DRINKWATER v. ORKIN EXTERMINATING CO.

DRINKWATER v. ORKIN EXTERMINATING CO.
1961 OK 105
361 P.2d 834
Case Number: 39233
Decided: 05/02/1961
Supreme Court of Oklahoma

JAMES L. DRINKWATER, PLAINTIFF IN ERROR,
v.
ORKIN EXTERMINATING CO., MASSACHUSETTS BONDING & INSURANCE COMPANY, INSURANCE CARRIER, AND STATE INDUSTRIAL COURT, RESPONDENTS.

Appeal from the Industrial Court.

Syllabus by the Court.

¶0 The cause or extent of disability sustained by a workman as a result of his accidental injury presents a question of fact to be determined by the State Industrial Court, whose finding made on such issue from conflicting medical testimony, will not be disturbed on review, when based on competent expert evidence reasonably tending to support it.

Original proceeding by James L. Drinkwater, claimant, opposed by Orkin Exterminating Company, employer, and Massachusetts Bonding & Insurance Company, its insurance carrier, to review an award of the State Industrial Court. Award sustained.

Milsten, Milsten & Morehead and Gerald D. Swanson, Tulsa, for plaintiff in error.

Rucker, Tabor, Best, Sharp & Shepherd, Joseph A. Sharp, O.H. "Pat" O'Neal, Tulsa, for defendants in error.

BERRY, Justice.

¶1 This is the second time that this Court has been called upon to review the instant case. On the first appeal we held (Okl.,

¶2 After the parties resubmitted the cause below on the original record, the trial judge entered an award for 10 per centum permanent (partial) disability to the body as a whole. His decision was affirmed on claimant's appeal to the State Industrial Court en banc. In the present proceeding, claimant asserts that the trial tribunal erred in determining permanent disability on the basis of 10 per centum, since this figure was 5 per centum below the lowest estimate of his physicians, whose testimony must be treated as "uncontradicted", because employer's sole expert witness conceded his utter lack of familiarity with the nature of the impairment claimed to be compensable.

¶3 Claimant's medical evidence consisted of a letter-report from Dr. N. and the deposition of Dr. S. The former physician evaluated his permanent disability at 15 per centum to the body as a whole, while the latter estimated it at 20 per centum. The employer called Dr. G., an orthopedic surgeon, as a witness. Dr. G. testified that claimant's impairment of the neck was attributable solely to pre-existing active osteoarthritic disease process which produced marked degenerative changes in his cervical spine; that claimant sustained no permanent disability from the accidental injury; that he did not require any treatment therefor, since there was no traumatic aggravation of the prior condition. On cross-examination, the witness was asked why then Dr. S., a neuro-surgeon, caused claimant's submission to an occipital nerve section. In answer to this and other questions of a similar tenor, Dr. G. stated that he had no opinion in the matter. The doctor added that he did not know whether such surgical measure was generally employed in the field of neurosurgery and was not familiar with its "problems" or residual impairments resulting therefrom. From the entire context of Dr. G.'s testimony, it is clear that he regarded the occipital nerve section as a procedure wholly unrelated to any traumatic pathology in the neck, of which, he insisted, there were no objective findings. Since he was apparently unfamiliar with this surgical operation as a method of alleviating an osteoarthritic impairment of the cervical spine, he merely declined any comment concerning its effectiveness or advisability. The physician's admission of a more restricted knowledge of the neurological aspects in the treatment of osteoarthritis did not, under the facts, disqualify him from giving expert evidence upon the primary issue under inquiry, which was the presence and extent of compensable traumatic disability. The probative value of his opinion as to the absence of any impairment to the neck from the impact of an accidental injury remained unaffected and unimpaired. The trial tribunal was at liberty to accord his testimony such weight and consideration as it deemed proper. Oklahoma Furniture Mfg. Co. et al. v. Washington et al., 180 Okl. 381,

¶4 The State Industrial Court may accept an estimate of compensable disability given by any qualified physician. Special Indemnity Fund v. Horne, 208 Okl. 218,

¶5 There was a dispute as to the cause and extent of claimant's impairment of the neck. The trial tribunal fixed his compensable disability at a degree within the range of competent expert evidence adduced. We find no error in its determination.

¶6 Award sustained.