BOARD OF COUNTY COMMISSIONERS v. SIMS

BOARD OF COUNTY COMMISSIONERS v. SIMS
1956 OK 146
297 P.2d 393
Case Number: 37086
Decided: 05/08/1956
Supreme Court of Oklahoma

BOARD OF COUNTY COMMISSIONERS, ROGER MILLS COUNTY, OKLAHOMA, PETITIONER,
v.
BEE SIMS AND THE STATE INDUSTRIAL COMMISSION OF THE STATE OF OKLAHOMA, RESPONDENTS.

Syllabus by the Court.

¶0 1. Where there is competent evidence reasonably tending to sustain the finding that the employer or the insurance carrier, as the case may be, has not been prejudiced by failure to give the statutory written notice and the trial commissioner, or the State Industrial Commission, has excused the giving of the statutory written notice on that ground, the award will not be vacated for failure to give the notice required in the time and manner prescribed.
2. Where an award is sought to be vacated on the ground that the expert's testimony was insufficient to establish a causal relation between a personal accidental injury and a subsequent disability, said award will not be vacated if the testimony of the expert witness establishes that the disability was the probable result of the injury.
3. The cause and extent of disability resulting from an accidental injury are questions of fact, and, if there is any competent evidence reasonably tending to support the finding of the State Industrial Commission, an award based thereon will not be disturbed on review.
4. Where a claim is filed within one year after payment in lieu of compensation it is not barred by

Petition for review from the Industrial Commission.

Original proceeding brought by the Board of County Commissioners of Roger Mills County, Oklahoma, petitioner, to review an award made by the State Industrial Commission to Bee Sims, claimant. Award sustained.

Leroy Vick, County Atty., Cheyenne, for petitioner.

Rollie D. Thedford, Mike Tapp, Oklahoma City, Mac Q. Williamson, Atty. Gen., for respondents.

BLACKBIRD, Justice.

¶1 On the 18th day of November, 1954, Bee Sims hereinafter called claimant, filed his first notice of injury and claim for compensation stating that while employed as a laborer for Roger Mills County he sustained an accidental injury arising out of and in the course of his employment on May 5, 1953, when he injured his right foot. On the 21st day of June, 1955, the State Industrial Commission entered an award for temporary total disability. This award was affirmed by the Commission en banc and this proceeding is brought by the Board of County Commissioners of Roger Mills County, hereinafter called petitioner, to review this award.

¶2 The record discloses that on the 5th day of May, 1953, while employed with the county's road construction crew, claimant dropped a 4 x 4 board on his foot while working on a cattle guard on a road used as a temporary detour during the time a bridge was being repaired. The accident occurred at approximately 4:30 in the afternoon. He reported the accident to his foreman, Downey, who looked at the foot and saw a fresh bruised place. Afterward Claimant walked about three quarters of a mile home. He was treated by Dr. B in Cheyenne, Oklahoma. A few days thereafter he reported the accident to a member of the Board of County Commissioners. Dr. B placed the foot in a cast. The County paid claimant his salary until November 2, 1953, and thereafter paid for groceries at $10 per week. It also paid his doctor bills. At the time of this testimony on February 1, 1955, claimant was in the University Hospital at Oklahoma City where he was placed August 17, 1954, and was being treated for ulcers on the foot which developed after the accidental injury.

¶3 It is first argued that there is no competent evidence reasonably tending to support the finding of the State Industrial Commission that there is a disability resulting from the accidental injury. Dr. B treated claimant from the first visit he made to him at Cheyenne, Oklahoma, after the accidental injury, and was the physician to whom all claims were paid by the County. This doctor stated that he treated claimant within four months prior to the filing of the claim on November 18, 1954. The doctor reviewed the nature of the treatment and explained in detail the growth of ulcers causing the disability, and the effect of his testimony is that the accidental injury to the foot was in his opinion the precipitating cause of the disability. This testimony is sufficient to sustain a finding that the condition of the foot was caused by the accidental injury of May 5, 1953. In Nu-Way Laundry & Cleaners v. State Industrial Commission, 194 Okl. 101, 147 P.2d 795, a case in which similar testimony was given, we stated:

"Where an award is sought to be vacated on the
ground that the expert's testimony was insufficient
to establish a causal relation between a personal
accidental injury and a subsequent disability, said
award will not be vacated if the testimony of the
expert witness establishes that the disability was
the probable result of the injury."

¶4 It is next argued that no statutory written notice was given as required by

¶5 It is also argued that the claim is barred because it was not filed within one year as provided by

"The right to claim compensation within the
one-year limitation, provided by section 7301
C.O.S. 1921 (St. 1931, § 13367), is tolled during the
time when an employer voluntarily furnishes such
employee medical attention to which he is entitled
under the Workmen's Compensation Law."

See also, Gardner v. R.V. Dillard Drilling Co., Okl., 290 P.2d 139.

¶6 It is argued that the State Industrial Commission erred in finding that claimant was engaged in hazardous employment. Since, when injured, claimant was engaged in the repair of a public road, he comes within the Workmen's Compensation Law. Board of Com'rs of Pawnee County v. Whitlow, 88 Okl. 72, 211 P. 1021. See also, Whiteneck v. Board of Com'rs of Woods County, 89 Okl. 52, 213 P. 865; Board of Com'rs of Okmulgee County v. State, 83 Okl. 48, 201 P. 998.

¶7 Petitioner's concluding argument is that the provision in the Workmen's Compensation Law,

¶8 Finding no error in the award as made, the same is sustained.

¶9 JOHNSON, C.J., WILLIAMS, V.C.J., and CORN, DAVISON, HALLEY, JACKSON and HUNT, JJ., concur.