MARLAND v. FORRESTER

MARLAND v. FORRESTER
1933 OK 581
28 P.2d 542
167 Okla. 140
Case Number: 24240
Decided: 10/31/1933
Supreme Court of Oklahoma

MARLAND et al.
v.
FORRESTER et al.

Syllabus

¶0 1. Master and Servant--Workmen's Compensation--Industrial Commission Required to Hear and Determine Application to End Award on Ground of Change in Condition Without Requiring payment of Compensation for Period Between Filing Application and Hearing.
Under the provisions of section 13362, O. S. 1931, the State Industrial Commission is required to hear and determine an application by any party in interest to end an award on the ground of a change in condition of the employee, and the State Industrial Commission is without authority of law, as a condition precedent thereto, to require payment of compensation for a period between the time of the filing of such an application and the hearing thereof, the provision of the statute being that an award so made shall not affect compensation theretofore paid.
2. Same--Burden Upon Employer Seeking Discontinuance of Payments to Prove Disability Has Ended.
Where an award of compensation has been made, and the employer thereafter seeks to discontinue payment thereof on the ground that disability on account of the injury has ceased, the presumption is that such disability continues, and the burden is upon the employer or insurance carrier to prove the contrary. Upon the introduction of competent testimony tending to rebut that presumption, a question of fact is presented which must be determined from the competent evidence, the burden of proof remaining on the moving party.
3. Same--Testimony of Experts to Prevail Over That of Nonexpert.
Where a disability is of such a character as to require skilled professional men to determine whether or not the same has ceased, and expert testimony is offered tending to show that the disability has ceased, that testimony must prevail over the testimony of nonexperts.

Original proceeding by E. W. Marland and insurance carrier to review an award of State Industrial Commission in favor of J. C. Forrester. Award vacated.

Randolph, Haver, Shirk & Bridges, for petitioners.

Benj. E. Cook, for respondents.

ANDREWS, J.

¶1 This is an original proceeding in this court to procure an award of the State Industrial Commission, the petitioners being the employer and his insurance carrier.

¶2 The record shows that the claimant received an accidental personal injury arising out of and in the course of his employment with his employer, for which he was awarded compensation for permanent total disability, which award was approved by this court. The claimant was paid compensation up to the 18th day of May, 1932, and an additional sum was paid for 100 weeks, which had been ordered commuted. On May 19, 1932, the petitioner herein filed a motion pursuant to the provisions of section 13362, O. S. 1931, to suspend payment of compensation as of May 18, 1932, on the ground that there had been a change in the claimant's condition, and under an allegation that the claimant was in normal health and able to perform his occupation as a common laborer.

¶3 The cause came on for hearing before the State Industrial Commission on the 26th day of August, 1932, at which time the Chairman of the Commission announced that payment of compensation up to that date would be required before the Commission would hear the case. That order was without authority of law and in conflict with the plain and unambiguous provisions of the statute. The State Industrial Commission was without any authority of law to decline to hear the claim pursuant to the statute, supra.

¶4 The order was complied with and the hearing was had. At the hearing the petitioners offered the testimony of a medical expert. The effect of that testimony was to show that the claimant was no longer totally disabled. The only other evidence offered at the hearing was that of the claimant and another nonexpert witness. The claimant testified that when he attempted to work he had various plains. The nonexpert witness testified that his observation of the claimant convinced him that he was not able to work.

¶5 The claimant herein contends that it was not necessary for him to submit the testimony of expert witnesses and that to require him to do so would require him to prove his disability every time an application is filed pursuant to the statute. Such is the provision of the statute. The statute authorizes a proceeding to determine whether or not there has been a change in the condition of the claimant. Under the provisions of that statute an employer is required to defend an application filed by an employee. The statute likewise operates to require the employee to defend an application filed by the employer.

¶6 The award of the State Industrial Commission by which it found that there had been no change in the claimant's condition is not supported by competent evidence. Channing v. Payton, 152 Okla. 153, 4 P.2d 1: Boggs v. United States Filedity & Guaranty Co., 139 Okla. 155, 281 P. 226.

¶7 The award of the State Industrial Commission denying the application to suspend payment of compensation is vacated. The cause is remanded to the State Industrial Commission, with directions to grant a rehearing and to determine from competent evidence whether or not the condition of the claimant has changed, under the rule herein stated.