Olympia Brewing Co. v. Department of Labor and Industries of State

• Decision Date: 13 August 1949
• Docket Number: 30961.
• Citation: 34 Wn.2d 498,208 P.2d 1181
• Court: Washington Supreme Court
• Parties: OLYMPIA BREWING CO. v. DEPARTMENT OF LABOR & INDUSTRIES OF STATE et al.

208 P.2d 1181

34 Wn.2d 498

OLYMPIA BREWING CO. v. DEPARTMENT OF LABOR & INDUSTRIES OF STATE et al.

No. 30961.

Supreme Court of Washington

August 13, 1949

Department 1

Rehearing Denied Sept. 21, 1949.

Proceeding under the Workmen's Compensation Act by Maude Smith claimant, widow of William Burr Smith, deceased, opposed by Olympia Brewing Company, employer. From a judgment which affirmed an order of the joint board of the Department of Labor & Industries of the State of Washington granting claimant's application for a widow's pension and dismissed appeal, the employer appeals.

Judgment reversed and cause remanded with directions.

MALLERY J., dissenting.

Appeal from Superior Court, Thurston County; D. F. Wright, judge.

O'Leary Meyer & O'Leary, Olympia, for appellant.

Smith, Troy, J. Arnold Cobley, Olympia, L. B. Sulgrove, Tacoma, Van R. Hinkle, Olympia, for respondents.

HILL Justice.

On July 17, 1946, William Burr Smith was found unconscious at his place of employment, and died shortly thereafter. Mrs. Smith applied to the department of labor and industries for a widow's pension, under the provisions of the workmen's compensation act. The supervisor of industrial insurance allowed the claim and, in accordance with Rem.Rev.Stat. (Sup.), § 7676, ordered that the accident cost experience of the employer be charged with the sum of $4,500 dollars.

From that order, the employer applied for a rehearing Before the joint board of the department, which application was granted. After a hearing at which the claimant was represented but only the employer introduced any evidence, the joint board sustained the action of the supervisor in allowing a pension to Mrs. Smith and in assessing the employer's accident cost experience with the sum of $4,500.

The employer appealed to the superior court, and it affirmed the joint board and entered an order dismissing the appeal. From that order this appeal is taken.

The appellant seeks first to raise a procedural question which may be stated: When a ruling of the supervisor as to the eligibility of a claimant for benefits under the Workmen's Compensation Act is challenged by an employer and reviewed Before the joint board, does the claimant or the department have to present a prima facie case showing that the claimant is entitled to the benefits of the act; or does the employer, despite the fact that there is no evidence showing that the claimant is entitled to such benefits, have to establish that the claimant is not entitled thereto?

We cannot consider that question if, from the testimony introduced by the appellant, it has been established--as both respondents assert it has--that Mr. Smith's death was related to his employment. In that event, the joint board and the superior court properly determined that Mrs. Smith is entitled to a widow's pension despite the fact that neither she nor the department offered any evidence whatsoever.

We must, then, review the evidence to see whether the necessary facts have been proved to establish the claimant's right to a widow's pension:

(a) It is conceded that the claimant is the widow of William Burr Smith.

(b) At about 3 o'clock on July 17, 1946, Mr. Smith was found unconscious, lying face down on the floor of one of the cellars in the brewery where he was employed. There were slight abrasions, which had not been there Before , on his nose, the right frontal area of his face, and his right cheek. Whatever had happened to him had occurred within three or four minutes of the time he was found. He died on the way to the hospital without regaining consciousness.

(c) On the day of Mr. Smith's death, he and the witness Jasper J. Denney cleaned three large steel tanks in the employer's brewery. This involved scrubbing the tanks and removing the yeast residue, which was taken out in five-gallon pails. Each pail, filled, weighed twenty-five to thirty-five pounds, and had to be carried a distance of seventy-five feet. About sixteen to twenty pailfuls were removed from each tank, and each man carried two at a time. After 2 o'clock that day, Mr. Smith's work was less strenuous, being limited to the use of a three-quarter-inch hose to wash foam (Which Mr. Denney skimmed off tanks of beer) down the drain.

(d) Mr. Smith had complained to Mr. Denney of not feeling well and of being bloated, and had attributed his condition to indigestion caused by some raspberries he had eaten the night Before . Mrs. Smith told the investigator for the department that she had given Mr. Smith bicarbonate of soda the previous night because of a condition which he attributed to the raspberries.

(e) Mr. Smith had been examined two months previously by Dr. H. Wilson Coulter, who had found a cardiac murmur and concluded that Mr. Smith had a coronary occlusion. The doctor told him to rest for a week or ten days, and later told him that he must not take his old job back, or any job that called for pulling or pushing or exertion. Despite this warning, Mr. Smith returned to his old job.

(f) Dr. Coulter was asked,

'Would you say that a man in his [Mr. Smith's] condition could, with reasonable safety, carry five gallon cans of malt or refuse from malt tanks weighing anywhere from 25 to 35 pounds apiece?' to which the doctor replied: 'No, I wouldn't advise it. That type of work would be too much for a man in the condition he was then in.'

The respondents argue that this evidence brings the case within our heart cases such as McCormick Lumber Co. v. Department of Labor and Industries, 7 Wash.2d 40, 108 P.2d 807, reviewing all 'heart' cases prior thereto; Guy F. Atkinson Co. v. Webber, 15 Wash.2d 579, 131 P.2d 421, 137 P.2d 814; Long-Bell Lumber Co. v. Parry, 22 Wash.2d 309, 156 P.2d 225. We think not. In those cases, at least four elements were established: (1) an acute heart condition; (2) death or disability as the result of the heart condition; (3) shock or exertion, slight or great, in the course of employment by which (4) the heart was subjected to a strain beyond its capacity to withstand.

In every one of those cases there was also some medical testimony connecting (3) and (4), i. e., as to the probability that the shock or exertion in the course of employment subjected the heart to a strain beyond its capacity. However, we do not go so far as to hold that medical testimony is necessary to establish the causal relationship between the shock or exertion in the course of employment and the death or disability. See Guiles v. Department of Labor and Industries, 13 Wash.2d 605, 126 P.2d 195. Had it been established that Mr. Smith's heart condition was the cause of death, Dr. Coulter's testimony that the carrying of buckets of yeast would be too much for a man in Mr. Smith's condition probably would be sufficient to establish the causal connection between his employment and his death.

The first and third elements referred to--(1) an acute heart condition and (3) shock or exertion in the course of employment--have been established. But there is no evidence that Mr. Smith's death was caused by the heart condition. As a matter of fact, there is absolutely no evidence as to the cause of death.

In the absence of any showing as to the cause of his death, it seems to us impossible to say that the causal connection between Mr. Smith's employment and his death was established. The cause of death may have been acute indigestion from eating raspberries, as suggested by the testimony. It may have been a cerebral hemorrhage, as stated in the 'Proof of Death' form required by the department but excluded from the record as a hearsay statement. However, there is in the record a report made by the department's own investigator (objected to by the claimant and the department Before the joint board as hearsay, but the objection was not renewed in the superior court) in which the investigator said that the doctor who had signed the 'Proof of Death' had stated that 'No cause of his [Mr. Smith's] death could be determined. The only way that cause of death could be determined would be autopsy.'

Hearsay, it is true, but part of the record, and referred to only as indicating uncertainty as to the cause of death and that the department had notice that the cause of death had not been established.

The respondents say, 'Obviously his heart stopped as the result of the labor imposed upon it, which was too much for him, as the doctor put it.'

It is not so obvious to us, unless we are prepared to say that the heart stoppage which is incident to any death must always be attributed to a known preexisting heart condition when any exertion is shown. It is necessary that (2) death or disability as the result of the heart condition be shown, Before it can be either proved or inferred that (3) exertion in the course of employment (4) subjected the heart to a strain beyond its capacity to withstand.

We have gone a long ways in upholding widows' pensions in 'heart' cases, but we are not willing to take the additional step of saying that proof that the heart condition was the cause of death may be omitted. We therefore hold that, in this case, there was not sufficient evidence to support a finding that Mr. Smith's death was related to his employment and that, consequently, a prerequisite to the granting of a widow's pension to Mrs. Smith was not established.

The respondents make another contention, i. e., that the fact that no causal relationship has been established between the death and the employment is immaterial, because the joint board determined that Mrs. Smith was entitled to a widow's pension and that the accident cost experience of the employer should be charged with the sum of $4,500, and that determination is prima facie correct and must prevail unless and until the...