Brown v. Department of Labor and Industries

• Decision Date: 23 August 1945
• Docket Number: 29512.
• Citation: 23 Wn.2d 572,161 P.2d 533
• Parties: BROWN v. DEPARTMENT OF LABOR AND INDUSTRIES et al.
• Court: Washington Supreme Court

161 P.2d 533

23 Wn.2d 572

BROWN v. DEPARTMENT OF LABOR AND INDUSTRIES et al.

No. 29512.

Supreme Court of Washington

August 23, 1945

Rehearing Denied Oct. 2, 1945.

Department 1.

Proceeding for additional compensation under the Workmen's Compensation Act by Madge K. Brown, claimant, opposed by the Weyerhaeuser Timber Company, employer. From a judgment of dismissal notwithstanding a jury's verdict for claimant on appeal from an order of the joint board of the Department of Labor and Industries sustaining a supervisor's refusal to reopen a closed claim, claimant appeals.

Affirmed.

Appeal from Superior Court, Cowlitz County; J. E Stone, judge.

W. H Sibbald, of Kelso, for appellant.

Smith Troy, Atty. Gen., and Harry L. Parr, Asst. Atty. Gen., Temple of Justice, both of Olympia, for respondent.

Lester H. Huntington, of Kelso, for employer.

BEALS Chief Justice.

During the month of January, 1936, Madge K. Brown (to whom we shall refer as claimant or appellant), who was then in the employ of the Weyerhaeuser Timber Company, at Longview, Washington while engaged in extrahazardous work, sustained an injury to her right foot. She presented her claim to the department of labor and industries, which classified her as temporarily totally disabled, and paid her compensation upon that basis to January 10, 1937, when her claim was closed without any permanent partial disability rating.

In December, 1939, claimant applied for the reopening of her claim, stating that her injury had become aggravated. Her claim was reopened, some operative work was performed on her foot, and she was paid on the basis of temporary total disability up to April 4, 1940, when the claim was again closed with no permanent partial disability rating.

Being dissatisfied with this action of the supervisor, claimant petitioned for a rehearing Before the joint board, contending that she was suffering from a permanent partial disability, and that she was unable to work. A rehearing was had, and thereafter the department paid claimant $300 based upon a ten-degree rating for permanent partial disability. Upon payment of this sum January 13, 1941, the claim was again closed.

In September, 1942, claimant again asked that her claim be reopened, and that she be given medical treatment. The department sent her to a physician in Portland, Oregon, who examined her and recommended that she be provided with an arch support. December 10, 1942, after having provided the arch support recommended by the doctor, the claim was again closed.

Claimant objected to this action, and the department thereafter caused her to be examined by a commission of three doctors notifying her after the examination that her claim would remain closed.

Claimant being still dissatisfied, it appears that at some later date a doctor in the employ of the department examined her and that upon his suggestion she was examined by another physician.

After receiving these further reports, the department adhered to its former decision and refused to reopen the claim, whereupon claimant asked for and received a rehearing Before the joint board, which body sustained the action of the supervisor.

Claimant then appealed to the superior court, where her case was tried to a jury which returned a verdict in her favor. This verdict, however, the trial judge set aside upon the department's motion for judgment notwithstanding the verdict.

From judgment dismissing the cause, claimant has appealed to this court.

Appellant assigns error upon the court's refusal to allow the entire departmental file to go to the jury.

Error is also assigned upon the giving of two instructions and upon the order of the court setting aside the verdict of the jury and entering judgment in respondents' favor dismissing the action.

Appellant correctly states that the sole question presented to the jury for decision was, 'Has the appellant's injury been aggravated since January 13, 1941?'

At the beginning of the trial, appellant's counsel offered in evidence what he referred to as the entire departmental file, and urged that it be admitted in evidence subject to examination by the jury.

Counsel for the department objected to the admission in evidence of the entire record, and the court, stating that the question to be determined was merely one of aggravation, brought Before the court on appellant's appeal from the other of the joint board closing her claim and denying her further compensation, sustained the objection to the admission of the entire record or file.

Appellant argues Before this court that the court erred in excluding any portion of the departmental record. The burden, however, rests upon appellant to show that at least some part of the excluded portion of the record and evidentiary bearing upon the issue presented Before the trial court, which appellant herself defined according to the above quotation from her brief. Wintermute v. Department of Labor & Industries, 183 Wash. 169, 48 P.2d 627.

In the case of Sweitzer v. Department of Labor &amp Industries, 177 Wash. 28, 34 P.2d 350, this court, by its En Banc opinion rendered on rehearing of the case, held that a report of an examining physician in such a case as this made prior to a hearing Before the joint board could not be considered by the superior court on appeal by the claimant from the order entered by the joint board, the physician not having testified Before the board either personally or by deposition as provided by Rem.Rev.Stat. § 7697. The section cited was amended by Chapter 280, Session Laws of 1943, page 879, Section 20, but the amendment nowise changed...