Favor v. Department of Labor and Industries

• Decision Date: 05 March 1959
• Docket Number: No. 34871,34871
• Citation: 336 P.2d 382,53 Wn.2d 698
• Parties: Vernon FAVOR, Respondent, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Appellant.
• Court: Washington Supreme Court

Page 698

53 Wn.2d 698

336 P.2d 382

Vernon FAVOR, Respondent, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Appellant.

No. 34871.

Supreme Court of Washington, Department 2.

March 5, 1959.

John J. O'Connell Atty. Gen., Michael J. Cronin, Spokane, for appellant.

Theodore H. Little, Clarkston, Theodore M. Ryan, Spokane, for respondent.

HILL, Judge.

The issue presented in this case is whether a coronary occlusion caused by emotional stress and strain (anxiety and worry) is an occupational disease as defined in the workmen's compensation act of the state of Washington. The definition is found in RCW 51.08.140 and is 'such disease or infection as arises naturally and proximately out of extrahazardous employment.'

The facts are: The claimant started working in the state department of agriculture in 1949 as a cattle-brand inspector and a commission-merchant inspector covering Asotin and Whitman counties. In 1952 a regulatory division was created within the department, and, while the claimant's territory remained the same, he was given additional duties and increased responsibilities and was commissioned as a regulatory officer. It is emotional stress and strain (anxiety and worry) arising out of those duties and responsibilities that is relied on as the cause of the claimant's coronary occlusion, which occurred while he was driving his car.

The testimony of his attending physician, Dr. Walter W. Seibly, a general practitioner, was that emotional stress from the claimant's employment probably caused the coronary occlusion, and he explained it in this way.

'* * * I have seen instances in which people can bring on a coronary type of pain due to narrowing of the blood vessels, which can be brought on by emotional upset when they are angry or frightended. I don't think it is hard to prove that anxiety and stress and strain factors and important as far as circulation and supply to the heart are concerned.

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'Where a person is under additional stress, that is, you can't measure it in one small amount. It is summation of that stress over each day, each week, each month, as it goes on month after month, and I think it does play an important factor. We know that because of stress that blood sometimes undergoes a sufficient amount of damage to the wall because of spasm during the period of stress. Whether it is short or whether it lasts for several hours, each time that spasm occurs there is a certain amount of damage to the wall, and over a period of weeks or months there are irreversible changes in that blood vessel.'

There was no history of such spasms. In answer to the question, 'Did you ever feel your health was being affected by your work to any degree that you could notice,' Mr. Favor replied: 'I never gave it a thought.' He testified further that when the attack occurred it was a surprise.

Dr. Arthur M. Clark, Jr., a heart specialist who examined the claimant two months after the occlusion, was called by the department, and testified that a coronary occlusion is not in itself a disease but the end result of some other disease or condition. He found no evidence of hypertension, and, in his opinion, the real cause of the occlusion could only be definitely determined by a pathological examination, but that the probability was atherosclerosis. This is a disease prevalent in seventy-five per cent of those over thirty years of age and in practically everybody over forty (the claimant was forty-five). We quote Dr. Clark as to the nature of the disease,

'Atherosclerosis is a disease in which fat-like particles are deposited beneath the linings of the blood vessels of the coronary arteries, or the arteries of the heart. This is a progressive phenomena or disease, with narrowing. There may be ulceration of the plaque and the thrombus form or hemorrhage under the plaque and drop in pressure such as to produce dead muscle as the mechanism involved in the actual myocardial infarction.

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'* * * there are more deposits of fatty substances with encroachment on the lumen like a rusty pipe, and this may become ulcerated for reasons we do not know, and thrombus may form and hemorrhage occur underneath, lifting the plaque and occluding the vessel, or sudden drops in pressure may produce an occlusion or an infarction, excuse me, without occlusion.'

The board of industrial insurance appeals found that the coronary occlusion suffered by the claimant was not an occupational disease. On the claimant's appeal from the board, the superior court--relying on Dr. Seibly's testimony--concluded that the coronary occlusion was an occupational disease. The department appeals to this court.

This case presents an entirely new theory in heart cases. There having been no unusual exertion, the claimant cannot come within the rule of heart cases such as Towne v. Department of Labor and Industries, 1958, 51 Wash.2d 644, 320 P.2d 1094; Porter v. Department of Labor and Industries, 1958, 51 Wash.2d 634, 320 P.2d 1099; indeed, he is expressly excluded from a claim of injury by Haerling v. Department of Labor and Industries, 1956, 49 Wash.2d 403, 301 P.2d 1078, and consequently, he urges that the coronary occlusion which he suffered was an occupational disease. The claimant having returned to work, the only items involved are medical and hospital expenses, together with time loss. The claimant's case comes to us without the benefit of supporting case authority; every case relied upon by him is in the same category as the Towne and Porter cases, supra.

In these cases an unusual, exceptional, or extraordinary physical exertion or strain, quite apart from the usual routine of employment, was held to have caused the fatal heart attack. They were considered injuries resulting from a provable, tangible happening. This is a far cry from an occupational disease arising naturally and proximately from employment.

To meet the issue presented squarely on the merits, as we desire to do, it is necessary to make two assumptions, both favorable to the claimant:

First: That coronary occlusion is a disease; second, that the claimant was engaged in extrahazardous employment. We shall indicate briefly why we classify these as assumptions rather than established facts.

The testimony of Dr. Arthur M. Clark, Jr., supported by the medical authorities we have examined and accepted by the board of industrial insurance appeals, is that a coronary occlusion is not the name of a disease, but rather a descriptive term of an end result. It is the name applied to a syndrome; a pathological finding that a a coronary artery has been blocked, and it does not connote by what mechanism or by what means. Opposed to this we have the statement (several times repeated by Dr. Seibly) that a coronary occlusion is a disease and an occupational disease. Whether or not it is a disease, Dr. Seibly, as an expert witness, is entitled to express his opinion and, we assume, that he is right. His conclusion that it is an occupational disease within the purview of the workmen's compensation act is a matter the court must determine, and his opinion on that point is without significance.

The legislature has never declared the claimant's occupation extrahazardous. He comes under the act by virtue of its elective provision, RCW 51.12.110. There seems to be some contention that he is empowered to make arrests and that he could be classified as a peace officer, but there is no evidence that he ever arrested anybody. He concedes that his work is that of an inspector and investigator.

It should be noted that if a workman under the act is injured, what he is doing at the moment of injury does not have to be extrahazardous for him to be entitled to benefits; it is only necessary that the injury be in the course of his employment, and that the employment be defined in the act as extrahazardous, or be incident to a production process defined as extrahazardous, or have been brought under the act by an elective adoption. An occupational disease however, must arise 'naturally and proximately out of extrahazardous employment.' We have assumed, without deciding, that the claimant in this case is engaged in extrahazardous employment.

We have heretofore pointed out that our workmen's compensation act was not intended to provide workmen with life, health, or accident insurance at the expense of the industry in which they are employed. It was intended to provide, at the expense of the industry employing...