Opinion
No. 29837.
November 12, 1940.
(Syllabus.)
1. WORKMEN'S COMPENSATION — Average annual earnings and average weekly wage to be determined in manner provided by statute.
In a compensation proceeding the average annual earnings and average weekly wage of the injured employee are to be determined in the manner provided under section 13355, O.S. 1931, 85 Okla. St. Ann. § 21.
2. SAME — Employer may not complain of error in his favor.
In determining the average annual earnings of the employee resort is to be had to the provisions of the statute in their order, and where the record shows that this has been done and an error made in favor of the employer, he will not be heard to complain of such error.
3. SAME — Question of fact whether employer prejudiced by employee's failure to give statutory notice of injury.
Whether an employer has been prejudiced by the failure of an employee to give notice of injury as required by section 13358, O.S. 1931, 85 Okla. St. Ann. § 24, is a question of fact for the determination of the State Industrial Commission.
4. SAME — Lack of statutory notice excused where employer reported injury and furnished medical attention in less than 30 days after injury.
Where an employer has reported the injury and given medical attention to the employee within less than 30 days after the alleged injury, such action of the employer is sufficient to justify the State Industrial Commission's finding that the employer has not been prejudiced by the failure of the employee to give the statutory written notice.
Original proceeding in the Supreme Court by the Massachusetts Bonding Insurance Company et al. to obtain a review of an award made by the State Industrial Commission in favor of Homer O. Satterfield. Award sustained.
Wesley M. Langdon, of Tulsa, for petitioners.
Williams, Teague Williams, all of Oklahoma City, and Mac Q. Williamson, Atty. Gen., for respondents.
This is an original proceeding in this court brought by H. F. Wilcox Oil Gas Company, hereinafter referred to as petitioner, and its insurance carrier, to obtain a review of an award which was made by a trial commissioner of the State Industrial Commission in favor of Homer O. Satterfield, hereinafter referred to as respondent.
The employment and the injury are not involved here. The sole issues urged are that the findings of the average weekly wage and the lack of prejudice by reason of failure to give statutory written notice are contrary to law. It is first urged that, since the respondent had been in the employ of the petitioner for only a week prior to his injury, his average weekly wage had to be ascertained in the manner provided by subdivisions 3 and 4 of section 13355, O.S. 1931, 85 Okla. St. Ann. § 21, subds. 3 and 4. This contention cannot be sustained. The average annual earnings of an employee in compensation proceedings and his weekly wage are to be determined in the manner provided by section 13355, O.S. 1931, 85 Okla. St. Ann. § 21; Skelly Oil Co. v. Ellis, 176 Okla. 569, 56 P.2d 891. Resort is to be had to the provisions of the statute in their order, and it is only where the average annual earnings of the employee cannot be reasonably and fairly ascertained either under subdivision 1 or 2 that subdivision 3 is to be employed. The respondent submitted evidence without objection which was sufficient to sustain the application by the commission of subdivisions 2 and 4 of the statute, supra, while had the formula been accurately followed it would have resulted in a slightly higher average weekly wage and slightly higher compensation in favor of the respondent. This is an error of which the petitioner is not entitled to complain. See Westgate Oil Co. v. Mathews, 176 Okla. 346, 55 P.2d 1043.
The final contention of the petitioner, which is that the evidence did not justify the act of the commission in excusing the failure of the respondent to give the statutory notice of his injury, is wholly without merit. The record shows that the petitioner filed employer's first notice of injury with the State Industrial Commission within 17 days after the alleged injury occurred, and therein stated that the respondent had been injured and had been given medical attention by the petitioner ten days thereafter. Under such circumstances the finding of the commission that the petitioner had not been prejudiced by such failure was fully supported by the evidence in the record. The award is not erroneous as a matter of law.
Award sustained.
OSBORN, GIBSON, HURST, DAVISON, and NEFF, JJ., concur.