Abraham v. Department of Labor and Industries of Washington, 25149.

• Decision Date: 09 July 1934
• Docket Number: 25149.
• Parties: ABRAHAM v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.
• Court: Washington Supreme Court

34 P.2d 457

178 Wash. 160

ABRAHAM v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.

No. 25149.

Supreme Court of Washington

July 9, 1934

Department 2.

Appeal from Superior Court, Spokane County; Fred H. Witt, Judge.

Proceeding under the Workmen's Compensation Act by Bertha Abraham for the death of her husband, in which compensation was allowed. From an order of the Department of Labor and Industries of the State of Washington subsequently rejecting her claim, claimant appealed to the superior court. From its judgment reversing such order, the Department of Labor and Industries appeals.

Affirmed.

G. W Hamilton and Browder Brown, both of Olympia for appellant.

F. M O'Leary, of Spokane, for respondent.

TOLMAN Justice.

This case was heard by the joint board and submitted to the trial court upon an agreed statement of facts, and therefore this appeal presents a question of law only.

The respondent is the widow of a deceased workman. In due course after the death of her husband, which occurred by reason of injuries received during the course of his employment, she was by the department allowed a pension of $42.50 per month and a reserve fund, computed at $4,239.17, was set aside to provide therefor.

The award was made on April 15, 1931, the pension to date from January 4, 1931, and payments were regularly made thereafter to respondent up to April, 1933. At that time and under date of April 24, 1933, the department, through its supervisor made and served upon the respondent an order from which we quote:

'This claim coming on for consideration this date, it is found that in conformity with the decision of the Supreme Court in the case of Carstens v. Department of Labor and Industries, as filed on February 23, 1933, they hold in part as follows:

"We therefore hold that the service performed by the workman does not in and of itself bring him under the Act, but it must be a service performed for an employer who comes under the Act.'

'It is the opinion of the Attorney General that claims of similar nature, previously allowed, should be immediately rejected and payments stopped.

'It is therefore ordered by the Supervisor of Industrial Insurance, in compliance with the findings of the Supreme Court and the opinion of the Attorney General, that all such claims be rejected and closed without further payments.

'Therefore, it is ordered that the claim of Bertha Abraham, widow of J. A. Abraham, be rejected and her name stricken from the pension roll, for the reason that at the time of the injury the deceased was not a workman in the employ of an employer whose work was within the jurisdiction of the Workmen's Compensation Act.'

Upon receipt of this order respondent made application for a rehearing Before the joint board, which was had and resulted in a ruling sustaining the order which we have quoted.

Thereafter, respondent appealed to the superior court, where the orders of the joint board and of the department were reversed and a judgment entered directing the department to reinstate respondent to all of her rights as a pensioner.

From that judgment the department has appealed and primarily urges that under the decision in the Carsten...