Ehman v. Department of Labor and Industries

• Decision Date: 26 May 1949
• Docket Number: 30708.
• Citation: 33 Wn.2d 584,206 P.2d 787
• Court: Washington Supreme Court
• Parties: EHMAN v. DEPARTMENT OF LABOR AND INDUSTRIES.

206 P.2d 787

33 Wn.2d 584

EHMAN v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 30708.

Supreme Court of Washington

May 26, 1949

Department 1

Proceeding under the Workmen's Compensation Act by Joseph Ehman claimant, opposed by the Defiance Lumber Company, employer to recover compensation for alleged occupational disease. The order of the supervisor of industrial insurance, rejecting the claim, was sustained by the joint board on rehearing, and the claimant appealed to the superior court. From a judgment of the superior court reversing order of joint board and remanding case to Department of Labor and Industries of the State of Washington, with instruction to allow claim and fix disability, the department appeals.

Judgment reversed.

Appeal from Superior Court, Pierce County; W. A. Richmond, judge.

Smith Troy and Theodore M. Ryan, Olympia, for appellant.

Allen &amp Carey and Ward W. Roney, Seattle (Gordon S. Clinton, Seattle, of counsel), for respondent.

BEALS Justice.

Joseph Ehman, respondent Before this court, was, for more than twenty years, in the employ of the Defiance Lumber Company, of Tacoma. For the major portion of this period, his work consisted of lifting and carrying bundles of wooden flooring, approximately six inches in width and twenty feet in length. The weight of the bundles varied from sixty to eighty pounds. If the lumber was wet, the bundles were heavier by twenty or more pounds. Ehman would pick up these bundles, place them on this shoulder, and carry them a distance of twenty or thirty feet to the appropriate place, where he would stand the bundles on end.

During the year 1942, Ehman noticed that the use of his hands was impaired, and his work was changed, but the trouble with his hands persisted.

During the month of December, 1945, Ehman filed his claim with the department of labor and industries, stating that, while engaged in industry, he had suffered an occupational injury, within the workmen's compensation statute. After consideration, the supervisor of industrial insurance rejected the claim, his order reading:

'The above claim for compensation on account of injury alleged to have been sustained on 3 or 4 years ago is rejected for the reason that: Claimant's condition is not an occupational disease as contemplated by Section 7672-1.'

Thereafter, Mr. Ehman's request for a rehearing Before the joint board was granted, and evidence heard by the board. By order dated January 26, 1948, the joint board sustained the action of the supervisor rejecting the claim.

Within the time limited by law, Mr. Ehman appealed from the ruling of the joint board to the superior court for Pierce county. The action was tried Before the court, sitting with a jury, and, a verdict having been returned in favor of the plaintiff, judgment was entered upon the verdict, reversing the order of the joint board rejecting the claim, and remanding the case to the department of labor and industries, with instructions 'to allow the claim and fix the disability' suffered by the claimant.

From this judgment, the department has appealed.

Appellant department assigns error upon the ruling of the superior court denying its motion to take the case from the jury that the evidence introduced on the that the evidence intoduced on the trial was insufficient to overcome the presumption that the decision of the department was correct, and, further, that the evidence failed to disclose that respondent was suffering from an occupational disease. Appellant also assigns error upon the court's ruling, over appellant's objection, that counsel for respondent's employer should be permitted to participate in the trial, and, finally, upon the entry of the judgment in respondent's favor.

The record Before us consists of the departmental record, and a statement of facts certified by the judge Before whom the case was tried. The testimony Before the joint board was read to the jury, under direction of the trial court.

Respondent's testimony was to the effect that he was sixty years of age, and had worked for the employer above named for more than twenty years; that, as the result of his long-continued labor, lifting, carrying, and depositing in place the heavy bundles of lumber, he had suffered an injury to his hands, which had become lame and sore; that he had about twenty-five per cent of normal grip in his right hand and about seventy-five per cent of that grip in his left hand; that he could not straighten his hands, and that they were progressively becoming worse. Respondent stated that, about eight years prior to the hearing, he had received a severe blow on the palm of his right hand, and that he suffered from the effects for a considerable time.

Two physicians testified Before the department as witnesses in respondent's behalf, and two were called by the department. Dr. W. H. Goering, who was called by the department, described the condition of respondent's hands as follows:

'* * * There is a flexion deformity of the middle and ring fingers of both the right and left hands, with the fingers of the right hand flexed to an angle of approximately thirty degrees, and those on the left to an angle of approximately fifteen degrees. The flexor tendons of the ring fingers of both hands are very prominent in the palms, with the overlying skin adherent and nodular, and with firm slips of the palmar fascia extending to the tendons of the middle fingers bilaterally. The function of the thumbs, index and little fingers of both hands is apparently normal. The diagnosis was Dupuytren's contracture involving middle and ring fingers of both hands.'

Dr. Goering testified that he had been practicing his profession since 1930, and that he had specialized in orthopedic surgery; that he had treated persons suffering from Dupuytren's contracture and had operated upon some so afflicted; that, at the request of the department, he had examined respondent during the month of December, 1946, and had learned from him the history of his case. The witness testified that it appeared to be the unanimous opinion of the foremost authorities on diseases of and injuries to the hand that Dupuytren's contracture is probably an hereditary disease, and not traumatic in origin. He stated that, in his opinion, respondent's disability was not occupational.

Dr. Cecil Hurst, called by appellant, stated that he had practiced medicine in the state of Washington since 1938; that his practice was general in its nature, including general surgery and orthopedics; that he had examined persons suffering from Dupuytren's contracture and had made a study of this type of disability; that, with Dr. Goering, he had examined respondent, at the request of appellant; that respondent had informed him concerning the history of his disease. The witness agreed with Dr. Goering that respondent's disability was not due to an industrial injury or accident, nor was it related to his employment.

Upon cross-examination, the witness testified that the foremost authorities on the disease maintained the view that 'there is no definite relationship between Dupuytren's contractures and constant forceful use of the hands.' The witness stated that he had treated probably a dozen persons afflicted with the disease, and that he had perfomed operations upon some in an attempt to relieve the condition. Upon further examination, the witness stated:

'I am prepared to say that the foremost authorities state that constant trauma does not produce it; that it tends to be or seems to be a hereditary disease.'

Dr. E. C. Yoder, testifying as a witness on behalf of respondent, stated that he had practiced as a physician and surgeon in the state of Washington since 1924, being associated with the Western Clinic in the city of Tacoma; that he had examined respondent on at least two occasions, respondent having called at the clinic for diagnosis and treatment. The witness diagnosed respondent's condition as caused by Dupuytren's contracture, and agreed with the other physicians in describing the disease. The following occurred during the direct examination of the witness:

'Q. What is that condition attributable to, Doctor? A. Well, we actually don't know.

'Q. Is there any medical authority on the subject? A. Well, there is medical authority to substantiate the statement I just made. They guess as to what causes it, but there is no definite proof as they can find that will back up their theories on the subject.

'Q. Dr. G. G. Geissler from your clinic at one time testified that this condition was frequently found in people engaged in various types of work and husbandry such as dairying or where the hands are used to lift and grasp or hit objects. Do you concur in that thought? A. Well, yes, it is found in those types of employees and also in nonlaboring types of employees.' The witness referred to Practice of Surgery, by Dean Lewis, vol. 5, chapter 10, p. 222. Requested to read the pertinent portions of the text, the witness answered (reading and commenting):

"Although it has frequently been assumed that the patient's occupation predisposes to this deformity, no positive proof of this assumption has been advanced.' Now, under etiology he states that 'various theories have been advanced.' Under occupational trauma he says, 'Occupational trauma is considered a factor since the condition occurs more often in men than in women and more frequently the right hand is affected than the left. Against that, the fact that the other hand, even if it is not used in the occupation, is usually involved at a later date.'

'Q. Well, now, does that fairly describe your own thoughts and views on the subject as a surgeon? A. Well, yes, I have seen only one or two cases that I can remember of in women. I think I've probably

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