McArthur v. Department of Labor and Industries

• Decision Date: 15 June 1932
• Docket Number: 23750.
• Citation: 12 P.2d 418,168 Wash. 405
• Court: Washington Supreme Court
• Parties: McARTHUR v. DEPARTMENT OF LABOR AND INDUSTRIES.

12 P.2d 418

168 Wash. 405

McARTHUR v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 23750.

Supreme Court of Washington

June 15, 1932

Department 2.

Appeal from Superior Court, Thurston County; John M. Wilson, Judge.

Proceeding for compensation under the Workmen's Compensation Act by W. J. McArthur, employee, opposed by the Western Quarry Company, employer. From a judgment reversing a decision of the joint board of the Department of Labor & Industries denying compensation, the Department appeals.

Affirmed.

John H Dunbar and Harry Ellsworth Foster, both of Olympia, for appellant.

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

HOLCOMB, J.

Respondent filed a report of accident with appellant alleging that he was injured on July 8, 1931, while engaged in the employ of the Western Quarry Company at Tenino, in extrahazardous work in lifting a heavy stone.

Upon receipt of the claim, appellant caused an investigation to be held by its agents, and thereafter respondent and his employer were advised that the supervisor had decided that the workman's condition was not the result of an injury within the meaning of the Workmen's Compensation Act; that there was no proof of an injury in the course of the employment. Upon receipt of that notice, respondent filed his application for a rehearing Before the joint board of the department in the manner and within the time prescribed by law. Thereupon a rehearing was granted by appellant, and on the day appointed respondent offered the testimony of himself and his lay and medical witnesses. Thereafter the joint board rendered its decision sustaining the previous action of the supervisor, which order was communicated to respondent, and he duly filed his appeal therefrom in the superior court for Thurston county. The matter was submitted to the court below upon the record taken Before the joint board; no further testimony being offered by appellant.

The lower court granted judgment reversing the joint board after denying motion for a new trial, and this appeal results.

The evidence in the record shows that on July 8, 1931, respondent had been employed by the Western Quarry Company in its stone quarry for a year or more, and on that day he was engaged with another workman in helping to load a flat car with stone sills, which operation also required the placing of excelsior, or packing of some kind, under and around the stone sills, so that they would not come in contact with one another during transportation. The stones weighing from six hundred to seven hundred pounds, were lifted and lowered by a derrick, and when so lowered the workmen would direct the course of the stone so that it would be in its proper place. After working from 8 a. m. to about 11:30 a. m. on July 8, respondent was observed by his fellow workmen to break out in an unusual perspiration. While he was engaged in shoving on a slab of stone to slide it into place in an unusual position on one knee and one foot, he stooped over and exerted great force to slide the stone into place after which he felt a pain in his stomach. He continued to work the few minutes until noon, and was then forced to quit. During that night the pain in his abdomen became very acute, and a doctor was called who temporarily relieved the pain. The following day he was removed to a hospital, where his condition was diagnosed as 'ruptured duodenal ulcer,' and an operation performed to relieve it. For some time prior to the date in question respondent had been taking medicine to relieve what he believed was merely 'sour stomach.'

Respondent's physician and medical witness testified that the lifting possibly and probably caused the ulcer to rupture. He also stated that as to the 'length of disability in this case had there been no pre-existing disease, respondent probably would not have been disabled at all.'

Appellant states the two questions to be determined on this appeal are whether the workman suffered an 'injury' within the meaning of the Workmen's Compensation Act on the day in question, and, if so, whether respondent overcame the statutory prima facie correctness of the order of the joint board and showed that any amount at all of the disability was due to the lifting rather than to the pre-existing disease.

The amendment of 1927, now Rem. 1927 Supp. § 7675, is relied upon: 'The word 'injury' as used in this act means a sudden and tangible happening, of a traumatic nature producing an immediate or prompt result, and occurring from without, and such physical condition as...