KORNEGAY, J.
This is a proceeding in error to review the action of the Industrial Commission in making an order or award in favor of the respondent, and against the petitioner, which order is as follows:
“Now on this 13th day of January, 1931 the State Industrial Commission being regularly in session, this cause comes on for consideration pursuant to a hearing had at McAlester, Okla., March 19, 1930, and a hearing at Wilburton, Okla., November 5, 1929, to determine liability and extent of disability, at which hearing claimant appeared in person and by his attorney, Claude Briggs, respondent being represented by George M. Porter, and the trial commissioner having heard a portion of the testimony, observed the demeanor of the witnesses on the stand, considered and weighed all the evidence presented in the bearings before her, and other hearings in this cause, and being otherwise well and sufficiently advised in the premises, finds the following facts:
“I. That claimant, William Prince, sustained an accidental injury arising out of and in the course of his employment with respondent herein on April 3, 1928; that claimant has been temporarily totally disabled or temporarily partially disabled without any wage-earning- capacity being established to March 19, 1930, from the date- of said accident.
“2. That the average wage of claimant was $5.51 per day.
“The trial commission is of the opinion: By reason of the aforesaid facts, that claimant is entitled under the law to compensation at the rate of. $18 per week from April 5, 1928, to March 19, 1930, less any compensation heretofore paid.
“The trial commission is of the further opinion: That this cause should be continued for further hearing to determine the extent of disability, if any, beyond March 19, 1930.
“It is therefore ordered: That within ten days from this date the respondent, Rock Island Improvement Company, pay to claimant compensation at the rate of $18 per week computed from April 5, 1928, to March 19, 1930, less any compensation heretofore paid.
“It is further ordered: That within 30 days from this date the respondent file with the Commission proper receipt or other report evidencing compliance with the terms of this order.”
The order is signed by all of the commissioners.
During the progress of the testimony, the position of the respondent before the Commission is stated as follows:
“By George M. Porter: Our contention all the way through is 'that this man is- a malingerer. He went out and worked on the road and when we caught him doing that work and still drawing compensation, we stopped compensation. By the Court: Did >ou ever tender him any other work? By George M. Porter: The testimony shows he did not even come back after his compensation check.”
An elaborate brief has been filed on behalf of the petitioner by George M. Porter, attorney for petitioner, W. R. Bleakmore, Oklahoma City, general counsel for petitioner, W. II. Fuller and J. L. Fuller, Mc-Alester, Okla., of counsel for petitioner. In the brief, attack is made upon the order of the Commission, which is set out in the brief, and an abridgment of the evidence is also set out therein. The attack is made in three propositions. The first proposition is as follows:
“The Commission’s findings, that respondent (claimant) was temporarily (temporily) tota'ly disabled, or temporarily (temporily) disabled without wage-earning capacity being established to March 19, 1930, is erroneous and wholly unestablished by any evidence.”
The second proposition is as follows:
“The Commission erred in not taking in
to consideration the wages earned by the respondent while working for Latimer county and ethers under the road overseer of said county.”
The third proposition is as follows:
“That the order and award was erroneously made in that the Commission did not hear and consider all the testimony adduced in the respective hearings.”
Numerous authorities are cited to sustain the positions taken, mostly from this court. From the statement of the findings, it appears that they were on questions of fact, and that under the well-known rule as established by the Industrial Act itself, we are not permitted to review the findings of fact of the Industrial Commission. However, there has been engrafted on the statute the rule that we will not be permitted to review such findings where there is any evidence reasonably supporting the findings of the Commission.
Under these conditions, the entire record has been examined.- It appears to be conceded that the claimant below was in the employ of the petitioner. The man was engaged in coal mining. A rock fell on him on April 3, 1928. It was discovered by an X-ray on April 16th that he had sustained fractures to the 8th and 9th ribs, and at that time he was strapped, as a result of the X-ray examinations, as shown by the attending physician’s report. Prior to that time the company had sent Dr. Miller to examine him, but the man thought he could get well at that time without professional help, and declined his services. He did not get well, however, as he thought, by the use of simple liniments, and was later taken to the hospital, X-rayed, and on May 5, 1928, the Commission received the employer’s first notice of injury, in which it was stated that the man was a machine runner, and had been in the employment of the company for 25 years, and was earning $5.51 per day, and in describing the accident it says:
“.This man states he was putting machine back and a large rock fell on him.”
In describing the injury it says:
“Numerous small lacerations and scratches over back and shoulders, and strained back, 5 to 10 days.”
The employer was the Rock Island Improvement Company. The agent of the employer, sending in the notice of accident, was William Jones, general superintendent.
On the 26th of May, 1928, the Commission received the report of initial payment, in which it is stated that the company was working on its own risk as an insurance carrier. First payment was $96. On the 17th of December, 1928, employee’s first notice of injury was received by the Commission, in which the cause of accident was stated, “by rock falling.” Nature and extent of injury was, “hurt in back.”
On August 26, 1929, the claimant asked for medical attention, and asked for an examination by some physician not in the employ or designated by respondent to make a thorough examination of the claimant’s injuries. On the 3rd of September, 1929, Dr. J. F. Park was designated and claimant was ordered to rjeport to him. Following that, testimony was taken of the claimant, and the examining physician, and two other physicians.
The report of the examining physician comprises three pages of single-spaced typewritten matter, beginning with page 61 of the record. If that report is correct, little doubt could be entertained of the permanency of the injury that the claimant received, and of his inability to labor as a result of the accident.
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KORNEGAY, J.
This is a proceeding in error to review the action of the Industrial Commission in making an order or award in favor of the respondent, and against the petitioner, which order is as follows:
“Now on this 13th day of January, 1931 the State Industrial Commission being regularly in session, this cause comes on for consideration pursuant to a hearing had at McAlester, Okla., March 19, 1930, and a hearing at Wilburton, Okla., November 5, 1929, to determine liability and extent of disability, at which hearing claimant appeared in person and by his attorney, Claude Briggs, respondent being represented by George M. Porter, and the trial commissioner having heard a portion of the testimony, observed the demeanor of the witnesses on the stand, considered and weighed all the evidence presented in the bearings before her, and other hearings in this cause, and being otherwise well and sufficiently advised in the premises, finds the following facts:
“I. That claimant, William Prince, sustained an accidental injury arising out of and in the course of his employment with respondent herein on April 3, 1928; that claimant has been temporarily totally disabled or temporarily partially disabled without any wage-earning- capacity being established to March 19, 1930, from the date- of said accident.
“2. That the average wage of claimant was $5.51 per day.
“The trial commission is of the opinion: By reason of the aforesaid facts, that claimant is entitled under the law to compensation at the rate of. $18 per week from April 5, 1928, to March 19, 1930, less any compensation heretofore paid.
“The trial commission is of the further opinion: That this cause should be continued for further hearing to determine the extent of disability, if any, beyond March 19, 1930.
“It is therefore ordered: That within ten days from this date the respondent, Rock Island Improvement Company, pay to claimant compensation at the rate of $18 per week computed from April 5, 1928, to March 19, 1930, less any compensation heretofore paid.
“It is further ordered: That within 30 days from this date the respondent file with the Commission proper receipt or other report evidencing compliance with the terms of this order.”
The order is signed by all of the commissioners.
During the progress of the testimony, the position of the respondent before the Commission is stated as follows:
“By George M. Porter: Our contention all the way through is 'that this man is- a malingerer. He went out and worked on the road and when we caught him doing that work and still drawing compensation, we stopped compensation. By the Court: Did >ou ever tender him any other work? By George M. Porter: The testimony shows he did not even come back after his compensation check.”
An elaborate brief has been filed on behalf of the petitioner by George M. Porter, attorney for petitioner, W. R. Bleakmore, Oklahoma City, general counsel for petitioner, W. II. Fuller and J. L. Fuller, Mc-Alester, Okla., of counsel for petitioner. In the brief, attack is made upon the order of the Commission, which is set out in the brief, and an abridgment of the evidence is also set out therein. The attack is made in three propositions. The first proposition is as follows:
“The Commission’s findings, that respondent (claimant) was temporarily (temporily) tota'ly disabled, or temporarily (temporily) disabled without wage-earning capacity being established to March 19, 1930, is erroneous and wholly unestablished by any evidence.”
The second proposition is as follows:
“The Commission erred in not taking in
to consideration the wages earned by the respondent while working for Latimer county and ethers under the road overseer of said county.”
The third proposition is as follows:
“That the order and award was erroneously made in that the Commission did not hear and consider all the testimony adduced in the respective hearings.”
Numerous authorities are cited to sustain the positions taken, mostly from this court. From the statement of the findings, it appears that they were on questions of fact, and that under the well-known rule as established by the Industrial Act itself, we are not permitted to review the findings of fact of the Industrial Commission. However, there has been engrafted on the statute the rule that we will not be permitted to review such findings where there is any evidence reasonably supporting the findings of the Commission.
Under these conditions, the entire record has been examined.- It appears to be conceded that the claimant below was in the employ of the petitioner. The man was engaged in coal mining. A rock fell on him on April 3, 1928. It was discovered by an X-ray on April 16th that he had sustained fractures to the 8th and 9th ribs, and at that time he was strapped, as a result of the X-ray examinations, as shown by the attending physician’s report. Prior to that time the company had sent Dr. Miller to examine him, but the man thought he could get well at that time without professional help, and declined his services. He did not get well, however, as he thought, by the use of simple liniments, and was later taken to the hospital, X-rayed, and on May 5, 1928, the Commission received the employer’s first notice of injury, in which it was stated that the man was a machine runner, and had been in the employment of the company for 25 years, and was earning $5.51 per day, and in describing the accident it says:
“.This man states he was putting machine back and a large rock fell on him.”
In describing the injury it says:
“Numerous small lacerations and scratches over back and shoulders, and strained back, 5 to 10 days.”
The employer was the Rock Island Improvement Company. The agent of the employer, sending in the notice of accident, was William Jones, general superintendent.
On the 26th of May, 1928, the Commission received the report of initial payment, in which it is stated that the company was working on its own risk as an insurance carrier. First payment was $96. On the 17th of December, 1928, employee’s first notice of injury was received by the Commission, in which the cause of accident was stated, “by rock falling.” Nature and extent of injury was, “hurt in back.”
On August 26, 1929, the claimant asked for medical attention, and asked for an examination by some physician not in the employ or designated by respondent to make a thorough examination of the claimant’s injuries. On the 3rd of September, 1929, Dr. J. F. Park was designated and claimant was ordered to rjeport to him. Following that, testimony was taken of the claimant, and the examining physician, and two other physicians.
The report of the examining physician comprises three pages of single-spaced typewritten matter, beginning with page 61 of the record. If that report is correct, little doubt could be entertained of the permanency of the injury that the claimant received, and of his inability to labor as a result of the accident. It appears therefrom that the night of the accident the claimant was seen by Dr. Miller, who wanted to care for his injury on account of petitioner, but was requested by the patient not to do so. On the 14th of April, using crutches, he went to the office of Dr. Oarlock. From there he was taken to the hospital, and X-rayed, and his back strapped from the lower thoracic region down to and including the sacrum. For three weeks he remained strapped. At that time it was decided that the right 12th rib was fractured or its ver-terbral end dislocated. Two weeks later he was again X-rayed, straps removed, and given some liniment. Examination by Dr. Kilpatrick showed constant pain in the lumbo-sacral region, and continued pain after he was able to get about on crutches and was greatly increased by flexion of the body, walking considerable distance, standing or sitting on hard surface. With the passage of time, the pain changed from being constant to recurrence at intervals, some days relatively free, others severe. Pain in back decreased in severity, but pain about the right knee increased, followed by joint crepitation and restricted movement. Used crutches from April 16th until about the middle of June. Had lost about 20 pounds in weight since the accident. Only work performed was when he drove an ash wagon on road work, simply driving, loading and unloading being done by others.
The past medical history was recited. Appendicitis had developed, followed by an operation. Several years ago, while working for the Rock Island Company, he sprained his back, and was off work eight days, but had no further trouble with it. Has had some abscessed teeth extracted.
Physical examination of the man showed that he was 66% inches high, weighed 107% pounds, temperature, 98, pulse 82 at rest, and 110 after moderate exercise. Eyes regular, apparently from the examination. No facial paralysis. Various other things appear to be normal, and the following:
“Thorax a-symmetrical with protrusion and thickening of right second rib in mid-clavicular line, and bulging of precordial region on the left. Expansion is greater on the left side of thorax, especially above the clavicle; at which point there is an increase in hyperresonance, but no increase or decrease in tactile or vocal fremitus. There are rales at the end of exhalation, transitory in character, in the supraclavicular regions, most marked on the left. Respiratory excursions normal; no friction or other adventitious sounds. Physical examination elicits no departure from normal at the 12th right rib. There is a symmetrical kyphosis (postural) extending from the 3rd to the 10th thoracic vertebra.”
There is a report on the heart and about his appendix sear. Gait normal. When he sits and spine is hyperflexed, pain is much less. Right knee joint crepitation when arising from squatting position, assists himself with hands from a sitting position, complains of pain in lumbo-sacral region on flexing thigh upon abdomen with leg extended.
The examination appears to have been extensive. The conclusions were that the X-ray rules out the possibility of injury to the bony structures, and the clinical examination elicits no proof of pathologic change. Present condition due to decreased muscle tonicity, resulting from his accident, with enforced non-use of the involved parts, and the probability that the absorption from his infected teeth is accentuating the condition. The latter part of it is as follows:
“It is out of the question to expect him to stand up under any sustained strain upon the lumbo-sacral region when he first returns to work, but sufficient time should be allowed him to go through the ‘hardening’ period.”
His own testimony as to his ability to work, and of others, and the details, as given by the superintendent when he “caught” him at work, and his action thereon, shows that he was using his team and working on the road and getting $5 a day for the use of himself and the team.
We have examined the authorities cited on the first proposition. We do not think that they would justify a holding here that the Commission was out of line in its decision on questions of fact in this case. The evidence in this case does not indicate to our minds that the claimant, who had been in the service of the company for 25 years, was at the end of that time a malingerer.
The second proposition is that the Commission erred in not taking into consideration the wages earned while working for Latimer county, and others under the road overseer of said county, and the case of Harbor-Longmire-Pace Co. v. State Industrial Commission, 147 Okla. 207, 296 P. 456, is cited. As an earning proposition in this case for himself, aside from the use of his team, the evidence would indicate that it was negative. However, as the Commission still has jurisdiction of it, under the law, if it should develop that he had earned anything worth while, so that industrially he was restored, It can be taken into the account later.
The third proposition is that the order and award was erroneously made in that the Commission did not hear and consider all the testimony adduced on the respective hearings. The evidence of that is merely conjectural. The recital in the order is that the trial Commission heard a portion of the testimony, and “observed the demeanor of the witnesses on the stand, considered and weighed all the evidence presented on hearing before her, and other hearings of the cause.’’ It is signed by E. L. Roblin, trial commissioner, and is signed by all three members. As to whethler or not the other two members had all the testimony read, the record is silent. The presumption, however, is that if the body were together, all of them were advised, either by reading or having read, or by the report of their associate of the evidence. The findings of the doctor undoubtedly were before them. That alone in this case would not only justify their finding as to the disability, but when closely analyzed would stand as an insuperable bar to any finding other than what was made. The man, after 25 years of service, was evidently a physical wreck, as a result of the rock falling on him, that was so heavy that he could not get out from under it himself until it was removed.
The statement is made in several parts
of the brief, and especially the latter part of it, that the disability after October 3, 1928, was not the result of the injury, but was due to willfulness, and on page 43 that the Workmen’s Compensation Acts were not intended to be a, pension, and complaint is xnadie that the respondent Prince bad not availed himself of sufficient medical service after May 20, 1928, and on account of bis own willful failure to. da light work he allowed muscle flabbiness to develop. The Commission found to the contrary to this contention as far as it went, and we are not authorized to disturb this finding, and on this record are not inclined to do so.
The last charge of willfulness apparently is found just before the conclusion, and is as follows:
“It seems to us that this is a clean cut case of election, upon the part of the respondent, to remain in idleness, with the expectation to. continue indefinitely his lack of exercise muscles, at the expense of the Reck Island Improvement Company.”
This evidence does not justify the inference that is there drawn.
It may be that later developments will show that this ill-proportioned thorax of the claimant will rectify itself, and that the kyphosis may become eradicated or found to be natural and having no connection with the accident, and that the hack muscles of the claimant may be restored to the usual tonicity. But if that is done, it will be a matter for the Industrial Commission, upon the evidence before it, to decide on.
We find nothing in the record that would justify our setting aside of the award of the Industrial Commission in this case, and it is accordingly affirmed.
LESTER, C. J., CLARK, V. C. J., and CULLISON and McNEILL, JJ., concur. RILEY, SWINDALL, and ANDREWS, JJ., dissent. HEFNER, J., absent.