Cady v. Department of Labor and Industries

• Decision Date: 18 October 1945
• Docket Number: 29277.
• Parties: CADY v. DEPARTMENT OF LABOR AND INDUSTRIES et al.
• Court: Washington Supreme Court

162 P.2d 813

23 Wn.2d 851

CADY v. DEPARTMENT OF LABOR AND INDUSTRIES et al.

No. 29277.

Supreme Court of Washington

October 18, 1945

Department 1.

Proceedings on the claim of James H. Cady, claimant, for compensation for a permanent disability to claimant's hand, opposed by Department of Labor and Industries of the State of Washington and Esses Logging Company, employer. From a judgment on a verdict making a minor increase in the award granted by the department, claimant appeals.

Reversed with directions.

Appeal from Superior Court, Grays Harbor County Wm. W. Campbell, judge.

F. W Loomis, of Aberdeen, for appellant.

Smith Troy and Harry L. Parr, both of Olympia, for respondent.

L. B Donley, of Aberdeen for Esses Logging Co.

STEINERT Justice.

This was an action to recover upon a claim for workman's compensation, under the Industrial Insurance Act. Rem.Rev.Stat. § 7673 et seq. The action was ultimately tried in the superior court Before a jury. The department of labor and industries and the claimant's employer resisted the action. The jury returned a verdict in favor of the claimant, modifying the decision previously made by the joint board of the department with reference to the claim, and increasing the amount of the award thereon. The claimant, deeming himself aggrieved by the instructions and other rulings of the court upon the trial as affecting the amount of the verdict, appealed from the judgment finally entered. The claimant will hereinafter be referred to as the appellant. The employer has not appeared upon this appeal, and the department alone will therefore be referred to as the respondent.

At the time involved in this action, appellant, sixty years of age, was employed in a logging operation, which is classified as extrahazardous employment. While falling a tree, on May 20, 1942, he endeavored to disengage a saw and, in so doing, in some manner grasped hold of the under side of the implement. In consequence of his act, a saw tooth penetrated the lower third of the under side of the middle finger of his left hand. Infection followed and appellant was compelled to quit his employment. He did not do any work for a period of about six weeks thereafter, during which time the finger was lanced four times by physicians, and other treatment was regularly given him at a hospital. In the course of this same period, and thereafter, the other fingers of his hand became swollen and partially stiff.

A claim for compensation, filed by the appellant, was recognized by the department of labor and industries and was closed by an order of the supervisor, under date of September 4, 1942, with an allowance of time loss to July 14, 1942, and permanent partial disability in the sum of $71.25. The order of the supervisor was based upon the report of a physician who examined the appellant at the instance of the department and who, in his report, made a finding and rating of permanent partial disability for swelling and ankylosis of the second and third joints of the middle finger, to the extent of thirty per cent of the 'amputation value' of the finger at the second joint. No allowance was considered, or made, for any disability of the other fingers or other portions of the hand.

In speaking of the various joints in, or connected with, the fingers, the record refers to the proximal joint, which is the first, or knuckle, joint and is the nearest one to the palm of the hand; the middle, or second, joint; and the distal, or third, joint, which is farthest from the palm.

Upon receipt of the order made by the supervisor, the appellant, through his attorney, in due time made application for a rehearing by the joint board of the department and in his application alleged that, as a result of the accident, he had sustained a permanent disability as to his hand, as well as to all the fingers thereof, amounting to 'from seventy-five (75) to one hundred per cent (100%)' of the use thereof. The application for rehearing was granted, and a full hearing was held Before an examiner for the joint board, upon the testimony of witnesses regularly sworn. The issue toward which the evidence was directed was whether the appellant should be compensated for the injury to his hand as a whole, as contended by the appellant, or whether he should be compensated merely on the basis of an injury to his middle finger, as then contended by the respondent department.

Dr. J. H. Fitz, a physician engaged in general practice for thirty-eight years, was called as a witness for the appellant. His testimony, given at length, was in substance as follows: After obtaining from the appellant a history of the accident and injury, he made a thorough examination of appellant's left hand and arm, and found a badly crippled hand. The middle finger was stiff in the middle and distal joints and partly stiff in the proximal joint. The other fingers also were stiff in the distal and proximal joints, but less so than was the middle finger. There was some motion in the proximal joint of the middle finger, but none in the distal or middle joints of that finger. There was also a limitation of motion in the middle and distal joints of the other fingers. In the hand itself was some atrophy. These conditions were all attributable to the original injury. The middle finger in its present condition is a liability rather than a benefit. Had it been amputated during the early stages of the case, the joints of appellant's other fingers would have had a chance to loosen up, but now, owing to appellant's age, the lapse of time since the injury, and the intervening infection, amputation would be of doubtful value. If the fingers were rated separately, the disability of the middle finger would be one hundred per cent because of its utter uselessness; the disability of the other fingers would be at least fifty per cent as to each. However, these injuries to the fingers, as described above, constitute a disability of appellant's entire left hand, to the extent of seventy-five per cent, due to the loss of gripping power which resulted from the stiffness in the various joints of his fingers; appellant can only partially close his hand. In all probability there will be no improvement in appellant's condition as time goes on; rather will there be a deterioration.

Appellant, testifying in his own behalf, described the manner of his receiving his injury, the treatment given him, and the stiffness that has developed progressively in his various fingers during the treatment thereof, and since that time. He testified that owing to his injury he cannot grip anything with his left hand, and that the only use he has of his middle finger is to guide the hand. His occupation throughout his lifetime has been that of a common laborer and carpenter. He now has only about one-fifth the normal use of his left hand.

The respondent called as a witness in its behalf Dr. I. R. Watkins, a physician with forty years' experience. He testified as follows: He attended the appellant a portion of the time during the sufference of his disability and performed one operation on the middle finger. On the day of the continued hearing Before the joint board, February 10, 1943, he again examined the appellant and found that his condition was not as good as it had been at the time of the former examination and treatment. A moderate amount of ankylosis had developed in the other three fingers, attributable to disuse, but which would probably clear up on use of those fingers. There was a moderate amount of ankylosis in the proximal joints of all the fingers, and the distal joint of the middle finger was completely ankylosed. The doctor found no material atrophy of the injured hand. He rated the disability of the middle finger on the basis of amputation value at the middle joint thereof, and, for the condition of the other fingers and the rest of the hand, he recommended an allowance of a disability of five per cent of amputation value at the wrist.

Dr. Edward B. Riley, a physician of thirty-three years' experience, was then called on behalf of the respondent and testified as follows: He examined the appellant in August, 1942, and made the report upon which the order of the supervisor was based. He reaffirmed his original rating of permanent partial disability, for swelling and ankylosis of the second and third joints of the lefthand middle finger, at thirty per cent of the amputation value of that finger at the second joint.

During the course of the hearing Before the joint board, two photographs, taken by a commercial photographer, showing the condition of appellant's hand two days Before the hearing, were identified by the photographer and were offered in evidence by the appellant and admitted without objection, after cross-examination by both the department and the employer's attorney.

At the conclusion of the hearing, and after a consideration of the evidence, the joint board, accepting the rating of disability made by Dr. Watkins, entered an order as follows:

'It is hereby ordered that the Supervisor's action be and hereby is reversed with instructions to reopen the claim and award a permanent partial disability to the left middle finger equal to 100% of the amputated value of the middle finger at the second joint in the amount of $237.50, and award a permanent partial disability of 5% of the amputated value of the left hand at the wrist for the stiffness of all fingers of the hand at the proximal joint, in the amount of $91.20, or for a total award for permanent partial disability to the left hand in the amount of $328.70, less a previous permanent partial disability award of $71.25, or for an additional permanent partial disability award of $257.45, and the claim thereupon closed.' (Italics ours.)

It...