
    MAGNOLIA PETROLEUM CO. v. RUSSELL et al.
    
      No. 23105.
    Opinion Filed Dec. 20, 1932.
    Supplemental Opinion on Rehearing Filed, and Rehearing Denied April 11, 1933.
    
      B. B. Blakeney, .Hubert Ambrister, and W. R. Wallace, for petitioner.
    Earl Sadler, for respondents.
   ANDREWS, J.

This is an original proceeding in this court instituted by tbe respondent before the State Industrial Gam-mission to review an award in favor of tbe claimant therein. Tbe parities hereinafter will be referred to as petitioner and claimant.

Tbe claimant sustained an accidental personal injury on November EO, 1929, arising out of and in tbe course of bis employment by tbe petitioner, caused by the explosion of a 'boiler and consisting of burns on tbe face, hands, and ankles, and lacerations on tbe bead. The petitioner and tbe claimant attempted to make a settlement on forms “7” and “14”. Tbe nature of tbe injury was therein described as1 “laceration on back of bead — burns on face, neck, arm & legs” and tbe extent of the injury was therein stated to be “scars on nose, back of hand, back of bead. ”

Neither in tbe employer’s first notice of injury, filed January 27, 19E0, and signed by Dr. Van Sandt, who treated tbe claimant, nor in tbe employee’s first notice of injury and claim for compensation filed January 28, 1930, was there any mention of injury ¡to or loss of eyesight. Tbe claimant described bis injury as “face and bands, ankles burned — lacerations on bead.” Dr. Van Sandt’si report showed tbe extent of tbe injury to .be “Laceration on back of bead. Burns on face, neck, both arms, bands and legs.”

Tbe claim was beard before tbe Commission in September, 1931, at which time tbe claimant’s attorney asked that be be allowed to amend tbe claim so as to read, “injury to eyes resulting in partial loss of vision and injury to band, resulting in partial permanent loss of use of band.”

Tbe Commission found that tbe claimant was entitled to $200 for disfigurement to bis face and beadÜhat be bad sustained a five per cent, loss of the use of the right band, and that be bad sustained a 50 per cent, loss of vision in both eyes.

The record shows that at the time of tbe bearing tbe claimant bad a permanent loss of vision in both eyes, but that fact was not sufficient to sustain an award therefor. Before an award can be made for permanent partial loss of vision in the eyes, there must be a showing by evidence that tbe permanent partial loss of vision was caused by an accidental injury which arose out of and in tbe course of bis employment by the petitioner. There wasi no showing thereof. On tbe contrary, the record shows that ithe loss of vision was caused by near-sightedness. Theré is no competent evidence showing that tbe near-sightedness was caused by tbe accident. While tbe claimant testified that be bad bad no accidental injury to bis eyes prior to tbe accident; that his eyes were in good condition prior thereto, and that be bad never bad any trouble with them, that evidence was not sufficient to sustain the award as made, for tbe reason that this record shows that the claimant sustained no injury to tbe eyes. There is no conflict in 'the testimony as to tbe condition of the claimant’s eyes. All of tbe doctors agreed that he bad a loss of vision, and no one of them testified that that loss of vision was due to an accidental injury.

We are not considering a case where there is a presumption as to normal vision prior to tbe injury. We are considering a ease where tbe evidence shows that the loss of vision was caused by near-sightedness and not by an accidental injury. Any presumption tliait existed as to normal vision prior to tbe injury was destroyed by tbe positive testimony of the witnesses. Tbe rule stated in G. A. Nichols, Inc., v. Bailey, 154 Okla. 214, 7 P. (2d) 468, has: no application. Tbe rule stated in Parson-Gibson Buick Corp. v. Fox, 152 Okla. 196, 4 P. (2d) 38, is not applicable. In Ellis & Lewis, Inc., v. Lane, 152 Okla. 273, 4 P. (2d) 104, this court said:

“Mere evidence of existing disability is not sufficient to support an taward for compensation, and the claimant must show that tbe existing disability did not exist prior to the injury complained of. Cavin v. Kay & Kiowa Oil Co., 139 Okla. 47, 281 P. 232.”

All of tbe authorities cited by claimant have been duly considered, but none of them is controlling in tbe instant case and under the facts here presented. There is no competent evidence to support the finding of tbe Industrial Commission that tbe claimant sustained a 50 per cent, loss of vision because of the accident complained of or any per cent, whatever.

“An award of the Sítate Industrial Commission will be reversed by this court wh&re there is no competent evidence reasonably tending to support the same. ” Ellis & Lewis, Inc., v. Lane, supra.

Tbe award of the State Industrial Commission as to the 50 per cent, permanent loss of vision is vacated. The award is sustained as to tbe five per cent, loss of use of claimant’s right hand and the $200 for permanent disfigurement.

HEFNER, OULLISON., SWINDALL, MC-NEILL, and KORNEGAY, JJ., concur. LEiS-TER, O. J., CLARK, Y. O. J., and RILEY, J., absent.

Supplemental Opinion on Rehearing.

ANDREWS, J.

On a review of the record, on petition for rehearing, we find that there is some evidence tending to show that some of the loss of vision of the claimant was caused by the accidental injury sustained by him.

It is, therefore, ordered that the cause be remanded to the State Industrial Commission, with directions to vacate that portion of the award which is based on its Binding of 50 per cent, loss of vision in both eyes, to hear additional evidence as to the cause of the loss of vision in the eyes, and to make an award in conformity with its finding, after excluding any loss of vision which was not caused by the accidental injury sustained by the claimant.

RILEY, O J., OULLISON, V. O. J.. and McNEILL, OSBORN, BAYLESS, BUSBY, and WELGH, JJ., concur. SWINDALL, J., dissents.  