SOUTHERN ICE & UTILS. CO. v. BARRA

SOUTHERN ICE & UTILS. CO. v. BARRA
1938 OK 168
77 P.2d 55
182 Okla. 214
Case Number: 27937
Decided: 03/08/1938
Supreme Court of Oklahoma

SOUTHERN ICE & UTILITIES CO. et al.
v.
BARRA et al.

Syllabus

¶0 1. WORKMEN'S COMPENSATION--Conclusiveness of Finding on Expert Testimony as to Cause and Extent of Disability.
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 and professional persons, and a finding of fact based thereon, when reasonably supported, will not be disturbed.
2. SAME--Award Supported by Competent Evidence not Disturbed.
An award of the State Industrial Commission will not be disturbed by this court where there is competent evidence reasonably tending to support the same.

Original proceeding in the Supreme Court by the Southern Ice & Utilities Company et al., to review an award of the State Industrial Commission in favor of Frank Barra. Award affirmed.

Butler, Brown & Rinehart, for petitioners.
Claud Briggs, W. P. Morrison, John Morrison, and Mae Q. Williamson, Atty. Gen., for respondents.

PER CURIAM.

¶1 This is the second time this case has been before the Supreme Court. The opinion of the court in the former proceeding is reported in 178 Okla. 291, 62 P.2d 988. In the former opinion it was held that there was competent evidence that respondent had sustained an accidental injury as the result of heat exhaustion causing a paralytic stroke. On the 5th day of May, 1937, the State Industrial Commission entered its award finding that the respondent was permanently and totally disabled. The sufficiency of the evidence to sustain the finding is the sole question presented. Petitioner relies upon the case of Otis Elevator Co. v. Haveley, 148 Okla. 82, 296 P. 1106, wherein the court said:

"Incapacity or disability cannot be found to be total, where it appears that the claimant's earning power is not wholly destroyed and that he is still capable of performing remunerative employment. In such a case be is under the obligation of making active efforts to procure such work as he can still perform,"

¶2 We think the case cited is readily distinguishable from the case at bar. Therein the respondent was working and apparently able to work. Here there is no evidence that he is able to work, and he has not worked since the date of the accidental injury. Qualified physicians testified that the respondent was totally and permanently disabled and could not in their opinion perform manual labor. In the case of Oklahoma Gas & Electric Co. v. Hardy, 179 Okla. 624, 67 P.2d 445, this court cited with approval the case of Sweetwater Gin Co. v. Wall, 153 Okla. 96. 5 P.2d 126. which in turn cited and quoted from the case, of New York Indemnity Co. v. State Industrial Commission, 86 Colo. 364, 291 P. 740. In Oklahoma Gas & Electric Co. v. Hardy, supra, in quoting we said:

"In that case in the body of the opinion our court quoted with approval the following language found in the opinion of the Colorado court in the case of New York Indemnity Co. v. Industrial Commission, 86 Colo. 364, 281 P. 740. which is as follows: 'If one be totally and permanently disabled, he ought not be penalized for obtaining some trivial and unusual employment, or have the door of hope and ambition slammed in his face by being forbidden, on pain of having a portion of his meager sustenance withheld, to make any effort to add thereto. One may be totally disabled for all practical purposes of competing for remunerative employment in any general field of human endeavor and yet be able to obtain occasional employment under rare conditions and at small remuneration.'"

¶3 We are of the opinion and hold that there is competent evidence to sustain the finding the State Industrial Commission, and the award is affirmed.