Johnson v. Department of Labor and Industries

• Decision Date: 29 July 1954
• Docket Number: No. 32601,32601
• Citation: 45 Wn.2d 71,273 P.2d 510
• Parties: JOHNSON, v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

Page 71

45 Wn.2d 71

273 P.2d 510

JOHNSON, v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 32601.

Supreme Court of Washington, Department 2.

July 29, 1954.

Walthew, Oseran & Warner, Seattle, for appellant.

Don Eastvold, Bernard A. Johnson, Olympia, for respondent.

DONWORTH, Justice.

Plaintiff appeals from a judgment of dismissal entered when the trial court granted defendant's motion for judgment n. o. v., after a jury had returned a verdict finding that plaintiff was totally and permanently disabled from engaging in any gainful employment.

The plaintiff suffered a head injury in an industrial accident on December 9, 1947, while employed as a vat man by the St. Paul & Tacoma Lumber Company at its Olympia plant. He filed his claim with the department of labor and industries. On January 10, 1949, his claim was closed with a permanent partial disability award of forty per cent of the maximum allowable for unspecified injuries.

On December 29, 1950, he filed an application to reopen his claim for aggravation of his injuries. The supervisor of the department of labor and industries denied the claim on March 12, 1951. On March 23, 1951, he filed notice of appeal to the board of industrial insurance appeals and on March 11, 1952, a hearing on the appeal was held before an examiner for the board at which time witnesses for plaintiff and defendant testified.

The board of industrial insurance appeals entered an order on December 17, 1952, sustaining the order of the supervisor of the department of labor and industries. Plaintiff appealed to the superior court for Thurston county.

On May 18, 1953, a trial was held in the superior court and the jury returned a verdict finding that plaintiff was totally and permanently disabled from engaging in any gainful employment at the time his claim was closed by the defendant. Subsequently defendant interposed its motion for a judgment notwithstanding the verdict of the jury or for a new trial. After hearing arguments on these motions the court granted the motion for judgment notwithstanding the verdict.

From the judgment of dismissal thereafter formally entered, plaintiff appeals to this court.

We are governed on this appeal by the rule that a trial court may not grant a motion for judgment notwithstanding the verdict of a jury if there is any evidence or reasonable inference from evidence to sustain the verdict. Olson v. Department of Labor & Industries, 43 Wash.2d 85, 260 P.2d 313. Furthermore, in reviewing a judgment entered after a motion for judgment n. o. v. has been granted or denied, this court must view the evidence in the light most favorable to the party against whom the motion is made and all competent evidence favorable to such party must be taken as true, and he must be given the benefit of every inference which reasonably may be drawn therefrom. Arnold v. Sanstol, 43 Wash.2d 94, 260 P.2d 327.

Since this was an action to establish an increase in a workmen's compensation award as a result of the aggravation of a prior industrial injury, the burden was on appellant to produce medical evidence, some of it based on objective findings, to prove that there had been some aggravation of the injury which resulted in increased disability. Moses v. Department of Labor & Industries, Wash., 268 P.2d 665.

Furthermore, since the jury found that appellant was totally and permanently disabled as of March 12, 1951, the terminal date of the aggravation period, there must be sufficient medical testimony to support his claim that he was totally and permanently disabled from performing any work at any gainful occupation as of that time. RCW 51.08.160. Moses v. Department of Labor & Industries, supra.

Tested by the foregoing rules the medical testimony in this case must be held insufficient for several reasons:

(1) Dr. Frank P. Mathews one of two doctors called by appellant testified that appellant was disabled from working on December 25, 1950 when he examined appellant at the hospital in Olympia. Appellant had been brought to the hospital that day in a semi-conscious condition. The doctor diagnosed his ailment as a post concussion syndrome. But Doctor Mathews refused to testify that appellant was suffering from a permanent disability. On the contrary, the doctor testified as follows:

'Q. Do you recall doctor, when you saw him last [March 15, 1951] whether you thought he was in condition to resume work? A. I thought that he could try. I don't recall--arbitrating this thing--his complaint then was largely a complaint of persistent pain in the side of the neck and on...