Knipple v. Department of Labor and Industries of State of Washington

• Decision Date: 15 November 1928
• Docket Number: 21474.
• Citation: 149 Wash. 594,271 P. 880
• Parties: KNIPPLE v. DEPARTMENT OF LABOR AND INDUSTRIES OF STATE OF WASHINGTON et al.
• Court: Washington Supreme Court

271 P. 880

149 Wash. 594

KNIPPLE v. DEPARTMENT OF LABOR AND INDUSTRIES OF STATE OF WASHINGTON et al.

No. 21474.

Supreme Court of Washington

November 15, 1928

Department 1.

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Proceeding under the Workmen's Compensation Act by Alec Knipple claimant. From a judgment of the superior court reversing and remanding the order of Department of Labor and Industries the Department and another appeal. Reversed.

John H Dunbar and Mark H. Wight, both of Olympia for appellants.

Frank P. Christensen and Phil K. Eaton, both of Olympia, for respondent.

MITCHELL J.

Alec Knipple, while engaged in extrahazardous work, was injured on December 22, 1925, suffering a fracture of the pelvis, a fracture of the right arm and a bruising and spraining of the back. Upon report to the State Department of Labor and Industries, his claim was at once classified as temporary total disability. Thereafter he received monthly payments, reduced somewhat towards the last because he had resumed work of a kind less remunerative than his former occupation, until October 27, 1927, when the department terminated the monthly payments and closed the claim with a permanent partial disability rating and final award of $300. From this order, the claimant made an application for rehearing before a joint board of the Department of Labor and Industries, under the Act of 1927, p. 850, § 8 (Rem. Comp. Stat. Supp. 1927, § 7697), alleging that the final award was inadequate and also asking for a further classification of temporary total disability. Receiving no relief from the joint board, the claimant appealed to the superior court, where, upon a trial de novo, judgment was rendered reversing the order of the department and remanding the proceedings, with directions that the claimant be compensated 'adequately for the permanent partial disability to his back and to likewise compensate him by the payment of a permanent partial disability award for stricture of the uretha.' The department has appealed.

The case as presented here is reduced to two questions: (1) Adequacy of compensation for injuries to the back; and (2) compensation for permanent partial disability on account of stricture of the uretha. The question of the amount of such compensation is not one of fact but of discretion, limited only by the maximum amount provided by statute, Rem. Comp. Stat. (Supp. 1927) § 7679, where, as here, the injury is not specifically named and described in the schedule found in the statute, and we have often and uniformly held in such cases that an award by the department for an injury properly classified as permanent partial disability is not subject to review by the courts except for arbitrary or capricious action on the part of the department. Sinnes v. Daggett, 80 Wash. 673, 142 P. 5; Whipple v. Industrial Insurance Comm., 116 Wash. 341, 199 P. 455; Sweitzer v. Industrial Insurance Comm., 116 Wash. 398, 199 P. 724; Krause v. Industrial Insurance Comm., 119 Wash. 662, 206 P. 358; Taylor v. Industrial Insurance Comm., 120 Wash. 4, 206 P. 973; McMullin v. Department of Labor and Industries, 120 Wash. 525, 207 P. 956.

In Sweitzer v. Industrial Insurance Comm., supra, in speaking of 'arbitrary and capricious action,' we said:

'These terms, when used in this connection, must mean willful and unreasoning action, action without consideration and in disregard of the facts and circumstances of the case. Action is not arbitrary or capricious when exercised honestly and upon due consideration where there is room for two opinions, however much it may be believed that an erroneous conclusion was reached.'

The record as we understand it shows that medical aid was to be furnished in this case under private contract as provided by section 7724, Rem. Comp. Stat., and not chargeable to the medical aid fund of the department. Respondent was examined from time to time by the contract physician and also by the department's own physician, both of whom made reports to the department, and, in addition to those examinations, he was examined from time to time commencing March 27, 1927, and thence on to about the date of the final award by seven or eight disinterested physicians, including specialists, all at considerable expense to the department. Two of these lastnamed examinations were held, one by three physicians on or about June 7, 1927, and the other on October 21, 1927, by three other physicians. The reports are rather full and complete and generally in accord with each other. The report of October 21, 1927, signed by all three physicians, advised the department of a 10 per cent. permanent partial disability as 'eminently fair to the claimant' for the purpose of the final award. Thereafter prior to the appeal to the superior court upon an understanding between the department and the claimant, still another examination was held at the expense of the department by three disinterested physicians whose report was in all respects similar to the former ones. It was upon this attention and the examinations and reports prior to October 26, 1927, that the department fixed the degree of permanent...