ARMOUR AND COMPANY v. STRICKLAND

ARMOUR AND COMPANY v. STRICKLAND
1955 OK 131
283 P.2d 538
Case Number: 36705
Decided: 05/03/1955
Supreme Court of Oklahoma

ARMOUR AND COMPANY (OWN RISK), PETITIONER,

v.

DELLA STRICKLAND AND THE STATE INDUSTRIAL COMMISSION, RESPONDENTS.

Syllabus

¶0 1. Under

2. The State Industrial Commission is authorized to commute to a lump sum an award for permanent total disability where substantial justice can be done to all parties involved and in the absence of a showing of a material prejudice an award commuting to a lump sum will be sustained.

Petition for review from the State Industrial Commission.

[282 P.2d 538]

Original proceeding brought by Armour and Company, Petitioner, to review an award made by the State Industrial Commission in favor of Della Strickland, Claimant. Award sustained.

Butler, Rinehart & Morrison, Oklahoma City, for petitioner.

George E. Fisher, Oklahoma City, Mac Q. Williamson, Atty. Gen., for respondents.

WILLIAMS, V.C.J.

¶1 Della Strickland, hereinafter called claimant filed her first notice of injury and claim for compensation stating that she sustained an accidental injury arising out of and in the course of her employment with Armour and Company on July 3, 1953 when she fell and injured her back. She is totally and permanently disabled and the cause and extent of the disability are not in dispute. An award was entered which is in part as follows:

"That as a result of said injury to her back, the claimant is totally and permanently disabled and is therefore entitled to 500 weeks compensation at the rate of $23.08 a week, or a total sum of $11,540.00 less the temporary total disability compensation heretofore paid and that awarded herein.

"The Commissioner further finds that it would be to the best interest of the claimant that $2,000.00 of the award herein made for permanent total disability be paid in a lump sum from the latter end of the award.

"It Is Therefore Ordered that the accrued temporary total disability of [282 P.2d 539] $186.32 be paid to claimant in a lump sum.

"It Is Further Ordered that within 20 days from the date of filing of this order respondent pay to claimant the sum of $2,000.00, same to be deducted from the latter end of the award of $10,293.68 herein made, and that the remainder of said award be paid to claimant at the rate of $23.08 a week, until the award, less tax and attorney fee, has been fully paid.

"It Is Further Ordered that respondent pay $1,546.00 in a lump sum to the claimant's attorney, Geo. Fisher, as a fair and reasonable attorney's fee, which amount shall be deducted from the latter end of the award to the claimant."

¶2 This proceeding is brought by Armour and Company, own risk, petitioner, to review the award.

¶3 It is first argued that the State Industrial Commission erred in computing the rate of weekly compensation. Claimant testified that she was paid 85› per hour; that sometimes she worked 40 hours per week. The record discloses that she worked 245 days for the year immediately preceding the injury. It is not disputed that this constitutes substantially the whole of the year. The objection of petitioner is that there is no competent evidence to sustain the finding of the State Industrial Commission that the average daily wage was $6.00.

"If the injured employee shall have worked in the employment in which he was working at the time of the accident whether for the same employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed."

¶4 Petitioner argues that since claimant drew $1,466.99 for the full year immediately preceding the injury the weekly rate of compensation should be computed by dividing this sum by 52. This method of computation was expressly disapproved in Manahan Drilling Co. v. Wallace, 179 Okl. 613,

¶5 In a second and final proposition petitioners argue that there was error in commuting to a lump sum the $2,000 and the attorney fee. The State Industrial Commission is authorized to commute to a lump sum an award such as made in the case under consideration. Manhattan Long Const. Co. v. Bruton, 192 Okl. 639,

¶6 Petitioner concedes that the law authorizes the commutation to a lump sum. However petitioner asserts that by reason of the Death Benefit Provision of the Workmen's Compensation Law,

¶7 Finding no error of law in the award as made the same is sustained.

¶8 JOHNSON, C.J., and CORN, HALLEY, BLACKBIRD and JACKSON, JJ., concur.