OSAGE COAL CO. v. STATE INDUS. COMM'N

OSAGE COAL CO. v. STATE INDUS. COMM'N
1927 OK 478
261 P. 933
128 Okla. 191
Case Number: 18391
Decided: 12/13/1927
Supreme Court of Oklahoma

OSAGE COAL CO.
v.
STATE INDUSTRIAL COMMISSION et al.

Syllabus

¶0 Master and Servant--Workmen's Compensation Law--Review of Awards--Conclusiveness of Findings of Fact.
The law is now well settled in this state that in a proceeding in this court to review an order of the State Industrial Commission such proceeding is to review errors of law and not of fact. The finding of facts by the Industrial Commission is conclusive upon this court, and will not be reviewed by this court where there is any competent evidence in support of same. Thomas v. Ford Motor Co., 114 Okla. 3, 242 P. 765.

Original proceeding to review award of the State Industrial Commission.

Action by the Osage Coal Company to review award of workman's compensation to Victor Enrico. Affirmed.

Monk & McSherry, Geo. L. Hill, and E. P. Hill, for petitioner,
Harris & Lackey, for respondent Enrico.
Edwin Dabney, Atty. Gen., and Wm. L. Murphy, Asst. Atty. Gen., for State Industrial Commission.

HUNT, J.

¶1 This is an original proceeding in this court to review an award of the State Industrial Commission. It appears from an investigation of the record filed herein that the respondent, Victor Enrico, was in the employ of the petitioner, Osage Coal Company, during the month of November, 1922, and in the course of such employment received an injury to his chest on or about the 14th day of November, 1922. That thereafter on May 24, 1923, the said Industrial Commission made its order and award finding that said Enrico was "temporarily and totally disabled from work," and allowing compensation; that thereafter, on November 9, 1926, upon application of petitioner, another hearing was had before the said Industrial Commission, and the order of the Commission was that "claimant is at this time totally disabled from the performance of manual labor," and compensation was ordered continued. Thereafter, on April 14, 1927, another hearing was had before the Industrial Commission upon application of respondent to discontinue compensation, and on May 4 1927, the Commission made its finding that said respondent was and is totally disabled, and that said total disability is permanent, and ordered compensation continued. The Commission further found as follows:

"That from the evidence presented at the hearing on April 14, 1927, no competent testimony was introduced tending to show that claimant's present disability was not the result of and caused by the accidental injury of November 14, 1922."

¶2 Upon these findings the Commission ordered that compensation be continued at the rate of $ 18 per week during the period of claimant's disability, not to exceed 500 weeks, or until otherwise ordered by the Commission. It is this last order of the Industrial Commission, petitioner seeks to have reviewed in this proceeding.

¶3 The sole ground relied on by petitioner, as disclosed by its petition filed herein, is that the evidence is insufficient to sustain the order and award of the Industrial Commission. Petitioner contends that respondent's present disability is not due to the injury he received while in the employ of petitioner, but is due to pulmonary tuberculosis, and that same was not and could not have been caused by said injury. The only question then presented for our consideration is whether or not there is any evidence tending to support the finding of the Commission. This is admitted both by respondent and petitioner and is well settled by numerous decisions of this court. We have carefully examined the transcript of all the proceedings in this matter before the Industrial Commission, and have likewise carefully considered the briefs filed herein by both parties.

¶4 Petitioner in its brief relies on the testimony of Doctors Willour McCarley, Pemberton, Barton, and Norris given at the hearing held before the Commission on October 4, 1926, and also on the testimony of Dr. George Kilpatrick and Drs. Willour and Pemberton at the last hearing had herein before the Commission on April 14, 1927. The substance of this testimony relied on by the petitioner was that respondent had tuberculosis, and that there was no such thing as traumatic pulmonary tuberculosis, or tuberculosis caused from injury, and petitioner therefore contends that this testimony conclusively shows that respondent's present disability could not be, and was not caused by the injury received while in the employ of petitioner, and compensation heretofore awarded for same by the Industrial Commission should be discontinued. On the other hand, respondent relies on other testimony of some of the same doctors above referred to, to wit, Doctors Willour, McCarley Pemberton, and Kilpatrick, a portion of which, as disclosed by the record, was as follows:

"The petitioner introduced Dr. T. H. McCarley, of McAlester, Okla., who on direct examination testified as follows:

"'Q. Doctor, would a blow on the chest aggravate or accelerate T. B. germs that were there? A. If I understand your question, I would like to say that the authorities state that trauma on site of T. B. infection may precipitate an active T. B.--bring it about. In my own observation I have never seen a case in which I would figure that trauma had the least effect on it.'

"On cross-examination Dr. McCarley testified, in response to questions by counsel for respondent, as follows:

"Q. Dr. McCarley, a great many people have T. B. bacilli in their lungs, do they not? A. Yes, sir. Q. And the greater quantities of people throw it off don't they? A. No. they don't. Q. They are dormant then, you might say? A. Yes. Q. And anything that lowers a man's vitality might precipitate or cause it to become active, the T. B. bacilli? A. Anything that lowers a man's vitality might contribute to the T. B. becoming active. Q. In other words, if a man in good health otherwise--a man would be more likely to develop T. B. and the T. B. would be more likely to become active if his vitality were lowered either by an infection or by disease? A. Yes, that is correct."

¶5 Petitioner at said hearing also produced Dr. R. K. Pemberton, a practicing physician of McAlester, Okla., who, on cross-examination, testified as follows: