Uniroyal Tire Co. v. State Industrial Court , 567 P.2d 983 ( 1977 )

DOOLIN, Justice.

Employee Hisel was employed by Uniroyal Tire Company (Uniroyal) in a capacity that required her to wear safety shoes. Employee had pre-existing bone spurs on her heels and had a history of foot problems since childhood. Soon after her employment, she developed blisters or bursa on her heels. She had the bursa removed surgically but was still disabled.

Pursuant to a timely filing of Form 3, the trial court awarded employee 33 weeks temporary total and 15% permanent partial disability to the body as a whole. This award was affirmed en banc. Uniroyal appeals. Employee filed no answer brief and the cause was submitted for adjudication upon Uniroyal’s brief in chief.

In Needham v. Hays, 431 P.2d 441 (Okl.1967), we held where a party has unex-cusedly failed to file an answer brief, and brief of plaintiff in error reasonably supports his allegations of error, this court has no duty to search the record for a basis on which to sustain the decision of the trial court.

Uniroyal in its brief in chief points to testimony from the record that indicates employee knew or should have known she could not wear the safety shoes required by Uniroyal for this particular job. It alleges trial court erred in holding this pre-existing injury could be the basis of an award, citing Schoenfield & Hunter Drilling Co. v. Combs, 167 Okl. 397, 30 P.2d 162 (1934).

Uniroyal claims evidence further shows the pre-existing bone spurs were the cause of her disability not the safety shoes, thus there was no unexpected or accidental injury as defined by 85 O.S.1971 § 11 and contemplated by Ford Motor Company v. Scruggs, 154 Okl. 219, 7 P.2d 479 (1932) and Washita County Gin Co. v. Colbert, 162 Okl. 276, 19 P.2d 1080 (1933). This allegation of no compensable accidental injury is further evidenced by the fact that after the surgery for removal of the bursa, employee was still disabled, not from the bursa which had been removed, but entirely from the pre-ex-isting bone spurs.

We believe Uniroyal’s brief reasonably supports its allegations of error.

AWARD VACATED.

HODGES, C. J., and IRWIN, BARNES and SIMMS, JJ., concur. LAVENDER, V. C. J., and DAVISON, WILLIAMS and BERRY, JJ., dissent.