[23] The sole issue the State Industrial Court had jurisdiction to consider in the proceeding under review was whether or not since the last prior order claimant's disability attributable to the original injury had increased to that degree which entitled him to compensation in excess of the amount for which the employer would be entitled to credit. In my judgment, the order entered on March 27, 1959, is too indefinite and uncertain for judicial interpretation as to form a basis for an order denying compensation under the facts in the case.
[24] The challenged order states in pertinent part:
"That claimant has not sustained a change of condition for the worse since this Commission's order of July 2, 1956, and therefore, his application to reopen on a change of condition for the worse filed herein on January 14, 1958, should be denied."
[25] In my judgment, this finding would appear sufficiently definite if it were entered in an ordinary proceeding, where, after a specific adjudication of former disability, additional compensation is sought on change of condition for the worse. Only when the former condition has been determined may the State Industrial Court properly find whether or not a physical change has subsequently occurred. See O.M. Bilharz Mining Co. v. Clark,153 Okla. 31, 4 P.2d 729.
[26] In this cause the antecedent physical condition remained an unknown factor. The July 2d 1956 order, now final, made no determination of employee's disability in definite terms of its percentage, but instead fixed it at a pecuniary level "of less than $8000.00". There was no available gauge by which to measure the factum of "a change" in relation to the former physical condition. It is not clear whether the "application to reopen" was denied on the grounds that claimant's present disability was still less than, and had not increased to, the percentage necessary to obtain benefits in excess of the sums previously collected for which the employer would be entitled credit, or because his physical condition had remained the same since the last prior order. As there was no yardstick by which to evaluate a "physical change", if any (other than by the "pecuniary formula" set forth above), the order under review could have been based only on the theory that claimant's present disability still did not, under the law, permit the allowance of a deficiency between the amount previously collected and the quantum of compensation to which claimant was entitled under the Workmen's Compensation Act. *Page 720
[27] The degree of claimant's existing disability was clearly a fact in issue on which a finding was required. In my judgment the finding as made did not afford a clear and definite basis on which to rest an order denying further award. There was a substantial failure in this respect. Morris v. State Industrial Commission, Okla., 268 P.2d 895; Richardson v. M. D. Freight Lines, Okla., 322 P.2d 192. In Bowling v. Blackwell Zinc Co., Okla., 347 P.2d 1024, 1025 it is held:
"In workmen's compensation proceeding State Industrial Commission must make specific findings of ultimate facts responsive to issues raised by the pleadings or evidence, as well as conclusions upon which an order is made granting or denying compensation, and where Commission fails to make such findings, the order will be vacated and cause remanded for further proceedings."
[28] In my judgment the State Industrial Court was not authorized under the facts in this cause to ascertain claimant's right, if any, to an additional award without first determining whether or not since the order of July 2, 1956, claimant's aggregate disability attributable to the original injury, when calculated in terms of statutory benefits, had increased. Before the Industrial Court could make such determination, it was necessary (a) to fix the nature and the aggregate percentage of claimant's permanent disability attributable to the original injury, subsisting at the date of hearing on the application to reopen; and (b) to compute the amount of compensation benefits allowable therefor under the statute. Only if the amount arrived at were greater than the sum for which employer was entitled to credit, would a change of condition be shown so as to entitle claimant to additional compensation. Standard Brands, Inc., v. Gregor, Okla.,328 P.2d 181.
[29] In my judgment, the Order of March 27, 1959, should be vacated and the cause remanded with directions to make necessary and proper findings, as hereinabove indicated. I therefore respectfully dissent to the opinion promulgated by a majority of my associates.
[30] I am authorized to state that BLACKBIRD, V.C.J., and BERRY, J., concur in the views herein expressed.