Kull v. Department of Labor and Industries

• Decision Date: 30 October 1944
• Docket Number: 29382.
• Citation: 21 Wn.2d 672,152 P.2d 961
• Parties: KULL v. DEPARTMENT OF LABOR AND INDUSTRIES et al.
• Court: Washington Supreme Court

152 P.2d 961

21 Wn.2d 672

KULL v. DEPARTMENT OF LABOR AND INDUSTRIES et al.

No. 29382.

Supreme Court of Washington

October 30, 1944

Department 1.

Proceeding under the Workmen's Compensation Act by Tor W. Kull claimant, opposed by the Weyerhaeuser Timber Company employer. From a judgment on a jury's verdict, awarding claimant additional compensation on appeal from an order of the joint board of the Department of Labor and Industries sustaining the supervisor's award of compensation for permanent partial disability, the Department appeals.

Affirmed.

Appeal from Superior Court, King County; Chester A. batchelor, judge.

Smith Troy and Harry L. Parr, both of Olympia, for appellant.

Griffin & Gershon, of Seattle, for respondent.

JEFFERS Justice.

This is an appeal by the department of labor and industries of the state of Washington (hereinafter referred to as the department) from a judgment of the superior court of the state of Washington for King county, entered on the verdict of a jury, on December 27, 1943, in the case of Tor W. Kull against the department.

For some time prior to December 3, 1941, Kull had been in the employ of the Weyerhaeuser Timber Company as a timber faller and on the date last above mentioned, while so employed, was injured. A report was duly filed wherein the accident was described as follows:

'Falling timber into other trees 6"' snow on ground and when I stepped on old trees under snow and fell down.'

On December 19, 1942, claimant was paid $49 time loss to December 18, 1942. On December 28, 1942, the claim was closed by the supervisor, and claimant was paid the sum of $480 for permanent partial disability.

On January 19, 1943, claimant made an application to the joint board for a rehearing and reopening of his case. In his application, claimant alleged that he was injured in the course of extrahazardous work while in the employ of Weyerhaeuser Timber Company on December 3, 1941; that he had received considerable treatment, and that he had been paid time loss to December 18, 1942; that since that time he had received additional treatment, and that he had not yet been able to return to work; that he was suffering from numerous disabilities in his chest, upper back, neck, arms, head and nervous system; that prior to the accident he was in good physical condition, was suffering from none of the disabilities above set forth, and was able to work continuously; that when his condition becomes fixed, he will be entitled to a permanent partial disability award far in excess of $480.

The application for rehearing was granted, and the first hearing held on February 18, 1943, Before E. J. Cummins, a duly authorized examiner for the joint board. At this hearing claimant and one Eli Larson testified.

Mr. Kull testified in substance that he was falling a tree, and that when it started to fall he tried to get out of the way. As near as we can determine from his testimony, he started to run along the trunk of a tree which was down, stepped on a slippery place and fell about ten feet, landing on his chest on the root of a tree. About three days later, claimant went to the Bridge Clinic in Seattle, and was treated by Doctor Seal. He was subsequently operated upon at the Bridge Clinic in Tacoma. In the meantime, at the request of the department, claimant had consulted and been examined by Doctors Brugman and LeCocq.

Claimant further testified that he had not worked since the accident; that he was so sore he could hardly button his vest; that his back bothered him between the shoulder blades; that his leg and both arms were getting numb and ached; that he fainted quite a few times. He testified as follows:

'Q. What condition is your neck and head? A. No good.

'Q. What troubles do you have? A. That comes from the back too. That is what the dizziness comes from, from the back.

'Q. You said that the neck pain comes from the back too? A. Yes.

'Q. Are you able to walk around a lot now? A. No, no, no.

'Q. Take a long walk? A. I sweat sitting here now. No, I don't take no long walk now.

'Q. Do the--A. Another thing too, I tell you I can't even sleep yet. It is about four weeks since I slept now, and sometimes for four or five weeks--and sometimes I get an hour or two. * * *

'Q. Before the accident did you have any dizziness or aches in your head or neck? A. I had aches in my head, all right, but that is a long, long time ago when I was hurt Before --1928, but it was all over.'

Mr. Larson's testimony was to the effect that he had known claimant for many years Before he was hurt, and had seen him frequently since that time; that since claimant was injured he (Larson) had noticed that claimant was crippled up and has had pains in his chest, shoulders and head; that he had noticed that claimant became numb and his legs seem to be affected; that claimant worked nearly all the time Before the accident.

A continuation was then taken to March 26, 1943, at which time Doctor Nathan K. Rickles was called by claimant and testified. We shall later refer to this testimony.

Another continuance was taken to May 21, 1943, at which time Doctors Joe Brugman, John F. LeCocq, George E. Price and S. N. Berens were called by the department.

By an order dated June 7, 1943, the joint board sustained the action of the supervisor. On June 17th, claimant appealed from the order of the joint board to the superior court for King county, where on December 1, 1943, a jury returned a verdict to the effect that claimant should be paid an additional amount of $720. Judgment was entered on this verdict, and this appeal followed.

As appellant's assignments of error are based almost entirely upon the admission of certain parts of Doctor Rickles' testimony, we shall set it out in some detail. The doctor testified that he specialized in nervous and mental diseases. He was asked: 'And Dr. Rickles, does traumatic neurosis fall within that field?' to which he answered: 'Yes, it does.' The doctor then stated he had had occasion to treat and examine men suffering from industrial injuries and to rate their disability. He stated that he had examined Mr. Kull three weeks Before at his office. (It does not appear whether for the purpose of treatment or to enable the doctor to testify as an expert.) The doctor's testimony continues:

'Q. And will you tell us, briefly, what history he related to you and what his complaints were and your findings? A. He stated he was born in Finland forty-seven years ago and came to the United States in 1922. He had very little common schooling. His father is dead and his mother is still living, and he has five sisters and one brother all living in Finland. He has followed the trade of mining and logging. His past history, in 1928 he received a severe injury to his head by a falling tree which necessitated his being in Providence Hospital under Dr. Buckner's care for over a month. He was unable to return to work for about one year. On December 3rd, 1941, while in the employ of the Weyerhaeuser Timber Company, he was injured again while attempting to avoid a falling tree when he hit a tree stump on his chest, and at that time complained of pain in his chest and back and right shoulder. He was given emergency care such as taping and diathermy, and later on and in July 1942, he was operated on by Dr. Bridge in Tacoma. He remained in the hospital for six weeks and stated at that time they operated on him to remove an overgrowth on bone in his chest. Since this period, he has complained of considerable pain in his chest and still does, and aggravation of pain in his back and right shoulder. The pain sometimes becomes so severe that he feels like fainting. Recently, he has noticed numbness in both upper and lower extremities.

'Q. By that you mean the arms and legs, doctor? A. Yes. The other physical findings are essentially negative. I took a Wasserman, which was negative. Reflexes were normal. Blood pressure and heart action were normal. His weight was one hundred seventy-two, and his height was five feet nine and a half inches.

'Mr. Cummins: That is within the normal limit?

'The Witness: Yes.

'A. (Continuing) At the time of the examination, he was suffering from the result of an injury of December 3rd, 1941, when he received a crushing blow to his chest. His complaints are due, in part, to the injury and to the subsequent operation. In addition to that, I feel that his prior injury of 1928, in which he suffered a severe head injury sufficient to lay him up for over a period of one year also was active in many of the symptoms at the present time. I feel the man now is suffering to some extent as a result of that trauma, which has become very fixed in his mind so that many of the symptoms are aggravated by this condition. I feel that he has at the present time traumatic neurosis in addition to his actual physical injury.

'Q. And, doctor, you mentioned that you felt that many of his symptoms are traceable to the operation, or some of his symptoms are traceable to the operation. Will you tell us why? A. In a man of this particular mental make-up and particularly true if a man should suffer a head injury, the operation has two factors. First, it fixes the injury in the patient's mind and makes it much more real and has a tendency to aggravate the symptoms and, secondly, there also is following surgery of the chest a great deal of pain and discomfort after, particularly when you remove bony portions of that chest.

'Q. Can you explain the meaning of the term 'traumatic neurosis'? A. Traumatic neurosis is rather indefinite. It takes in many conditions. It simply means that a person who has suffered some injury will later on, due to this injury and also to his own personality, develop certain symptoms which...