Barrett v. Department of Labor and Industries, 34325
Decision Date | 29 May 1958 |
Docket Number | No. 34325,34325 |
Citation | 325 P.2d 896,52 Wn.2d 439 |
Court | Washington Supreme Court |
Parties | Everett BARRETT, Appellant, v. The DEPARTMENT OF LABOR AND INDUSTRIES, State of Washington, Respondent. |
Clarence J. Coleman, McCrea & Kafer, Everett, for appellant.
John J. O'Connell, Daniel G. Goodwin, Seattle, for respondent.
Claimant was engaged in extrahazardous work at the Hanford project of the Atomic Energy Commission. The work being slack on December 24, 1953, he was told to practice heliarc welding on scrap stainless steel. He picked up a piece from the floor, which had dirt and oil on it. The fumes created by the welding brought on a protracted spell of severe coughing, which was followed by pain in the chest and nausea. The doctor to whom he went for treatment diagnosed his condition as coronary thrombosis.
His claim was rejected by the supervision of industrial insurance. Claimant appealed to the board of industrial insurance appeals, which affirmed the order of the supervisor upon the ground that he had suffered from a pre-existing heart condition, which was not caused by the coughing incident.
He, thereupon, appealed to the superior court. The jury returned a verdict in his favor, and the superior court granted a new trial from which order the claimant appeals.
The ground for granting a new trial was that instruction No. 9 was erroneous. It reads:
'If, by a preponderance of the evidence, you find the fact to be that Everett Barrett had a pre-existing heart condition and that a strain to his heart was received by him during the course of his employment as a welder, no matter what degree, was a precipitating factor in bringing on the heart condition, if any, that plaintiff claims he suffered on and after December 24, 1953, your verdict should be for the plaintiff.'
The respondent has always contended that the appellant had a pre-existing heart ailment. In support of the order for a new trial, it contends that the instruction was prejudicial error because there was no testimony of any medical witness that there was a causal relationship between the coughing spell and the coronary thrombosis.
The appellant's doctor examined him and took a history of the coughing followed by pain in the chest. He also did an electrocardiogram. From it and his examination, the doctor concluded that the appellant had suffered an anterior wall infarct of the heart, which was caused by (1) the strain of the coughing incident, and (2) by the fact that he was at work. The doctor could not state whether the heart attack in question was due to a thrombus or an embolus. He further stated that but for the strain of coughing the heart attack would not have occurred that day.
This medical testimony of the causative effect of the coughing incident occurring during the performance of his duties in extrahazardous employment, which produced the heart attack, made a prima facie case for the jury.
The cross-examination of the doctor, which developed into a semantic excursion, did not materially affect his direct testimony. He never receded from his statement that the coughing had a causative relationship to the heart ailment, but he conceded that '* * * it is conceivable that this could have been merely coincidental.' (Italics ours.) The doctor stated that he would not absolutely say that the heart attack would not have...
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