Brittain v. Department of Labor and Industries, 25066.

• Decision Date: 10 August 1934
• Docket Number: 25066.
• Parties: BRITTAIN v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

35 P.2d 49

178 Wash. 499

BRITTAIN v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 25066.

Supreme Court of Washington

August 10, 1934

Department 1.

Appeal from Superior Court, Clallam County; John M. Ralston, Judge.

Proceeding under the Workmen's Compensation Act by Roy Brittain, in which compensation was allowed and the claim closed. From an order of the Department of Labor and Industries on rehearing sustaining the action of the supervisor in declining to open the 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.

Vanderveer & Bassett, of Seattle, for respondent.

MITCHELL, Justice.

Roy Brittain, on November 7, 1930, while engaged in extrahazardous employment in the woods for Bloedell-Donovan Lumber Company, sustained an injury to his back. The Department of Labor and Industries recognized his claim and paid compensation for time loss of thirty-four days following which his claim was closed about December 10, 1930 without any other or further allowance.

Thereafter April 2, 1932, while engaged in the same kind of employment for the same employer, he received another injury of the same kind and in the same way. The Department of Labor and Industries recognized his second claim, and paid compensation for time loss of fifty days from April 26, 1932, to June 14, 1932, at which time the claim was closed without awarding any permanent partial disability; the order being dated June 30, 1932.

It appears that on August 15, 1932, he called at the office of the department seeking further compensation or adjustment of his claims. On the following day, August 16, 1932, the assistant medical adviser of the department, upon a personal examination of the claimant on behalf of the department, made and filed a written report as to claimant's condition, upon which report the department, on August 17, 1932, notified claimant that on account of a pre-existing condition of osteoarthritis, as shown by the report, 'we are unable to take any further action on your claim. We must refer you to our closing of this claim on June 14, 1932.'

Thereafter, on September 30, 1932, well within sixty days after the final closing of the claims the last time, the claimant petitioned the department to reopen both claims on the ground of aggravation of the injuries, and in several enumerated particulars. Thereafter, October 10, 1932, the department ordered the claimant to appear at its office in Olympia for a special examination on October 17, 1932. Examination was made, and on October 18, 1932, the department entered an order, of which notice was given to the claimant, as follows: 'Our records show that you were examined in this office yesterday in connection with your injuries of April 2, 1932 and November 7, 1930. According to the findings of our medical examiner had it not been for the preexisting condition of arthritis there would have been no disability or pain due to either of these accidents. We must therefore refer you to the notices of closing dated June 30, 1932 and December 10, 1930 and both these claims must remain closed as paid.'

On December 13, 1932, claimant petitioned the joint board of the department for a rehearing on both claims, and a rehearing was granted by order entered December 19, 1932.

On the rehearing, testimony was taken from time to time Before an examiner or commissioner for the joint board, and upon the filing of a stenographic report of it the joint board sustained the action of the supervisor in declining to reopen the claims, on the ground that the claimant, prior to the dates of the two accidents, was suffering from the pre-existing disease of osteoarthritis of the lumbar spine, and that the aggravation of pain, if any, in claimant's back was due to the progress of the pre-existing disease and not to the accidental injuries received.

The claimant appealed to the superior court where, upon trial, findings of fact and conclusions of law were entered in his favor, upon which judgment was entered accordingly. The department has appealed.

The assignments center upon findings 4 and 5 which the appellant claims, in effect, are not justified by a preponderance of the evidence, or rather that the evidence does not preponderate against the findings of the joint board, which findings are contrary to those made by the trial court. The findings of the trial court are as follows:

IV. That following the closing of this second claim plaintiff returned to his work but he was never entirely free from pain in his back, and as time went on the pain became more severe, his left hip and leg became weak and he is unable to bend over or stoop without suffering severe pain in his back, left hip and left leg. That this condition grew progressively worse and plaintiff is now permanently disabled from engaging in his former occupation as a logger.

'V. That prior to his aforesaid accidents and injuries plaintiff was an able-bodied man, always followed the hardest types of manual labor for a livelihood; that he was free from any pain or disability in his back or elsewhere; that as a direct result of said injuries he now has a permanent partial disability of 20 degrees.'

As to finding No. 4, that respondent's condition grew progressively worse, the argument is that the claim had been closed on June 30, 1932, and that under section 7697, Rem. Rev. Stat., he had sixty days in which to petition to the joint board for a rehearing; that his petition for a rehearing was not filed until September 30, 1932, or ninety days after his claim was closed; and that therefore there was left for him only one ground for a...