McGOWEN v. JOHN HINSON BUILDING CORPORATION

McGOWEN v. JOHN HINSON BUILDING CORPORATION
1958 OK 258
331 P.2d 915
Case Number: 37971
Decided: 11/05/1958
Supreme Court of Oklahoma

WILLIAM B. McGOWEN, PETITIONER,
v.
JOHN HINSON BUILDING CORPORATION, STATE INSURANCE FUND AND THE STATE INDUSTRIAL COMMISSION, RESPONDENTS.

Syllabus by the Court

¶0

Petition for review from the State Industrial Commission.

Original proceeding by William B. McGowen against Special Indemnity Fund to review an award of the Commission entered in his favor and against Special Indemnity Fund on the ground that the award was improperly computed and compensation awarded him inadequate. Award sustained.

Paul Pugh, Oklahoma City, for petitioner.

Mont R. Powell, Mary Elizabeth Cox, Oklahoma City, Mac Q. Williamson, Atty. Gen., for respondents.

CORN, Vice Chief Justice.

¶1 William B. McGowen, claimant herein, filed a claim for compensation against his employer, John Hinson Building Corporation and its insurance carrier, Tri-State Insurance Company, referred to as respondents herein, and Special Indemnity Fund, referred to herein as the Fund, stating that on August 18, 1956, while in the employ of John Hinson Building Corporation, he sustained an accidental injury consisting of an injury to his left hand; that the injury occurred when a nail bar slipped and hit his hand causing some permanent loss of use of the hand. At the time he sustained his injury he was a physically impaired person within the purview of

¶2 The case came on for hearing before a trial judge on the 19th day of March, 1957, for compensation for disability due claimant for injury to his left hand occurring on August 18, 1956, alone, and resulted in an award on the basis of 25 per cent permanent loss to such hand. Thereafter it was settled on joint petition and award paid.

¶3 On the 31st day of May, 1957, the cause came on to be heard before the trial judge as against the Fund. At that hearing the parties entered into a stipulation as to the hereinbefore detailed facts. In addition medical reports of Dr. W and Dr. M were admitted in evidence.

¶4 Dr. M in his report of June 4, 1957, states that he saw and examined claimant at the request of the Fund; that he obtained a history of the case from claimant which as set forth by the doctor is substantially as set forth in the stipulation of facts. The doctor upon that history and his own examination found:

"This patient sustained a fracture of both bones of the left wrist in 1947, confirmed by x-ray. As a result of the 1947 injury, he has a 5% permanent partial disability to the left hand.

"In 1949 he had polio, and as a result of this has a left lower leg disability, with marked atrophy and loss of function. He has, due to the 1949 condition, a 50% permanent partial disability to the left leg, along with the material increase, due to the combination of the two previous injuries, a 30% permanent partial disability to the body as a whole.

"In 1956 he sustained a fracture to the left ulna, with surgical removal of a portion of the distal end of the ulna. He has a 25% permanent partial disability to the left hand, due to this last injury.

¶5 Conclusion:

"As a result of the combination of the original injuries, and his most recent one, and the material increase as a result of the combination of the several injuries, he has, in my opinion, a 43% permanent partial disability to the body as a whole, for the performance of ordinary manual labor."

¶6 Dr. W in his report in some respects differs from the report of Dr. M but since the trial judge, in his findings and award, appears to have accepted the report of Dr. M rather than that of Dr. W, which he had a right to do, we deem it unnecessary to discuss this doctor's report.

¶7 The trial judge predicated his findings upon the report of Dr. M, paragraph No. 3 of which is as follows:

"That by reason of the combination of said injuries claimant is now 43% permanently disabled, to the body as a whole, for the performance of ordinary manual labor, or an increase of 3% over and above all deductions allowed by law, for which he is entitled to recover from the Special Indemnity Fund the sum of $420.00, being 15 weeks at $28.00 per week."

An award was entered in favor of the claimant and against the Fund based thereon and in conformity therewith.

¶8 Claimant brings the case here for review and contends that the award in his favor and against the Fund is improperly computed and compensation as computed against the Fund is inadequate.

¶9 In a proceeding against the Special Indemnity Fund on a claim for compensation filed by a physically impaired person under

¶10 In conformity therewith the Commission found that claimant, as a result of his last injury occurring August 18, 1956, sustained a 25 per cent permanent partial disability to his left hand. An employee who suffers total loss of use of the hand under the schedule

¶11 The Commission, the trier of the facts, predicated its findings upon the report of Dr. M and entered an award based thereon. There being competent evidence tending to support such findings and the award having been calculated in the manner prescribed by Section 172, supra, it is sustained. Special Indemnity Fund v. Horne, 208 Okl. 218, 254 P.2d 988 . Computation of the award against the Fund was made in accordance with the provisions of the statute and with our holding in the above cases and is correct.

¶12 Award sustained.