Mud Bay Logging Co. v. Department of Labor and Industries, 26416.

• Decision Date: 10 February 1937
• Docket Number: 26416.
• Parties: MUD BAY LOGGING CO. v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

64 P.2d 1054

189 Wash. 285

MUD BAY LOGGING CO. v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 26416.

Supreme Court of Washington

February 10, 1937

Department 2.

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Proceedings under the Workmen's Compensation Act by Jack Matela employee, against the Department of Labor and Industries opposed by the Mud Bay Logging Company, employer. From a judgment for the employer, on appeal from a decision of the joint board for claimant, the Department appeals.

Affirmed.

G. W Hamilton, J. A. Kavaney, and Harry L. Parr, all of Olympia (V. D. Bradeson, of Olympia, of counsel), for appellant.

Thos. L. O'Leary, of Olympia, for respondent.

ROBINSON Justice.

In August, 1933, in the case of Jack Matela v. Department of Labor and Industries, 174 Wash. 144, 24 P.2d 429, this court affirmed an order of the superior court of Lewis county, directing the department, which had closed Matela's claim in January, 1932, to reopen the matter, allow further time loss, furnish medical attention, and otherwise deal with it as the facts and the law applicable thereto might require.

Thereafter, in April, 1934, the department again closed the claim with a permanent partial disability rating of five degrees, and Matela applied for a rehearing Before the joint board, claiming total permanent disability. His application was granted, and the parties in interest, including the Mud Bay Logging Company, his employer at the time he received the injury upon which his claim was founded, were notified that a hearing would be held in Chehalis on June 8.

The Logging Company appeared at the hearing by its attorney and secretary and by its safety engineer. It had a pecuniary interest in the result, for if Matela should be held totally and permanently disabled, no matter what compensation was actually awarded him, the fixed sum of $4,000 would be charged against its 'cost experience' and materially increased its future premium rate. See Rem.Rev.Stat. § 7676.

At the Chehalis hearing Matela testified that he was totally and permanently disabled, and called Doctor Barr, who gave similar testimony. No other witnesses were called. The cross-examination of these witnesses by the department was of such character as to indicate that the department had in no way receded from the position which it had consistently maintained for more than three years, that Matela had little or no permanent disability other than that occasioned by causes antedating the injury upon which his claim was based.

In July, 1934, the joint board reviewed the entire department file, including a transcript of the evidence taken at Chehalis, and ordered that the matter be continued and the claimant further physically examined. For this purpose, it appointed a board of three Longview physicians, who examined Matela on August 10, and, as a result of such examination, suggested giving him a rating of ten degrees permanent partial disability. Their report and suggestion came Before the joint board on October 1, and, after consideration, the board again ordered that the claimant should be further physically examined and appointed an entirely new examining board, consisting of three Centralia physicians.

On October 16, they reported, in substance, that whatever permanent disability Matela had was occasioned by causes antedating his injury in December, 1930, and that he had already received compensation far beyond the period of disability due to that injury.

In the face of this most unfavorable report, Matela petitioned to compromise and settle his claim on the basis of total permanent disability, offering to accept a lump sum of $1,225 in exchange for his releasing the department from all claims, present or future, with respect to the injury upon which his claim was founded. The petition was verified on January 12, 1935. The record does not show date of filing.

On January 21, 1935, the joint board ordered that the supervisor be reversed with instructions to adjudge Matela totally and permanently disabled. The position of this order in the claim file would indicate that it was not actually filed until February 2. It may have been withheld pending negotiations with Matela as to his offer of compromise and settlement. The department seems to have come to an agreement with him about the first of February, for there is in the file a notation of that date which reads as follows: 'It is further ordered that the claim be closed with a lump sum settlement of $1,225.00.' There is another notation, dated February 2, written in pencil upon the order of January 21. 'Closed in lump sum of $1,225.00.' On February 2 the department wrote to Matela as follows: 'We are enclosing formal notice of the action of the joint board. The claim is now going through for payment of $1,225.00, lump sum and settlement, as per agreement reached.'

The agreement appears to have been very speedily carried out. It is the usual custom of the department to withhold delivery of settlement warrants for a period of five days, but, in this instance, the delivery of the warrant must have closely followed...