Atlantic Oil Producing Co. v. Malone , 152 Okla. 68 ( 1931 )

On July 21, 1931, an opinion was filed in this cause and within the time allowed by the rules of this court a petition for rehearing was filed, in which it is contended that there is no competent evidence to sustain the findings of fact contained in said award as follows, to wit:

"That said respondent, C.W. Malone, had sustained an injury, the same being four broken ribs, a strained back, and a crushed and mutilated kidney, and that as a result thereof he was and is entitled to compensation under the Workmen's Compensation Act of the state of Oklahoma."

We have carefully reviewed the record and are of the opinion that there is no competent evidence to sustain the findings that the claimant as a result of an accidental injury arising out of and in the course of his employment sustained four broken ribs, and a sprained back, or a mutilated kidney, but that there is some competent evidence to show that the claimant while in the discharge of his duties as an employee of petitioner accidentally fell backwards off of an eight-inch pipe about three inches above the ground and fell on a two-inch gate valve which struck him in the region of the kidneys and bruised a kidney and caused a temporary disability or aggravated a condition which the claimant then had as a result of a disease and resulted in a temporary disability. In either event the petitioner was liable for compensation.

Webster defines "crush" as follows:

"To compress or bruise between two hard bodies; to squeeze or force by pressure so as to destroy the natural condition, shape, or integrity of the parts, or to force together into a mass; as, to crush grapes."

So, we are of the opinion that there is some competent evidence in the record to show that the kidney of the claimant was "crushed," as the word is commonly used, but there is no competent evidence to show that it was mutilated, or that the claimant sustained a strained back or four broken ribs. As to those findings of fact, we hold that there is no competent evidence in the record to sustain the same and they are expressly vacated and set aside. We do this for the reason that, in the event further claim is made for compensation on the grounds of a change in condition or if a motion is filed by the petitioner to review on the ground of a change in condition, such findings by the Commission, that the claimant had a strained back, mutilated kidney, or four broken ribs, may not be held as binding and conclusive on the petitioner, as there is no competent evidence to sustain such findings. We have repeatedly held that under section 7325 of the Workmen's Compensation Law, as amended by section 13, ch. 61, Session Laws 1923, preceding the proviso, the power and jurisdiction of the State Industrial Commission over each case submitted to it are continuing and the Commission, upon its own motion or upon the application of any party in interest on the grounds of a change in conditions presented under section 7296, C. O. S. 1921, may from time to time make such modifications or changes of its former findings or orders relating thereto as in its opinion may be justified and on such review may make an award ending, diminishing, or increasing the compensation previously awarded subject to the maximum or minimum provided in the act. Choctaw Portland Cement Co. v. Lamb, 79 Okla. 109, 189 P. 750; Coalton Coal Co. v. Pulvirenti,147 Okla. 205, 296 P. 415. Under these holdings, if the State Industrial Commission was mistaken or committed an error as to the extent of the injury in awarding compensation, upon a proper motion being filed to review on the ground of a change in conditions and as a result of the original injury since the former hearing, it may end, diminish, or increase the compensation previously awarded subject to the maximum or minimum provided in the act. In proceedings to review the findings of the State Industrial Commission, we cannot weigh conflicting evidence but only determine the issue, Is there any competent evidence to sustain the findings? If so, under the law, it is our duty to sustain the findings; if not, to vacate the same. We are therefore of the opinion that the original opinion as supplemented by the views herein expressed is in harmony with the well-settled rule of law relative to reviewing awards of the State Industrial Commission where there is any competent evidence to sustain the same, and that the petition for rehearing should be denied.

LESTER, C. J., and RILEY, HEFNER, CULLISON, ANDREWS, McNEILL, and KORNEGAY, JJ., concur. CLARK, V. C. J., not participating.

Note. — See under L. R. A. 1916A, 266; L. R. A. 1917D, 186; 28 R. C. L. p. 827.