Leschner v. Department of Labor and Industries

• Decision Date: 07 June 1947
• Docket Number: 29934.
• Citation: 185 P.2d 113,27 Wn.2d 911
• Court: Washington Supreme Court
• Parties: LESCHNER v. DEPARTMENT OF LABOR & INDUSTRIES.

185 P.2d 113

27 Wn.2d 911

LESCHNER v. DEPARTMENT OF LABOR & INDUSTRIES.

No. 29934.

Supreme Court of Washington, En Banc.

June 7, 1947

On Motion to Dismiss Appeal and Withdraw En Banc Opinion Oct 16, 1947.

Proceeding under the Workmen's Compensation Act by Alvina Leschner claimant, opposed by the Department of Labor and Industries for personal injuries suffered by ciaimant while employed by the Carstens Packing Company. From a judgment reversing the decision of the Department, which denied the application, the Department appeals.

Reversed with direction.

A petition for a rehearing en banc was subsequently granted and while the matter was thus pending the parties stipulated to dismiss the appeal and joined in moving the court to withdraw its en banc opinion previously filed.

Motion to dismiss the appeal granted, and motion to withdraw the en banc opinion denied.

SIMPSON, ABEL, MILLARD, and SCHWELLENBACH, JJ., dissenting.

SIMPSON, MILLARD, and ROBINSON, JJ., dissenting.

On Motion to Dismiss Appeal and Withdraw en Banc Opinion.

Appeal from Superior Court, Pierce County; F. G. Remann, judge.

Smith Troy and Lucile Lomen, and Phil H. Gallagher, all of Olympia, for appellant.

Rex S. Roudebush, of Tacoma, for respondent.

STEINERT Justice.

An injured claimant made application for compensation from the state accident fund, under the provisions of the Workmen's Compensation Act, Rem.Rev.Stat.§ 7673 et seq. After investigation of the claim, the application was denied by the supervisor of the department of labor and industries. On rehearing Before the joint board of the department, the decision of the supervisor was sustained. The injured claimant then appealed to the superior court and, after a hearing without a jury, the court entered judgment reversing the decision of the department and remanding the cause to that tribunal for the purpose of fixing the amount of compensation properly payable to the claimant. From that judgment the department appealed to this court.

There is no controversy as to the facts in the case. From about 1922 until the day of the accident here involved, respondent, Alvina Leschner, was employed at various intervals and for varying lengths of time as a manual laborer at the plant of Carstens Packing Company, in Tacoma. During that period she worked in various departments of the plant, as directed by her employer. On February 14, 1941, she was working in the laundry department, operating a heavy piece of machinery designated a washer. For some unknown reason, the machine unexpectedly broke loose from its mooring, and one of its doors or lids struck respondent on the top and right side of her head, felling her to the floor. It is conceded that her employment was classified as extrahazardous, within the meaning of the Workmen's Compensation Act, and that the injuries sustained by her were serious.

At the time of the accident, respondent's employer had a contract with Pierce County Medical Bureau providing for medical attention to be furnished by the bureau to the company's employees in cases of accidents within the scope of the workmen's compensation act. The bureau is composed of a large number of physicians in Tacoma.

On February 15, 1941, the day following the accident, respondent, through her son, obtained from the timekeeper of her employer a slip of paper authorizing Dr. Christian Quevli, or any other doctor connected with the bureau, to give the respondent medical attention for the injuries received by her as a result of the accident. Respondent consulted Dr. Quevli and was advised by him that treatment of her injuries did not come within his professional line. At the same time, he gave her a similar slip of paper referring her to Dr. E. J. Dodds, another member of the medical bureau.

Respondent then went to Dr. Dodds' office, presented the slip of paper which Dr. Quevli had given her, and submitted to an examination. Dr. Dodds informed her that the muscles of her back were torn loose, although he took no X-ray pictures. He explained to her that his method of treatment consisted of injections of 'some shots for the muscles,' but that, owing to her condition, it would take a long time to effect complete recovery.

Dr. Dodds treated respondent by this method for about four months, giving her two shots a week for a while and then reducing them to one, but this treatment did not bring about any improvement in her condition. She continually suffered much pain in her back, head, eyes, and ears, and was thereby incapacitated from work. For a while she was unable to walk.

About two months after the accident, respondent was informed by the timekeeper of her employer that she was entitled to compensation for the accident, and that she should have Dr. Dodds 'send in a slip' for that purpose. The following testimony of the respondent, Before the examiner for the joint board, best indicates the basis upon which the trial court rendered judgment in her favor:

'Q. What did he [Mr. Hult, the timekeeper] say? A. He said I should have the doctor send in a slip. He said you should be getting something--you were hurt on the job, and even the slip was marked hurt on the job. Every slip I received was marked hurt on the job, also.

'Q. What, if anything, did Mr. Hult say further. A. He just said I should have that sent in.

'Q. By whom? A. By the doctor.

'Q. After that conversation with Mr. Hult, what if anything, did you say to the doctor--referring I suppose to Dr. Dodds-- on that subject? A. I told Dr. Dodds what Mr. Hult said.

'Q. What did he say--the doctor? A. He got nervous, and he said he'd sent that in already. He said that just in those words.'

Respondent further testified that, a short time after the accident, she met Mr. Tom Carstens, an official of the packing company, in a physician's office, and there conversed with him concerning the matter: 'A. He asked me if--how I was getting along and if everything was taken well care of, and I said, yes, I think so.

'Q. Did he indicate what he referred to when he asked if everything was taken care of? A. He said--I don't know just exactly what it was, but that is what he said--if I was getting paid for while I was laying off. 'Are you well taken care of?'--that is what he asked me.

'Q. What did you say? A. I said, 'yes, sir, I think so.' And then he said for me to come back as soon as possible. He said, 'anytime you are ready, Mrs. Leschner, your job is there.'

'Q. Did you, at that time, state anything with reference to your accident claim? A. Well, that is what it was about--the claim--I guess, that is what he meant. He was in a hurry, and the doctor called him in at that moment, because he was having his eyes examined, and he couldn't talk any longer.

'Mr. Cobley [the examiner]: Did he ask if you had turned in your claim? The Witness: He said, I think 'Did you report the claim?'

'Mr. Cobley: What did you say? The Witness: I said Dr. Dodds did.'

The unfortunate fact is, as revealed by the record, that Dr. Dodds never sent to the department of labor and inductries any report relative to respondent's injuries. It is also a fact that the employer company never made any report of the accident.

At the end of four months, Dr. Dodds informed respondent that he could no longer treat her. It appears that the doctor was himself sick at that time, and that he died Before the present litigation arose.

After Dr. Dodds quit treating respondent, she went to various other doctors, seeking alleviation from her affliction; she also had treatments not within the field of medical science. In these efforts to regain her health and strength, she spent all of her savings, amounting to $587.

In May, 1942, which was about fifteen months after the accident, respondent, though still suffering greatly from her injuries, returned to work at Carstens Packing Company and remained there until May 22, 1944. During that period, however, she was frequently compelled to take layoffs on account of those injuries, and on the last-mentioned date was for the same reason required to quit work entirely. Since then she has not worked at all. Prior to the accident, she had always been a steady worker.

Shortly Before giving up work entirely, respondent consulted Dr. Frank J. Rigos, who gave her an X-ray examination, and reported to Dr. Quevli that 'there is an old compression fracture of the 1st lumbar vertebral body with moderate deformity. There are also minimal hyper-trophic changes of the lumbar spine. The remainder of the lumbar spine, sacrum, sacroiliacs, lumbo-sacral and the contiguous structures are normal.'

About a year later, in February, 1945, respondent consulted Dr. Joseph Hansen, a practicing physician in Tacoma, who, after examining her, found that she was suffering from some trouble in the region of the sacro-coccygeal joint, rendering physical movement extremely difficult and painful.

After getting a history of the case, Dr. Hansen concluded that it was a 'state case,' that is, one coming within the scope of the workmen's compensation act. Accordingly, on February 21, 1945, he prepared, upon a regular form furnished by the department, a report of respondent's accident. On the same day, he and the respondent signed the report as required by the rules and regulations of the department. On March 1, the employer signed that portion of the report required to be signed by it. The complete report, constituting a claim for compensation, was filed with the department on March 5, 1945. A subsequent report, differing slightly in detail, was filed May 7, 1945.

The claim for compensation was rejected by the supervisor solely upon the ground that it had not been filed within one year after the day on which the injury occurred, as required...