 Okla. 667, 1950 Okla. LEXIS 427 (Okla. 1950).

Opinion

O’NEAL, J.

This is a proceeding to review an award of the State Industrial Commission in favor of James F. Lemons, herein referred to as claimant, against Liberty Glass Company (self-, insured), herein referred to as Liberty Glass.

Claimant was employed by Liberty Glass as floor boy. On July 20, 1947, while engaged in said employment, he stepped on a milk bottle and fell onto a metal conveyor, and, as he testified received an injury to his hip and back. He immediately reported the accident to his foreman. He continued to work until about September 3, 1947. On that date, while on the job, he became unable to continue the work, and, as he testified, “went down” on the job. He was sent, with some assistance from his foreman and another employee, directly from the plant to the office of Dr. C. M. Levy. Dr. Levy advised claimant that there was nothing wrong with him and told him he could return to work. A few days thereafter claimant went to see Dr. J. F. Curry who treated claimant that day and several days thereafter.

On September 10, 1947, claimant was placed in the city hospital where he remained under treatment until September 15, 1947, when he was released and a few days thereafter he was readmitted to the hospital where he remained for several days. He did not work after July 20, 1947, to the date of the hearing, September 29, 1948. At times he was unable to walk without the aid of crutches and at other times he could walk with the aid of a cane.

Commencing in September 1947, claimant was paid compensation for temporary total disability for .a period of about eight months. For about six of the eight months claimant was unable to walk without crutches. At the date of the hearing he was able to walk with the aid of a cane.

From the date of his injury to the date'of the hearing claimant was examined or treated by some seven or eight physicians. His first notice of injury and claim for compensation (Form 3) was filed with the State Industrial Commission December 29, 1947. On April 26, 1948, Liberty Glass filed notice that payment of compensation had been suspended or stopped for failure of claimant to report for medical examination on April 6, 1948, as requested in a letter dated March 23, 1948.

From the record it appears that claimant had in 1945 received a previous injury and had been awarded compensation therefor. Special Indemnity Fund filed an answer in which it denied each and every material allegation in claimant’s Form 3, and further alleged that the prior injury, in combination with the subsequent injury, did not materially increase the disability over that disability caused by the last injury standing alone; alleging further that claimant is not a previously impaired person under the law.

Thereafter the matter was set for hearing as to the cause and extent of disability before Commissioner Grady H. Holloway. After hearing, Commissioner Holloway made findings of fact as follows:

“1. That on or about the 20th day of July, 1947, claimant was in the employ of respondent herein, engaged in a hazardous occupation, subject to and covered by the provisions of the Workmen’s Compensation Law, and on said date claimant sustained an accidental personal injury, arising out of and in the course of his employment with respondent, consisting of an injury to his right leg, hip and back.
“2. That at the time of said injury, claimant’s average daily wage was sufficient to entitle him to maximum compensation of $21.00 per week.
[669]*669“3. That as a result of said injury, claimant was temporarily totally disabled from the performance of ordinary manual labor to April 18, 1948, for which period he has heretofore been paid compensation at $21.00 per week, less the five day waiting period.
“4. That as a result of said injury, claimant sustained a 50% permanent partial disability to and loss of use of his right leg, for which he is entitled to $1,837.50, 87% weeks at $21.00 per week; that as a result of said injury, claimant sustained a 47% permanent partial disability to and loss of use of his body as a whole or 47% of a permanent total disability, for which he is entitled to $4,987.50, being 237% weeks at $21.00 per week.”

And further:

“5. That the Special Indemnity Fund should be dismissed as party respondent herein.”

An award was ordered against Liberty Glass and this proceeding is to review the same.

It is first contended that there is no evidence to support the finding and order of the commission that “as a result of said injury claimant sustained 50% permanent partial disability to and loss of use of his right leg.”

It is well settled that cause and extent of disability arising from accidental injury are questions of fact for Industrial Commission, and where there is any competent evidence reasonably tending to sustain commission’s findings, an award based thereon will not be disturbed on review. Aggas Drilling Co. et al. v. Williams et al., 200 Okla. 277, 192 P. 2d 995.

In support of its contention Liberty Glass calls attention to the testimony of several physicians who testified in the matter. It is asserted that only one doctor testified as to the disability of claimant’s leg; that this witness was Dr. Ian MacKenzie who testified in part:

“Now he (claimant) has full use of the right leg with no appreciable atrophy but has loss of sensation in the whole right leg. . . .”

And:

“I think his permanent disability, even if the anaesthesia does not disappear, is still not more than 15 to 20% of the leg.”

Counsel for Liberty Glass asserts that at no other place in all the testimony is there any reference to any permanent partial disability to claimant’s leg. Counsel has apparently overlooked the testimony of Dr. Louis A. Martin (Record pp. 35-37), wherein Dr. Martin states:

“ . . . Patient (claimant) has only about 50% use of the right leg, he cannot completely extend or flex the knee (to do this one must push the right foot backward).” (sic)
“Sensations: Complete loss of fine and coarse epicritic pain sensation over right lower extremity from a level approximately two inches below and parallel to inguinal ligament, extending all around the thigh, to a point halfway down the foot. This area has no sensation to pain or temperature. Remainder of body normal to sensory stimuli.”
“Conclusion: Based upon my findings and the history given, I am of the opinion these injuries have been caused by the above described fall, and as a result this man is permanently and totally disabled to perform ordinary manual labor.”

None of the other physicians would venture an opinion as to the extent and probable duration of claimant’s injury.

Dr. Fred A. Glass testified, in part:

“Patient walks with a marked limp of right leg . . . There is rather marked tenderness over the right sciatic nerve just below the sciatic notch. He complains of pain radiating down posterior aspect of thigh as far as the knee with pressure on this point. . . . Today [670]*670the picture is that he walks with a very decided limp in his right leg and complains of extreme weakness.

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Bluebook (online)
1950 OK 74, 217 P.2d 516, 202 Okla. 667, 1950 Okla. LEXIS 427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liberty-glass-co-v-lemons-okla-1950.