Matson v. Department of Labor and Industries

• Decision Date: 07 April 1939
• Docket Number: 27358.
• Citation: 88 P.2d 825,198 Wash. 507
• Parties: MATSON v. DEPARTMENT OF LABOR AND INDUSTRIES et al.
• Court: Washington Supreme Court

88 P.2d 825

198 Wash. 507

MATSON v. DEPARTMENT OF LABOR AND INDUSTRIES et al.

No. 27358.

Supreme Court of Washington

April 7, 1939

Department 1.

Proceeding for compensation under the Workmen's Compensation Act by Jake Matson, employee, opposed by the American Door &amp Manufacturing Company, employer. From a judgment reversing an order of the joint board of the Department of Labor and Industries, which reversed the supervisor's order denying claimant's application after denial of compensation to reopen the claim, with instructions to reopen it and award claimant five degrees permanent partial disability, remanding the cause to the Department, and allowing claimant 30 additional degrees of such disability, the employer appeals.

Reversed and remanded with directions.

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

L. B. Donley, of Aberdeen, for appellant.

F. W Loomis, of Aberdeen, and A. P. Wilson, of Montesano, for respondent.

JEFFERS Justice.

Jake Matson, claimant, an employee of American Door &amp Manufacturing Company, a corporation, on the 6th day of October, 1934, while unloading lumber from a railroad car, slipped and fell between the car and loading platform, striking his chest, back and left thigh, and sustaining injuries for which he filed a claim with the department of labor and industries. This claim was adjusted on the employer's report, and after an examination of claimant by Doctor Brachvogel. Neither the claim nor report of the employer showed any injury other than to the back and thigh. The report of the doctor indicated no injury other than that the small of the back was injured, left thigh discolored, and that there was no fracture. The treatment consisted of diathermy and strapping of the back. The estimated loss of time was three weeks. On November 21, 1934, the supervisor made an order awarding claimant a time loss of twenty-eight days, to November 6, 1934, and determined there was no permanent partial disability.

On September 27, 1935, an application was made to the joint board for a rehearing and reopening, and also a claim for injuries and disabilities not theretofore reported and acted upon, and there were set out in such application certain conditions not reported in the original claim or report of the examining doctor. Thereafter, the time for hearing on the application was extended, and on October 22, 1935, the joint board, by letter, notified claimant that he should withdraw his appeal to the joint board and address it to the supervisor, as the joint board had no jurisdiction, inasmuch as the supervisor had never considered or passed upon the issues set out in the application. The supervisor, under date of November 5, 1935, in answer to a letter directed to him, advised the claimant that the application would not be considered as an appeal, but an application to reopen the claim, since there had been no previous action by the supervisor.

On January 6, 1936, the supervisor made an order, in which he recites: 'From a review of the medical examination report it has been determined that your present disability at this time is not the result of your injury of October 6, 1934, for which this claim was filed.'

The order further shows that claimant was referred to Doctor H. C. Randolph for special examination. The order concludes with the following: 'Under the circumstances we are declining to reopen the claim and must continue the claim closed in accordance with our final notice of November 21, 1934.'

The report of Doctor Randolph shows that claimant was sixty-three years old at the date of the examination, December 12, 1935; that he had never been injured Before ; that he had never consulted a doctor but once Before the injury; that when he walks fast he becomes stifled for want of air; that he has some stiffness in the lower lumbar region, if he sits for long, but this is not bad. The report further states that the doctor was not able to demonstrate positively any lesion of the heart, but suspected myocardial weakness, together with abnormal deposit of fat, as being responsible for his labored breathing upon exertion. The report further states that the doctor was not able to demonstrate any consequences of the alleged injury; that the rigidity of claimant's spine is due to arthritic changes.

On February 17, 1936, claimant filed an application for rehearing Before the joint board, not only on account of aggravation, but also on account of injuries and resulting disabilities arising from the original injury, which had not been previously submitted to or passed upon by the supervisor.

On March 9, 1936, the joint board entered an order granting the application for rehearing only as to the question of aggravation of disability, if any, resulting from the injury of October 6, 1934 and occurring subsequent to the closure of the claim, November 7, 1934, claiming it had no jurisdiction, because of the operation of the statute of limitation, to review the closure of the claim on November 7, 1934. Thereafter, the matter was continued by the joint board until November 4, 1936, at which time claimant appeared and presented, in support of his appeal, three lay witnesses, Doctor O. R. Austin, and himself.

Claimant testified that he had been in the employ of American Door & Manufacturing Company about ten years; that during all this time he had been doing the same kind of work, without loss of time on account of sickness; that he was injured on October 6, 1934, while engaged in removing green lumber from a freight car to a dry kiln; that he slipped and fell as he was getting down from the car, and struck his left hip, back and chest against the car and the loading platform; that he fell about six feet; that he weighed approximately two hundred five pounds, and struck the ground hard; that he was not able to get up for some time; that he felt pain in his chest and back; that he was on the job that afternoon, but could not remember whether he worked or not; that he did not go to work the next day, but went to see Doctor Brachvogel, and told him of the accident, also telling him of the pain in his chest and back; that the doctor treated him for the back injury; that claimant attempted to return to work about a month later, on the advice of Doctor Brachvogel, but was unable to work but a few hours; that he has not been able to work since then; that he has pain in his chest and back, while Before the injury he had no pain; that when he attempts to work or walk, he feels a shortness of breath; that this condition has been the same at all times since the accident; that he was never treated but once by Doctor Brachvogel Before his injury, and that was for a cold.

Witnesses Fred Carlson, Axel Carlson and Archie Fox, called by claimant, testified that they had worked with claimant for from three to ten years; that they were well acquainted with him; that claimant was a good worker, and, Before he was injured, had kept up his end of the work; that they had never known of his being sick, or to complain of any sickness; that he worked the afternoon of the accident, but did not come back again.

Doctor Austin testified he had practiced for thirty-three years; that he first saw and examined claimant January 28, 1936; that he found some limitation of the spine and valvular heart trouble; that this heart condition was aggravated by slight exertion, affecting the breathing; that he is not able to carry on any gainful occupation, such inability being chiefly due to his heart condition; that if his heart were good, he could probably get his back limbered up enough to do a little work; that claimant probably had some weakened heart condition prior to the accident; that it is difficult to figure out these heart conditions--sometimes they are not noticed until after an injury like this; that the doctor could not tell the condition of the heart Before the accident; that the arthritic condition in the back had probably been developing for some years; that, judging from the history, had it not been for the accident, claimant might have gone on with his work indefinitely.

At this hearing, the testimony was taken Before L. E. O'Neill, examiner for the joint board; claimant was represented by his attorneys, and the employer by Lester E. Hitt, safety engineer.

At the request of the joint board, Doctors Graham, Lightfoot and Randolph examined claimant, on December 7, 1936, and thereafter submitted to the board their written report, in which they state that claimant complains of pain at the lumbo sacral juncture, when bending forward or to the right or left; that the pain is probably due to an arthritic condition, possibly aggravated by his alleged injury; that according to claimant's statement, this back condition is only disabling to a minor degree; that his chief complaint is of shortness of breath on exertion. The doctors' report then concludes: 'We are of the opinion that his condition is fixed, that no further treatment is indicated, that he cannot carry on a gainful...