Oklahoma City v. Fain

531 P.2d 1023
CourtSupreme Court of Oklahoma
DecidedNovember 26, 1974
DocketNo. 47039
StatusPublished
Cited by2 cases

This text of 531 P.2d 1023 (Oklahoma City v. Fain) 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
Oklahoma City v. Fain, 531 P.2d 1023 (Okla. 1974).

Opinion

BARNES, Justice:

Beginning in November, 1955, Garland Fain, hereinafter referred to by name, or as “claimant”, was employed approximately 18 years in Oklahoma City’s Fire Depart[1024]*1024ment. In April, 1973, when he was approximately 46 years old, his employer, for reasons immaterial to this case, gave him the choice of resigning or being fired. On the 24th day of that month, he resigned.

Thereafter, on July 12, 1973, Fain filed a Form 3 in the State Industrial Court claiming permanent disability from an accidental heart injury he allegedly suffered while fighting a fire at an Oklahoma City apartment house on January 2, 1973.

In its answer to this claim, Oklahoma City, hereinafter referred to as “respondent”, denied that claimant suffered the accidental injury he claimed, and also alleged that it was prejudiced in defending the claim by Fain’s failure to give notice of such injury within 30 days after it allegedly occurred.

After an October, 1973, trial, at which the only evidence introduced was claimant’s testimony and two physicians’ reports, the Trial Tribunal entered its order finding claimant suffered a myocardial infarction in the course of his hazardous occupation on January 2, 1973, and that, as a result thereof, he was permanently and totally disabled, for which disability his award was the total sum of $25,000.00. In the order, claimant’s failure to give respondent written notice of the injury was excused “for the reason that the Claimant did not know of his injury during the thirty-day statutory period, and Respondent was not prejudiced by said failure . . . ” to give the notice.

On appeal to the Industrial Court, en banc, that court sustained the award after amending the Trial Tribunal’s previous order by excusing claimant’s failure to give the written notice on the ground that respondent was not prejudiced because it had actual notice “of the accident . . . ”

In this original proceeding to review the award, respondent contends that the evidence as a whole, and particularly the medical, is insufficient to show that claimant’s heart condition, myocardial infarction, was caused by an accidental injury claimant received in the course of his employment on January 2, 1973, as he claimed, and the Industrial Court found.

A review of the record shows claimant testified, inter alia, that on the day of his claimed accidental injury, his principal regular duties in the City’s Fire Department consisted of accompanying the District Fire Chief to fires as his chauffeur, helping said Chief investigate the cause of such fires, determine whether or not there was insurance on the property involved, and evaluate the damages thereto, as well as relaying the Chief’s orders for any additional equipment or man-power needed in fighting the fires.

Claimant also testified that in the instance of “multiple alarm” fires, which occurred “probably twice a month”, he would “pitch in” and help the other firemen present “man the hose and fight the fire”; that this was what he was doing at the apartment house fire on January 2, 1973, when, after he had entered the burning apartment building several times, he was asked by the District Chief to go to his car and get a “self-contained [oxygen] mask.” Claimant testified that when he got the mask and unsuccessfully tried to find the District Chief, he finally put the mask on himself while helping “man” the hose nozzle; that it developed the mask was not functioning; that the fire hose, with water in it, weighed several hundred pounds and he moved it short distances on occasion. Claimant further testified that after he had gone back into the building two or three times, and toward the end of his efforts, he got sick at his stomach, went out of the building and vomited, and was having arm and chest pains. Claimant further testified that Dr. P., the Fire Department physician, who goes out on multiple alarm fires, was present, but claimant did not tell him of his pains. Claimant further testified that there was no air in the apartment building, and Dr. P. advised him not to go back in it but he went anyway.

Claimant further testified that in all of the 18 years he had been with the Fire Department, he had never experienced the amount of work or exertion that he did at [1025]*1025that fire; that, after the fire, he drove the District Chief back to the fire station and told him that the fire was the worst one he had “ever made”, that it affected him worse, and made him sick.

Claimant further testified that about the time he was ready for bed at the fire station that night, the pains in his chest and arms increased, but he worked the next regular shift and continued to work all of his regular shifts until he resigned.

Claimant further testified that during this latter period of almost four months, he worked other fires similar to the one of January 2nd, and had shortening of breath and pains in his arms and chest, but those fires were not as bad as the subject one, and his “problems” were “not as severe”.

Claimant further testified that 29 days after he resigned, he was experiencing shortening of breath and wheezing, and one of his friends, who heard this, “highly recommended that I see a doctor — that something was wrong.”

Claimant further testified that after-wards, when he went into an Oklahoma City hospital, where an E.K.G. was performed on him, was the first time he became aware that he had had a heart attack.

Claimant further testified that he has worked very little since leaving the City’s Fire Department; that he is not able to do any type of work “without just completely being exhausted — giving out.” He further testified that he is scheduled for open heart surgery.

On cross-examination, claimant testified, inter alia, that January 2, 1973, was the first time he had ever experienced any difficulty like chest and arm pains, but he had had shortness of breath under exertion “whenever I was fighting a fire.” Claimant further testified that the alarm for the subject fire came in at 1:59 p. m., on January 2nd; that he was at that fire for “two to three hours”, during a 24-hour shift that did not end until 7:00 o’clock the next morning, after which he was off duty for the following 24 hours. Claimant acknowledged that this was not the first time he had become ill while fighting a fire, and he further stated, in substance, that from his experience the inhalation of smoke has a tendency to cause sickness of different types and he had noticed this in other firemen.

Claimant’s further cross-examination established that the Fire Department had a “regular reporting process” that was supposed to be used when a fireman sustained an “on-the-job injury”; that in this process the injured was to make out a report over his signature and give it to his superi- or officer, who also was to sign it and take it to the main Fire Chief’s office. Claimant was certain he had filled out such a report on a hernia he had suffered many years ago, which the City paid for, but he admitted he never made out such a report on his claimed injury of January 2, 1973.

According to claimant’s testimony, Dr. Hu., who examined him on May 24, 1973, was the first doctor he saw about his claimed heart condition.

Claimant further testified on cross-examination that Dr. D., a psychiatrist, treated him, and it was recommended that he see Dr. P., who examined him on June 12, 1973, and recommended that he see a heart specialist. Claimant testified that the heart specialist he then went to was Dr. Ho. Apparently Dr.

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Related

City of Oklahoma City v. Sturm
1979 OK 90 (Supreme Court of Oklahoma, 1979)

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Bluebook (online)
531 P.2d 1023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oklahoma-city-v-fain-okla-1974.