DAVISON, Justice.
This is an original proceeding brought by Leonard E. Parsons (claimant) to obtain a review of an order of the State Industrial Court in favor of McAlester Fuel Company and its insurance carrier, hereinafter referred to as respondents, denying claimant’s claim for compensation. The order was made August 17, 1960, and was affirmed on appeal to the judges en banc. The basis of the order was that the claim was barred by the five year period of limitation provided by 85 O.S.1961 § 43. Respondents also argue the proposition of prior adjudication.
Claimant filed his notice of injury February 28, 1945, alleging an accidental injury January 31, 1945, and seeking compensation for disability to “head, shoulders, back and hips and other injuries.” A hearing was held on respondents’ motion to discontinue compensation for temporary total disability and an order was entered on April 18, 1945, finding:
“That on the 31st day of January, 1945, the claimant was in the employ of the respondent herein, engaged in a hazardous occupation within the terms and meaning of the Workmen’s Compensation Act of the State of Oklahoma, and on said date sustained an accidental personal injury arising out of and in the course of his employment, to-wit: Injury to left side of head and neck and left lower leg.”
The order also found that the temporary total disability ceased March 27, 1945, and directed respondents to pay claimant $126 for such disability and to pay the necessary and reasonable medical expense incurred by reason of the accidental injury.
On May 2, 1945, claimant filed a motion requesting a determination of his permanent partial disability sustained as a result of his injury and of all other rights and claims he might have in the matter. A hearing was held on the motion and on June 9, 1945, an order was entered in which [29]*29there was recited the order of April 18, 1945, including the recital of injuries “to left side of head and neck and left lower leg.” The order further found as follows:
“That the evidence is insufficient to show that claimant sustained any permanent partial disability as a result of said injury.”
and denied claimant’s claim for permanent partial disability. This order was not appealed from and became final.
On September 7, 1945, claimant filed a motion to reopen and for compensation on change of condition for the worse. A hearing was held November 6, 1945, but no order was ever made determining or making any disposition of the motion to reopen. Thereafter and on June 30, 1954, the present counsel for claimant filed an application to reopen on changed condition for the worse alleging total permanent disability. This application was heard and claimant testified and produced medical testimony that the condition of his neck had become progressively worse. The respondents contended that claimant’s claim was barred by the five year limitation set forth in 85 O.S. 1961 § 43. As stated the State Industrial Court sustained this contention and made an order denying claimant’s application. Claimant has brought this action to review the correctness of the order.
The five year limitation period relied upon by the State Industrial Court is embodied in Sec. 2, H.B. 612, S.L. 1953, p. 430, effective June 8, 1953, and is a part of 85 O.S.1961 § 43, and provides:
“When a claim for compensation shall have been filed with the Commissioner as herein provided, unless the claimant shall in good faith request a hearing and final determination thereon within five (5) years from the date of filing thereof or within five (5) years from the date of last payment of compensation or wages in lieu thereof, same shall be barred as the basis of any claim for compensation under this Act and shall be dismissed by the Commission for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder. Provided, that any claims heretofore filed and now pending before the Commission shall likewise be barred after the expiration of five (5) years from the effective date of this provision.”
In presenting their respective contentions as to the correctness of the Industrial Court’s order the parties agree that the applicable portion of the statute is that part following the proviso relative to claims pending on the effective date of the statutory provision. The question is whether claimant is barred for lack of a good faith request within five years after June 8, 1953.
After the hearing on claimant’s September 7, 1945, motion to reopen, no disposition or determination was made of the motion. The matter continued to pend awaiting final determination. It was pending on and after June 8, 1953. Claimant then filed a further application to reopen on June 30, 1954. In view of the pendency of the first motion we regard the last application as being in the nature of a supplemental request for determination of disability. Obviously claimant’s formal and written supplemental request was made and filed within five years after the effective date of the limitation provision and was sufficient to constitute a good faith request as required by the statute.
The arguments of the parties are sufficient to also raise the question of whether the five year limitation period ran after June 30, 1954, with no intervening good faith request. The record reflects that claimant’s counsel wrote letters to the State Industrial Commission (Court) on October 20 and December 10, 1958, requesting a hearing and determination. Claimant also sent a similar letter dated June 18, 1959. The matter was set for hearing on at least one occasion but was not heard for some reason not clearly shown in the record. Hearing was finally held May 17, 1960, and order was entered August 17, 1960.
[30]*30It is our conclusion that under the circumstances the claimant is not barred by the limitation provision set forth in the above quoted portion of the statute.
Respondents further contend the order of June 9, 1945, finding the evidence insufficient to show claimant sustained any permanent partial disability as a result of the injury, was a final determination of claimant’s disability and deprived the State Industrial Court of jurisdiction to consider further compensation on a change of condition.
We have held that before this court is justified in precluding an injured employee from an award for further disability, on the ground that such disability has been determined, it must clearly appear that the question has been formerly determined. Dunning-James-Patterson v. Rickert, 196 Okl. 237, 164 P.2d 620, 622.
The order found that there was present the requisite elements necessary to vest the State Industrial Commission (Court) with jurisdiction and that claimant had sustained an accidental injury to the left side of the head and neck and left lower leg. Necessary to recovery of compensation was a showing of a then existing permanent disability. The order found the evidence insufficient. Claimant now seeks compensation on change of condition since this finding. The fact that the State Industrial Court had previously found claimant then had no permanent disability was conclusive only insofar as it related to the then existing condition and could have no application to future developments. Safeway Stores, Inc. v. Brumley, 191 Okl. 270, 128 P.2d 1006. In fact the Court would be without authority to adjudicate that a present condition could not change as a result of future developments. Knapp v.
Free access — add to your briefcase to read the full text and ask questions with AI
DAVISON, Justice.
This is an original proceeding brought by Leonard E. Parsons (claimant) to obtain a review of an order of the State Industrial Court in favor of McAlester Fuel Company and its insurance carrier, hereinafter referred to as respondents, denying claimant’s claim for compensation. The order was made August 17, 1960, and was affirmed on appeal to the judges en banc. The basis of the order was that the claim was barred by the five year period of limitation provided by 85 O.S.1961 § 43. Respondents also argue the proposition of prior adjudication.
Claimant filed his notice of injury February 28, 1945, alleging an accidental injury January 31, 1945, and seeking compensation for disability to “head, shoulders, back and hips and other injuries.” A hearing was held on respondents’ motion to discontinue compensation for temporary total disability and an order was entered on April 18, 1945, finding:
“That on the 31st day of January, 1945, the claimant was in the employ of the respondent herein, engaged in a hazardous occupation within the terms and meaning of the Workmen’s Compensation Act of the State of Oklahoma, and on said date sustained an accidental personal injury arising out of and in the course of his employment, to-wit: Injury to left side of head and neck and left lower leg.”
The order also found that the temporary total disability ceased March 27, 1945, and directed respondents to pay claimant $126 for such disability and to pay the necessary and reasonable medical expense incurred by reason of the accidental injury.
On May 2, 1945, claimant filed a motion requesting a determination of his permanent partial disability sustained as a result of his injury and of all other rights and claims he might have in the matter. A hearing was held on the motion and on June 9, 1945, an order was entered in which [29]*29there was recited the order of April 18, 1945, including the recital of injuries “to left side of head and neck and left lower leg.” The order further found as follows:
“That the evidence is insufficient to show that claimant sustained any permanent partial disability as a result of said injury.”
and denied claimant’s claim for permanent partial disability. This order was not appealed from and became final.
On September 7, 1945, claimant filed a motion to reopen and for compensation on change of condition for the worse. A hearing was held November 6, 1945, but no order was ever made determining or making any disposition of the motion to reopen. Thereafter and on June 30, 1954, the present counsel for claimant filed an application to reopen on changed condition for the worse alleging total permanent disability. This application was heard and claimant testified and produced medical testimony that the condition of his neck had become progressively worse. The respondents contended that claimant’s claim was barred by the five year limitation set forth in 85 O.S. 1961 § 43. As stated the State Industrial Court sustained this contention and made an order denying claimant’s application. Claimant has brought this action to review the correctness of the order.
The five year limitation period relied upon by the State Industrial Court is embodied in Sec. 2, H.B. 612, S.L. 1953, p. 430, effective June 8, 1953, and is a part of 85 O.S.1961 § 43, and provides:
“When a claim for compensation shall have been filed with the Commissioner as herein provided, unless the claimant shall in good faith request a hearing and final determination thereon within five (5) years from the date of filing thereof or within five (5) years from the date of last payment of compensation or wages in lieu thereof, same shall be barred as the basis of any claim for compensation under this Act and shall be dismissed by the Commission for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder. Provided, that any claims heretofore filed and now pending before the Commission shall likewise be barred after the expiration of five (5) years from the effective date of this provision.”
In presenting their respective contentions as to the correctness of the Industrial Court’s order the parties agree that the applicable portion of the statute is that part following the proviso relative to claims pending on the effective date of the statutory provision. The question is whether claimant is barred for lack of a good faith request within five years after June 8, 1953.
After the hearing on claimant’s September 7, 1945, motion to reopen, no disposition or determination was made of the motion. The matter continued to pend awaiting final determination. It was pending on and after June 8, 1953. Claimant then filed a further application to reopen on June 30, 1954. In view of the pendency of the first motion we regard the last application as being in the nature of a supplemental request for determination of disability. Obviously claimant’s formal and written supplemental request was made and filed within five years after the effective date of the limitation provision and was sufficient to constitute a good faith request as required by the statute.
The arguments of the parties are sufficient to also raise the question of whether the five year limitation period ran after June 30, 1954, with no intervening good faith request. The record reflects that claimant’s counsel wrote letters to the State Industrial Commission (Court) on October 20 and December 10, 1958, requesting a hearing and determination. Claimant also sent a similar letter dated June 18, 1959. The matter was set for hearing on at least one occasion but was not heard for some reason not clearly shown in the record. Hearing was finally held May 17, 1960, and order was entered August 17, 1960.
[30]*30It is our conclusion that under the circumstances the claimant is not barred by the limitation provision set forth in the above quoted portion of the statute.
Respondents further contend the order of June 9, 1945, finding the evidence insufficient to show claimant sustained any permanent partial disability as a result of the injury, was a final determination of claimant’s disability and deprived the State Industrial Court of jurisdiction to consider further compensation on a change of condition.
We have held that before this court is justified in precluding an injured employee from an award for further disability, on the ground that such disability has been determined, it must clearly appear that the question has been formerly determined. Dunning-James-Patterson v. Rickert, 196 Okl. 237, 164 P.2d 620, 622.
The order found that there was present the requisite elements necessary to vest the State Industrial Commission (Court) with jurisdiction and that claimant had sustained an accidental injury to the left side of the head and neck and left lower leg. Necessary to recovery of compensation was a showing of a then existing permanent disability. The order found the evidence insufficient. Claimant now seeks compensation on change of condition since this finding. The fact that the State Industrial Court had previously found claimant then had no permanent disability was conclusive only insofar as it related to the then existing condition and could have no application to future developments. Safeway Stores, Inc. v. Brumley, 191 Okl. 270, 128 P.2d 1006. In fact the Court would be without authority to adjudicate that a present condition could not change as a result of future developments. Knapp v. State Industrial Commission, 195 Okl. 56, 154 P. 2d 964, 966; Gardner Petroleum Co. v. Poe, 166 Okl. 169, 26 P.2d 743; Dunning-James-Patterson v. Rickert, supra; and Indian Territory Illuminating Oil Co. v. State Industrial Comm., 185 Okl. 68, 89 P.2d 933, 935.
This court has further held that a prior finding by the State Industrial Court that there exists no permanent disability as a result of the accident does not limit the jurisdiction of the Court to thereafter inquire into any disability which may be shown as the result of a change in condition. Sparkman v. Cosden Pipe Line Co., 182 Okl. 184, 77 P.2d 21.
In Skelly Oil Co. v. Goodwin, 158 Okl. 288, 13 P.2d 135, we stated:
“Where an order has been made by the commission denying compensation and said order becomes final, the commission acquires jurisdiction to reopen said cause and order compensation paid, upon a showing that there has been a change of condition for the worse due to the original injury since the former order.”
See also Patterson Steel Co. v. Bailey, 148 Okl. 153, 298 P.2d 282; Gulf Pipe Line Co. of Oklahoma v. Keener, 162 Okl. 281, 20 P.2d 170; and Magnolia Petroleum Co. v. Nalley, 176 Okl. 491, 56 P.2d 769.
Claimant’s application to reopen alleges a change of condition for the worse as to accidental injuries described in the order of June 9, 1945. From our examination of his evidence it appears the claimed change is in the injury to claimant’s neck. It is our opinion that the State Industrial Court has jurisdiction to hear and determine the matter.
Respondents cite in support of their last contention the case of Warren & Bradshaw Drilling Co. v. Boyd, Old., 271 P.2d 324. The decision is not in point. In that case we held that a prior finding not appealed from that the disability was not due to accidental injury arising out of and in the course of employment becomes final and conclusive and deprives the Commission (Court) of jurisdiction to reopen on ground of change of condition. Such a finding is a determination that there was absent a prerequisite to vesting jurisdiction in the State [31]*31Industrial Court. In the present case there was no such finding and therefore no lack of jurisdiction.
Order vacated with instructions to proceed in accordance with the views herein expressed.
WILLIAMS, C. J., BLACKBIRD, V. C. J., and JOHNSON, JACKSON, IRWIN and BERRY, JJ., concur.
HALLEY, J., dissents.