Opinion
No. 32194.
April 29, 1947.
(Syllabus.)
WORKMEN'S COMPENSATION — Invalidity of order by equally divided commission on appeal from trial commissioner.
Where an order is entered by a single commissioner and an appeal is taken as provided by 85 O. S. 1941 § 29 to the commission en banc, and two commissioners, one of whom is the trial commissioner, attempts to sustain the action of the trial commissioner and two commissioners dissent therefrom, the fifth member of the commission not voting, no order has been entered either making or denying an award as provided by 85 O. S. 1941 § 75, or as provided for appeals under 85 O. S. 1941 §§ 29 and 77.
Original proceeding in the Supreme Court by the Special Indemnity Fund to review an award by the State Industrial Commission in favor of W.T. Frapp. Award against the Special Indemnity Fund vacated.
Mont R. Powell, and R.D. Lyons, both of Oklahoma City, for petitioner.
Hatcher, Hatcher Taylor, of Oklahoma City, and Mac Q. Williamson, Atty. Gen., for respondents.
On December 6, 1944, while engaged in a hazardous employment for Mohawk Drilling Company, W.T. Frapp sustained an accidental injury to the big toe on his left foot. He had previously lost portions of the middle fingers on each of his hands. The trial commissioner found that as a result of said accident he suffered a 40 per cent permanent disability to his toe and awarded him 12 weeks' compensation therefor against his employer and its insurance carrier as provided in 85 O.S. 1941 § 22[ 85-22](3). The trial commissioner also found that he suffered a 5 per cent additional permanent disability to the body as a whole by reason of the combination of the toe and previous finger injuries, and awarded him 25 weeks' compensation against the Special Indemnity Fund. On appeal to the State Industrial Commission en banc, four commissioners only participated, and two voted to affirm the order of the trial commissioner and two dissented, the fifth member not participating. The employer and its insurance carrier do not question the 12 weeks' award against him. The Special Indemnity Fund prosecutes this original proceeding to review the 25 weeks' award against it.
While the parties agree that the result of the tie vote was to affirm the order of the trial commissioner, we cannot so treat it, and the award of the Industrial Commission must be vacated under the rule announced in Higgs v. State Industrial Commission, 197 Okla. 281, 170 P.2d 240.
We call attention of the parties to the holding of this court in Special Indemnity Fund v. Davidson, 196 Okla. 118, 162 P.2d 1016.
Award against the Special Indemnity Fund vacated.
HURST, C.J., DAVISON, V.C.J., and RILEY, OSBORN, CORN, GIBSON, and ARNOLD, JJ., concur.