Eyer v. Department of Labor and Industries, 27585.

• Decision Date: 02 December 1939
• Docket Number: 27585.
• Citation: 96 P.2d 1115,1 Wn.2d 553
• Parties: EYER v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

96 P.2d 1115

1 Wn.2d 553

EYER v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 27585.

Supreme Court of Washington, En Banc.

December 2, 1939

Proceeding under the Workmen's Compensation Act by W. F. Eyer claimant, opposed by the Department of Labor and Industries of Washington. From a judgment of the superior court reversing an order of the joint board which sustained an order of the supervisor of industrial insurance rejecting claimant's application to reopen his claim, the Department of Labor and Industries appeals.

Reversed.

BLAKE C.J., dissenting.

Appeal from Superior Court, Cowlitz County; Howard J. atwell, judge.

G. W Hamilton, Atty. Gen., and J. A. Kavaney, Asst. Atty. Gen for appellant.

William H. Sibbald, of Kelso, for respondent.

SIMPSON Justice.

Respondent sustained an injury August 24, 1935, while employed in extrahazardous employment. The injury suffered was a wrenched back and torn ligaments of the left leg caused when respondent's heel slipped from a worn step while he was walking down a flight of stairs in a dry kiln. He filed his claim for compensation with the department of labor and industries, and October 26, 1935, an allowance was made for time loss and temporary total disability to September 20, 1935. Shortly thereafter respondent returned to work and continued his employment until May 15, 1937.

May 27, 1937, he made application to reopen his claim for the purpose of receiving further allowance for permanent partial disability, contending that his injury of August 24, 1935, had become so aggravated that he could no longer follow a gainful occupation. The supervisor of industrial insurance rejected the claim on June 9, 1937.

June 17, 1937, respondent appealed to the joint board which resulted in a hearing Before that body. The joint board, April 4, 1938, sustained the order of the supervisor.

Respondent appealed to the superior court and, after hearing, obtained a judgment reversing the order of the joint board. The department of labor and industries appeals.

The department contends that the court erred in reversing the joint board and in finding that respondent was entitled to a pension for total permanent disability.

The record discloses that respondent had worked steady since the Autumn of 1935, except for two short periods, one when he took a trip East and another when he was ill with influeunza. He testified that he did not suffer pain until his injury and after that time the pain was almost continuous up until the time of the hearing.

The question for determination is whether or not his impaired physical condition was caused by his injury.

In approaching the problem we must bear in mind that our statute, Rem.Rev.Stat. § 7697, provides: 'In all court proceedings under or pursuant to this act the decision of the department shall be prima facie correct and the burden of proof shall be upon the party attacking the same', and that when a complainant appeals to the courts he assumes and must meet the burden of proving that he sustained an injury compensable under the statute. Ferguson v. Department of Labor & Industries, 197 Wash. 524, 85 P.2d 1072, 90 P.2d 280.

In determining whether the existing physical condition of a claimant is attributable to a preexisting disease or congenital infirmity, a finding of fact based upon the testimony of skilled and professional men, when reasonably supported, will not be disturbed.

In Kavaja v. Department of Labor & Industries, 126 Wash. 284, 218 P. 196, 197, this court stated: 'While the testimony of appellant and other nonexpert witnesses has some bearing on the question involved, yet, in the main, the actual facts must be determined from the testimony of the medical witnesses.'

The supreme court of Oklahoma in Fain Drilling Co. v. Deatherage, 179 Okl. 409, 65 P.2d 1212, 1213, and Atlantic Refining Co. v. Allen, Okl.Sup., 90 P.2d 659, stated: 'Where, in a proceeding Before the Industrial Commission, the disability alleged to exist is of such character as to require skilled and professional men to determine the cause and extent thereof, the question is one of science and must necessarily be proved by the testimony of skilled professional persons, and a finding of fact based thereon when reasonably supported will not be disturbed.'

See also Stevich v. Department of Labor & Industries, 182 Wash. 401, 47 P.2d 32; McGrady v. Brink, 195 Wash. 626, 81 P.2d 800; Hoff v. Department of Labor & Industries, 198 Wash. 257, 88 P.2d 419.

A commission consisting of Drs. C.J. Sells, J. L. Norris, and J. F. Christensen made a thorough examination of respondent June 22, 1937, and later testified at the hearing Before the joint board. Their testimony is as contained in their written findings as follows:

'Only complaint is pain in lumbar region of back when bending or on pressure over 2nd & 3rd vertebrae. Looks well nourished. Weight 164 1bs. without coat. Height 67 1/2 inches. Posture--Stooping. Shoulder blades prominent, slight scoliosis to left in lumbar region. A very marked lordosis, from 10th dorsal to 5th lumbar vertebrae. Walks with stiff (poker) back.

'Forward and backward bending normal. Can come within 4 inches of touching floor with finger tips on forward bending. Lateral movements of

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