Dry v. Department of Labor and Industries

• Decision Date: 20 December 1934
• Docket Number: 25152.
• Citation: 180 Wash. 92,39 P.2d 609
• Parties: DRY v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

39 P.2d 609

180 Wash. 92

DRY v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 25152.

Supreme Court of Washington, En Banc.

December 20, 1934

Appeal from Superior Court, Spokane County; William A. Huneke Judge.

Proceeding under the Workmen's Compensation Act by John Dry employee, opposed by the Department of Labor and Industries of the State of Washington. From an order of the joint board sustaining the action of the supervisor in refusing to reopen the claim upon the ground of aggravation of disability claimant appealed to the superior court, which entered judgment directing allowance of compensation for permanent total disability, and the Department appeals.

Affirmed.

Clyde H. Belknap, of Spokane, for appellant.

G. W Hamilton and Browder Brown, both of Olympia, for respondent.

MILLARD Justice.

On March 24, 1932, John Dry was injured by an accidental blow on the head from a hammer in the hands of a fellow workman. The following day he filed with the Department of Labor and Industries an accident report, claiming compensation for the injury he had sustained. Dr. F. E. Bertling, claimant's attending physician, reported to the department the nature of his patient's injuries and estimated that his disability would last for two weeks. The claim was allowed by the department, and time loss thereon was paid until August 9, 1932. At that time the supervisor of the department allowed claimant fifteen degrees for permanent partial disability and closed the claim. Immediately the claimant applied to the joint board for a rehearing, which was granted. A hearing was had on the claim on February 23, 1933, at Spokane, Before an examiner. At that hearing, the claimant, his wife, three apparently disinterested lay witnesses, Dr. Bertling, who had attended claimant, Dr. Spiegel, and Dr. Robinson testified. On April 17, 1933, the department made an order directing that claimant be again examined by Drs. George A. Downs and John H. O'Shea. The two physicians were authorized to make a further ventricular test to determine whether the condition of brain atrophy, of which claimant complained, had increased. It should be mentioned at this point that, under date of July 26, 1932, one of these physicians, in his report to the department, concluded that, from the ventricular study made by the other physician disclosing quite a considerable brain atrophy, 'It is fair to assume that this atrophy is permanent and probably will increase.' The department further requested the two physicians named to ascertain when the facial tic of which claimant was then complaining had appeared and to determine the extent of his then disability. Because of the agony to which he was subjected by the ventricular test and also for the reason that he had been advised that his life would be endangered thereby, claimant refused to submit to a further ventricular test. No further ventricular study was made. On May 8, 1933, Drs. O'Shea and Downs examined claimant and submitted their report to the department. On June 19, 1933, the department entered an order directing another hearing Before the joint board for the purpose of taking the testimony of Drs. O'Shea and Downs. This hearing was had in Spokane Before two of the department's examiners on July 14, 1933. Both doctors were called and testified. At the conclusion of the testimony of Dr. Downs on direct examination, counsel for claimant stated that he wished to reserve cross-examination of this witness 'until we go to court,' at which time he expected to cross-examine Dr. Downs. One of the examiners taking the testimony thereupon stated that Dr. Downs was there then and could be examined by counsel for claimant; that the department did not intend to call Dr. Downs at the time of the trial; that, if either claimant or his attorney desired to cross-examine Dr. Downs, he might 'have the opportunity to do it now or call him as an adverse witness at the time of the trial.' It should be observed at this point that it is apparent that the department anticipated a report unfavorable to the claimant and an appeal from the department's rejection of his claim to the superior court. It is likewise clear that claimant's counsel expected nothing other than rejection of the claim and apprehended a record that would sustain such order of rejection. We should also state at this stage, respecting the suggestion of the department's examiner, that claimant's counsel could call the department's physician 'as an adverse witness at the time of the trial,' that on claimant's appeal from the department to the superior court, 'the appellant shall not be permitted to offer, and the court shall not receive, in support of such appeal, evidence or testimony other than, or in addition to, that offered Before the joint board or included in the record filed by the department. * * *' Rem. Rev. Stat. § 7697; Murray v. Department of Labor and Industries, 151 Wash. 95, 275 P. 66. Counsel for claimant stated he was not prepared to cross-examine the physician at that time and would insist upon his right of cross-examination at the time of trial to the superior court, and 'we will expect the department to have him present.' Dr. O'Shea was then called by the department. At the conclusion of the direct examination of this physician, counsel for claimant cross-examined him and then stated that claimant would insist upon cross-examination of this witness 'if he so desires at the time of trial and also the right of rebuttal.' On August 22, 1933, the joint board entered an order sustaining the action of the supervisor in refusing to reopen the claim upon the ground of aggravation of disability. From that order, the claimant appealed to the superior court for Spokane county. No witnesses were called; the cause being Before the court upon the certified departmental record.

At the trial, an assistant attorney general, who represented the department, refused to produce as witnesses Drs. Downs and O'Shea and offer them for the purpose of cross-examination by claimant. The court gave the department's counsel the choice of producing the two witnesses or being punished for contempt or striking the testimony of the two witnesses Before the department. The department's counsel informed the court, 'Well, the state will not exercise any choice.' Whereupon the court ordered that the testimony of Drs. O'Shea and Downs Before the joint board be stricken.

The trial court found that claimant was injured at the time and in the manner alleged in his claim; that his claim for compensation was closed August 9, 1932; that he had been paid, in addition to time loss, the sum of $450 based upon an aggravation of fifteen degrees permanent partial disability; that his claim for aggravation of injuries was filed October 27, 1932, and denied December 21, 1932; that due and timely appeal was taken by claimant; and 'that since the order dated August 9, 1932, closing appellant's claim, the disability of claimant caused by said original injury has been aggravated to such an extent that he is permanently incapacitated from performing any work at any gainful occupation, in that he suffers much pain, is unable to obtain needful sleep at night, is afflicted with twitching of muscles almost continually and suffers severe convulsions, jerking of muscles, with much increased pain at frequent intervals, all of which symptoms are greatly increased by work of any kind; that there is no likelihood that appellant's condition will improve.'

Based upon those findings, the court concluded, and entered judgment accordingly, that claimant's disability caused by the injury of March 24, 1932, has been aggravated to such an extent since the date his claim was closed that it should be classified as permanent total disability, and that the department should be directed to enter an order allowing claimant the full amount that may be authorized and payable to him for permanent total disability and from such allowance make no deductions in computing the amount, and also allowing attorney's fees and costs to claimant. From that judgment, the department appealed.

Appellant first contends that, as the statute (Rem. Rev. Stat. § 7697) prohibits the claimant, on appeal to the superior court, from introducing any evidence other than that offered Before the joint board or included in the record of the department, the trial court erred in striking the testimony of Drs. Downs and O'Shea given in the hearing Before the joint board.

'On such appeal the hearing shall be de novo, but the appellant shall not be permitted to offer, and the court shall not receive, in support of such appeal, evidence or testimony other than, or in addition to, that offered Before the joint board or included in the record filed by the department: Provided, That the right of cross examination shall not be limited by the testimony Before the joint board.' Rem. Rev. Stat. § 7697.

If the above-quoted portion of the statute denying the right to a claimant to intreduce any testimony other than that comprised in the record certified to the superior court but not so restricting the department, and providing that 'the right of cross examination shall not be limited by the testimony Before the joint board,' means anything, insists respondent, it means that the claimant is entitled to have medical witnesses produced on the trial in the superior court.

In support of that interpretation, respondent argues: The cross-examination in the hearing Before the joint board is hurried and informal. The record is much involved, and claimant has no adequate opportunity, prior to the hearing to examine it. The department's testimony is given at a time when claimant's medical witnesses are not ordinarily present, and claimant is therefore without proper advice...