Fee v. Department of Labor and Industries of Washington

• Decision Date: 25 March 1929
• Docket Number: 21707.
• Citation: 151 Wash. 337,275 P. 741
• Parties: FEE v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.
• Court: Washington Supreme Court

275 P. 741

151 Wash. 337

FEE v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.

No. 21707.

Supreme Court of Washington

March 25, 1929

Department 1.

Appeal from Superior Court, Pierce County; F. G. Remann, Judge.

Proceedings under the Workmen's Compensation Act by Frank Fee claimant, opposed by Albertson, Cornell Bros. & Walsh employer, and the Department of Labor and Industries of the State of Washington. Rejection of the claim was affirmed by the Superior Court and claimant appeals. Reversed.

Rex S. Roudebush, of Tacoma, for appellant.

John H Dunbar and Harry Ellsworth Foster, both of Olympia, for respondent.

HOLOCOMB J.

This case was before the lower court on appeal from the decision of the joint board of the Department of Labor and Industries rejecting the claim of appellant for specific, major permanent, partial disability, consisting of the loss of vision of his left eye. The superior court made findings and conclusions and rendered a judgment affirming the action of such board from which this appeal is presented.

The evidence in the record is undisputed. It shows that on February 15, 1926, when appellant was engaged in extrahazardous employment, under the State Compensation Act, wrecking a building, he was injured by a piece of heavy flooring which flew up and struck him across the right cheek, nose, and left eye. The injury that then resulted to appellant consisted of a swelling of his cheek, nose, and eye, which was very painful. He was treated for several weeks, beginning a day or two after the injury, by Drs. Yocum & Curran, contract doctors for the employer, Albertson, Cornell Bros. & Walsh, who were not eye specialists. After several weeks of treatment, the swelling was reduced, and appellant's left eye then appeared to be affected by the injury. Up to June, 1926, appellant suffered more or less pain in this eye, which was somewhat sensitive to light, and it also watered some. There was nothing at that time, however, indicating any serious, permanent injury to the eye. His eye trouble continuing, at his own expense he consulted several eye specialists during the months following.

From June, 1926, throughout the rest of that year and until March, 1927, the pain in the eye gradually increased, the white of the eye being so bloodshot that it looked 'red as blood,' and during November and December, 1926, and January, 1927, appellant ceased work and did nothing but have his eye treated. By March, 1927, the eye trouble yielded to treatment, the bloodshot condition cleared up, and the pain ceased about that time. During the preceding period, although a little cloudiness appeared on the cornea of the eye in June, 1926, the vision of the eye was not impaired to any appreciable extent. The attention of the eye specialists had been directed to the elimination of the bloodshot condition and the pain. Beginning with March, 1927, and about the time the pain and bloodshot condition ceased, the cloudiness upon the cornea became more dense, and thereafter gradually took the form of what the specialists called 'white opacity.' By the end of the second year following the injury, this condition had so progressed as to become a mass of white opacity, at which time appellant could see only the form of a man at a distance of six or eight feet with this eye.

Until February, 1928, the specialists all held out the hope of successfully treating the film on the eye and restoring normal vision. In that month appellant was informed, for the first time, that there was no hope of cure, and that he would probably, in a few more months, become totally blind in that eye. Immediately after receiving that information, appellant requested Dr. Curran to prepare a claim to be presented to the Department of Labor and Industries in order that he might be properly compensated for the injury which had then culminated in a specific, major, permanent, partial disability. The claim was prepared and forwarded on February 7, 1928, and was rejected by the department on March 28, 1928; the reason for the rejection being that no claim had been filed by or on behalf of the workman within one year after the day upon which the injury occurred or the right thereto accrued.

There is in the record the certificate of Dr. Balabanoff, an eye specialist who had died prior to the hearing before the department, which is undisputed. This certificate shows that he examined the eye for the first time on November 1, 1926, at which time he diagnosed the trouble as conjunctival inflammation, slight, and with a dense corneal opacity, apparently stationary on the inner half of the cornea, nasal side. The extent of the vision of the left eye was then determined. He then reported the case to Drs. Yocum & Curran, and certified that the case was not serious, as the cornea appeared clear for the most part, vision was almost normal, and could be brought to normal with correcting lens. He saw the patient no more until March 20, 1928. On examination on that day he found that the interstitial keratitis, which he thought was stationary on November 1, 1926, had proven to be a progressive keratitis which had extended, and, on March 20, 1928, had involved almost the entire cornea, with the exception of a few clear spots of corneal tissue through which the iris and pupil could be seen. He then certified that, if the interstitial keratitis kept progressing, as he thought it would judging from the progress it had made between the two examinations, in a few months the entire cornea would be a mass of white opacity with no vision left; that no form of treatment could prevent the eye from becoming totally blind and useless; that in his opinion it would be a permanent disability.

The single issue presented by this appeal is whether the period of one year,...