Nelson v. Department of Labor and Industries

• Decision Date: 04 August 1941
• Docket Number: 28305.
• Citation: 115 P.2d 1014,9 Wn.2d 621
• Parties: NELSON v. DEPARTMENT OF LABOR AND INDUSTRIES et al.
• Court: Washington Supreme Court

115 P.2d 1014

9 Wn.2d 621

NELSON v. DEPARTMENT OF LABOR AND INDUSTRIES et al.

No. 28305.

Supreme Court of Washington

August 4, 1941

Department 1.

Proceeding under the Workmen's Compensation Act by Andrew Nelson claimant, opposed by the Crown Zellerbach Corporation employer. From a judgment setting aside jury's verdict for claimant and remanding case to the Department of Labor and Industries of the State of Washington with instructions to determine extent of disability to claimant's back, the claimant appeals and the employer files a cross-appeal.

Reversed with instructions to enter judgment on the verdict.

Appeal from Superior Court, King County; Roger J Meakim, Judge.

Harry Ellsworth Foster, of Olympia, and Wright and Wright, of Seattle, for appellant.

Smith Troy and J. A. Kavaney, both of Olympia, for Department of Labor and Industries.

Todd, Holman, Sprague & Allen and Thomas Todd, all of Seattle, for respondent and cross-appellant.

SIMPSON Justice.

Andrew Nelson was injured while engaged in an extrahazardous occupation May 1, 1933, and thereafter filed his claim for compensation with the department of labor and industries.

At the time of the injury, claimant was measuring a felled tree for bucking when another tree fell on the one upon which he was standing. As he started to jump, the felled tree bounded and struck him, breaking his ankle and causing him to land upon the ground on his neck and the upper portion of his back. In the medical report the injury was described as 'Potts fracture of right ankle. Internal dislocation and deformity.' No mention was made of any other injury.

Claimant filed his claim for compensation May 12, 1933. October 24, 1933, the department closed the claim granting time loss to October 19, 1933, with six degrees permanent partial disability as final settlement.

Subsequently, another claim was filed October 2, 1934. This set forth that claimant was suffering from a splinter infection of the left foot, received while employed by the Crescent Logging Co. This claim is important only because it was prosecuted along with the claim for the ankle injury and the claimed back injury. While hospitalized for the infected foot, claimant's doctor removed a piece of bone from his right foot, which operation was thereafter reported to the department.

December 22, 1934, the department received a letter from its Port Angeles office stating that claimant had orally complained that he had not heard 'regarding compensation.' No details were mentioned by him in his oral complaint. In response, the department, January 4, 1935, wrote claimant revealing the status of the claim for the accident of May 1, 1933, and the claim for the infected foot occurring September 15, 1934. It stated that they were continuing the claims closed in accordance with their previous orders.

February 7, 1935, Nelson petitioned the joint board for a rehearing in the following language: 'The grounds for this appeal are as follows: The Claimant was severely injured on May 1, 1933, in the course of his employment in an extra hazardous occupation for the Washington Pulp and Paper Corporation at Neah Bay, Washington; this injury was reported to and investigated by the Department of Labor and Industries and the claim was allowed and claimant was awarded five and one-half months time loss and six degrees permanent partial disability; in said accidental injury the claimant suffered a Potts fracture of his right ankle and very severe shock resulting from being thrown into the air and falling upon his back, shoulders and head; after said claim was closed a piece of bone was dislodged in said injured ankle and pushed out in such a way that claimant could not wear a boot and was seriously disabled; on or about September 24th, 1934 the aforesaid piece of bond was removed and the Claimant has been disabled at all times since said operative treatment from engaged in any gainful work and that said ankle condition has been alone sufficient to disable him, although during this period he has also been disabled as a result of an infection in his left foot; since said claim was closed claimant has suffered an increasing pain in his spine and head, dizziness and weakness in his back due to said injury and the fall upon his back, shoulder and head, said condition is caused solely by said injury and is becoming progressively worse and claimant is now permanently disabled from engaging in any gainful occupation as a result of said injury to his back and head.' (Italics ours.)

As far as the record discloses, this was the first time that the department was notified of any claim for injury to claimant's back.

A rehearing was granted and testimony was thereafter taken, May 2, 1935.

As a result thereof the supervisor was reversed and both claims were reopened. The supervisor then ordered that claimant be paid additional time loss on his original claim because of aggravation of the injury to his right ankle.

Claimant again petitioned the joint board for a rehearing. This was granted subject to making the petition more definite and certain. The record does not disclose whether this was ever done, though the hearing proceeded upon the showing made in the petition. By order of June 28, 1937, the joint board sustained the supervisor.

July 10, 1937, Nelson filed notice of appeal to the superior court. The employer was given leave to intervene. Objecting thereto, claimant petitioned this court for a writ of certiorari, which was denied.

A trial was then had to a jury resulting in a verdict favorable to claimant. Answering special interrogatories, the jury found that the workman was suffering from temporary total disability as a result of the accident of May 1, 1933.

Thereafter, motions for a new trial and judgment notwithstanding the verdict were interposed by the claimant and his employer. After a hearing upon the motion, the court set aside the verdict and remanded the case to the department with directions to determine the extent of the disability to claimant's back. The claimant appealed and his employer cross-appealed.

Claimant contends that the court erred in setting aside the verdict and remanding the cause to the department with instructions to determine the extent of the disability to plaintiff's back and in refusing to enter judgment upon the verdict.

Cross-appellant contends that the court erred in denying the motion for dismissal, in denying its motion for judgment n.o.v., and in entering judgment remanding the cause to the department of labor and industries.

Appellant maintains that the court erred in returning the claim to the department for further consideration, that he should have entered judgment upon the verdict. The thought of the trial court is reflected in a memorandum decision in which he states:

'It is apparent from the record that the real question submitted to the jury was whether the back injury claimed was the result of the original injury of May 1, 1933, and that this question has never been determined by the Supervisor at any time since the original injury was claimed.

'* * * I am of the opinion that the Superior Court is without jurisdiction to determine any question that has not been previously passed upon by the Supervisor. Apparently it is the law that the original determination of the question is the exclusive right of the Supervisor, and that in the event he refuses to decide, and this refusal is affirmed by the Board, then the Superior Court may ask the decision to be made. The jurisdiction of the court is appellate only and an original decision is required Before it can be overruled or affirmed.'

Cross-appellant contends that the present jury act, Rem.Rev.Stat., § 7697-2 [P.C. § 3488-21], Laws of 1939, chapter 184, is inapplicable to the present proceedings. It argues that the act has no retroactive effect and that the verdict of the jury in this case was advisory only and that it is for the court to try the case de novo and determine the facts from the record.

It is the general rule that statutes have no retroactive effect unless the legislative intent is so expressed therein. In re Cascade Fixture Co., Wash., 111 P.2d 991; Layton v. Home Indemnity Co., Wash., 113 P.2d 538.

The act in question was drawn to cover 'all appeals.' Consequently, 'all appeals' includes those which were pending as well as appeals taken after the passage of the act. Thus, it was designed to apply to cases which at the time were pending Before the department and to cases which would arise at a future time.

Assuming, however, that the act did not by its wording have a retroactive effect, it is apparent that it comes within the exception to the above general rule to which we have just referred.

The exception is that an act has a retroactive application when it relates to practice, procedure or remedies, and does not affect a contractual or vested right. Duggan v. Ogden, 278 Mass. 432, 180 N.E. 301, 82 A.L.R. 765; Dickson v. Alabama Machinery & Supply Co., 18 Ala.App. 164, 89 So. 843; Cavender v. Hewitt, 145 Tenn. 471, 239 S.W. 767, 22 A.L.R. 755; Laird v. Carton, 196 N.Y. 169, 89 N.E. 622, 25 L.R.A.,N.S., 189; Spicer v. Benefit Ass'n of Ry. Employees, 142 Or. 574, 588, 17 P.2d 1107, 21 P.2d 187, 90 A.L.R. 517; Lewis v. Pennsylvania R. Co., 220 Pa. 317, 69 A. 821, 18 L.R.A., N.S., 279, 13 Ann.Cas. 1142.

The first issue for our determination is whether or not the superior court possessed jurisdiction to hear and determine the question of appellant's back injury. This answer depends upon the further inquiry of whether the department considered or had the opportunity to consider this question.

As a prefatory remark, it seems advisable to recall to mind that workmen's compensation acts are considered...