Kralevich v. Department of Labor and Industries

• Decision Date: 07 September 1945
• Docket Number: 29549.
• Citation: 161 P.2d 661,23 Wn.2d 640
• Parties: KRALEVICH v. DEPARTMENT OF LABOR AND INDUSTRIES et al.
• Court: Washington Supreme Court

161 P.2d 661

23 Wn.2d 640

KRALEVICH v. DEPARTMENT OF LABOR AND INDUSTRIES et al.

No. 29549.

Supreme Court of Washington

September 7, 1945

Department 1.

Proceedings under the Workmen's Compensation Act on the claim of Anna Kralevich, employee, for compensation for an eye injury opposed by Aberdeen Plywood Corporation, employer. From a judgment dismissing employee's appeal from an adverse decision of the Department of Labor and Industries, employee appeals.

Appeal from Superior Court, Grays Harbor County; William E Campbell, judge.

F. W Loomis, of Aberdeen, for appellant.

Smith Troy, Atty. Gen., Harry L. Parr, for Atty. Gen., and L. B. Donley, of Aberdeen, for respondent.

BEALS Chief Justice.

During the month of May, 1943, Anna Kralevich (hereinafter referred to as claimant) was in the employ of Aberdeen Plywood Corporation, pulling plywood off the dry chain and stacking it on skids. While so employed on the 6th day of May, a particle of sawdust or some similar substance became lodged in her right eye, causing the eye to become inflamed. She complained of pain in her eye, but none of her associates could see any foreign substance therein. A neighbor who had known claimant for many years testified that after May 6 the eye was red and watery, and that she had never noticed any such condition prior to that date.

The eye continuing sore and inflamed, May 24 claimant consulted Dr. F. N. Berken. The doctor examined the eye, but did not find any condition which called for correction.

The next day, claimant consulted Dr. O. L. Adams, who discovered a small foreign body under the right upper lid, and removed the same. By this time, both claimant's eyes had become inflamed and swollen, but this condition disappeared after treatments administered by Dr. Adams. Claimant, however, complained that the vision of her right eye was injuriously affected, and that she continued to suffer pain in the eye and was subject to headaches which she attributed to the injury to her eye.

May 24 the accident was reported by claimant, and the following day a second report was made, signed by Dr. Adams, who stated that he removed a foreign substance from the eye.

July 9 the supervisor signed an order closing the claim 'for such medical treatment as is provided by law.' No time loss was allowed and no permanent partial disability award was made.

July 20 claimant applied for reopening of her claim, her application having been denied August 5. A short time thereafter, claimant petitioned for a rehearing Before the joint board, the petition having been granted August 30.

October 6, 1943, a hearing was held Before the joint board and testimony taken. Further testimony was taken December 28, 1943. February 16, 1944, the joint board sustained the orders entered by the supervisor, and from this order claimant appealed to the superior court.

Before discussing the merits, a preliminary question should be noticed.

It appears that, in asking for reopening of her claim under date July 20, as above stated, claimant's physician, who assisted her in preparing the application, by inadvertence placed the same upon a form intended as a basis for a claim upon the ground of aggravation. The application was denied, the order stating that 'a careful review has been made of your file,' etc., and thereafter, in preparing her petition for a rehearing Before the joint board (which petition was granted), claimant in that petition also referred to the matter of aggravation of her injury.

The department now contends that, because of the foregoing, claimant was, and is, limited to a claim for aggravation only.

This contention is without merit. It appears that the department was nowise misled, nor did it suffer damage because of the matters referred to. No technical advantage may now be taken of the fact that, in asking that her claim be reopened, claimant used an inappropriate form. Her petition for a rehearing Before the joint board, when granted, as it was, brought Before that body for rehearing claimant's application for relief, as well as her subsequent application for reopening of her claim. By its order, dated February 14, 1944, the joint board denied appellant any relief. This order states that the board considered the 'complete record' of the claim, and all the evidence offered. The action of the board was proper. Hearings Before the department are not controlled by technical rules. Otter v. Department of Labor and Industries, 11 Wash.2d 51, 118 P.2d 413.

When the matter reached the superior court, claimant (to whom we shall now refer as appellant) demanded a jury, whereupon respondent employer, Aberdeen Plywood Corporation, moved to dismiss the action upon the record, for the reason that appellant had failed to present evidence sufficient to overcome the presumption of correctness attaching to the order of the joint board of the department.

It was agreed by all the parties that, in passing upon respondent employer's motion to dismiss, the court should consider the record made Before the department and from that record determine whether or not, as matter of law, the record disclosed sufficient evidence to take the case to a jury upon appellant's behalf.

The matter was argued and submitted to the court for decision.

September 15, 1944, the court granted the motion to dismiss and entered judgment dismissing the case. The judgment recites the employer's motion to dismiss and that the department of labor and industries joined therein, and that:

'* * * the said cause having been and being set for trial by jury and the parties having stipulated that for the purpose of said motion and the decision thereof that the court should consider the Departmental record on file herein and the said Departmental record having been offered in evidence for consideration of the court in connection with said motion and having been received in evidence for said purpose pursuant to stipulation of the parties, and the court having considered said motion and said Departmental record and the evidence and the exhibits * * *,'

followed by an order granting the motion to dismiss and dismissing the action, appellant being allowed her exception.

After the entry of the judgment, appellant moved for a new trial, and upon denial of her motion appealed to this court from the judgment dismissing her action.

Error is assigned upon the court's ruling that the record contained no substantial evidence sufficient to take the case to a jury, upon the entry of judgment dismissing the action, and upon the denial of appellant's motion for a new trial.

As above stated, appellant appealed from an order of the joint board denying her any relief whatsoever. She contends that the record shows that by the accident she sustained a permanent disability by reason of impairment of the vision of her right eye. She does not contend that it would be within the province of the jury or the superior court to fix the degree of disability which she suffers as the result of the accident; but she does contend that upon the record made Before the department she is entitled to a verdict of the jury upon the question of whether or not she has in fact suffered any permanent disability as the result of the industrial accident which she sustained. If the verdict of the jury should be in her favor upon this proposition, appellant contends that the superior court should remand the case to the department for the purpose of determining the degree of disability suffered by appellant.

Respondent department argues that the evidence concerning any permanent injury which appellant claims to have suffered was subjective only; that in such a situation, injury may be proven only by the testimony of expert witnesses, and that the testimony of lay witnesses affords no legal basis sufficient to support a finding of physical injury to a human being when the injury is, in its nature, subjective and nowise objective.

Respondent employer argues that the question here presented is similar to that which inheres in an appeal from a judgment entered pursuant to the granting of a motion for judgment in favor of one party notwithstanding the verdict of a jury in favor of the opposing party. That is not exactly the situation here presented, as in the case at bar no jury has rendered a verdict. This situation, as above stated, is more nearly analogous to the question raised on a defendant's motion to dismiss at the close of all the evidence.

Respondent employer calls our attention to the case of Alfredson v. Department of Labor and Industries, 5 Wash.2d 648, 105 P.2d 37, 39,

in which this court discussed Rem.Rev.Stat. § 7697, as amended by Laws of 1943, chapter 280, section 1, which contains a provision carried over from earlier statutes to the effect that a departmental ruling shall be deemed prima facie correct. In the case cited, this court affirmed a judgment of the superior court, entered upon the verdict of a jury reversing an order of the department. In the course of the discussion of the effect of the statute declaring the order of the department prima facie correct, we said:

'* * * The court, of course, may pass upon the sufficiency of the evidence to take the case to the jury. * * *'

In entering the judgment appealed from, in the case at bar, the trial court did pass upon the sufficiency of appellant's evidence to take the case to a jury.

The section of the statute above cited, as amended, also contains the following, referring to appeals from the department to the superior court:

'If the Court shall determine that the Department has acted within its power and has correctly construed the law and found the facts, the decision of the Department shall be confirmed; otherwise, it shall be reversed or...