Nagel v. Department of Labor and Industries

• Decision Date: 01 April 1937
• Docket Number: 26419.
• Citation: 189 Wash. 631,66 P.2d 318
• Parties: NAGEL v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

66 P.2d 318

189 Wash. 631

NAGEL v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 26419.

Supreme Court of Washington

April 1, 1937

Department 2.

Appeal from Superior Court, Klickitat County; Howard J. Atwell Judge.

Proceeding under the Workmen's Compensation Act by Louis Nagel employee. From a judgment of the superior court in the employee's favor remanding the case to the Department of Labor and Industries with instructions on appeal from an order sustaining an order of the Supervisor closing the claim, and refusing to reopen the claim on the ground of aggravation of disability due to original injury, the Department of Labor and Industries appeals.

Reversed with instructions.

G. W Hamilton and J. A. Kavaney, of Olympia, for appellant.

Carey, Hart, Spencer & McCulloch, of Portland, Or., and John W. Wilkinson, of Vancouver, for J. Neils Lumber Co.

Phil K. Eaton, of Olympia, and Edgar P. Reid, of Kelso, for respondent.

BEALS Justice.

Louis Nagel, claimant and plaintiff herein, during the month of September, 1930, was operating a planer in the mill of J. Neils Lumber Company, in Klickitat county, his work being classed as extrahazardous. September 22, 1930, his right hip and back were injured by a board which slipped off the carriage and struck him with considerable force. Mr. Nagel finished the day's work, but thereafter became lame and sore, and was unable to continue his employment. He consulted a doctor September 29th, and October 18th, following, filed with the department his claim for compensation. November 7th he was classified as suffering from temporary total disability, and was furnished with medical aid and placed on the temporary total disability list. Under date January 23, 1931, after what appears to have been a full and careful investigation of claimant's bodily ailments, the department closed the claim, paying for time loss up to December 30, 1930. A notice entitled 'Final Settlement of Claim' was forwarded to claimant, the notice clearly advising him that the claim was closed, and that no permanent partial disability existed. Plaintiff criticizes this order, because it did not in direct terms advise claimant that, in the opinion of the department, he was suffering from a pre-existing disease.

January 29, 1931, claimant's mother wrote the department on her son's behalf, asking that further medical treatment be given, to which letter the department, by letter dated February 3d, replied in part as follows:

'This claim was closed as of December 30th, as the file indicates he has entirely recovered from the injury of Sept. 22nd and his present condition is a systematic condition which he had previous to his injury.

'We trust this will explain the status of the claim in this department. In view of these facts, we cannot authorize transfer for treatment under this claim; that should be looked after by himself personally.'

A re-examination of claimant nevertheless was ordered, and February 7th such an examination was made by Dr. Watson. March 27, 1931, the department wrote claimant as follows: 'We have recently received reports from Drs. Watson and Akin of Portland, covering their examinations, and have to inform you that their findings simple confirm the department's order of January 23rd, 1931, wherein your case was closed. Quite apparently, you are not suffering from the effects of the injury you allege on September 22nd, 1930, and this office is not justified in giving your case further consideration.'

In determining the rights of the respective parties, the entire record up to the letter last referred to must be considered. While the order closing the claim was definite and positive, the department thereafter, on claimant's request, caused him to be examined by other physicians, and considered the reports made.

In the case of Taylor v. Department of Labor and Industries, 175 Wash. 1, 26 P.2d 391, it was contended that the sixty-day period provided by the statute for an appeal from an order of the director ran from the date of the order. It appeared, however, that after the entry of the order closing the claim, the department made further investigation concerning the claimant's condition, and it was held that the time to appeal commenced to run from the date of the final notice to the claimant that no further benefits would be accorded him. If such subsequent proceedings operate to extend the time of appeal for the benefit of the claimant, it must also be held that, under the circumstances here present, he is bound by information conveyed to him by departmental letters and order subsequent to the date of the closing order. It clearly appears, then, from the letters above quoted that claimant was fully advised that it was the contention of the department that the claimant was no longer suffering from the injury upon which he based his claim.

August 4, 1931, claimant's mother wrote, seeking 'to appeal the decision of the board,' and in answer to her letter, the department advised her that her application for rehearing was denied by the joint board as made after the time within which an appeal could be taken. November 7, 1933, the claimant himself wrote the department as follows:

'I hereby apply for a reopening of the above numbered claim, on the ground that since the claim was closed I have discovered that my condition, due to the injury, is permanent and has caused me to be permanently and totally disabled.

'At the time my claim was closed, I was disabled, but anticipated I would recover the use of my hips, which has not occurred and on the contrary, my hips have become wholly stiff and likewise the bony structure of the pelvis and lower part of the back have become solid, due to the injury, and all of which totally and permanently disables me from performing any work at any gainful occupation.'

November 9, 1933, claimant's application to reopen the case was denied, and December 7th, following, he filed a petition for rehearing, in which he stated, inter alia:

'That since his said claim was closed, he has discovered that the condition from which he suffers is due to the injury for which said claim was filed, and not due to disease as contended at the time his claim was closed.

'That his physical condition on account of the said injury has become worse and aggravated, and has caused him to be permanently and totally disabled, so that he will be unable to perform any work at any gainful occupation.

'That at the time said claim was closed, your petitioner believed that he would recover from the said injury but has since discovered the true nature and extent of the same as above set forth.'

December 18, 1933, claimant's petition was granted 'as to any condition of aggravation other than due to pre-existing disease.' A hearing was held during the month of April, 1934, and continued to the following August. October 1, 1934, the department entered an order sustaining the former order of the supervisor and refusing to reopen the claim upon the ground of any aggravation of disability due to the injury. From this order Mr. Nagel appealed to the superior court, and after a hearing Before that court, judgment was entered in claimant's favor, remanding the case to the department with instructions to classify Mr. Nagel as totally and permanently disabled, from which judgment the department has appealed.

The trial court expressly found that the department closed respondent's claim January 23, 1931, without allowing him any permanent disability, either partial or total, due to the injury. As above stated, the subsequent proceedings of the department somewhat extended the time within which respondent could have appealed to the joint board. The matter, however, became res judicata at least within three months from the date of the closing order as to any claim for permanent disability, total or partial, in so far as conditions then existing were concerned. Cloquet v. Department of Labor and Industries, 154 Wash. 363, 282 P. 201; Read v. Department of Labor and Industries, 163 Wash. 251, 1 P.2d 234; Stevich v. Department of Labor and Industries, 182 Wash. 401, 47 P.2d 32; Strmich v. Department of Labor and Industries, 182 Wash. 466, 47 P.2d 990; Luton v. Department of Labor and Industries, 183 Wash. 105, 48 P.2d 199. The statute (Rem.Rev.Stat. § 7673 et seq.) permits an injured workman to later present to the department a claim based upon any alleged aggravation of his condition traceable to the original injury, but such a situation differs materially from the situation hereinabove discussed.

The evidence clearly indicates that Mr....