BAKER v. INDIAN MINING & ROYALTY CO.

BAKER v. INDIAN MINING & ROYALTY CO.
1940 OK 104
99 P.2d 1038
186 Okla. 644
Case Number: 29348
Decided: 03/05/1940
Supreme Court of Oklahoma

BAKER
v.
INDIAN MINING & ROYALTY CO. et al.

Syllabus

¶0 1. WORKMEN'S COMPENSATION--Period within which application may be made to reopen cause on change of condition.
The jurisdiction of the State Industrial Commission to reopen any cause upon change in condition extends for the maximum period of time measured by the number of weeks for which compensation could have been awarded had the changed condition at the time of filing motion to reopen existed at the date of original award.
2. SAME--Finding of fact as basis for holding that application to reopen was too late.
The finding of the State Industrial Commission that an application to reopen upon change in condition has not been presented within the time required generally includes and is based upon a finding of fact.
3. SAME-- Review by Supreme Court--Presumption that findings were based on competent evidence in absence of record of proceedings.
When a petitioner neglects to furnish a record of proceedings had before the State Industrial Commission, this court on review will presume that the findings of fact made by the commission were based upon competent evidence, and where there is no error of law, will not disturb the order or award.

Original proceeding in the Supreme Court by Lawson Baker to obtain a review of an order of the State Industrial Commission which denied for lack of jurisdiction an application to reopen the cause upon alleged change in condition. Order sustained.

E. G. Avery and Felix Church, both of Miami, for petitioner.
A. L. Commons, of Miami, and Mac Q. Williamson, Atty. Gen., for respondents.

PER CURIAM.

¶1 This is an original proceeding in this court brought by Lawson Baker, as petitioner, to obtain a review of an order of the State Industrial Commission which denied an application to reopen on change in condition on the ground that the same was barred by special statute of limitations.

¶2 The petitioner has neglected and refused to furnish a record of the proceedings had before the State Industrial Commission. Under these circumstances this court will presume that the findings of fact made by the commission were supported by competent evidence. Sparkman v. Cosden Pipe Line Co., 182 Okla. 184, 77 P.2d 21.

¶3 It is conceded that the petitioner sustained a compensable injury to his right eye on October 19, 1936, and that settlement for 321/2 per cent. permanent partial disability to said member was made under Form 14 Stipulation and Agreement, which was approved by the State Industrial Commission by an order dated September 7, 1937. The sole question presented here is whether the application to reopen, which was filed on April 3, 1939, was barred. The order under review shows that it was made after hearings held to determine whether petitioner had sustained a change in condition, and that the commission found as a fact that the application had been filed too late. The jurisdiction of the State Industrial Commission to reopen any cause upon change in condition is prescribed by section 4, chap. 29, S. L. 1933, the pertinent portion of which reads as follows:

"The jurisdiction of the commission to reopen any cause upon an application based upon a change in condition shall extend for the maximum period of time measured by the number of weeks for which compensation could have been awarded by the commission had the condition of claimant existed at the time original award was made thereon, and unless filed within said period of time shall be forever barred."

¶4 While the period in which the State Industrial Commission has jurisdiction to reopen a cause runs from the date of the original order or award (Earl W. Baker v. Morris, 176 Okla. 68, 54 P.2d 353), such period is to be calculated upon the basis of disability then existing, and consequently becomes a question of fact for the determination of the Industrial Commission in each case. It well may be that in making the order now under review the Industrial Commission had before it evidence which showed that the condition of petitioner was then such that had it been the same on September 7, 1937, any permissible award which could have been made would have expired prior to the filing of the present application. In the absence of any evidence to the contrary, we must presume that the finding was based upon competent evidence. The order as made appears to be in conformity with the law, and therefore should not be disturbed.

¶5 Order sustained.