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. *Page 139
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 Rawle C. L. 828, 829; R. C. L. Perm. Supp. p. 6254; R. C. L. Pocket Part, title Workmen's Compensation, § 116.