Hastings v. Department of Labor and Industries

• Decision Date: 01 November 1945
• Docket Number: 29559.
• Citation: 163 P.2d 142,24 Wn.2d 1
• Parties: HASTINGS v. DEPARTMENT OF LABOR AND INDUSTRIES et al.
• Court: Washington Supreme Court

163 P.2d 142

24 Wn.2d 1

HASTINGS v. DEPARTMENT OF LABOR AND INDUSTRIES et al.

No. 29559.

Supreme Court of Washington

November 1, 1945

Department 1.

Petition by Edgar L. Hastings, employee, for reopening of his claim for compensation on account of alleged aggravation. The petition was denied by the Department of Labor and Industries, whereupon an appeal was taken by the employee to the superior court, which appeal was opposed both by the Department and the E. C. Miller Cedar Lumber Company employer. From a judgment on the verdict in favor of employee, the employer alone appeals.

Reversed and remanded with directions.

Appeal from Superior Court, Grays Harbor County; J M. phillips, judge.

L. B. Donley, of Aberdeen, for employer-appellant.

Griffin & Gershon and Russell F. Stark, all of Seattle, for respondent.

STEINERT Justice.

This action arose out of a workman's claim for compensation under the Industrial Insurance Act. Rem.Rev.Stat. § 7673 et seq. The cause reached the superior court upon the record made Before the joint board of the department of labor and industries. Both the department and the employer of the workman resisted the claim. The cause was tried to a jury, which returned a verdict, based upon its answers to certain interrogatories, favorable to the workman. From a judgment on the verdict, the employer alone appealed. The workman will hereinafter be referred to as respondent, and the employer, E. C. Miller Cedar Lumber Company, a corporation, as appellant.

On May 19, 1941, respondent, while engaged in extrahazardous employment in appellant's sawmill, sustained an injury to his right forearm. In his report of the accident, he described it in this manner: 'I slipped and threw my right arm into the belt which was running the hog [a fuelgrinding machine].' The appellant employer's report described it similarly, thus: 'Slipped--got arm caught in belt operating hog. Fracture right radius.' The attending physician, who treated the appellant on the day of the accident, in his report described the external evidence of injury as: 'Right forearm marked swelling and tenderness--Crepitation over the radius at the junction at lower end with the middle third.' The physician also reported his X-ray findings as follows:

'X-ray of the right arm reveals a fracture of the lower end of the radius about 4"' above the wrist joint. There is marked palmar bowing at the site of the fracture and the ends of the fractured fragments are in contract [sic] over two-thirds of the width of the shaft. Recheck in a. p. view shows excellent alignment. There is apparently an anatomical variation in the tip of the styloid process of the ulna a supernumerary bone.'

The treatment given the patient consisted of a reduction of the fracture and the application of anterior and posterior splints of plaster of Paris. The physician estimated the time loss from work at three months.

Respondent filed a claim for compensation and, by an order of the department entered September 6, 1941, was allowed time loss to August 10, 1941. Shortly thereafter, respondent made an informal application for the reopening of his claim, on account of alleged aggravation. The department referred the matter to a physician who suggested that the rating be deferred thirty days. On December 31, 1941, the supervisor of the department, adopting the recommendation of its physician, closed the claim upon a permanent partial disability allowance of one-tenth of what is termed the 'amputation value' of the arm detruncated at the wrist, resulting in an award of one hundred ninety-two dollars.

After the claim had been thus closed, and during a period of about twenty months thereafter, respondent worked successively for two companies manufacturing wood products. During that period he claims to have suffered extreme numbness in his arm, particularly at night after a hard day's work. This numbness extended from his wrist to his shoulder and on both the outside and the inside of his arm.

On September 13, 1943, respondent filed a written application for the reopening of his claim, on the ground of aggravation, alleging that his 'arm gets numb on working hard, more pain and stiffness.' The matter was again referred by the department to its physician, who subsequently examined the respondent and thereafter made a report to the effect that there was no aggravation of respondent's condition. The supervisor thereupon rejected the application for reopening. The respondent then applied for and was granted a rehearing Before the joint board. At the rehearing, evidence was taken, constituting the departmental record. That evidence will be later referred to in more detail. At the conclusion of the rehearing, the joint board sustained the action of the supervisor rejecting respondent's claim for aggravation. Respondent then appealed to the superior court for Grays Harbor county, where the cause was tried Before a jury, resulting in a verdict in respondent's favor. Upon entry of judgment on the verdict, the employer appealed to this court.

Appellant's assignments of error present two questions: (1) Whether respondent's evidence was competent and sufficient to make a case for the jury; and (2) whether the trial court erred in giving certain instructions. In considering these questions, we proceed upon three well established rules.

The first rule is that the decision of the department is prima facie correct and the burden of proof is upon the party attacking the decision. Rem.Rev.Stat. § 7697, now appearing as Rem.Supp.1943, § 7697; Zankich v. Department of Labor and Industries, 189 Wash. 25, 63 P.2d 427; Nagel v. Department of Labor and Industries, 189 Wash. 631, 66 P.2d 318; Cole v. Department of Labor and Industries, 200 Wash. 296, 93 P.2d 413; Reid v. Department of Labor and Industries, 1 Wash.2d 430, 96 P.2d 492; Eyer v. Department of Labor and Industries, 1 Wash.2d 553, 96 P.2d 1115; LaLone v. Department of Labor and Industries, 3 Wash.2d 191, 100 P.2d 26.

The second rule is that there can be no proper award for 'aggravation' of a permanent partial disability, under Rem.Rev.Stat. § 7679, now appearing as Rem.Supp.1941, § 7679, unless it is shown that an increase of disability occurred after the date of the last closing of the claim. Smith v. Department of Labor and Industries, 180 Wash. 84, 38 P.2d 1016; Reid v. Department of Labor and Industries, supra; LaLone v. Department of Labor and Industries, supra; State ex rel. Stone v. Olinger, 6 Wash.2d 643, 108 P.2d 630; Brown v. Department of Labor and Industries, Wash. 161 P.2d 533.

The third rule is that where a case arising out of the industrial insurance act is tried Before a jury, the weight of the evidence and the credibility of the witnesses are for the jury to determine. Alfredson v. Department of Labor and Industries, 5 Wash.2d 648, 105 P.2d 37; Bilski v. Department of Labor and Industries, 8 Wash.2d 594, 113 P.2d 62; Otter v. Department of Labor and Industries, 11 Wash.2d 51, 118 P.2d 413; Roellich v. Department of Labor and Industries, 20 Wash.2d 674, 148 P.2d 957 .

In the Alfredson case, supra [5 Wash.2d 648, 105 P.2d 39], the rule is expressed in the following language:

'The presumption of the correctness of the joint board's findings is for the consideration of the jury under proper instructions. The court, of course, may pass upon the sufficiency of the evidence to take the case to the jury. If the evidence introduced at the hearing Before the joint board offers room for a difference of opinion in the minds of reasonable men, then the case must be presented to the jury.'

Further on, in the opinion, the court said:

'It is true that the testimony of many well-qualified physicians upheld the decision of the joint board. However, in cases tried to a jury, the jury determines the weight of the evidence, secured from a consideration of all of the evidence introduced, and its verdict does not depend upon the number of witnesses that may testify upon a given point.'

It is conceded by the respondent in this case that the department and the appellant herein produced evidence through medical testimony which would support the action taken by the joint board. We may also concede that such evidence was sufficient to support a verdict by the jury in favor of the appellant, had the jury so found. The question here, however, is whether the evidence produced by the respondent was competent and sufficient to take the case to the jury and to support its verdict in his favor. The answer to that question depends entirely upon the competency and probative effect of the testimony of Dr. Joseph Segal, called as a witness for the respondent. Since the factual aspect of the case hinges so largely upon his testimony, we shall quote it at some length.

The doctor first testified concerning the history of the case as given to him by the respondent:

'Q. Now, Doctor, at that time did he relate to you a history of his injury that occurred May 19th, 1941, and of his treatment and work record thereafter? A. Yes, sir.

'Q. Doctor, Did he tell you that his claim was closed in--on December 27th, 1941? A. Yes, sir.

'Q. And did he tell you that he applied to reopen for aggravation on September 15th, 1943? A. Yes, sir.

'Q. Did he tell you why he applied to reopen, Doctor? A. Well, as I recall it, he said when he worked, of course, he had symptoms of--symptoms were aggravated, both in his hands, wrists and lower arm, and, in fact, up to his shoulder, the right shoulder.

'Q. Did he give---- A. He said his condition was aggravated. It was worse than when it was the time the case was closed.

'Q. Did he tell you what developed between the closing especially--did he tell you what symptoms developed or what trouble developed in his...