Opinion
No. 23041
Opinion Filed June 28, 1932.
(Syllabus.)
1. Master and Servant — Workmen's Compensation — Review of Awards — Sufficiency of Evidence.
An award of the State Industrial Commission will not be disturbed by this court where there is competent evidence reasonably tending to support the same.
2. Same — Employer not Entitled to Complain of Error in Finding as to Wage-Earning Capacity of Claimant After Injury, Such Error Being in Favor of Employer.
Where there is competent evidence of no wage-earning capacity after a compensable injury, a finding of wage-earning capacity will not be disturbed for the reason that the error, if any, is one of which the employer cannot complain.
Original proceeding by the Oklahoma Natural Gas Corporation et al. to review an award of State Industrial Commission in favor of J.B. McGough. Petition to vacate denied.
Clayton B. Pierce and Fred M. Mock, for petitioners.
Priest Belisle and J. Berry King, Atty. Gen., for respondents.
This is an original proceeding instituted by the respondent and its insurance carrier before the State Industrial Commission to review an award in favor of the claimant therein. The parties hereinafter will be referred to as petitioners and claimant, respectively.
There is competent evidence in the record reasonably tending to support the finding of the State Industrial Commission that the claimant received an accidental personal injury arising out of and in the course of his employment with the petitioner, which resulted in a 60 per cent. permanent partial disability under the "other cases" provision. Section 13356, subd. 3, O. S. 1931 (chapter 61, sec. 6, subd. 3, S. L. 1923). The injury consisted of a sprained back and hip. That there was temporary total disability is not denied and the award of compensation therefor has been paid. The State Industrial Commission found that the average weekly wage of the claimant at the time of the injury was $26.54 and that his earning capacity thereafter was $10 per week. The award was for 66 2/3 per cent. of the difference, which amounted to $11.02 per week. The petitioners contend that the claimant had an earning capacity of $15 per week after the injury and that the Commission was without authority to find that his earning capacity was $10 per week thereafter. The record shows competent evidence reasonably tending to show that the claimant was totally and permanently disabled and that he had no earning capacity after the injury. The finding of the State Industrial Commission of an earning capacity of $10 per week is not error of which the petitioners may complain. Mead Bros., Inc., v. Watts, 135 Okla. 23, 273 P. 207; Wise-Buchanan Coal Co. v. Howard, 150 Okla. 188, 1 P.2d 356. Under the rule stated in White Deer Pipe Line Co. et al., v. McLaughlin, 53 Okla. 54, 4 P.2d 1057 the Petition to vacate the award is denied.
HEFNER, CULLISON, SWINDALL, McNEILL, and KORNEGAY, JJ., concur. LESTER, C. J., CLARK, V. C. J., and RILEY, J., absent.
Note. — See under (1), annotation in L. R. A. 1916A, 266; L. R. A. 1917D, 186; 28 R. C. L. 828, 829; R. C. L. Perm. Supp. p. 6254; R. C. L. Pocket Part, title Workmen's Compensation, § 116.