Otter v. Department of Labor and Industries
Decision Date | 27 October 1941 |
Docket Number | 28502. |
Citation | 11 Wn.2d 51,118 P.2d 413 |
Parties | OTTER v. DEPARTMENT OF LABOR AND INDUSTRIES et al. |
Court | Washington Supreme Court |
Department 2.
Proceeding under the Workmen's Compensation Act by August Otter claimant, opposed by the Department of Labor and Industries of the State of Washington and the Snoqualmie Falls Lumber Company, a corporation, employer. From a judgment reversing the order of the Department of Labor and Industries and remanding the claim for allowance of compensation, employer appeals.
Affirmed.
Appeal from Superior Court, King County; William J Wilkins, Judge.
W. E Heidinger, Ralph M. Rogers, and T. J. Hanify, all of Tacoma for appellant.
Harry Ellsworth Foster, of Olympia, and Rummens & Griffin, of Seattle, for respondent.
Smith Troy, Atty. Gen., and T. H. Little, of Olympia, for Department of Labor and Industries.
In April, 1937, plaintiff sustained injuries while engaged in extrahazardous employment for the Snoqualmie Falls Lumber Company. He presented a claim for compensation to the department of labor and industries, which allowed him time loss for fifteen days, and then closed the claim as of June 10, 1937. The claim was reopened as of June 26th of that year. It was again closed as of January 10, 1938, with allowance by the supervisor for time loss to that date, and, on March 17th, he was given an award of three hundred dollars (ten degrees) for permanent partial disability.
Plaintiff filed a petition for rehearing Before the joint board, which the latter granted. After numerous examinations and some half dozen hearings Before examiners, the joint board, on April 8, 1940, reversed the order of the supervisor and entered an order directing the latter to reopen the claim and make a further allowance of time loss to March 23, 1939, and an additional award of six hundred dollars (twenty degrees) for permanent partial disability and close the matter. Pursuant to this order of the joint board, the supervisor mailed warrants to the plaintiff's attorney, in the amounts of $756 and $600, covering the additional allowances for time loss and permanent partial disability, respectively. Plaintiff kept and cashed the warrants. April 24, 1940, he gave notice of appeal to the superior court of King county from the order of the joint board of April 8th. The employer also appealed to the superior court from that order.
In the superior court, the cause was tried to a jury upon evidence taken Before the department of labor and industries. The jury found that plaintiff was temporarily totally disabled as a result of the injury sustained. Upon the verdict, the court entered judgment, reversing the order of the joint board and remanding the claim to the department of labor and industries for allowance of compensation to plaintiff on the basis of 'temporary total disability.' From the judgment so entered, the employer, Snoqualmie Falls Lumber Company, appeals.
Appellant contends, first, that the court erred in submitting to the jury the question as to whether plaintiff was temporarily totally disabled. Appellant takes the position that respondent's claim in the superior court for compensation on the basis of temporary total disability was inconsistent with his claim in the department and his acceptance of the award for permanent partial disability. It is pointed out that medical experts called by him referred to his condition as a permanent partial disability. One of his expert witnesses, however, did not so regard his condition. The testimony of this witness, Doctor Swift, was clear and to the point that respondent was suffering the aftermath of a head injury, from which he could be relieved only by an operation.
Respondent never committed himself to a claim for permanent partial disability only. From the departmental record, it appears that, in his appeal from the order of the supervisor to the joint board, he was 'contending that he is temporarily totally disabled and in need of further treatment and unless it is given and is successful he will be permanently and totally disabled.'
An injured workman is not to be deprived of his right to just compensation on any technical theory of election of remedies. There is no analogy between remedies in civil actions and rights accorded under the Industrial Insurance Act. The suggested analogy is contrary not only to the spirit, but also to the very letter of that act.
Laws of 1911, chapter 74, p. 345, § 1, Rem.Rev.Stat. § 7673.
Nor is there any sound reason why a workman should be denied his right to appeal to the superior court because he accepts an award in an amount less than that to which he is entitled. It is argued, however, that, if he is permitted to retain the award, he may get more than he is entitled to if he is successful in his appeal. We think the latter...
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Page v. Department of Labor and Industries
...but after the jury act of 1939 (Laws of 1939, chapter 184, p. 579), the court significantly held (Otter v. Department of Labor and Industries, 11 Wash.2d 51, 56, 118 P.2d 413), the rule announced in the earlier cases had no application in trials by jury because the statute provided the jury......
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State v. Sandoval, 23754-1-III.
...Jurors are the sole judges of the weight to apply to evidence and the credibility of witnesses. E.g., Otter v. Dep't of Labor & Indus., 11 Wash.2d 51, 57, 118 P.2d 413 (1941). See also State v. Alvis, 70 Wash.2d 969, 975-76, 425 P.2d 924 (1967) (holding that it is an improper comment on the......
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