Pittsburgh Plate Glass Co. v. State Industrial Commission

1948 OK 103, 192 P.2d 1015, 200 Okla. 281, 1948 Okla. LEXIS 468

• Court: Supreme Court of Oklahoma
• Decided: April 27, 1948
• Docket: No. 33234
• Status: Published

Opinions

PER CURIAM.

This is an original proceeding brought by the petitioner, Pittsburgh Plate Glass Company, to review an award made by the State Industrial Commission to Raymond K. Evans, respondent.

In the claim filed June 17, 1943, respondent stated that he sustained an accidental injury arising out of and in the course of his employment with the petitioner on October 5, 1940, while working with paint, chemicals and other substances in the plant of petitioner. An award was made by the State Industrial Commission granting temporary disability for certain days during which the respondent was not employed, and the petitioner has brought this proceeding to review the award.

It is first argued that there is no competent evidence to sustain the State Industrial Commission’s finding excusing respondent from filing a notice of injury .within 30 days after said injury. It is next argued that the claim was not filed within one year after the date of the accidental injury and is thus barred by reason of 85 O. S. 1941 §43. The third proposition argued is that there is no competent evidence to show that the respondent sustained an accidental injury within the meaning of the Workmen’s Compensation Law, 85 O. S. 1941 §1 et seq; and the final proposition is that there was an error in computing the award for temporary total disability.

The facts will be briefly stated. Respondent was employed in the paint factory of petitioner where it was hi's duty to mix paints, chemicals and other substances necessary to the manufacture of the paint. He was employed on September 8, 1940, and worked for the petitioner until June 14, 1941, at which time he voluntarily left their employment by the consent of all parties and upon the advice of a physician, and began employment with the Manhattan - Long Construction Company of Oklahoma City, and worked for them until September 30, 1941. He then entered the employment of Dupont Company at Pryor, Okla., and worked for them from November 15, 1941, until February 28, 1942. He was then employed as a worker for the Douglas Aircraft Company from August 27, 1942, until April 28, 1944, at which time he quit work for them and was employed by the Hart Industrial Supply Company of Oklahoma City, at which place he is still employed.

As above stated, upon the advice of physician for the petitioner, he quit work for petitioner to determine if a certain breaking out on his hands was caused by contact with the paint and chemicals in the plant of petitioner. Subsequent to ending his employment with petitioner he went to Mayo’s and was treated for dermatitis. Respondent stated that, on or about October 5, 1940, he cut his hand while working with glass in the factory of petitioner; that these cut places become infected and that the dermatitis resulted therefrom.

In Magnolia Petroleum Co. v. Clow, 163 Okla. 302, 22 P. 2d 378, we said:

“Where, in a proceeding before the Industrial Commission, the disability alleged to exist is of such character as to require skilled and professional men to determine the cause and extent thereof, the question is one of science, and must necessarily be proved by the testimony of skilled professional persons.”

This rule has been announced many times by this court. Pure Oil Co. v. State Industrial Commission, 182 Okla. 286, 77 P. 2d 81; Park Ward Co. v. Newlin, 186 Okla. 26, 95 P. 2d 848.

It is admitted that dermatitis is the cause of the disability. The disease also broke out on the legs and other parts of the body. There is a hopeless conflict in the medical testimony as to the cause of the dermatitis from which respondent is suffering. Although respondent stated that he cut his hand on or about October 5, 1940, no medical expert witness testified that the cut on the hand in any way caused the breaking out or infection now denominated as dermatitis. The medical expert witness on whose testimony respondent relied stated specifically that a cut on the hand would not cause the infection.

As we view the matter, the case at bar is controlled by the principle announced in the case of Pace, Rainer & Pace et al. v. Robertson et al., 186 Okla. 406, 98 P. 2d 46. Therein we stated:

“Dermatitis caused by exposing the hands and feet of an employee to crude oil or chemicals in such oil is not a compensable injury arising out of and in the course of employment within the terms of the Workmen’s Compensation Law, section 13348, O. S. 1931, et seq., 85 Okla. St. Ann. §1 et seq., under the facts and circumstances of this case.”

It has been many times held by this court that where there is no competent evidence reasonably tending to support the finding of the State Industrial Commission that an employee sustained an accidental injury, an award based thereon will be vacated by this court on review. We are convinced that there is no competent evidence from which the State Industrial Commission was authorized to find that respondent sustained an accidental injury within the meaning of 85 O. S. §1, et seq.

There is another reason that the award in the case at bar cannot be sustained. 85 O. S. 1941 §43 provides that a claim must be filed with the State Industrial Commission by an injured employee within one year. Respondent cites and relies upon Brown & Root v. Dunkelberger, 196 Okla. 116, 162 P. 2d 1018, in which, in effect, it is held that an injured employee has one year after an injury becomes apparent in which to file his claim. Under the undisputed evidence in the case at bar, if it could be conceded that the respondent had sustained an accidental injury, the disability, to wit, dermatitis, became apparent within a short time after the exposure to the substance, and before he left the employment of petitioner. He states that he did not know what caused the dermatitis. We have never held that a failure to know what caused the disability authorized the filing of a claim after the statutory period for filing had expired.

Since there is no evidence upon which the State Industrial Commission could base an award, the cause is remanded to the State Industrial Commission with directions to vacate the award and dismiss the claim.

HURST, C.J., and BAYLESS, CORN, GIBSON, ARNOLD, and LUTTRELL, JJ., concur. DAVISON, V.C.J., and RILEY, J., dissent.