Cole v. Department of Labor and Industries

• Decision Date: 24 August 1939
• Docket Number: 27378.
• Citation: 200 Wash. 296,93 P.2d 413
• Parties: COLE v. DEPARTMENT OF LABOR AND INDUSTRIES et al.
• Court: Washington Supreme Court

93 P.2d 413

200 Wash. 296

COLE v. DEPARTMENT OF LABOR AND INDUSTRIES et al.

No. 27378.

Supreme Court of Washington, En Banc.

August 24, 1939

Proceedings under the Workmen's Compensation Act by Emma Louise Cole widow of a deceased employee, against the Department of Labor and Industries of the State of Washington and the E. C Miller Cedar Lumber Company, a corporation, employer. From a judgment of the superior court reversing an order by the supervisor and the joint board of the Department of Labor and Industries rejecting plaintiff's claim for widow's pension and remanding claim to the joint board for further proceedings, the employer appeals.

Reversed with directions.

MAIN J., dissenting, and BEALS and GERAGHTY, JJ., and BLAKE, C.J., dissenting in part.

Appeal from Superior Court, King County; Roger J. Meakim, judge.

L. B. Donley, of Aberdeen, for appellant.

John Geisness and Newton C. McCoy, both of Seattle, for respondent.

G. W. Hamilton, Atty. Gen., and J. A. Kavaney and T. H. Little, Asst. Attys. Gen., for Department of Labor and Industries.

STEINERT Justice.

A claim for widow's pension under the workmen's compensation act was rejected by the supervisor and by the joint board of the department of labor and industries. On appeal by the claimant to the superior court, where the cause was reviewed by the court solely on the departmental record, the order of the department was reversed and the claim was remanded to the joint board for further proceedings. The employer of the deceased workman has appealed.

The brief of the respondent widow opens with a motion to dismiss the appeal, upon two grounds.

The first ground is that appellant employer, a corporation, has no right of appeal because it did not apply for a rehearing Before the joint board according to the provisions of Rem.Rev.Stat. § 7697.

The employer was not aggrieved by the order of the supervisor; hence, there was no occasion for it to apply to the joint board for a rehearing. Likewise, the employer was not aggrieved by the final order of the joint board; hence, there was no occasion for it to appeal to the superior court. The widow was the aggrieved party in both instances, and she alone had occasion to apply for a rehearing and to appeal. These steps she took. The statute contemplates but one rehearing Before the joint board, and when that has been had and a final order has been entered by the board, the matter is closed so far as the department is concerned. Albrecht v. Department of Labor & Industries, 192 Wash. 520, 74 P.2d 22.

The second ground of the motion is that the employer did not become a party to the record because it did not petition to intervene. The employer participated in the hearings Before the joint board and in the hearing Before the court. It was an interested and active party, and was aggrieved by the judgment of the superior court. It, therefore, had the right to appeal to this court. Hoff v. Department of Labor & Industries, Wash., 88 P.2d 419. The motion is denied.

On the merits of the case, the sole question is whether or not the respondent has, by a clear preponderance of the evidence, overcome the presumption in favor of the correctness of the decision of the department.

Rem.Rev.Stat. § 7697, provides that in all court proceedings under or pursuant to the workmen's compensation act, the decision of the department shall be prima facie correct, and the burden of proof shall be on the party attacking the decision. Zankich v. Department of Labor & Industries, 189 Wash. 25, 63 P.2d 427; Russell v. Department of Labor & Industries, 194 Wash. 565, 78 P.2d 960; Cooper v. Department of Labor & Industries, 195 Wash. 315, 80 P.2d 830; Langford v. Department of Labor & Industries, 195 Wash. 412, 81 P.2d 277; Schraum v. Department of Labor & Industries, Wash., 85 P.2d 262.

The facts, so far as they are undisputed, are these: On December 16, 1934, John Cole, an employee of appellant, being engaged in extrahazardous employment, within the meaning of the workmen's compensation act, fell from a ladder a distance of about twelve feet onto and across the side of a fuel bin and severely injured his right arm in the region of the axilla, or armpit. At the time of the accident, Cole appeared to be a normal, healthy man. Following the accident, his arm became swollen and discolored, and varicosities developed around the shoulder and across a portion of the chest, indicating that, due to the injury to the axillary vein, nature had attempted to establish a return flow of the blood through the superficial veins. From the time of the accident until about the middle of February, 1935, Cole worked only part time. The department thereupon allowed him compensation for time loss to the extent of twenty-three days, and later, in March, awarded him compensation for permanent partial disability to the extent of five degrees. The swelling was then gradually decreasing.

On April 26, 1935, Cole reported to his physician that he had tried to work, but could not do so on account of the pain. The swelling in the right upper arm had not then wholly disappeared. Some time in May or June of that year, Cole developed what was described as a brassy cough. From May until October, and during such times as appellant's mill was in operation, Cole continued to work, but with some interruptions; his general health, however, progressively declined.

In October, Cole noticed a pulsating tumor in the upper part of his chest. His physician diagnosed it as an aneurism of the aorta, and ordered him to cease work entirely. On November 9, Cole entered a hospital, and the following day the aneurism burst, resulting in the death of the patient.

Cole's widow filed a claim for pension January 27, 1936, and on April 17, pursuant to an order of court, the body was exhumed, and a post-mortem examination was made by three physicians, of whom one was appointed by the department, one by the widow, and the third selected by the two appointees. At the conclusion of the autopsy, the commission of specialists made written findings of the discovery of a ruptured aneurism of the first part of the arch of the aorta and numerous sclerotic plaques extending down to the bifurcation of the abdominal aorta. They reported, as their anatomical diagnosis, rupture of an aortic aneurism, arteriosclerosis of the arteries, fibrosis and calcification and partial occlusion of the coronary arteries, and almost complete obliteration of the subclavian and right axillary vein. Relative to the cause of death, it was the opinion of the three specialists, as expressed in their report, that the aneurism preexisted the injury of December 16, 1934, that it was due solely to disease unrelated to trauma, and that the injury neither contributed to nor aggravated the preexisting condition.

Upon the rehearing Before the joint board, considerable evidence was taken consisting principally of the testimony of physicians, and the case is, therefore, pecliar in that the determination of the factual issue rests primarily upon the testimony of medical experts.

All of the physicians were in accord to the following extent: (1) That the death of the workman was caused by the bursting of the aneurism; (2) that the primary cause of aneurism is arteriosclerosis; and (3) that the facts disclosed by the autopsy were sufficient of themselves to account for the aneurism. The issue of fact comprehended in the legal question submitted to us is, therefore, narrowed to the single question whether or not the injury of December 16, 1934, was a causative factor in the formation or the aggravation of the aneurism, resulting in the workman's death.

The attending physician, called as a witness by respondent, testified that he 'believed' that there was a causal connection between the injury and the ruptured aneurism. Amplifying his statement, he said: 'Well, whether or not there was an aneurism there at the time of the injury is impossible for me to state. He had no indication of anything, so far as I knew, up until that time; but having an aneurism at that time, it would be my opinion that his death was hastened by the injury that he sustained to the aneurism.' He further testified that, as a medical matter, he would assume that Mr. Cole had a weakened arterial wall at the time of the injury, that a severe jar 'might' temporarily increase the blood pressure and as a result further weaken the arterial condition, and that the 'probable' effect of the jarring injury which he sustained on December 16, 1934, would be to further tend to weaken the arterial wall.

On cross-examination, the witness reiterated his statement that 'there probably was some weakened condition there prior to that [the injury].' He conceded, however, that he had never taken the blood pressure of the workman and knew nothing about it. He further admitted that in his practice he had never known of an injury in the region of the arm or shoulder which, in his opinion, caused, contributed to or aggravated an aneurism of the aorta.

Respondent's other physician witness, testifying in response to a hypothetical question, stated that, in his opinion, the accident would have had no effect upon a normally elastic aorta, but that a blow of sufficient intensity to cause damage to the axillary structures 'might' cause damage to the arch of the aorta, particularly if it was not entirely normal in elasticity or size.

The substance of the testimony of these two witnesses included (1) an assumption of a prior weakened condition of the arterial wall, and (2) a conclusion that the jar consequent upon the injury 'might' have accentuated the weakened condition and thus probably hastened the workman's death. The evidence was, at best, conjectural and speculative.

The...