Parr v. Department of Labor and Industries

• Decision Date: 08 January 1955
• Docket Number: No. 33053,33053
• Citation: 278 P.2d 666,46 Wn.2d 144
• Parties: Ed PARR, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, and Polson Logging Company, a corporation, Respondents. . Department 2
• Court: Washington Supreme Court

Page 144

46 Wn.2d 144

278 P.2d 666

Ed PARR, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of

Washington, and Polson Logging Company, a

corporation, Respondents.

No. 33053.

Supreme Court of Washington.

Department 2.

Jan. 8, 1955.

F. W. Loomis, Aberdeen, for appellant.

Donley & Ingram, Aberdeen, for respondent employer.

Don Eastvold, Olympia,

Robert E.

Stoeve, Seattle, for respondents.

HILL, Justice.

This appeal is determined adversely to the appellant on the following holdings. (All employment referred to herein is extrahazardous.)

When a workman is allergic to dust of various kinds and characters, such as road dust, house dust, wood dust, etc., and that allergy causes asthma, and the asthma becomes permanently disabling (in whole or in part), the fact that his employment required him to work in great quantities of wood dust for several hours at a time during certain seasons of the year, occasioning him great discomfort and causing asthmatic attacks, does not in itself establish that his disabling asthmatic condition arose naturally and proximately out of his employment and hence is an occupational disease within the purview of RCW 51.08.140 [cf. Rem.Supp.1941, § 7679-1, which was the applicable statute when this claim was filed]. We so hold for the reason that the dust allergy could have caused the asthmatic condition regardless of his employment. St. Paul & Tacoma Lbr. Co. v. Department of Labor & Industries, 1943, 19 Wash.2d 639, 144 P.2d 250.

The causal relationship between a disabling disease and the workman's employment must be established by medical testimony before the disease can be classed as occupational within the purview of RCW 51.08.140. Ehman v. Department of Labor & Industries, 1949, 33 Wash.2d 584, 206 P.2d 787. When a doctor's examination discloses a disabling disease such as asthma and his knowledge as to the causal relationship between the disease and the conditions of the patient's employment is entirely dependent upon the history given to him by the patient or others, the value of his opinion as to causal relationship obviously depends upon the extent and accuracy of the information upon which that opinion is based. See discussion in Johnson v. Bangor Ry. & Electric Co., 1925, 125 Me. 88, 131 A. 1.

Where the only medical testimony that a workman's employment was a proximate cause of his disabling disease is the testimony of a doctor, based upon a history given by the workman of recurring attacks of asthma caused by wood dust encountered in the course of his employment, and the doctor has not been advised of a vital element bearing upon causal relationship, i.e., that the workman is allergic to dusts of various kinds, such as road dust, house dust, etc., which also cause him to have asthmatic attacks, such testimony does not have sufficient probative value to support a verdict on the issue of causal relationship. The situation is comparable to that of the expert who answers a hypothetical question from which undisputed material facts have been omitted. See Berndt v. Department of Labor & Industries, 1954, 44 Wash.2d ----, 265 P.2d 1037.

The factual background of the foregoing holdings is as follows:

Ed Parr quit his employment with the Polson Lumber Company on January 2, 1945, at the age of seventy-three, after almost forty-five years of continuous service with that company. Four years later (in the first quarter of 1949), he filed a claim of occupational disease (asthma). Subsequent to the filing of his claim a statute was enacted requiring that claims based upon occupational disease be filed within one year of the date on which the claimant receives notice from a physician of his occupational disease. Laws of 1951, chapter 236, § 1, RCW 51.08.140.

A medical examination of this claimant was made by Drs. K. M. Soderstrom and Frederick Slyfield on June 27, 1949. We quote from their comments and conclusions:

'This man is fundamentally disabled in the way of gainful occupation because of his age, his arthritis and his eyesight. His asthma is definitely a disabling factor as well. We feel that because of the chain of events and his prolonged consistent employment in the same environment that we must recognize a distinct relationship between his years of employment and the pulmonary affliction which he alleges caused him to give up his work. The asthma that he presents is definitely of an allergic nature and it can be adequately shown that the allergen was to be found in the dusty atmosphere in keeping with his occupation. We do not seek issue whether or not an allergy should be considered an occupational disease but the fact remains in the case that the onset, development and aggravation of his symptoms occurred during the course of his employment. It is our feeling that had he not had such employment he would probably have been spared asthmatic symptoms which have caused him to give up his normal occupation. * * *

'We do not recognize that he is totally disabled as a result of his asthma in that some disability would have to be attended by his age and other infirmities. Had he not had the asthma we are sure that he could carry on at least to some extent in his former employment as a Crane operator. For this reason we feel that there is some element of disability in the form of aggravation attributed to his employment and feel that permanent partial disability rating of 1/3 (33 1/3%) of the maximum disability allowable for such illness be permitted and be made retroactive from the date of his separation from work in January 1945.'

(It is hereinafter pointed out that these findings and conclusions were based solely upon Parr's incomplete and misleading statements to the physicians concerning the cause of his asthma.)

The supervisor of industrial insurance rejected Parr's claim September 30, 1949. An appeal from this order was taken to the board of industrial insurance appeals, which affirmed the supervisor and rejected the claim.

An appeal to the superior court for Grays Harbor county followed. A motion to dismiss that appeal was made on the ground 'that the record in this case is not sufficient to support a jury verdict.' The motion was granted and an order entered dismissing the appeal. From that order the claimant appeals to this court.

Our examination of the record convinces us that the claimant has failed to establish by medical testimony the causal connection between his employment and his asthma.

It is conceded that from 1917 until he quit in 1945, Parr operated what is designated as an 'unloading donkey' for the Polson Logging Company. As trainloads of logs (thirty-five to seventy-five cars) were brought in from the woods and placed on the unloading dock alongside the Hoquiam river, the unloading donkey pushed the logs off the cars into the river. It took less than a minute to unload a car. It was the dust arising from this operation and from the sweeping of the unloading dock and the handling of the bark knocked off the logs and salvaged for fuel for the donkey that Parr claims to have been the proximate cause of his disabling asthma. He concedes that when it was raining there was no dust from the logs.

He testified that when he had his first asthmatic attack in May of 1943, his doctor suggested a change of climate, and he went to...