Nelson v. Industrial Ins. Dept.

• Decision Date: 20 November 1918
• Docket Number: 14543.
• Citation: 176 P. 15,104 Wash. 204
• Court: Washington Supreme Court
• Parties: NELSON v. INDUSTRIAL INSURANCE DEPARTMENT.

176 P. 15

104 Wash. 204

NELSON v. INDUSTRIAL INSURANCE DEPARTMENT.

No. 14543.

Supreme Court of Washington

November 20, 1918

Department 2. Appeal from Superior Court, Clarke County; R. H. Bach Judge.

Proceedings under the Workmen's Compensation Act (Laws 1911, p. 345) by N.E. Nelson. From an order of the Industrial Insurance Department, granting an award as for permanent partial disability, the Insurance Department appeals. Modified and affirmed.

W. V Tanner, of Olympia, and Howard Waterman, Asst. Atty. Gen for appellant.

Henry Crass, of Vancouver, for respondent.

CHADWICK J.

This case comes to us on appeal from a judgment of the superior court overruling an order of the Industrial Insurance Department, granting respondent an allowance for a permanent partial disability.

Respondent was injured in an accident on a logging railroad. He claims the loss of the sight of one eye. The court made findings as follows:

'That prior to the accident plaintiff's eyesight was good, and he was not afflicted with optic atrophy.

'That at the time of the injury plaintiff complained of severe pain in his head over the left eye, which pains continued for some time, and to a certain degree up to the time of the trial.

'That shortly after the injury, the sight of the left eye began to fail and decrease rapidly, and at the time of the trial plaintiff was practically blind in the left eye.

'That shortly before the accident plaintiff could use one eye as well as the other, and there was no difference in the sight of either.

'That as a result of the injury, plaintiff has sustained the practical total loss of vision in the left eye.'

The physicians called in behalf of the department testify positively that the loss of the sight of respondent's eye could not have resulted from the injury received in the accident; that respondent is suffering from a primary optic atrophy; that primary atrophy is not due to inflammatory processes, nor is it the result of an injury; that if there has been an atrophy of the optic nerve due to such causes it is called secondary atrophy; that it is likely that respondent, being afflicted with true or primary optic atrophy was not aware of his condition, which must have existed for some time before the accident although not discovered until after he had been injured. On the other hand, professional men testifying on behalf of respondent advance the opinion that there may have been some injury of the optic nerve; that it is almost impossible to make a positive diagnosis in a case like this; that no one can say definitely whether an atrophy of the optic nerve is primary or secondary, without considering the history of the case, and that there is no specific rule to positively determine what has caused the condition. One of the doctors suggests that the learned discourse about primary and secondary atrophy is 'dictionary definition pure and simple,' and that the term 'primary atrophy' is often used for convenience to cover ignorance of the true causes. The doctors, as is sometimes the case, have disagreed. Their opinions cannot be reconciled. The testimony of the respondent is that he was a carpenter by trade, that up to the time of the accident he used either eye as convenience dictated, and that there had been no trouble with or diminution of his vision. A neighbor testified that about a year before the accident he was with respondent when he was shooting hogs and that he could shoot from one shoulder as well as the other, and that he never complained about his eyesight.

One of the first inquiries made by oculists in cases of atrophy of the optic nerve is whether the patient has ever been afflicted with lues or any germ-carrying disease. There is no evidence that respondent was ever so afflicted. He denies that he was ever the victim of any such condition. These physical facts, coupled with the opinion of reputable oculists that the condition may have resulted from the accident is enough to sustain the judgment of the court below.

The trial judge allowed a fee of $45 to one of the medical witnesses who came from Portland, Or., to attend the trial. It is the contention of respondent that this allowance is proper under Rem. Code, § 6604- 20, which provides that the court may allow an attorney's fee 'and the fees of medical and other witnesses and the costs shall be payable out of...