A long standing rule declares that on a motion to reopen on the ground of a change in condition, the burden is on the claimant to prove: first, the change of condition, and second, that the change of condition, was the result of an original compensable injury. Evidence necessary to establish those requirements is of a nature which must be proved by testimony of skilled professional persons. Williams Bros. v. State Industrial Commission, 158 Okla. 171, 12 P.2d 896 (1932). Another settled rule is that the State Industrial Court's adjudication of a physical condition is final as to the condition then existing, but is not final in so far as it predicts the future course of the injury when something new appears showing a different condition.
"The disability which the medical witnesses on both sides found to exist was of such character as to require a determination of its nature, cause and extent by skilled and professional persons and therefore had to be proved by the testimony of such persons. St. Louis Mining Smelting Co. v. State Industrial Commission, 113 Okla. 179, 241 P. 170; Shepard v. Crumby, 146 Okla. 118, 293 P. 1049; Williams Bros. v. State Industrial Commission, 158 Okla. 171, 12 P.2d 896; Magnolia Pet. Co. v. Clow, 163 Okla. 302, 22 P.2d 378. * * *" It is necessary therefore that the award be vacated.
Brown Brothers v. Parks et al., 176 Okla. 615, 56 P.2d 883. Neither is there any such evidence that the alleged change of condition is attributable to the original injury. Williams Bros. v. State Industrial Commission, 158 Okla. 171, 12 P.2d 896. I respectfully dissent.
We have repeatedly held that in a proceeding to review an award of the State Industrial Commission, where the issue presented to the commission is one of fact as to the cause and extent of the disability resulting from an accidental injury, and such cause and extent can be established only by skilled and professional men, the question is one of science and must necessarily be proved by the testimony of such skilled and professional persons. Williams Bros. v. State Industrial Commission, 158 Okla. 71, 12 P.2d 896; Barnsdall Refining Co. v. State Industrial Commission, 178 Okla. 289, 62 P.2d 1031. The cause and extent of the disability in the case at bar can only be established by such evidence. The report of Dr. Driver last above quoted finds a disability to the right wrist, hand, and first and second fingers.
The cases cited support this contention. St. Louis Mining Smelting Co. v. State Industrial Comm. et al., 113 Okla. 179, 241 P. 170; Shepard v. Crumby, 146 Okla. 118, 293 P. 1049; Williams Bros. v. State Industrial Comm., 158 Okla. 171, 12 P.2d 896; Magnolia Petroleum Co. v. Clow, 163 Okla. 302, 22 P.2d 378. But petitioner further contends that the finding in this case that claimant sustained permanent partial disability as a result of his injuries is without such proof.
This court is committed to the rule that where the disability is such that its nature, cause, and extent require that a determination thereof be made by skilled and professional persons, proof thereof must be made by the testimony of such persons. St. Louis Mining Smelting Co. v. State Industrial Commission, 113 Okla. 179, 241 P. 170: Shepard v. Crumby, 146 Okla. 118, 293 P. 1049; Williams Bros. v. State Industrial Commission, 158 Okla. 171, 12 P.2d 896; Magnolia Pet. Co. v. Clow, 163 Okla. 302, 22 P.2d 378. At the hearings held to determine liability and extent of disability, the competent witnesses were in disagreement upon the issue to be determined, that is, whether the alleged disability of petitioner was due to injury or to other cause, and the trial commissioner and the State Industrial Commission chose to believe the testimony of the competent witnesses who attributed the disability to other cause than an injury. The commissioner and the commission were at liberty to choose the witnesses they would believe and the weight to be attached to their testimony.
The disability which the medical witnesses on both sides found to exist was of such character as to require a determination of its nature, cause, and extent by skilled and professional persons, and therefore had to be proved by the testimony of such persons. St. Louis Mining Smelting Co. v. State Industrial Commission, 113 Okla. 179, 241 P. 170; Shepard v. Crumby, 146 Okla. 118, 293 P. 1049; Williams Bros. v. State Industrial Commission, 158 Okla. 171, 12 P.2d 896; Magnolia Pet. Co. v. Clow, 163 Okla. 302, 22 P.2d 378. The evidence of the qualified persons, while in agreement upon the fact that the respondent was suffering from a disability, gave no explanation of its cause, origin, or that it had any connection with the tired and fatigued feeling which assailed the respondent on the afternoon of September 6, 1940. Under these circumstances the finding by the trial commissioner that the disability was the result of the injury could only be based upon surmise and conjecture and was wholly without any competent evidence to support it. This court is thoroughly committed to the rule that where there is an entire absence of competent evidence to support material findings of fact upon which an award is based, the award will be vacated on review as a matter of law. Tulsa Rig, Reel Mfg. Co. v. Case, 176 Okla. 262, 55 P.2d 777; Texas Co. v. Fox, 179 Okla. 528, 66 P.2d 908; Barnsdall Oil Co. v. State Industrial Commission, 178 Okla. 289, 62 P.2d 1031.
The injury for which the claimant sought compensation was of such a character as to require skilled and professional persons to determine its nature and extent, and therefore had to be proved by the testimony of such persons. St. Louis Mining Smelting Co. v. State Industrial Commission, 113 Okla. 179, 241 P. 170; Shepard v. Crumby, 146 Okla. 118, 293 P. 1049; Williams Bros. v. State Industrial Commission, 158 Okla. 171, 12 P.2d 896; Magnolia Pet. Co. v. Clow, 163 Okla. 302, 22 P.2d 378. At the hearings held by the State Industrial Commission to determine liability and extent of disability, the sole witness thus qualified to appear for the claimant was Dr. Elias Margo. This witness based his testimony upon examination of the claimant made on December 28, 1936, and the history given him by the claimant of an injury sustained on July 17, 1935, and was to the effect that the claimant had a permanent partial disability of approximately 35 per cent. which could possibly be attributed to the injury which the claimant had told him he had sustained, but nowhere does this witness testify to any temporary disability of the claimant between the dates of August 15, 1936, and December 28, 1936, inclusive. All of the testimony of the witnesses related to a permanent disability.
In Texas Pipe Line Co. v. Watson, supra, this court stated the rule to be that where there is no evidence contained in the record to sustain the finding of fact made by the State Industrial Commission upon which an award is based, the award will be vacated on review. To the same effect, see Superior Smokeless Coal Co. v. Curott, 163 Okla. 191, 21 P.2d 739; Williams Bros. v. State Industrial Commission, 158 Okla. 171, 12 P.2d 896; Shepard v. Crumby, 146 Okla. 118, 293 P. 1049; Eagle-Picher Lead Co. v. Black, 164 Okla. 67, 22 P.2d 907. It will thus be seen that all the medical evidence tended to disclose the respondent has a permanent disability and that there is no evidence tending to support the finding of a temporary disability. The statute provides for awards for temporary partial disability under subdivision 4, section 13356, O. S. 1931, 85 Okla. St. Ann. ยง 22, while awards for permanent partial are authorized under subdivision 3 of said section.
The record shows that at the hearings held by the State Industrial Commission to determine whether there had been any change in condition of respondent since the order approving the form 14 agreement, the medical testimony was in accord with respect to the fact that the respondent had an impairment in vision in both of his eyes and was in disagreement with respect to whether the impairment to the right eye was attributable to the injury which respondent had admittedly sustained to his left eye. Under these circumstances, it was within the province of the commission to determine whether the disability to the right eye had resulted from the injury. Shell Pet. Co. v. White, 176 Okla. 573, 56 P.2d 830. While it is true that in any proceeding to reopen on change in condition the burden is upon the claimant to prove the change in condition, and that such change has occurred since the last prior order or award of the commission (Williams Bros. v. State Industrial Commission, 158 Okla. 171, 12 P.2d 896; Eagle-Picher Lead Co. v. Black, 164 Okla. 67, 22 P.2d 907), this burden is sufficiently discharged when the claimant produces some competent evidence to support a finding in his favor. In the record here presented, we find that in addition to the medical evidence above referred to, respondent also offered evidence, which was uncontradicted, to the effect that he had been examined prior to entering the employ of the petitioner and that his eyes were then without any noticeable impairment, and also further evidence to the effect that after the injury to his left eye he then had no impairment in his right eye, and that shortly thereafter his right eye began to give him trouble, and subsequently he had a material impairment therein.