National Zinc Co., Inc. v. Spencer

1976 OK 177, 557 P.2d 906, 1976 Okla. LEXIS 650

• Court: Supreme Court of Oklahoma
• Decided: November 23, 1976
• Docket: No. 49237
• Status: Published

Opinion

WILLIAMS, Chief Justice.

This is an original proceeding to review an order of the Industrial Court, affirmed en banc, awarding claimant compensation for 55 per cent permanent partial disability to the body as a whole, suffered because of long exposure to inhalation of smoke, fumes, dust and gases during his twenty-six years employment with petitioner. The long period of exposure irritated, aggravated and accelerated claimant’s condition of pulmonary fibrosis and emphysema.

The sole error claimed by petitioner is that award is contrary to evidence and law and not sustained by competent evidence because court failed to appoint an independent medical examiner to examine claimant.

Claimant submitted the report and deposition of Dr. B., who was of the opinion claimant was 80 per cent permanently disabled. Petitioner submitted report and testimony of Dr. M., who found claimant had no disability for ordinary manual labor. Petitioner submits this discrepancy requires the court to appoint an independent medical examiner and his refusal to do so was an abuse of discretion. Petitioner cites no authority for this contention.

We find record supports existence of competent evidence to support finding claimant sustained a 55 per cent disability during course of covered employment. Where medical evidence is conflicting as to extent of disability sustained by claimant, amount of disability is a question of fact for the Industrial Court and will not be disturbed in a proceeding for review where reasonably supported by medical evidence.¹

We find court did not abuse its discretion in not appointing an independent medical examiner.

AWARD SUSTAINED.

DAVISON, BERRY, LAVENDER and SIMMS, JJ., concur. HODGES, V. C. J., and IRWIN, BARNES and DOOLIN, JJ., dissent.

1 . Dolese Bros. Co. v. McBride, 268 P.2d 268 (Okl.1954).