Mullen v. Department of Labor and Industries of Washington, 22467.

• Decision Date: 10 June 1930
• Docket Number: 22467.
• Parties: MULLEN v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.
• Court: Washington Supreme Court

288 P. 926

157 Wash. 329

MULLEN v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.

No. 22467.

Supreme Court of Washington

June 10, 1930

Department 1.

Appeal from Superior Court, Lewis County; W. A. Reynolds, Judge.

Application by W. E. Mullen for reopening of his claim for compensation was denied by the Department of Labor and Industries, and plaintiff appealed to the Superior Court. From judgment reversing the decision of the Department and remanding the cause, with instructions, the Department appeals.

Reversed and remanded, with directions.

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

Phil K Eaton, of Olympia, for respondent.

MILLARD J.

On September 21, 1925, the plaintiff was injured while employed by the Raymond Lumber Company. In addition to an injury to his leg he sustained an injury to his back consisting of a compression fracture of the third and fourth lumbar vertebrae, and the dislocation of the fifth lumber on the fourth. The department classified his injuries as temporary total disability, and paid compensation to him therefor. On March 2, 1926, the plaintiff was advanced three degrees for permanent partial disability and was paid ninety dollars in addition to the payment made for time lost. On August 10 1926, the claim was closed with an additional permanent partial disability award of twenty-seven degrees for which he was paid eight hundred and ten dollars. On March 24, 1927, the case was reopened when additional time loss was paid, and an additional permanent partial disability award of ten degrees made, for which plaintiff was paid three hundred dollars. On November 26, 1928, the plaintiff filed the following application with the department of labor for reopening the claim:

'I hereby apply for reopening of my claim for the following reasons:

'1. Since my claim was closed on or about that 22nd day of March, 1927, with an award of 40~ for permanent partial disability, I find that I am unable to perform any work at any gainful occupation on account of my injuries.

'2. That since my claim was closed my physical condition has become worse and aggravated due to said injury in this that I am bothered from time to time with cramps and pains in my legs, increasing in severity and occurring both in the day time and at night so my rest is thereby disturbed and I am rendered, thereby, more unable to perform work at any gainful occupation.'

The application was denied on December 5, 1928, whereupon application was made for a rehearing before the joint board of the order denying his application for a reopening of his claim. The petition to the joint board reads in part as follows:

'II. That since said claim was closed on March 22nd, 1927, your petitioner has been unable to perform continually work at any gainful occupation on account of the disabilities arising from the injury for which said claim was filed.

'III. That at the time said claim was closed, your petitioner thought he could find some means to support himself and he attempted so to do, but he has been wholly unable, after due and diligent effort, by reason of his injury, to find employment which he could perform; that your petitioner has only been able to earn a very small amount by working intermittently since his claim was closed.

'IV. That by reason of his injury, your petitioner's physical condition and powers have become such that the labor market is closed to him, he has lost his...