Le Bire v. Department of Labor and Industries (State Report Title: LeBire v. Department of Labor and Industries)

• Decision Date: 31 July 1942
• Docket Number: 28631.
• Citation: 14 Wn.2d 407,128 P.2d 308
• Parties: LE BIRE v. DEPARTMENT OF LABOR AND INDUSTRIES et al. [*]
• Court: Washington Supreme Court

128 P.2d 308

14 Wn.2d 407

LE BIRE v. DEPARTMENT OF LABOR AND INDUSTRIES et al. ^[*]

No. 28631.

Supreme Court of Washington

July 31, 1942

Department 2.

Proceeding under the Workmen's Compensation Act by Arthur Le Bire claimant, opposed by the Department of Labor and Industries of the State of Washington and the Weyerhaeuser Timber Company, employer. From a judgment of the superior court dismissing appeal from order of the Joint Board of the Department of Labor and Industries, sustaining supervisor's action in refusing to reopen the claim, the claimant appeals.

Affirmed.

Appeal from Superior Court, Whatcom County; Hobart S. Dawson, judge.

Harry Ellsworth Foster, of Olympia, and Tim Healy, of Bellingham for appellant.

Smith Troy and T. H. Little, both of Olympia, and W. E. Heidinger and T.J. Hanify, both of Tacoma, for respondents.

STEINERT, Justice.

Claimant an injured workman, made application to the department of labor and industries for the reopening of a claim which had been filed and closed some time Before , and for the allowance to him of additional compensation for aggravation of his previous disability. The application was denied by the supervisor of the department and by the joint board, and, on appeal to the superior court, a judgment was rendered sustaining the action taken by the departmental authorities. The claimant workman thereupon appealed to this court.

Appellant Arthur Le Bire, was employed by the respondent Weyerhaeuser Timber Company at Everett, Washington. On April 20, 1937, while working in the boiler room in the respondent company's mill, he slipped and fell, striking his right knee against an angle iron alongside a brick wall. The injury caused some immediate swelling of the knee and was accompanied with pain, but appellant did not at the time consider it serious. He continued thereafter for several months to report regularly for work without having any medical attention except that on May 3rd, at the suggestion of the company's foreman, he consulted a physician, who bandaged the injured limb. The swelling and pain, however, persisted.

In the early part of August, while laying some tile, appellant slipped from a scaffold and strained his left knee. By September 23rd, both knees had become so swollen and painful that he was compelled to cease work entirely, and he has not worked at any time since then, except for two and a half hours on October 18, 1937. On October 20th he filed with the department a claim for compensation for the injury to his right knee. Following an investigation, and pending a more complete examination, appellant was paid monthly time loss compensation.

On May 27, 1938, appellant was examined by a commission of three doctors, who rendered a report stating, as their conclusions, that: 'Mr. Le Bire has an unquestionable multiple chronic proliferative arthritis involving many joints which he dates to a bruise on his right knee. This illness can not in any way be considered related in etiology or incidence to the above injury but is more likely closely aligned to the prostatic and dental infections [found by the doctors to exist]. The trauma of the injury of Apr. 20, 1937 when the claimant bumped his knee against a brick wall can be considered only as an injury superimposed on a preexisting condition with a possibility as serving in the nature of an aggravation. We recommend therefore that this injury be segregated from the remaining illness and that a P.P.D. [Permanent Partial Disability rating] of 5 degrees be awarded to cover this minor injury, and that the claim be closed on this basis.'

Pursuant to that report, and upon consideration of the complete record at that time, the supervisor of industrial insurance on behalf of the department made an order on July 8, 1938, allowing appellant time loss compensation to that date, together with five degrees permanent partial disability, but at the same time specifically 'denying any and all responsibility or liability for treatment and disability caused by the multiple chronic proliferative arthritis.' On July 11 the supervisor entered an order closing the claim on that basis.

About two weeks later, appellant, through a firm of attorneys, filed a petition for rehearing by the joint board of the department. In his petition he claimed error on the part of the supervisor in refusing further time loss compensation and in fixing his permanent partial disability at only five degrees; he also alleged that he was totally incapacitated and prayed that he be given further time loss compensation and treatment, together with an increased allowance for permanent partial disability. The petition for rehearing was granted, and on October 24, 1938, the appellant was again examined by a commission, consisting of five doctors. The commission reported that appellant's general condition had improved somewhat in the meantime, but declared that the injury of April 20, 1937, was not the 'primary factor' in appellant's existing condition of involved joints, and in conclusion expressed the view that the previous award was sufficient to cover the damage caused by the original injury.

Before the time for rehearing on the petition had arrived, an agreement of settlement was made, in consequence of which appellant on November 10, 1938, formally and in writing signed by himself and his attorneys withdrew his 'appeal' to the joint board, conditioned upon the payment to him of a stipulated amount of time loss compensation and an increased permanent partial disability allowance of fifteen degrees. In his notice of withdrawal of appeal, appellant further agreed that the department might segregate and deny liability for preexisting arthritis and gonorrheal infection. Pursuant to that agreement and withdrawal of appeal, and upon the waiver by the respondent employer of any protest against the contemplated award, the joint board entered an order on November 14, 1938, directing that the appeal be dismissed with prejudice to all issues involved therein and remanding the matter to the supervisor for payment and closure in accordance with the terms of settlement agreed upon by the parties. Notice of that order was sent to appellant and to his attorneys, and no appeal was ever taken therefrom. Pursuant to the order of the joint board, the supervisor on November 15 entered a corresponding order closing the claim on the terms prescribed, but again denying 'any and all responsibility and liability for treatment of the preexisting arthritis and gonorrheal infection and any disability necessitated thereby.' Notice of that order was likewise sent to appellant and his attorneys, but no steps were ever taken to review that order on rehearing or by appeal.

About eighteen months later, in May, 1940, appellant, assisted by his attorneys above mentioned, again made application to the department for the reopening of his claim and the allowance of further time loss compensation. The matter was once more referred to a commission of three doctors, who examined appellant and thereafter reported that he had a chronic systemic disease and progressive arthritis, but that there had been no aggravation of his condition due to injury to his right knee. Based upon that report, and upon consideration of the complete record, an order was entered by the supervisor on July 9, 1940, directing that the claim remain closed in accordance with the preceding order and notice of November 15, 1938. Appellant did not file any petition for rehearing with respect to the action thus taken by the supervisor, nor did he take any steps to have the supervisor's order of July 9, 1940, ultimately reviewed by the superior court.

Seven months later, however, on February 7, 1941, appellant, under the guidance of his present counsel, again made application to the department for the reopening of his claim, alleging in his application that his knees had become stiff and more painful, that his general condition had become progressively worse, and that he was then almost totally blind. The present appeal grows out of the action taken by the department on this last application.

The supervisor, on receipt of the application, referred the matter to a commission composed of three doctors. Following a physical examination of the patient, the commission reported that appellant was suffering from an advanced multiple chronic proliferative arthritis of a fulminating type, with multiple severe ankylosis and contractures, but that the injury of April 20, 1937, had played no part in his present illness, even though his existing condition showed a marked increase in disability since the last examination, rendering him totally and permanently disabled. Upon consideration of the findings and conclusions made by the medical commission, the supervisor entered an order on April 16, 1941, directing that the claim remain closed in accordance with the final notice given November 15, 1938.

Appellant thereupon petitioned for, and was granted, a rehearing by the joint board. At the rehearing, he introduced the testimony of himself, his wife, and his attending physician. The department introduced no testimony, nor did the respondent Weyerhaeuser Timber Company. Thereafter, on July 21, 1941, the joint board entered its order sustaining the supervisor's action in refusing to reopen the claim. From that order, the workman appealed to the superior court.

The cause came on duly for trial in the superior court Before a jury. The respondent Weyerhaeuser Timber Company moved the court to dismiss the appeal on two grounds: (1) That the joint board's order of November 14, 1938, dismissing appellant's then pending 'appeal' Before the board, and the supervisor's final closing order of November 15th, which denied liability for...