NATIONAL ZINC CO., INC. v. SPENCER

NATIONAL ZINC CO., INC. v. SPENCER
1976 OK 177
557 P.2d 906
Case Number: 49237
Decided: 11/23/1976
Supreme Court of Oklahoma

 
NATIONAL ZINC COMPANY, INC., AND THE STATE INSURANCE FUND, PETITIONERS,
v.
JOHN SPENCER, AND THE STATE INDUSTRIAL COURT, RESPONDENTS.

Petition for review from the Industrial Court, Yvonne Sparger, J.

¶0 Original proceeding to review trial judge's order, affirmed en banc, awarding claimant compensation for permanent partial disability to body as a whole, sustained as a result of inhalation of deleterious substances during covered employment. Yvonne Sparger, Trial Judge.

AWARD SUSTAINED.

Sam Hill, Sheryl S. Sullivan, Oklahoma City, for petitioners.

John B. Estes, of Stipe, Gossett, Stipe & Harper, Oklahoma City, for respondents.

WILLIAMS, Chief Justice.

¶1 This is an original proceeding to review an order of the Industrial Court, affirmed en banc, awarding claimant compensation for 55 per cent permanent partial disability to the body as a whole, suffered because of long exposure to inhalation of smoke, fumes, dust and gases during his twenty-six years employment with petitioner. The long period of exposure irritated, aggravated and accelerated claimant's condition of pulmonary fibrosis and emphysema.

¶2 The sole error claimed by petitioner is that award is contrary to evidence and law and not sustained by competent evidence because court failed to appoint an independent medical examiner to examine claimant.

¶3 Claimant submitted the report and deposition of Dr. B., who was of the opinion claimant was 80 per cent permanently disabled. Petitioner submitted report and testimony of Dr. M., who found claimant had no disability for ordinary manual labor. Petitioner submits this discrepancy requires the court to appoint an independent medical examiner and his refusal to do so was an abuse of discretion. Petitioner cites no authority for this contention.

¶4 We find record supports existence of competent evidence to support finding claimant sustained a 55 per cent disability during course of covered employment. Where medical evidence is conflicting as to extent of disability sustained by claimant, amount of disability is a question of fact for the Industrial Court and will not be disturbed in a proceeding for review where reasonably supported by medical evidence.

¶5 We find court did not abuse its discretion in not appointing an independent medical examiner.

¶6 AWARD SUSTAINED.

¶7 DAVISON, BERRY, LAVENDER and SIMMS, JJ., concur.

¶8 HODGES, V.C.J., and IRWIN, BARNES and DOOLIN, JJ., dissent.

Footnotes:

1 Dolese Bros. Co. v. McBride, 268 P.2d 268 (Okl. 1954).