Wade Lahar Construction Company v. Howell

1962 OK 237, 376 P.2d 221, 1962 Okla. LEXIS 474
CourtSupreme Court of Oklahoma
DecidedNovember 7, 1962
Docket39898
StatusPublished
Cited by35 cases

This text of 1962 OK 237 (Wade Lahar Construction Company v. Howell) 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
Wade Lahar Construction Company v. Howell, 1962 OK 237, 376 P.2d 221, 1962 Okla. LEXIS 474 (Okla. 1962).

Opinion

*223 JACKSON, Justice.

In the present proceeding we are called upon to review an award of the State Industrial Court finding claimant’s residual disability to have undergone a change from 30.5 per centum permanent (partial) to permanent total.

While engaged for the employer in construction work on July 21, 1956, claimant was in process of removing dirt beneath a pipeline when the ditch suddenly caved in burying him completely. He remained below the surface for an undisclosed length of time. When removed, he was unconscious during a period of undetermined duration. Taken to the hospital, he was later found to have suffered the following injuries: (a) a fracture of the left femur which required open reduction and internal fixation; (b) head trauma; (c) skull fracture extending from the mid-portion of the parietal bone downward and anteriorly to a point “where it was lost in the shadows of the mastoid”; (d) subarachnoid brain hemorrhage with traumatic asphyxia and resultant post-concussion syndrome of headaches; (e) injury to the eyes. Neither the leg nor the eye injury appear to have produced any residual impairments. During his early convalescence claimant began to exhibit definite personality changes which were attributed to the head trauma. After his initial discharge on August 21, 1956, he was readmitted to the hospital on October 3 of that year where he remained for 6 days under care of Dr. A., a neuro-surgeon and Dr. H., a neuro psychiatrist. The entire healing period during which claimant was totally incapacitated, lasted nearly 54 weeks.

At the original hearing upon the claim the sole issue before the trial tribunal related to the extent of claimant’s disability from his severe injury to the head. All the physicians agreed that while there was no “objective evidence of neurologic damage” to the brain or to the central nervous system, residual disability lay in the “psychiatric realm”. The doctors were also in accord as to the presence of genuine manifestations of “psychiatric aberrations” attributable to the accidental injury. At least two physicians described the condition as post-traumatic neurosis, and one pointed out that the residual disability was “hard to estimate because of the inability to find the amount of brain damage done in an accident of this kind.” The expert evidence concerning the degree of claimant’s permanent impairments was in sharp conflict, the opinions ranging from 10 per centum partial to total disability.

On November 7, 1957, the trial judge found claimant to be permanently partially disabled to the extent of 30.5 per centum and allowed him compensation payable in weekly installments. This award became final and has been fully paid.

The proceeding under consideration had its inception when claimant filed, on May 11, 1961, a “motion to reopen” on a change of condition for the worse. After a hearing at which employer did not introduce any evidence in opposition to the motion, the trial judge entered the award under review finding claimant’s condition to have undergone a change since the last prior award from 30.5 per centum permanent (partial) to permanent total disability and allowed the additional benefits adjudged in claimant’s favor to commence at the end of the compensatory period fixed in the prior award.

The award under review rests upon the expert opinion of Dr. H., a neuro-psychia-trist. The pertinent part of his letter-report recites:

“There is evidence of progressive deterioration in the condition of Mr. Howell (claimant). He is very definitely worse. The symptoms previously described have persisted and gradually become fixed and rigid as in the chronic phase of such illnesses. Mr. Howell is now almost withdrawn and in need of constant attention. * * * I know of no treatment that would hold the promise of relief. This patient can only contemplate institutionalization for an indefinite period of time. * * * it is my opinion that the accident *224 * * *' on July 21," 1957 (sic), to-" gether with a pre-existing personality inadequacy precipitated and caused his present condition”. (emphasis supplied).

The opinion of Dr. H. is based in part on a final summary made by the Veterans Administration Hospital in Little Rock, Arkansas, where claimant was confined on three separate occasions since the entry of the original award, and on his own observations of certain new factors. It is clear from Dr. H.’s report that following the entry of the original award there has been a gradual progression of claimant’s symptoms, which became “fixed and chronic” in character. The medical evaluation is therefore not vulnerable to objection that it constitutes a mere reappraisal of disability identical to that which had been adjudicated in the prior hearing. Oklahoma Gas & Electric Company v. State Industrial Court, Okl., 366 P.2d 609, 613.

Disability from a psychiatric condition produced by an accidental injury is compensable in the same manner as any other impairment of the body. Rialto Lead & Zinc Co. v. State Industrial Commission, 112 Okl. 101, 240 P. 96, 44 A.L.R. 494; Seismograph Service Corporation v. Cosby, Okl., 317 P.2d 215, 218; see also Woodward & Company v. State Industrial Commission, Okl., 349 P.2d 638.

A -change in claimant’s physical condition may be established when a pathology, not fully ascertainable before in terms of its relation to, and effect upon, compensable disability, is shown to have manifested its presence and become detectable through a process of progressive developments occurring subsequent to the last prior order or award. Oklahoma Gas & Electric Company v. State Industrial Court, supra; Capitol Well Servicing Company v. Levescy, Okl., 371 P.2d 905, 909.

The medical report, as outlined, amply meets the standard of proof necessary to establish a change in condition. It stands undisputed that claimant’s disability has increased to permanent total. The factum of a changed condition attributable to the original injury, occurring since the last prior order and resulting in additional disability is supported by competent evidence.

We are urged that the report of Dr. H. lacks probative value because this physician had viewed claimant’s disability as permanent total even before the last prior award. This assertion does not accord with the record. In the report submitted to the trial tribunal in the original hearing Dr. H. stated that while claimant’s condition “has apparently led to almost total incapacity to function”, a final evaluation cannot be made without at least one month of observation in “a psychiatrically oriented environment”. The conclusion then reached by Dr. H. was in its essence an expression of anticipated futurity and his opinion could not afford a basis for an award of permanent total disability. See, Gleason v. State Industrial Court, Okl., 371 P.2d 89, 91.

But regardless of the nature of Dr. H.’s opinion as to the extent of claimant’s disability at the time the original award was made, this physician was competent to testify in the proceedings on motion to reopen. A physician who in a prior hearing before the trial tribunal evaluates claimant as being permanently totally disabled is not incompetent, as a matter of law, to testify in a subsequent proceeding that there was an interim change in claimant’s condition as a result of which the aggregate compensable disability has increased to permanent total.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sooner State Optical, Inc. v. Blackburn
2006 OK CIV APP 98 (Court of Civil Appeals of Oklahoma, 2006)
Bama Pie, Ltd. v. Raes
1995 OK 122 (Supreme Court of Oklahoma, 1995)
Benning v. Pennwell Publishing Co.
885 P.2d 652 (Supreme Court of Oklahoma, 1994)
Osborne v. City of Oklahoma City Police Department
1994 OK 105 (Supreme Court of Oklahoma, 1994)
Teel v. Tulsa Municipal Employees
1993 OK 74 (Supreme Court of Oklahoma, 1993)
Carlile v. City of Oklahoma City/Public Information Service
1993 OK CIV APP 77 (Court of Civil Appeals of Oklahoma, 1993)
Dry v. Pauls Valley Health Care Facility
1989 OK CIV APP 7 (Court of Civil Appeals of Oklahoma, 1989)
Uniroyal, Inc. v. McMasters
1985 OK CIV APP 7 (Court of Civil Appeals of Oklahoma, 1985)
Special Indemnity Fund v. Stockton
1982 OK 119 (Supreme Court of Oklahoma, 1982)
Montgomery Ward and Co., Inc. v. Johnson
645 P.2d 1051 (Court of Civil Appeals of Oklahoma, 1982)
Vernon v. Seven-Eleven Stores
1976 OK 34 (Supreme Court of Oklahoma, 1976)
Oklahoma City v. Schoonover
1975 OK 52 (Supreme Court of Oklahoma, 1975)
Fox-Smythe Transportation Company v. McCartney
1973 OK 55 (Supreme Court of Oklahoma, 1973)
Allen v. Russell
1970 OK 146 (Supreme Court of Oklahoma, 1970)
Friendly Chevrolet Company, Own Risk v. Pointer
1970 OK 128 (Supreme Court of Oklahoma, 1970)
Lee Way Motor Freight, Inc. v. Highfill
1967 OK 139 (Supreme Court of Oklahoma, 1967)
State Highway Department v. Rhine
1966 OK 29 (Supreme Court of Oklahoma, 1966)
Dierks Forests, Inc. v. Richards
1966 OK 19 (Supreme Court of Oklahoma, 1966)
White v. Kitty Clover Company
1965 OK 208 (Supreme Court of Oklahoma, 1965)
Quality Materials Company v. Payne
1965 OK 106 (Supreme Court of Oklahoma, 1965)

Cite This Page — Counsel Stack

Bluebook (online)
1962 OK 237, 376 P.2d 221, 1962 Okla. LEXIS 474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wade-lahar-construction-company-v-howell-okla-1962.