Petersen v. Department of Labor and Industries, 30900.

• Decision Date: 02 May 1950
• Docket Number: 30900.
• Citation: 36 Wn.2d 266,217 P.2d 607
• Parties: PETERSEN, v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

217 P.2d 607

36 Wn.2d 266

PETERSEN, v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 30900.

Supreme Court of Washington.

May 2, 1950

Department 2.

Rehearing Denied June 13, 1950. Walthew, Gershon, Yothers & Warner Seattle, for appellant.

Smith Troy, J. Arnold Cobley, Olympia, B. Franklin Heuston Shelton, for employer-respondent.

MALLERY, Justice.

This appeal is from a judgment for the department of labor and industries entered on a motion for nonsuit at the close of claimant's case upon his appeal to the superior court.

On January 26 1934, appellant, a logger, scratched his left hand which subsequently became infected. He consulted Dr. H. L. Kennedy of Shelton, who hospitalized him and treated the infection which had spread to his forearm. The department paid him time loss, and his claim was closed without disability award, February 18, 1934, when he returned to work. At this time, he did not have neuritis.

For the next twelve years, appellant was employed on various jobs requiring use of his hands and arms. In 1937, he suffered pain in his left arm which became progressively more debilitating. In 1942 he suffered a buzz saw wound requiring several stitches in his left forearm. On July 25, 1946, after previously consulting his attorney, and for the purpose of establishing a medical foundation to reopen his claim, appellant was examined again by Dr. Kennedy, who had not seen him during the intervening twelve years. His application to reopen his claim was denied by the joint board, and he appealed to the superior court.

Dr. Kennedy's diagnosis of neuritis in the left arm was based on (1) the examination of July 25, 1946, (2) the doctor's knowledge of the 1934 injury and infection, and (3) appellant's account of his subjective symptoms over the intervening years. Appellant may or may not have informed the doctor of his buzz saw injury.

We quote a portion of Dr. Kennedy's direct testimony, which shows the basis for his medical opinion:

'Q. And you felt that the neuritis, doctor, was--what was that caused by? A. Well, I felt that possibly could have been caused by his injury, because the history was that the arm had bothered him ever since the injury, and that probably was due to the injury. * * *

'Q. And did this neuritis have any connection with the infection, in your opinion? A. Well, yes, I thought so. That's why I recommended reopening of the claim.' (Italics ours.)

On cross-examination, the question was put to the doctor:

'Q. Doctor, which do you mean, possibly that this condition which was described to you, and of which there is no physical evidence outside of the testimony and complaints, was due to the original injury, or probably it was? [Colloquy.] A. Well, chiefly from the history and in the obsence of the physical findings that this man had trouble with the arm ever since the accident, I thought probably it was due to the accident. * * *

'Q. (continuing)--How can we say with any probability there is a cause and effect between the original injury and the present condition? [Objection by counsel.] A. Why don't you ask me how I can be sure of anything. I can't be sure. The [?] probably was from the history of continuous trouble since the original injury.' (Italics ours.)

The single assignment of error is that the trial court erred in granting a motion for nonsuit on the ground that the appellant's evidence was insufficient ot go to the jury.

A claim for aggravation is not sustained where it is based upon subjective symptoms alone. Cooper v. Department of Labor & Industries, 20 Wash.2d 429, 147 P.2d 522; Anderson v. Department of Labor & Industries, 23 Wash.2d 76, 159 P.2d 397; Larson v. Department of Labor & Industries, 24 Wash.2d 461, 166 P.2d 159; Karlson v. Department of Labor & Industries, 26 Wash.2d 310, 173 P.2d 1001.

Conclusions as to the health and capacity of a claimant lie in the realm of medical knowledge. Taylor v. Modern Woodmen of America, 42 Wash. 304, 84 P. 867, 7 Ann.Cas. 607; 20 Am.Jur. 722, § 862. We have not been concerned with the credibility of the medical witnesses, since expert and lay witnesses are treated alike as to that. The chief source of our recurring problem, on the question of medical testimony in industrial insurance cases, is found in the fact that one rule applies when the medical testimony is given by a doctor who examines a patient for the purpose of treating him, while a different rule applies when the testimony is given by a doctor who examines an individual for the sole purpose of qualifying himself to be a witness as to a person's physical condition. This presents a question of the competence of such evidence in each case, because the element of hearsay always inheres in medical conclusions.

All doctors take the history of their patients, when it is needed to arrive at a correct diagnosis. Their own skilled observations, aided by the best medical equipment, lead only to...