(dissenting).
This appeal involves a rather unique proposition. Briefly stated, claimant had received prior to the last injury, for previous and separate permanent injuries, compensation benefits in excess of that provided by statute for total and permanent disability. Four months prior to the injury complained of, in a proceeding against the Special Indemnity Fund, claimant testified and submitted medical reports that he was unable to perform any kind of manual labor, and that he was totally and permanently disabled. In my opinion, the determinative issue involved in this appeal is whether or not there is sufficient evidence to sustain the finding by the State Industrial Commission that claimant was a “physically impaired person” as defined by Title 85 O.S.1951, § 171, and entitled to proceed against the Special Indemnity Fund for total and permanent disability.
Prior to the injury of May 26, 1958, claimant had received $16,500 in Workmen’s Compensation benefits for four separate permanent injuries sustained since 1955. By combining the injuries of May 26, 1958, with the previous disabilities for which claimant had already received $16,500, the Commission found claimant to be totally and permanently disabled to do ordinary manual labor and entered an award against the Special Indemnity Fund for compensation for 500 weeks, or $15,000, less $1,-785.83 previously paid claimant by his employer and insurance carrier for the injury of May 26, 1958.
Whether a claimant is a physically impaired person is a question of fact to be determined by the Commission from all the evidence before it. Special Indemnity Fund v. Dickinson, 208 Okl. 39, 253 P.2d 161. However, the question as to whether an employee is a “physically impaired person” is a jurisdictional question and this Court is not bound to accept the findings of the Commission but will consider and weigh the evidence and make its own independent findings as to such question. Special Indemnity Fund v. Smith, 206 Okl. 185, 242 P.2d 159. In my opinion, the evidence does not sustain the findings by the Commission that claimant was a “physically impaired person” when he sustained the injury of May 26, 1958, but was a totally and permanently disabled person on that date, even though he may have been employed.
The record discloses claimant has a 30% service connected disability. He has already received compensation benefits in the sum of $16,500 for four separate permanent injuries. The undisputed medical evidence and claimant’s own admissions disclose he was permanently and totally disabled prior to the injury of May 26, 1958. On January 28, 1958, in a proceeding against the Special Indemnity Fund for total and permanent disability, his attorney asked him, “In your opinion, are you able to perform ordinary work, or any kind of manual labor?” The claimant answered, “No Sir.” In addition to his own testimony claimant present*1012ed a medical report stating he was totally and permanently disabled. The Special Indemnity Fund d'efended the action on the ground that injuries were not combinable with the previous disabilities. The Commission, in denying the award on March 10, 1958, did not find claimant was not totally and permanently disabled, but found, “That claimant is not totally and permanently disabled for the performance of ordinary manual labor by reason of the injuries alleged herein, and the injuries alleged are not combinable against the Special Indemnity Fund, and therefore claimant is not entitled to an order against the Special Indemnity Fund.”
In the hearing which forms the basis for this appeal, claimant testified that he had worked about a week before he sustained his injuries on May 26, 1958. He further testified that he had told the foreman that he would have to do light work for he couldn’t do anything that called for any lifting. Although the claimant was employed, the work he was able to perform was very limited.
Under the terms of the Workmen's Compensation Act and our construction placed thereon, in my opinion, the evidence conclusively discloses that claimant was a totally and permanently disabled person when he sustained his injury on May 26, 1958. The order awards claimant compensation benefits for the reason he is totally and permanently disabled and unable to perform ordinary labor now, when by claimant’s own testimony, he was unable to perform any kind of manual labor four months before the accident and was totally and permanently disabled.
The Workmen’s Compensation Act should be liberally construed in favor of an employee. However, this Court has not heretofore considered a claim for total and permanent disability where the claimant had already received more compensation benefits than provided by statute for total and permanent disabled employees. If an injured employee is entitled to maximum benefits twice for disabilities, there is no reason why such an employee would not also be entitled to receive maximum benefits three times or any number of times. Such a construction would lead to absurdities and was certainly not contemplated in the enactment, nor does the act so provide.
The majority opinion establishes a precedent that an employee who has received compensation benefits in excess of that prescribed by statute for total and permanent disabilities is not precluded from reasserting a claim for total and permanent disability as a result of a subsequent injury. If such be the law, since the burden is upon the claimant to establish that he is a “physically impaired person”, the burden is also upon the claimant to establish that he is not totally and permanently disabled where he has previously received compensation in excess of the statutory provision for permanent and total disabilities.
In the case at bar, four months prior to the injury complained of herein, in a proceeding against the Special Indemnity Fund for total and permanent disability, claimant testified and produced a medical report that he was totally and permanently disabled. Now, in a proceeding for compensation for a subsequent injury suffered four months later, claimant refutes his previous testimony and disclaims the medical report introduced by him. The burden should not be upon the Special Indemnity to sustain the allegations and admissions previously made by the claimant but the burden should be upon claimant to establish that his previous testimony was incorrect and the medical report inaccurate.
In my opinion, the evidence conclusively discloses claimant was a totally disabled person as a result of his previous injuries, and was not a “physically impaired person” as defined by statute when he received the injury of May 26, 1958.
I therefore respectfully dissent to the opinion promulgated by the majority of my associates.