TULSA LEAD & ZINC CO. v. UTTON

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TULSA LEAD & ZINC CO. v. UTTON
1933 OK 288
21 P.2d 748
163 Okla. 192
Case Number: 23866
Decided: 05/02/1933
Supreme Court of Oklahoma

TULSA LEAD & ZINC CO.
v.
UTTON

Syllabus

¶0 1. Master and Servant--Workmen's Compensation--Review of Awards -- Sufficiency of Evidence.
Findings of fact made by the State Industrial Commission and an award based thereon will not be set aside in a proceeding for review when there is competent evidence reasonably tending to support such findings and award.
2. Same--Stipulation of Facts Conclusive Upon Subsequent Hearing on Ground of Change of Condition.
An award made upon a stipulation of facts has the same force and effect as an award made upon a hearing, and upon a subsequent hearing on the ground of a change of condition it is not necessary to hear evidence as to the facts so stipulated.
3. Same--Award for Additional Percentage of Loss of Use of Leg.
Where the State Industrial Commission has made an award on the basis of a 45 per cent. permanent partial loss of the use of the leg, and thereafter, on the ground of a change of condition, it makes an award based on a 70 per cent. permanent partial loss of the use of the leg, it is not necessary that the award recite that the additional percentage of permanent partial loss of the use of the leg was due to the original injury, and, if the record contains competent evidence reasonably tending to show that the additional percentage of the loss of the use of the leg was due to the original injury, the award will not be vacated.

Original proceeding in the Supreme Court by the Tulsa Lead & Zinc Company et al. to review an award of State Industrial Commission in favor of Floyd Utton. Petition to vacate award denied.

Ray McNaughton, A. C. Croninger, and J. Fred Swanson, for petitioners.
Wm. M. Thomas, for respondents.

ANDREWS, J.

¶1 This is an original proceeding in this court instituted by the respondent and its insurance carrier before the State Industrial Commission, to review an award in favor of the claimant therein.

¶2 The claimant sustained an accidental personal injury to his left leg while in the employment of the petitioner, which, under the terms of a settlement between the claimant and the petitioner, effected on April 22, 1929, and a finding and award of the Commission based thereon, resulted in a 45 per cent. permanent partial loss of the use of his leg.

¶3 On February 4, 1932, the claimant filed a petition to reopen the cause on the ground of a change of condition. After a hearing was had, the Commission found that by reason of the change of condition the claimant had a 70 per cent. permanent partial loss of the use of his leg, and it made an additional award of 25 per cent. for permanent partial disability. That award is sought to be reviewed herein.

¶4 It is contended that there was no competent evidence of a change of the claimant's condition. The record shows such evidence, and that contention cannot be sustained.

¶5 It is contended that the Commission was not authorized to make an award for additional permanent partial disability without hearing testimony as to the percentage of permanent partial disability existing at the time of the settlement and former award. We held to the contrary in G. S. & C. Drilling Co. v. Pennington, 151 Okla. 61, 1 P.2d 764.

¶6 It is contended that there was no competent evidence that the alleged change of condition was due to the original injury. We think that the testimony of the petitioner's witness, Dr. Aisenstadt, is sufficient alone to show that the claimant's present condition is a result of the original injury. In addition to that testimony, there was other competent testimony to the same effect.

¶7 It is contended that the award of the Commission did not recite that the change of condition was due to the original injury. Such recitation is unnecessary. Glasgow v. State Industrial Commission, 120 Okla. 37, 250 P. 138.

¶8 There was competent evidence reasonably tending to sustain the finding of the State Industrial Commission, and the award is sustained.