Murray v. Department of Labor and Industries of Washington

• Decision Date: 26 February 1929
• Docket Number: 21749.
• Parties: MURRAY v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.
• Court: Washington Supreme Court

275 P. 66

151 Wash. 95

MURRAY v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.

No. 21749.

Supreme Court of Washington

February 26, 1929

Department 2.

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

Proceeding under the Workmen's Compensation Law by Bert Murray claimant, for injuries, before the Department of Labor and Industries of the State of Washington. From a judgment reversing on the merits an order of the joint board granting an additional award to claimant, the Department of Labor and Industries appeals. Reversed, with instructions.

Tolman J., dissenting.

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

Phil K Eaton, of Olympia, for respondent.

FRENCH J.

In April, 1924, the respondent suffered an accident resulting in the fracture of both legs above the knees, and filed a claim for compensation with the department. The claim was allowed, and respondent was classified as having temporary total disability, and was paid at the rate of $65 per month. In May, 1926, the respondent was reclassified as having permanent partial disability equaling 45 dagrees. In March, 1928, respondent made application for a rehearing of his case, and at the instance of the department was examined by the chief medical examiner of the department, and later by a commission of doctors, and upon the report of the commission of doctors the department reopened the case and allowed additional permanent disability, making a total partial disability award of 65 degrees. From this last award the respondent petitioned for a rehearing before the joint board of the department. The petition was granted and rehearing had, resulting in the department granting additional award of 15 degrees, or a total of 80 degrees, which is the maximum under the law for permanent partial disability. From the final decision the claimant appealed to the superior court of Thurston county, that being the county of his residence.

A copy of the records and files of the department, together with a transcript of the testimony adduced upon the hearing before the joint board, was filed with the superior court as required by law, and upon that record the department moved for a dismissal of the appeal. This motion was by the lower court in a memorandum opinion, not only denied, but the court also, on the record alone, directed that judgment be entered reversing the department on the merits, whereupon appellant moved for an order of court setting the case for trial on a day certain, and made a written offer to prove certain facts deemed material for the defense of the action. This motion was denied. Findings of fact, conclusions of law, and a decree were duly signed, and this appeal follows.

The only question involved in this case is: What is the proper construction of section 20, chapter 74, Laws of 1911, being section 7697, Rem. Comp. Stat., as amended by chapter 310 of the Laws of 1927. Section 8 of that law reads as follows:

Sec. 8. That section 20 of chapter 74 of the Laws of 1911, page 368 (section 7697 of Remington's Compiled Statutes) be amended to read as follows:

'Section 20. Whenever the department of labor and industries has made any order, decision or award, it shall promptly serve the claimant, employer or other person affected thereby, with a copy thereof by mail, which shall be addressed to such claimant, employer or person at his last known address as shown by the records of the department. Any claimant, employer or other person aggrieved by any such order, decision or award must, before he appeals to the courts, serve upon the director of labor and industries, by mail or personally, within sixty days from the day on which such copy of such order, decision or award was communicated to the applicant, an application for rehearing before the joint board of said department, consisting of the director of labor and industries, the supervisor of industrial insurance and the supervisor of safety. Such application shall set forth in full detail the grounds upon which the applicant considers such order, decision or award is unjust or unlawful, and shall include every issue to be considered by the joint board, and it must contain a detailed statement of facts upon which such claimant, employer or other person relies in support thereof. The claimant, employer, or other person shall be deemed to have waived all objections or irregularities concerning the matter on which such rehearing is sought other than those specifically set forth in such application for rehearing, or appearing in the records of the department. If the joint board, in its opinion, considers that the department has previously considered fully all matters raised by such application it may, without further rehearing, deny the same and confirm the previous decision or award, or if the evidence on file with the joint board sustains the applicant's contention, it may, without further hearing, allow the relief asked in such application; otherwise, it shall order a rehearing to decide the issues raised. If a rehearing be granted it shall be heard in the county of the residence of the applicant, at a place designated by the joint board, but the hearing thereof may be adjourned from time to time and from place to place within said county, as the convenience of witnesses may require. Such rehearing shall be de novo and summary, but no witness' testimony shall be received unless he shall first have been sworn to testify the truth, the whole truth and nothing but the truth in the matter being heard, or unless his testimony shall have been taken by deposition according to the statutes relating to supperior courts of this state. The joint board shall cause all oral testimony to be stenographically reported and thereafter transcribed, and when transcribed the same, with all depositions, shall be filed in, and remain a part of, the record on the rehearing. Such rehearing may be conducted by one or more of the members of the joint board, but the record on rehearing shall be considered by all of the members of said joint board, and the decision of a majority of said joint board shall be the decision of said joint board, and upon such decision being rendered all parties to said rehearing shall be given written notice thereof by the joint board.

'An application for rehearing shall be deemed to have been denied by the joint board unless it shall have been acted upon within thirty days from the date of service: Provided, however, that the joint board may in its discretion, extend the time within which it may act upon such application, not exceeding thirty days.

'Each of the members of the joint board shall have power to administer oaths; to preserve and enforce order during such rehearing; to issue subpoenas for, and to compel the attendance and testimony of, witnesses, or the production of books, papers, documents and other evidence, or the taking of depositions before any designated individual competent to administer oaths, and it shall be their duty so to do; to examine witnesses; and to do all things conformable to law which may be necessary to enable them, or any of them, effectively to discharge the duties of his office.

'If any person in proceedings before the joint board disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same, or neglects to produce, after having been ordered so to do, any pertinent book, paper, or document, or refuses to appear after having been subpoenaed, or upon appearing refuses to take oath as a witness, or after having taken the oath refuses to be examined according to law, the joint board or any member thereof shall certify the facts to the superior court having jurisdiction in the place in which said joint board or member thereof is sitting, it shall thereupon, in a summary manner, hear the evidence as to the acts complained of, and, if the evidence so warrants, punish such person in the same manner and to the same extent as for a contempt committed before the court, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with reference to the proceedings, or in the presence, of the court.

'Within thirty days after the final order of the joint board upon such application for rehearing has been communicated to such applicant, or within thirty days after rehearing is deemed denied as herein provided, such applicant may appeal to the superior court of the county of his residence, but upon such appeal may raise only such issues of law or fact as were properly included in his application for rehearing, or in the complete record in the department. On such appeal the hearing

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