Franks v. Department of Labor & Industries
| Decision Date | 27 February 1950 |
| Docket Number | 31020. |
| Citation | 215 P.2d 416,35 Wn.2d 763 |
| Court | Washington Supreme Court |
| Parties | FRANKS v. DEPARTMENT OF LABOR & INDUSTRIES. |
Department 2
Compensation proceeding by Irene Franks against The Department of Labor and Industries to recover additional permanent partial disability compensation.
The Workmen's Compensation Board granted an additional permanent partial disability award of five per cent for unspecified injury, and on appeal to the Superior Court of Thurston County, D. F. Wright, J., it granted defendant's motion for a new trial after entry of judgment on verdict awarding claimant additional fifty per cent of maximum for unspecified injuries, and claimant appealed.
The Supreme Court, Hamley, J., held that instructions including inconsistent claims for time loss compensation and for permanent partial disability award were prejudicial, and that award of new trial was proper.
Order granting new trial affirmed.
Walthew, Gershon, Yothers & Warner, Seattle, for appellant.
Smith Troy, Bernard A. Johnson, Olympia, for respondent.
Irene Franks, a claimant under the workmen's compensation act fractured her right ankle and injured her back on August 18 1943, while employed by the Washington Veneer Company, of Olympia, Washington. Her claim was closed on February 14, 1944, with payment of one hundred two dollars, representing time loss for temporary total disability to February 11, 1944, and four hundred fifty dollars by reason of a permanent partial disability award of twelve and one-half per cent for unspecified injuries. On February 29, 1944, and again on October 10, 1944, claimant requested further consideration of her claim, but the supervisor of industrial insurance denied both requests.
On Frbruary 15, 1945, claimant applied to the joint board for a reopening and rehearing of the claim, alleging aggravation. The application was granted and on January 21, 1946, the matter was remanded to the supervisor, pursuant to an agreement between the parties. The supervisor was instructed to reopen the claim for treatment '* * * and for time loss from October 10, 1944, less the days worked, and for future time loss, if, and as indicated, and for further compensation, if any * * *.'
On July 10, 1946, the supervisor closed her claim with payment of $72.50 for thirty days' time loss, to July 9, 1946, and an additional permanent partial disability award of seven and one-half per cent for unspecified injuries, or two hundred seventy dollars, effective as of that date. On July 18, 1946, claimant applied to the joint board for a reopening and rehearing. In this application it is recited that claimant has been unable to work since July 9, 1946, and that she is entitled to additional time loss compensation. The application also asks that she be paid additional permanent partial disability compensation. There was no allegation of aggravation since the claim was closed on July 10, 1946. The application for rehearing was granted. After a hearing Before the joint board, the claim was closed on July 6, 1948, with an additional permanent partial disability award of five per cent for unspecified injuries, or one hundred eighty dollars.
Claimant then appealed to the superior court. The jury, after trial, returned a verdict awarding her an additional fifty per cent of the maximum for unspecified injuries, or $1,800, and $1,377.50, as compensation for nineteen months' additional time loss. Defendant filed a motion for judgment notwithstanding the verdict of the jury or in the alternative for a new trial. The motion for judgment notwithstanding the verdict was denied, and the motion for a new trial was granted. Plaintiff has appealed.
As grounds for granting a new trial, the order under review recites 'Error in giving the following numbered instructions: 1-9-13-14-15-16.' Appellant contends, as to each of these instructions, that (1) the exception to the instruction was inadequate; or (2) the instruction was not prejudicial; or (3) the instruction correctly stated the law.
We will first discuss instruction No. 16, which submitted to the jury two interrogatories, by means of which the jury was to indicate its verdict. The first interrogatory asked the jury to indicate the amount of additional permanent partial disability compensation to which appellant might be entitled. The jury answered fifty per cent. The second interrogatory asked the jury to indicate the amount of additional time loss compensation to which appellant might be entitled. The jury answered $1,377.50.
Respondent asserts that the claim for time loss compensation should not have been submitted to the jury because it was inconsistent with the claim for a greater award for permanent partial disability.
Respondent's criticism of this instruction is well taken and was so recognized by the trial court. The only time an injured workman is entitled to time loss is during the period that he is classified as temporarily totally disabled. See Rem.Supp.1941, § 7679(d), which was in effect when the accident occurred, and Rem.Supp.1949, § 7679(d), now in effect. Usually, during a period of temporary total disability, the workman is undergoing treatment. In any event, such classification contemplates that eventually there will be either complete recovery or an impaired bodily condition which is static. Until one or the other of these conditions is reached, the statutory classification is temporary total disability. Permanent partial disability, on the other hand, contemplates a situation where the condition of the injured workman has reached a fixed state from which full recovery is not expected. Miller v. Department of Labor & Industries, 200 Wash. 674, 94 P.2d 764 .
It is plain from the foregoing that a claimant cannot at one and the same time be classified as temporarily totally disabled and permanently partially disabled. Accordingly, when it has been determined, as it was here, that the condition of the workman has reached a fixed state and he is entitled to a permanent partial disability award, he is not, thereafter, entitled to any compensation for time loss unless it is subsequently determined that he is in need of further treatment and has been restored to the temporary total disability classification. Here, the permanent partial disability classification had been left undisturbed except for an increase in the percentage award. Appellant seeks to retain that status but to obtain a further increase in the percentage award. As indicated above, the claim for time loss compensation is inconsistent with the claim for a permanent partial disability award, and should not have been submitted to the jury.
While appellant asked for additional time loss compensation when she applied for a rehearing Before the joint board, she expressly disavowed her right to it at the joint board hearing and her attorney indicated uncertainty on the point. This is shown by the following colloquy:
At the oral argument on this appeal, appellant's counsel frankly conceded that the claims for time loss and for a greater award for permanent partial disability were inconsistent. But it was urged, on behalf of appellant, that however erroneous instruction No. 16 may have been in this regard, the exception thereto was expressed in general terms which did not apprise the trial court of the legal point relied upon or the insufficiency of the evidence as to the claim for time loss. Accordingly, it is argued, there was a failure to comply with the statute relative to exceptions, the instruction therefore became the law of the case, and the trial court was powerless to grant a new trial because of error in giving such instruction.
Rem.Rev.Stat. (Sup.) § 308-10 (Rule X), provides in part: 'Exceptions to a charge to a jury * * * shall be sufficiently specific to apprise the judge of the points of law or questions of fact in dispute.'
We have consistently held that a review cannot be predicated upon error in an instruction where the exception was too general to be effective in calling the court's attention to any error. Davis v. North Coast Transportation Co., 160 Wash. 576, 295 P. 921; Nelson v. Owens, 166 Wash. 647, 8 P.2d 301; Glick v. Ropes, 18 Wash.2d 260, 138 P.2d 858. In the Davis case [160 Wash 576, 295 P. 923], the exception to the refusal to give an instruction was that the instruction 'is not a statement of the law applicable to the case,' and that it is 'not justified or warranted by the facts and the evidence.' In the Nelson case [166 Wash. 647, 8 P.2d 302], the exception recited that the instruction 'is not a correct statement of the law under the facts involved.' In the Glick case [18 Wash.2d 260, 138 P.2d 864], the exception was that 'said instruction embodies the law of the case,' and that it 'was a proper instruction to be given to the jury covering the facts in the case.'
The exception taken to instruction No. 16 is as follows 'Excepts to instruction No. 16 upon the ground and for the reason that the interrogatory No. 2 is not in issue in this case, as it pertains to time loss on the part of the...
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Peterson v. King County
...Practice and Procedure, 34A Wash.2d 75; Ralston v. Vessey, 1953, 43 Wash.2d 76, 80, 260 P.2d 324; Franks v. Dept. of Labor and Industries, 1950, 35 Wash.2d 763, 768, 215 P.2d 416, and cases The instruction, as given, must remain the law of the case. See Riblet v. Spokane-Portland Cement Co.......