MANHATTAN CONSTRUCTION CO. et al. v. TOTTRESS et al.

MANHATTAN CONSTRUCTION CO. et al. v. TOTTRESS et al.
1932 OK 859
17 P.2d 407
161 Okla. 69
Case Number: 23427
Decided: 12/20/1932
Supreme Court of Oklahoma

MANHATTAN CONSTRUCTION CO. et al.
v.
TOTTRESS et al.

Syllabus

¶0 1. Master and Servant--Workmen's Compensation--Review of Awards--Effect of Death of Claimant Pending Appeal.
Where an award has been made by the Industrial Commission under the Workmen's Compensation Act, and proceedings are commenced in this court to vacate the award, and pending such appeal the claimant dies, if there be any amount due under the award at date of the death of claimant, this court will retain jurisdiction and permit the cause to be revived and pass upon the errors complained of to reverse the award.
2. Same--Statutory Written Notice of Injury Excused by Actual Notice Where Employer not Prejudiced.
Where an employer has actual notice of an injury to an employee, the failure of the employee to give written notice thereof as provided by section 7292, C. O. S. 1921 [O. S. 1931, sec. 13358] will not bar his claim for compensation in the absence of a showing by the employer or its insurance carrier that they were prejudiced because of the failure of the employee to give such written notice.
3. Same--Compensable Injury Aggravating Dormant Disease.
Where an employee, engaged in a hazardous occupation, within the provisions of the Workmen's Compensation Act, has a latent or dormant disease, unknown to him, and receives an accidental injury which aggravates or excites the latent or dormant disease to virulency or activity, the injury is compensable under the act.

Original proceeding in the Supreme Court by the Manhattan Construction Company et al. to review order of the State Industrial Commission in favor of Clarence Tottress. Petition to vacate denied.

J. Fred Swanson and N. A. Gibson, for petitioners.
Robert W. Richards, for respondents.

HEFNER, J.

¶1 This is an original proceeding in this court by the Manhattan Construction Company and United States Fidelity & Guaranty Company to review an order of the Industrial Commission awarding compensation to Clarence Tottress.

¶2 The Commission awarded claimant compensation for temporary total disability at the rate of $ 15.39 per week from June 24, 1931. On April 27, 1932, subsequent to the filing of this petition, claimant died, and his wife, Ora Tottress, was substituted as party claimant. At the time of his death, there was due him, under the award, the sum of $ 667.70. In the event the order is affirmed, Ora Tottress will be entitled to recover that amount, under the rule announced by this court in the case of Western Ind. Co. v. State Ind. Com., 96 Okla. 100, 219 P. 147, which is as follows:

"Where an award has been made by the Industrial Commission under the Workmen's Compensation Act, and proceedings are commenced in this court to reverse said award, and pending such appeal the claimant dies, if there is any amount due under the award at the date of the death of the deceased, this court will retain jurisdiction and permit the cause to be revived and pass upon the errors complained of to reverse said award."

¶3 Petitioners first contend that the award should be vacated for the reason that claimant failed to give written notice of his injury, as required by section 7292, C. O. S. 1921. The evidence shows that, on June 24, 1931, claimant sustained his injury by falling from an elevated platform while in the act of delivering concrete to a mixer. He suffered an injury to his back and shoulder and shortly thereafter his lungs became affected. Claimant testified that immediately after he received the injury, he notified the foreman on the job, and demanded medical attention; that no medical attention was furnished by his employer at that time, and several weeks later he again notified them of the injury and again demanded medical attention. The evidence further shows that, thereafter, on July 17, 1931, at the request of a representative of the employer, claimant was examined and treated by Dr. J. O. Lowe, insurance carrier's physician. This evidence is sufficient to establish the fact that the employer had actual knowledge of the injury. Having such knowledge, the burden of procedure shifted to it or its insurance carrier to show prejudice because of the failure of claimant to give written notice. They failed to meet this burden. The claim is, therefore, not barred for failure to give the written notice required by statute. Graver Corp. v. State Ind. Com., 114 Okla. 140, 244 P. 438; 0. G. & E. Co. v. Thomas, 115 Okla. 67, 241 P. 820; Prairie Oil & Gas Co. v. Melton, 153 Okla. 114, 3 P.2d 229; Hailey-Ola Coal Co. v. State Industrial Com., 152 Okla. 97, 3 P.2d 688.

¶4 Petitioners further urge that there is no evidence to show that claimant's condition resulted from the injury received. Claimant testified that, as a result of the fall, he received an injury to his shoulder and back, and shortly thereafter his lungs became affected; that his lungs had not been affected prior thereto. Dr. Wakefield testified that shortly after the injury he examined the claimant and noticed an injury to his shoulder and back; that his lungs were also affected. He further testified that in his opinion the condition of claimant's lungs was due to the injury; that, while his lungs may have been somewhat affected prior to the injury, such condition was aggravated and excited by the injury; and, in his opinion, except for the injury received by claimant, he would still be able to perform manual labor.

¶5 Even though claimant's lungs were affected prior to the injury, if such injury aggravated or excited his condition, he would be entitled to compensation. See Christian v. Hanna, 144 Okla. 89, 289 P. 708, where the following rule is announced:

"Where an employee, engaged in a hazardous occupation within the provisions of the Workmen's Compensation Act, has a latent or dormant infectious disease, unknown to him, and receives an accidental injury which aggravates or excites the latent or dormant disease to virulency or activity, the injury, including the effects of infection, is compensable under said act."

¶6 See, also, Superior Smokeless Coal & Min. Co. v. Shamblin, 148 Okla. 193, 298 P. 247; Lee Drilling Co. v. Ralph, 156 Okla. 140, 9 P.2d 954.

¶7 Petitioners offered expert testimony to the effect that claimant's condition was not due to the injury. The testimony of Dr. Wakefield, under the rule announced in the above-cited cases, is sufficient to sustain the award.

¶8 Petition to vacate is denied.