rier. An award was made, and from an order of the State Industrial Commission overruling the motion of the petitioners, employer, and insurance carrier to vacate the award, the petitioners appeal. Affirmed. Simpson, Hummer & Foster, of Okmulgee, for petitioners. MILLER, J. This is an appeal from an order of the State Industrial Commission made on July 26, 1921, overruling the motion of the Consolidated Underwriters, as insurance carrier, to vacate an award made to Emery Evans on the 7th day of February, 1921. The Consolidated Fuel Company and the insurance carrier, Consolidated Underwriters, appear here as petitioners. The State Industrial Commission and the claimant, Emery Evans, appear here as respondents. On January 25, 1921, Emery Evans filed his claim as employee of the Consolidated Fuel Company asking compensation for disability caused by an injury occurring on the 20th day of November, 1920. The claim was against the Consolidated Fuel Company, as employer, and the Consolidated Underwriters, as insurance carrier. The cause of the complaint was an injury to the right leg at the knee. The Consolidated Fuel Company and Consolidated Underwriters were each duly notified by the State Industrial Commission that a hearing on said claim would be had on the 7th day of February, 1921. They failed to appear, and on said date the State Industrial Commission made an award to Emery Evans in the sum of $18 per week. Thereafter, and on March 3, 1921, the petitioners filed a motion with the State Industrial Commission to set aside the award made to Emery Evans on February 7, 1921. A hearing was had on the motion and on August 19, 1921, the State Industrial Commission made the order sought to be reversed by this appeal. The order reads as follows: "Now on this the 19th day of August, 1921, the above cause coming on for consideration pursuant to a hearing held in Okmulgee on July 26, 1921, on the motion of the insurance carrier to vacate award, at which hearing the claimant appeared in person, and the respondent and insurance carrier were represented by Mr. Hummer, the Commission, having examined the testimony and all the records on file, and being well advised in the premises, finds that the claimant, while in the employ of the respondent and in the course of his employment, was injured on November 20, 1920; that he was receiving a wage of $7.50 per day; and that he is entitled to compensation at the rate of $18 per week for a period of 21 weeks and 3 days, being for a total sum of $387. The Commission is therefore of the opinion that the motion of the insurance carrier to vacate the award should be overruled. "It is therefore ordered that the motion of the insurance carrier to vacate award be, and the same is hereby, overruled, and that, within 10 days from this date the Consolidated Fuel Company or the Consolidated Underwriters pay to the claimant the sum of $387 in full and final settlement of this cause, and also pay all medical expenses incurred by the claimant as a result of the injury." [1, 2] The first error complained of by petitioners is: "Proposition No. 1., The Commission was not authorized to make an award in this case for the reason that the respondent failed to give the notice to the employer as required by law, and there is no evidence in the record upon which the commission could excuse such notice." The petitioners admit they had notice of the complaint being filed and the date set for the hearing, but attempt to explain their nonappearance at the hearing by stating they did not think the claimant would claim compensation unless he had. been disabled by an injury received during the course of his employment. The State Industrial Commissioin having acquired jurisdiction by a complaint regularly filed, notice duly issued thereon and served on the parties interested, on a hearing had pursuant to such notice, in the absence of fraud, the award made, if unappealed from, is conclusive as against the employer and insurance carrier. [3] Not having made timely objection to an award being made on account of claimant failing to give notice to the employer, this defense is deemed to have been waived, and cannot be urged on appeal from an order refusing to vacate the award. [4] Petitioners' second complaint is: "Proposition No. 2. The Industrial Commission has not excused the respondent's failure to give the employer notice of injury as required by law, and such failure is therefore a bar to recovery." When the State Industrial Commission made its award on February 7, 1921, the question of claimant's failure to give notice was not raised; therefore it was unnecessary for the State Industrial Commission to make any order or recitals excusing the failure to give the notice. [5] A general complaint is made that the evidence does not support the award or the order of the State Industrial Commission refusing to vacate the award. We have examined the record, and find there is evidence which reasonably tends to support the order complained of. Under section '10, art. 2, c. 14, Session Laws 1919, the decision of the State Industrial Commission is final as to all questions of fact. Markham et al. v. State Industrial Commission et al. (Okl. Sup., No. 12376) 205 Pac. 163, opinion handed down February 14, 1922. The order of the State Industrial Commission made on August 19, 1921, is affirmed. The respondent will be entitled to interest on the amount specified in said order as provided by law. Harrison, C. J., and Kane, Johnson, and Kennamer, JJ., concur. SENECA COAL CO. ET AL. v. CARTER ET AL. (No. 12764.) (Supreme Court of Oklahoma. March 14, 1922.) 205 Pacific Reporter, 495. (Syllabus by the Court.) 1. MASTER AND SERVANT COMPENSATION ALLOWABLE FOR DISFIGUREMENT IN ADDITION TO ALLOWANCE FOR LOSS OF EYE. Section 6, art. 2, c. 246, Sess. Laws 1915, as amended by section 9, c. 14, Sess. Laws 1919, construed and held to authorize the State Industrial Commission to award an injured employee compensation for a permanent disfigurement of the face, although such injured employee had been awarded compensation for the loss of an eye. (For other cases, see Master and Servant, Dec. Dig. § 387.) 2. MASTER AND SERVANT LOSS OF EYE ELEMENT OF COMPENSATION FOR PERMANENT DISFIGUREMENT. Where an injured employee has been awarded compensation for specific injuries, such as the loss of an eye, the State Industrial Commission, in awarding compensation for a permanent disfigurement of the face, must consider to what extent the loss of the eye has contributed to the disfigurement of the injured employee in determining the proper amount to be awarded such injured employee. (For other cases, see Master and Servant, Dec. Dig. § 387.) 50 Vol. IX-Comp. COMPENSATED INJURY NOT 3. MASTER AND SERVANT Where an injured employee has been compensated for a specific injury, such injured employee is not entitled to compensation again for such injury as constituting a part of a permanent disfigurement. (For other cases, see Master and Servant, Dec. Dig. § 387.) Original action by the Seneca Coal Company and the Consolidated Underwriters against Weep Carter and the State Industrial Commission of the State of Oklahoma, to reverse and, vacate an award made by the State Industrial Commission. Award affirmed. Moss & Tumilty, of Oklahoma City (Con Murphy, Jr., of Kansas City, Mo., of Counsel), for petitioners. KENNAMER, J. This action was commenced in this court October 25, 1921, by the Seneca Coal Company and Consolidated Underwriters, petitioners, against Weep Carter and State Industrial Commission of the state of Oklahoma, to reverse and vacate an award made by the State Industrial Commission on the 3d day of August, 1921, awarding Weep Carter $1,000 for permanent disfigurement of his face. The petitioners filed an application with the State Industrial Commission for a rehearing upon the award made, which, upon a hearing had on the 26th day of September, 1921, was by the Commission denied. The essential facts appearing from the record in this cause necessary to be considered in reviewing the award of the Commission are in substance as follows: Respondent, Weep Carter, was employed by the petitioners, Seneca Coal Company, and received an accidental injury December 21st, 1920, while tamping a shot in coal when a live cinder from steam shovel boiler dropped into the shot causing it to explode. The petitioner's face was burned and shot full of coal resulting in a permanent disfigurement of the face and the loss of an eye. [1] The undisputed testimony conclusively shows, in addition to the loss of an eye, the claimant received permanent disfigurement of his face, for which the Commission awarded him the sum of $1,000. Counsel for the petitioners insist that the Commission awarded the claimant compensation at the rate of $12.98 per week for 100 weeks for the loss of his left eye, and that by reason of the award for loss of his eye, under section 6, art. 2, c. 246, Session Laws 1915, as amended by section 9, c. 14, Session Laws 1919, the Commission is without jurisdiction to award the claimant $1,000 for permanent disfigurement to his face. There is no merit in this contention. That part of the statute supra relied upon by counsel for a reversal of the award herein is as follows: "In case of an injury resulting in the loss of hearing or in serious and permanent disfigurement of the head, face or hand, compensation shall be payable in an amount to be determined by the Commission, but not in excess of three thousand dollars. Provided, that compensation for loss of hearing or permanent disfigurement shall not be in addition to the other compensation provided for in this section, but shall be taken into consideration in fixing the compensation otherwise provided." Counsel for petitioners correctly state the rule of construction of statutes to be: "The great cardinal rule in the construction of statutes is to ascertain and give effect to the intention of the Legislature. Leflore v. Sanders, 24 Okl. 301, 103 Pac. 858; Territory v. Clark, 2 Okl, 82, 35 Pac. 882; School District v. Long, 2 Okl. 460, 37 Pac. 601." We have no fault to find with the rule of construction as contended for by counsel for the petitioners. An analysis of that part of the statute supra applicable to this case to our minds clearly evidences an intention on the part of the Legislature to allow the injured employee compensation for a serious and permanent disfigurement of the head, face, or hands in any sum not to exceed $3,000, and the Industrial Commission is vested under the Statute with jurisdiction to make such an award. [2] Counsel for petitioners insist that the proviso providing "that compensation for loss of hearing or permanent disfigurement shall not be in addition to other compensation provided for in this section, but shall be taken into consideration in fixing the compensation otherwise provided," evidences an intention on the part of the Legislature of denying to the injured employee compensation for permanent disfigurement where he has been allowed compensation for a specific injury provided for in the first part of the section of the statute, such as the loss of an eye or hand, etc. Such a construction of the statute is unreasonable and would lead to an absurdity. The phrase "should not be in addition to other compensation provided for in this section" makes plain the intention of the Legislature that the compensation allowed for permanent disfigurement has reference to other injuries not compensable as specific injuries provided for specifically, such as the loss of an eye, hand, or foot, etc. The phrase "but shall be taken into consideration in fixing the compensation otherwise provided" vests the Commission with jurisdiction in allowing compensation for a permanent disfigurement to consider any compensation that may have been allowed for specific injury. For instance, just as in the case at bar, where the injured employee has been compensated for the loss of an eye in awarding compensation for a permanent disfigurement of the face to the extent that the loss of an eye has to do with permanent disfigurement, the Commission, in making the award, must eliminate from such disfigurement to the face the loss of an eye, or such loss as the impaired eye contributed to the disfigurement of the face. The loss of an eye having been compensated under the first part of the statute, supra, prescribing a specific amount for the loss of an eye is not to again be compensated as constituting a part of a permanent disfigurement. [3] It is obvious that the compensation for permanent disfigurement must be independent of, and not in addition to, any compensation allowed for a specific injury. But, in determining the amount of the award to be allowed for such disfigurement under the proviso of the act. the Commission is vested with jurisidiction to consider and qualify the amount that may be awarded under the statute for permanent disfigurement to the extent an awardable specific injury has contributed to the permanent disfigurement of the employee. It would be unreasonable to hold under section 6, art. 2, c. 246, Session Laws 1915, as amended by section 9, c. 14. Session Laws 1919, supra, that the Commission is without jurisdiction to compensate an injured employee for a permanent disfigurement of the head, face, or hands where the same exist independent of some compensable specific injury. To so hold would be to deny the Commission jurisdiction to compensate an injured employee for permanent disfigurement where he lost his right eye, but suffered a permanent disfigurement to the left side of his face, entirely independent and apart from the loss of the eye. The authorities uniformly hold that statutes must be construed so that as not to lead to absurd consequences. 25 R. C. L. § 223. In the case of Leahy v. Indian Territory Illuminating Oil Co., 39 Okl. 312, 135 Pac. 416, this court held: "A statute must be given the meaning apparent on its face where the words used convey the distinct meaning which involves no absurdity or contradiction." Other cases in point are: Hutchinson v. Canon, 6 Okl. 725, 55 Pac. 1070; Falter v. Walker, 47 Okl. 527, 149 Pac. 1111. "The natural and appropriate office of a proviso is to restrain or qualify the generality of the language that it follows." 25 R. C. L. 231. Applying this rule to the statute under consideration. it is quite clear that the natural office of the proviso providing that "compensation for loss of hearing or permanent disfigurement shall not be in addition to the other compensation provided for in this section, but shall be taken into consideration in fixing the compensation otherwise provided," was to qualify the preceding part of the section of the statute vesting the Industrial Commission with jurisdiction to compensate a permanent disfigurement in any sum not exceeding $3,000 by authorizing the Commission to consider any amount which the Commission may have awarded to the injured employee for a specific injury where such specific injury might appear as a part of the disfigurement sought to be compensated. We are of the opinion that the award made was authorized under the statute, and should be affirmed. It is therefore so ordered. Harrison, C. J., and Johnson, Miller, and Nicholson, JJ., concur. SUPERIOR SMOKELESS COAL & MINING CO. et al. v. BISHOP et al. (No. 13720.) (Supreme Court of Oklahoma. March 14, 1922.) 205 Pacific Reporter, 497. (Syllabus by the Court.) 2. MASTER AND SERVANT-COMPENSATION DECISION ON EVIDENCE FINAL. It is well settled in this jurisdiction that the decision of the Conmission as to all matters of fact is final, if there is any evidence whatever tending to support it. (For other cases, see Master and Servant, Dec. Dig. § 417[7].) 3. MASTER AND SERVANT-FINDINGS IN COMPENSATION CASE SUSTAINED. We have examined the record carefully, and are convinced that the evidence sufficiently supports the findings of fact of the Commission. (For other cases, see Master and Servant, Dec. Dig. § 405[6].) 4. MASTER AND SERVANT-COMPENSATION FOR PERMANENT DISABILITY NOT DEFEATED BY EARNING CAPACITY. When it appears that an injured workman suffers the loss of both hands or both feet or both legs or both eyes or any two thereof or the permanent loss of the use of such members, he cannot be denied the compensation provided in the act because he obtains employment even at better wages at a task which he is physically able to perform. (For other cases, see Master and Servant, Dec. Dig. § 385[11].) Appeal from State Industrial Commission of Oklahoma. Proceeding by Jack Bishop for compensation under the Workmen's Compensation Law, opposed by the Superior Smokeless Coal & Mining Company, employer, and the Consolidated Underwriters, insurance carrier. from an order of the Industrial Commission allowing compensation, the emplover and insurance carrier appeal.. Order affirmed. Moss & Tumilty, of Oklahoma City, for petitioners. S. P. Freeling and R. E. Wood, both of Oklahoma City, for State Industrial Commission. |