Cooper v. Department of Labor and Industries

• Decision Date: 11 April 1944
• Docket Number: 29148.
• Parties: COOPER v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

147 P.2d 522

20 Wn.2d 429

COOPER v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 29148.

Supreme Court of Washington

April 11, 1944

Department 2.

Proceeding by Arthur R. Cooper, claimant, against the Department of Labor and Industries to review a decision of the Department rejecting an application for the reopening of the case for the purpose of obtaining additional award. From a judgement for the claimant, the Department of Labor and Industries appeals.

Reversed with directions.

BLAKE J., dissenting.

Appeal from Superior Court, Lewis County; C. A. Studebaker, Judge.

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

Griffin & Gershon, of Seattle, for respondent.

MILLARD Justice.

Arthur R. Cooper was injured February 26, 1936, while engaged in extrahazardous employment of tongman for the Long Bell Lumber Company. The accident report tecites that a falling timber struck the employee injuring left side of head, right leg and fracturing fourth rib on right side. The department recognized his claim and paid to the workman several months' time loss and closed his claim with a permanent partial disability award. February 1938 the claim was closed following its reopening and award to the claimant of an additional payment for permanent partial disability. Cooper's application July 9, 1940, under the provisions of Rem.Rev.Stat. § 7679, subd. (h), for reopening of the case for the purpose of obtaining an additional award on the ground of aggravation of his disability was considered by the department, and the claimant was examined by a number of doctors who certified that the claimant's disability had not increased and recommended that his claim remain closed whereupon the supervisor entered an order rejecting the claim, from which order the claimant appealed to the joint board of the department. The supervisor's order was sustained by the joint board from which disposition of his application Cooper appealed to the superior court. Trial to a jury on the record made Before the department resulted in verdict in favor of the claimant. From judgment entered on the verdict the department appealed.

Counsel for appellant invoke the rule that a claim for compensation under Rem.Rev.Stat. § 7679, subd. (h), may not be granted where the claimant fails to sustain the burden of showing that the condition caused by the injury had become aggravated subsequent to the time the rate of compensation was established and the claim was closed. Mullen v. Department of Labor and Industries, 157 Wash. 329, 288 P. 926.

Counsel for respondent argue that, as a jury's verdict in a trial on appeal to the superior court from a decision of the joint board shall have the same force and effect as in actions at law, Rem.Rev.Stat.Supp. § 7697-2, the only question presented is whether there is any substantial evidence to support the verdict.

It is clear from the record, which we summarize as follows, that there is neither evidence nor reasonable inference from evidence sufficient to sustain the verdict:

Cooper was injured February 26, 1936, while employed by the Long Bell Lumber Company. He was paid several months' time loss and his claim was closed with a permanent partial disability award. He returned to work for the same employer July 18, 1937, where he was employed as carpenter's helper until December 7, 1937. In February 1938, Cooper's claim was closed following its reopening and the granting to him of an additional award. Respondent them returned to work in the woods for his former employer where he remained until May 1938, when he left of his own accord to go into the business of transporting by truck fruits and vegetables from California to Washington. In August 1938, he returned to work with the Long Bell Lumber Company as a chaser in the rigging crew where he continued to work until May 5, 1939, when again he resigned to engage in commercial fishing, in which business he remained until April 12, 1940, when he returned to work for Long Bell Lumber Company. He was employed until July 11, 1940, as helper on a crane when logging operations were suspended because of fire hazard. From July 11, 1940, to July 22, 1940, he was employed by Long Bell Lumber Company in shingling houses. Improvement of weather conditions permitted resumption of logging operations and Cooper returned to the woods again as a tongman July 23, 1940. In August Long Bell Lumber Company again discontinued for a short time logging operations because of peril of fire. Cooper worked for that company from August 6th to 9th, 1940 shingling houses, and was employed in the woods from August 10, 1940, to September 6, 1940, when he quit of his own accord, giving no reason for his resignation. That is, following the closing of his claim in February 1938, respondent returned to work and was employed in different occupations and the same occupation in which he was engaged at the time of his injury. He performed his...