Miller v. Department of Labor and Industries of Washington

• Decision Date: 16 October 1939
• Docket Number: 27476.
• Citation: 94 P.2d 764,200 Wash. 674
• Parties: MILLER v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.
• Court: Washington Supreme Court

94 P.2d 764

200 Wash. 674

MILLER v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.

No. 27476.

Supreme Court of Washington, En Banc.

October 16, 1939

Proceeding under the Workmen's Compensation Act by Clinton M Miller, claimant, opposed by the Department of Labor and Industries of the State of Washington. From a judgment of the superior court affirming an order of the joint board of the Department of Labor and Industries, closing claimant's claim with an allowance for time lost and an award for permanent partial disability, claimant appeals.

Reversed and remanded with direction.

Appeal from Superior Court, Pierce County; E. D. Hodge, judge.

V. D. Bradeson, of Olympia, for appellant.

G. W Hamilton, Atty. Gen., and J. A. Kavaney and T. H. Little both of Olympia, for respondent.

STEINERT Justice.

This is a proceeding under the workmen's compensation act. The judgment of the superior court affirmed an order of the joint board of the department of labor and industries closing the claim of an injured workman with an allowance for time loss and an award for permanent partial disability. The workman, deeming himself aggrieved by the order and judgment, has appealed to this court.

The questions to be determined on the appeal are (1) whether appellant's condition should have been classified as a total disability, either permanent or else temporary, rather than as a permanent partial disability, and (2) whether or not the amount of the award was proper and just.

The facts material to the consideration of these questions are as follows: Appellant, Clinton M. Miller, was a longshoreman, twenty-six years of age, strongly built and weighing about one hundred seventy-eight pounds. He had been doing heavy manual work for about nine years. In April, 1937, while helping to load some heavy bales of pulp at a Tacoma dock, he experienced what he termed a 'twinge' in the lower part of his back. He continued his work, however, for six days and then quit for a period of nine days for treatment. Resuming his employment, he worked regularly at the dock until, on August 4, while helping to lift a drum of oil weighing about five hundred pounds, he suffered a severe sprain of the lumbosacral joint. On account of the pain, appellant was unable to work for about a month. Between September 3 and December 10 he worked intermittently about ten days. From December 10 until the following April he did not work at all, and during that entire period was under the care of a physician who, with the consent of the department, prescribed a sacroiliac belt and administered a course of intravenous injections.

On March 24, 1938, at the direction of the department, appellant was examined by another physician who later reported that appellant had no disability resulting from the injury of August 4, 1937, and that he should be requested to go back to work, with no permanent partial disability rating. On April 4, 1938, the supervisor of the department entered an order closing the claim with payment for time loss to April 1, but with no allowance for permanent partial disability. Thereupon, appellant filed an application for, and was granted, a rehearing Before the joint board.

The joint board then referred the matter to a commission of medical specialists for examination of, and report concerning, appellant.

On May 31, 1938, the commission made a report of its findings to the effect that there was a definite tenderness at the lumbosacral joint and that the x-ray films showed a congenital absence of the neural arch of the first sacral segment, and further reciting, as its conclusions, the following: 'It is our opinion that (1) The claimant's condition is not fixed; (2) That his disability, in part at least, is due to the injury of which he complains; (3) The claimant is not able to carry of a gainful occupation; (4) Treatment by surgical operation is indicated. We believe that a well planned and efficiently executed fusion operation including the 5th lumbar and upper two sacral segments is definitely indicated in this case.'

On June 1, 1938, the rehearing Before the joint board began. The report of the specialists was offered in evidence and the testimony of appellant and his witnesses, including his attending physician, was taken. The physician testified that appellant was suffering from a lumbosacro-iliac ailment; that his condition had not materially improved; that further medical treatment would be of no value; and that the only thing that possibly could do appellant any good would be a surgical operation, but that even an operation offered only a fifty-fifty chance of improvement. The physician was not asked whether appellant's disability was total or partial. The rehearing was then adjourned to a later date for the taking of testimony offered by the department.

In the interim, that is, on July 8, 1938, the department informed appellant, who was then in Portland, Oregon, that the evidence in the case indicated the advisability of having a fusion operation upon his spine and authorized appellant to have it performed by a certain orthopedic specialist in that city. Appellant promptly notified the department that he rejected the proposal, and further requested that his case be closed with a lump sum settlement.

The department thereupon again referred the matter to the commission of specialists for further examination of appellant and for report as to whether appellant's condition was of traumatic origin and the result of the injury complained of and, if so, whether his condition was fixed and, if fixed, the extent of permanent partial disability due to the injury, to be expressed in terms of percentage as compared to a maximum of the maximum award for unspecified disability amounting to eighty degrees; or, if his condition was not fixed, whether further treatment was indicated and, if so, the treatment recommended; and also as to whether appellant was able to carry on a gainful occupation. On July 26, 1938, the commission made its report which, after confirming its former report, concluded as follows:

'We are of the opinion that he has an extensive permanent disability, partly due to a congenital weakness as formerly described, and partly due to his injury to this already weakened structure, which has resulted in a chronic strain at the lumbosacral area and the formation of localized traumatic arthritis.

'It is our opinion further that he should be awarded a PPD [permanent partial disability] of 40 degrees as a result of the injuries he received in April and in August of 1937.'

The rehearing was resumed September 9, 1938, at which time the testimony of the three specialists and the physician who first recommended that appellant's claim be closed was taken. The three specialists testified that in their opinion an operation would greatly improve appellant's condition, although such result could not be predicted with certainty; that the fusion should be successful if the operation was properly performed; that appellant's present infirmity was produced by a combination of the injury and a congenital weakness of his back; that such infirmity then constituted a permanent partial disability; and that in their opinion appellant should have a rating of forty degrees (which is equivalent to one-half of the maximum) permanent partial disability.

Only one of the three specialists testified directly upon the question whether appellant was able to engage in a gainful occupation. With reference to that matter the witness testified that appellant was not totally disabled and that, while he would not be able to do heavy manual lifting, he 'could go ahead and do light work.'

Each of the three specialists was questioned as to how he arrived at the figure of forty degrees for permanent partial disability. One of them stated that they had taken into consideration the congenital anomaly which caused a weakened condition of appellant's back and that they thought they were dealing fairly with him in classifying him in such a way as to give him fifty per cent of the highest amount allowable for a permanent partial disability not specifically described in the statute. The second specialist testified that the award was made for appellant's condition as it then existed, which was a sprain superimposed on a congenitally weak back; he further testified that the basis of the award was the loss of function. The third specialist concluded that appellant was not totally disabled and that, in justice both to the state and appellant, forty degrees was a proper figure.

The fourth medical witness, who had examined appellant on March 24, 1938, testified that the workman had a congenitally weak back; that in the opinion of the witness the pain suffered by appellant came from the use of his back during hard labor rather than from injury; that when the witness made the examination he thought that appellant was able to work, but that appellant should not follow hard manual labor.

Later, at a continued hearing, appellant called, in rebuttal, a physician witness who testified that appellant had a small congenital defect but that it did not materially contribute to the ailment; that appellant's condition was due to chronic lumbosacral strain which might be remedied either by complete rest or by a fusion operation, although there was no assurance that the latter would be successful; and that appellant could not in his condition perform hard manual labor, but that there were many types of sedentary work in which he could engage.

At the conclusion of the rehearing the joint board made a summary of the proceedings from which it concluded that appellant's permanent partial disability due to injury did not exceed forty degrees, and...