Goehring v. Department of Labor & Industries

• Decision Date: 03 July 1952
• Docket Number: No. 31952,31952
• Court: Washington Supreme Court
• Parties: GOEHRING, v. DEPARTMENT OF LABOR & INDUSTRIES.

Page 701

40 Wn.2d 701

246 P.2d 462

GOEHRING, v. DEPARTMENT OF LABOR & INDUSTRIES.

No. 31952.

Supreme Court of Washington, Department 2.

July 3, 1952.

Durham & Guimont, Seattle, for appellant.

Smith Troy, Olympia, Walter F. Robinson, Jr., Seattle, for respondent.

HAMLEY, Justice.

The question before us is one of fact: Was David J. Goehring's physical condition aggravated between November 15, 1946, and June 9, 1948, as a result of an injury sustained on October 1, 1945?

Goehring fell from a scaffolding on October 1, 1945, while engaged in extrahazardous work as a painter. He sustained a severe injury to the lower lumbar spine, a left sacroiliac slip and injuries to the left hip and leg. A claim was filed with the department of labor and industries, and allowed. Compensation for time loss was allowed to December 25, 1945, but there was no award for permanent partial disability.

Goehring appealed to the joint board from this order and a rehearing was granted. On November 15, 1946, the joint board remanded the claim to the supervisor for payment and closure in accordance with the terms of a settlement agreed upon between the parties. In conformity with this order, Goehring was awarded permanent partial disability compensation of fifty per cent of the maximum for unspecified injuries and fifteen per cent amputation value of the left leg at the hip, in addition to compensation for time loss from June 19, 1946, to August 5, 1946.

On June 9, 1948, Goehring, representing that his physical condition had become aggravated since November 15, 1946, filed the instant application to reopen his claim. This application was denied by the supervisor on September 22, 1948. An application for rehearing before the joint board was then filed and granted. Two hearings were held before an examiner for the joint board, at which the testimony of Goehring and Dr. Francis H. Brown, called by Goehring, was received. A third hearing was held before an examiner for the board of industrial insurance appeals (successor to the joint board), at which the testimony of Dr. George T. Wallace, called by the department, was received.

The board of industrial insurance appeals reviewed the record, and made a finding that Goehring's condition did not become aggravated after his claim was closed on November 15, 1946, as the result of the injury sustained. The board accordingly sustained the supervisor's order of September 22, 1948. On appeal the trial court made a similar finding of fact. Judgment was therefore entered sustaining the order of the board. Goehring appeals. All of his assignments of error in effect challenge this finding of fact by the trial court.

The hearings in the superior court are de novo. RCW 51.52.115 Rem.Supp.1949, § 7697. However, the statute referred to provides that in all court proceedings of this nature, the findings and decision of the board shall be prima facie correct, and the burden of proof shall be upon the party attacking the same.

Where, as here, the members of the board did not personally see and here the witnesses, this statute does not have the same presumptive effect as it would otherwise have. Cheney v. Department of Labor and Industries, 175 Wash. 60, 26 P.2d 393. This does not mean that in such case there is no presumption in favor of the findings of the board. The rule to be applied under these circumstances is stated in McLaren v. Department of Labor and Industries, 6 Wash.2d 164, 168, 107 P.2d 230, 231, as follows:

'* * * if, in the opinion of the reviewing court, the evidence as to a factual issue is evenly balanced, the finding of the department [now board of industrial insurance appeals] as to that issue must stand; but, if the evidence produced by the party attacking the finding preponderates in any degree, then the finding should be set aside. * * *'

The evidence will be reviewed with this rule in mind. The specific issue is whether Goehring's condition became aggravated after November 15, 1946, and prior to his application to reopen his claim on June 9, 1948 as the result of the original injury. If some aggravation due to the original injury occurred during that period, then the extent of aggravation up to the date of the supervisor's order of September 22, 1948, would be in issue. Karniss v. Department of Labor and Industries, 39 Wash.2d 898, 239 P.2d 555; Kleven v. Department of Labor and Industries, Wash., 243 P.2d 488.

Dr. Brown is a general practitioner of medicine, and was Goehring's attending physician at the time of the original injury. He examined and treated Goehring several times between October, 1945, and May, 1946. The treatment consisted of strapping the back and ordering a back brace. The patient was not hospitalized at any time. An X-ray was taken on August 5, 1946. In preparation for the hearing before the joint board, Do. Brown examined Goehring again on June 9, and December 3, 1948, and made use of new X-rays which were taken just prior to these examinations.

Dr. Brown testified that the June, 1948. X-ray showed a slight compression fracture of the fifth lumbar which did not show in the earlier X-ray, though it may actually have existed at that time. This 'gouged out' appearance of the fifth lumbar does not appear in the December, 1948, X-ray, but the latter X-ray shows a definite increase in the amount of calcium deposited in this area. He stated that the 1946 X-ray showed a spurring formation on the fifth lumbar, which indicates arthritis. The December, 1948, X-ray showed an increase in this spurring condition which, according to Dr. Brown, suggested hypertrophic arthritis.

Dr. Brown testified that his later examination of Goehring indicated aggravation of pain in view of the fact that the patient held himself more rigidly in trying to perform any movement with his back or left leg. While muscle spasm was observable in 1946, the witness expressed the opinion that this had become aggravated. Regarding Goehring's complaint of increased pain, Dr. Brown stated that the patient was possibly more sensitive on account of two years passing. The aggravation of Goehring's symptoms was due...