I concur in the conclusion. I cannot agree that the Workman's Compensation Law should be construed as the opinion delivered by Mr. Justice Kornegay intimates this court should construe it. Such an interpretation would conflict with many prior decisions of this court, some of which I shall hereafter discuss. Under such a holding none of the findings or judgments of the Commission would ever become final and conclusive.
In the main the opinion is too much like a Mother Hubbard dress.
This is an original proceeding to review an award of the State Industrial Commission dated June 2, 1930, in favor of respondent, C.E. Bailey, and comes clearly within the rule announced by prior decisions of this court, and in my opinion we should so hold, instead of passing the other decisions by unnoticed. On September 20, 1928, the respondent, Clarence E. Bailey, was an employee of the Patterson Steel Company, fabricators and erectors of structural steel, of Tulsa, Okla., and respondent was erection foreman for said company and received an accidental personal injury while engaged in this hazardous occupation and arising out of and in the course of his employment. The accident was reported by the petitioner, Patterson Steel Company, to the State Industrial Commission on September 27, 1928, and in its report it states that Clarence E. Bailey, one of its employees, was injured while employed by the Patterson Steel Company and that at the time he was injured he was erection foreman, and that he had been in the employment of the petitioner, the Patterson Steel Company, since August 5, 1922, and that his average earnings were $6.30 per day, payable semi-monthly, and described the injury as "strained back while handling steel," extent of injury "undetermined," and that it furnished medical attendance immediately; Dr. A. Ray Wiley being the name of the physician. On May 24, 1929, the State Industrial Commission, having heard the testimony offered by claimant, the respondent, found that the testimony is insufficient to show that any disability resulted from the injury sustained on September 20, 1928, and ordered that the claim of Clarence E. Bailey for compensation, for injury sustained September 20, 1928, be denied, and that said cause be dismissed. On January 25, 1930, the respondent, Clarence E. Bailey, filed his motion to review the order of the State Industrial Commission dated May 24, 1929, and for grounds of his motion alleges substantial change of condition as in said motion more fully set forth. The motion is lengthy and we do not deem it necessary to set the same out here in full. Upon this motion being filed testimony was taken at Tulsa on the 4th day of April, 1930. The following questions were propounded to claimant and the following answers given:
"Q. Now, what is your condition at this time with reference to your condition on April 16, 1929, with reference to being better or worse? A. It is worse. Q. Will you explain to the court in what way? A. Well, it gets hurting me more than it did, I walk, when I get up, I walk like that; I get better, then I can't handle my papers: I carry a route, my paper bundled up, 150 in a bundle, I carry my papers, carry them into the house, I can't hardly straighten up when I get the bundles in. Q. Was you that bad in 1929? A. No, sir. Q. Now, what is your condition at this time with reference to the condition on the 24th day of May, 1929, in regard to being better or worse? A. It is worse. Q. Is it worse in the same way you recited in answer to the last question? A. Yes, sir."
The respondent was not cross-examined. Dr. W.W. Dickerson was interrogated and gave answers as follows:
"Q. Now, in this injury 1928, Dr. Dickerson, I will ask you, what that injury consisted of, as shown by your examination? A. If I recall, there was a slipping of the pelvis bone, where it attaches to the sacrum; there was a condition of the lumbar region — either a dislocation or fracture — I can't tell from a local examination, and at that time I advised, in fact. I treated him for that pelvis bone, and advised an X-ray picture for the trouble probably in the lumbar region. Q. Were the pictures taken? A. Yes, sir. Q. Did you have occasion to examine the pictures? A. I don't recall whether I saw them or not — it was referred back to the insurance doctor. Q. I don't __________ A. I know I talked to the man took the pictures, I can't tell whether I saw them or not. Q. Have you also had occasion to see and treat Mr. Bailey since May 24, 1929? A. Yes, sir; every little while he comes up to see me. Q. Basing your answers on experience and treating — matters of this nature — would you say his condition is better or *Page 159 worse than it was on May 24, 1929? A. It is worse, for the reason a condition like that can't be adjusted, the tendency is to get worse, possibly that condition gets worse, — there is also chance of arthritis, coming up, — Q. Now basing your answer on your experience in treating this particular man from 1925, up until the present time, what would you say his condition is at this time, the result of the injury sustained September 20, 1928? A. Yes, sir. Q. You are sure of that? A. Yes, sir."
There is much other testimony in the record showing a change in condition, but we set out the portions above quoted to show that there was ample testimony to establish that the respondent Bailey had a change in conditions growing out of the original injury. This court has repeatedly held that where there is any competent evidence reasonably tending to support an award of the Industrial Commission, the same was conclusive upon this court.
Petitioner seeks to reverse the award in this case and contends that the decision of the State Industrial Commission is contrary to the decisions of this court in the following cases: Ward v. Beatrice Creamery Co., 117 Okla. 31,245 P. 570; State ex rel. v. Green, 147 Okla. 119, 294, Pac. 797; Olentine et al. v. Calloway, 147 Okla. 137, 295 P. 608; Oklahoma Railway Co. v. State Industrial Commission,147 Okla. 129, 295 P. 216.
We fail to see wherein these decisions sustain the contention of petitioner. In Ward v. Beatrice Creamery Co., supra, this court said:
"At the close of the hearing, the Commission denied the right of the plaintiff in error (petitioner) to any award upon the ground that he had not shown by his testimony that he had any right to recover against the defendant in error (respondent), upon the ground that it was an occupational disease from which petitioner was suffering, and not a compensable injury within the purview of the Workmen's Compensation Law, and the cause comes to this court upon the record for a review of the decision of the State Industrial Commission."
In the Green Case, the Commission entered its order denying compensation to claimant for the reason that "the disability complained of was not due to an accidental injury arising out of and in the course of his employment with the Highway Department on December 3rd or 4th, 1926." In the case of the Oklahoma Railway Co. v. State Industrial Commission, supra, the Commission made its order on July 6, 1929, whereby McAbee's claim for compensation against the Oklahoma Railway Company was dismissed by the Commission for the reason that "claimant had failed to show by competent testimony that any accidental injury was sustained, or that any disability resulted therefrom." In the Olentine Case, the opinion of November 18, 1930, cited by petitioners, was on January 6, 1931, recalled, and a rehearing granted, and the cause resubmitted. On January 27, 1931, another opinion was filed in that case, which became final February 7, 1931. In the last opinion the 4th paragraph of the syllabus is as follows:
"The word award,' as used in section 7296, C. O. S. 1921, authorizing the State Industrial Commission, upon its own motion or upon the application of any party in interest, on the ground of a change in condition, to at any time review any award, and, on such review to make an award ending, diminishing, or increasing the compensation previously awarded, means the decision, determination, or judgment for money, hospitalization, crutches, or other compensation in favor of an employee, provided for in the Workmen's Compensation Act."
In the case at bar it is undisputed that Clarence E. Bailey received an accidental personal injury while engaged in an hazardous occupation and arising out of and in the course of such employment, and there is competent evidence in the record to show that there has been a change in his condition since the hearing on May 24, 1929. There is also competent testimony that the petitioner, Patterson Steel Company, voluntarily furnished him medical attendance for such injury. Section 7288, C. O. S. 1921, provides that:
"The employer shall promptly provide for injured employees such medical, surgical, or other attendance or treatment, nurses and hospital service, medicine, crutches and apparatus as may be necessary, during 60 days after the injury or for such time in excess thereof as in the judgment of the Commission may be required. If the employer fails to provide the same, the injured employee may do so at the expense of the employer."
In the case of United States Fidelity Guaranty Co. v. State Industrial Commission, 115 Okla. 273, 244 P. 432, the Commission found that the claimant was injured while in the employ of the respondent and in the course of his employment, but further found that he had "lost no time" by reason of the injury, and made an award requiring respondent or insurance carrier to pay all medical expenses. In that case the court held that the Industrial Commission had continuing jurisdiction by reason of a change in condition and upon the ground that the Commission had made an award of medical attendance. The syllabus is as follows: *Page 160
"Section 7296, C. O. S. 1921, contained in the Workmen's Compensation Act, providing that the Industrial Commission may review an award at any time, 'on the ground of a change in conditions,' should be liberally construed in the interest of the employee, and authorizes the Commission to take into consideration all of the conditions pathological, physical, and industrial which may in any way have a direct bearing on the rights of the injured employee."
Also:
"Where the Industrial Commission finds that the claimant was injured, while in the employ of the petitioners, and in the course of his employment, but refuses to make any award because the claimant has lost no time, and is still receiving the same wages from his employer that he received prior to receiving the injury complained of, and thereafter the claimant is discharged, and the Injury sustained is shown to still exist, which incapacitates the claimant, the Commission may take into consideration the fact that the claimant has been discharged in determining whether or not an award should be made on a review of the former hearing."
So, in this case, the petitioner having voluntarily furnished medical attention to the respondent Bailey, I am of the opinion that this brings the case under the rule announced in the case of United States Fidelity Guaranty Co. v. State Industrial Commission, and the case of Olentine v. Calloway, supra. I see no material difference between the facts in United States Fidelity Guaranty Co. v. State Industrial Commission, supra, and the case at bar. In the former case the Commission ordered the employer to pay the medical expenses, and in the latter the employer voluntarily paid the same, but in each case, under section 7288, C. O. S. 1921, it was the duty of the employer to promptly provide medical, surgical, or other attendance to an employee injured in the course of and arising out of his employment. Of course, this rule only applies in cases where, under the law, the employer is required to furnish the medical attention. Also, in the latter case the. Commission found that the injured employee "lost no time." In the case at bar the employee returned to work as gang pusher before the expiration of the waiting period, but was later discharged that his injury might be treated.
In the case of Marland Production Co. v. Hogan,146 Okla. 220, 294 P. 115, this court held that:
"When sections 7296, 7297, and 7325, C. O. S 1921, are considered together, it must be held that it was the legislative intent that the Commission have a continuing power and jurisdiction to review its award on the ground of a change in conditions only, and, except for a change in conditions, the award is final and conclusive upon all questions, within its jurisdiction, unless suit is commenced in this court within 30 days to review the award or decision."
In the body of the opinion the court uses this language:
"By reference to the case of United States Fidelity Guaranty Co. v. State Industrial Commission, 115 Okla. 273,244 P. 432, it will be seen that the Commission found that the claimant was injured while in the employ of the petitioners, and in the course of his employment, but refused to make any award because the claimant had lost no time, and was still receiving he same wages from his employer that he received prior to receiving the injury complained of, and thereafter the claimant was discharged, and the injury sustained was shown to still exist which incapacitated the claimant."
The Commission did not find that the respondent Bailey did not receive an accidental injury growing out of and in the course of his employment, but simply held that no injury resulted from the accident. Evidently the Commission meant by such finding that no compensable injury authorizing an award in money was shown at the time of the hearing because the employee returned to work before the expiration of the five-day waiting period and the employer had voluntarily paid for medical attendance. In the light of the evidence found in the record, no other conclusion would be justified. The findings of the Commission should have been more complete, but we have liberally construed the Workman's Compensation Law, and giving it a liberal construction, we could not arrive at any other conclusion relative to the intention of the Industrial Commission at the time it entered its original findings.
For the reasons herein stated, I am of the opinion that the State Industrial Commission had power and jurisdiction on the ground of change in conditions to review its former award, and that there is competent evidence upon which its findings were based. This court has many times held that it will not disturb such findings where there is any competent evidence in the record reasonably tending to support the same. Aetna Life Insurance Co. v. State Industrial Commission, 109 Okla. 65,234 P. 765; Courson v. Consolidated Fuel Co., 121 Okla. 170.249 P. 155; Allen v. Elk City Cotton Oil Co., 125 Okla. 142,256 P. 898; Oklahoma-Arkansas Telephone Co. v. Fries,128 Okla. 295, 262 P. 1062.
For the reasons herein stated, I concur in *Page 161 the conclusion reached in the opinion delivered by Mr. Justice Kornegay.