Peterson v. Department of Labor and Industries

• Decision Date: 18 June 1934
• Docket Number: 24853.
• Citation: 33 P.2d 650,178 Wash. 15
• Parties: PETERSON v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

33 P.2d 650

178 Wash. 15

PETERSON v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 24853.

Supreme Court of Washington, En Banc.

June 18, 1934

Appeal from Superior Court, Stevens County; William C. Brown, Judge.

Proceeding under the Workmen's Compensation Act by Ole Peterson against the Department of Labor and Industries of the State. From a judgment of the superior court sustaining an order of the joint board of the Department, plaintiff appeals.

Reversed and trial court directed to enter judgment remanding case to the Department.

W. Lon. Johnson, Wentz & Bailey, and Thomas I Oakshott, all of Colville, for appellant.

G. W Hamilton and John W. Hanna, both of Olympia, for respondent.

BLAKE Justice.

July 10, 1926, plaintiff was working as powder man in a quarry. After a round of shots had been fired, he was engaged in 'barring down' rock loosened by the blast at a point on the side wall of the quarry 90 feet above the floor. While thus engaged, a mass of loosened rock, consisting of several tons, gave way. The avalanche carried plaintiff with it to the floor of the quarry. When dug out of the debris, he was unconscious, and remained so for some hours. He was taken to a hospital, where he remained for two weeks. During the first two or three days, he was in a semiconscious condition. The manifest injuries sustained by plaintiff consisted of cuts and bruises only. In the course of two or three months, the bruises disappeared and the cuts healed. The only physical evidences he had to show for his experience were a few scars. He returned to the quarry, where he was assigned to light work. After a few weeks, he gave up the job, because he was unable to do even light work. Since then he has followed no gainful occupation.

The Department of Labor and Industries paid him time loss until August, 1927, when it closed his claim with an allowance of eight degrees permanent partial disability. From this order, plaintiff appealed to the joint board, which reversed the order of the department. Plaintiff was thereafter paid time loss until September, 1929, when his claim was again closed, with an additional allowance of seven degrees (fifteen degrees in all) for permanent partial disability. Plaintiff did not appeal from this order to the joint board. In May, 1932, however, he made application to the department to reopen his claim, pursuant to subdivision (h), § 7679, Rem. Rev. Stat., which provides: 'If aggravation, diminution, or termination of disability takes place or be discovered after the rate of compensation shall have been established or compensation terminated, in any case the director of labor and industries * * * may, upon the application of the beneficiary, * * * readjust for further application the rate of compensation in accordance with the rules in this section provided for the same. * * *'

The department denied the application. Plaintiff appealed to the joint board, which sustained the action of the department. Plaintiff appealed to the superior court, which sustained the order of the joint board. From the judgment so entered, plaintiff appeals.

The decision of the joint board was based solely upon the record and files of the department and testimony taken Before examiners. The case was presented on the same record in the superior court, no additional evidence having been offered Before the trial judge. The cause is here for trial de novo. Johnston v. Department of Labor and Industries, 163 Wash. 549, 2 P.2d 67. In considering the record, we shall bear in mind that the statute provides that the decision of the department shall be prima facie correct, but we must also take into account the fact that the joint board and the trial court decided the case on the same record presented to us; neither having a better opportunity to judge the credibility of witnesses than we have. Cheney v. Department of Labor and Industries (Wash.) 26 P.2d 393.

The problem with which we are confronted presents two phases, one of law and one of fact: (1) Is traumatic neurosis of neurasthenia a compensable injury in contemplation of the Workmen's Compensation Act; (2) if so, was there an aggravation of appellant's injury subsequent to the closing of his claim in September, 1929?

I. That traumatic neurosis or neurasthenia is a compensable injury would seem to be a question that is not debatable. This court has repeatedly held that it is an injury for which damages may be awarded in personal injury actions. Robinson v. Spokane Traction Co., 47 Wash. 303, 91 P. 972; Mickelson v. Fischer. 81 Wash. 423, 142 P. 1160; Carton v. Eyres & Seattle Drayage Co., 117 Wash. 536, 201 P. 737; Swanson v. Pacific Northwest Traction Co., 121 Wash. 96, 208 P. 10; Cole v. Friedman, 132 Wash. 587, 232 P. 361. And the courts quite generally hold that it is compensable under workmen's compensation acts. Rialto Lead & Zinc Co. v. State Industrial Insurance Commission, 112 Okl. 101, 240 P. 96, 44 A. L. R. 494; Klein v. Darling Co., 217 Mich. 485, 187 N.W. 400; Harris v. Castile Mining Co., 222 Mich. 709, 193 N.W. 855; In re Hunnewell, 220 Mass. 351, 107 N.E. 934; Yates v. South Kirby F. & H. Collieries, 3 B. W. C. C. (Eng.) 418 C. A., 3 N.C. C. A. 225; Sykes v. Republic Coal Co., 94 Mont. 239, 22 P.2d 157, 159. In the latter case, the Supreme Court of Montana, quoting from Eaves v. Bleanclydach Colliery Co., Ltd., 2 B. W. C. C. 329 C. A., said: 'The effects of an accident are at least two-fold; they may be merely muscular effects--they almost always must include muscular effects--and there may also be, and very frequently are, effects which you may call mental, nervous or hysterical. * * * The effects of this second class, as a rule, arise as directly from the accident which the workman suffered as the muscular effects do; and it seems to me entirely a fallacy to say that a man's right to compensation ceases when the muscular mischief is ended, but the nervous and hysterical effects still remain.'

Our own case of Parker v. Industrial Insurance Department, 102 Wash. 54, 172 P. 830, is in substantial accord with the foregoing authorities, although in that case there still remained physical manifestations of the workman's injury.

II. The fact, however, that physical manifestations of appellant's injury have disappeared, makes his condition and suffering none the less real. From the very beginning, his case has been recognized and diagnosed as traumatic neurosis. While physicians for the department classify it as a desire neurosis, we think the record does not justify the classification; for his claim was closed on that theory by the department in August, 1927, under the advice of Dr. Price, a neurologist, who said:

'Diagnosis: Neurosis. No evidence of any organic disturbance of the nervous system. This man has a large number of subjective symptoms, for which I can find no organic explanation. The chief difficulty seems to be his mental reaction to the present situation.

'Recommendation: Final disposition of the case by the payment of a lump sum, as this man's symptoms are apt to continue indefinitely, as long as the state pays compensation for neurosis, or as long as he can reopen his claim whenever compensation ceases.'

Notwithstanding this opinion of Dr. Price, the joint board ordered the department to put the appellant back on a time loss basis, where he remained until the claim was again closed in 1929.

Prior to the closing of appellant's claim in September, 1929 the department had him examined by three physicians, who joined in a report which contained the following: 'Conclusion: This man has absolutely no evidences of permanent disability...