Reid v. Department of Labor and Industries, 27647.

• Decision Date: 27 November 1939
• Docket Number: 27647.
• Citation: 96 P.2d 492,1 Wn.2d 430
• Parties: REID v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

96 P.2d 492

1 Wn.2d 430

REID v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 27647.

Supreme Court of Washington

November 27, 1939

Department 1.

Proceeding under the Workmen's Compensation Act by Frank Reid claimant, opposed by the Department of Labor and Industries. From a judgment awarding claimant, who had been awarded fifteen degrees permanent partial disability by the joint board of the Department of Labor and Industries, additional twenty-five degrees permanent partial disability, and from a judgment entered on claimant's appeal from joint board's order denying claimant's petition for rehearing on ground of aggravation of claimant's condition, which remanded the cause to the Department with direction to take testimony relative to the aggravation, if any, of the claimant's injury, the Department of Labor and Industries appeals.

Judgments reversed, with direction to the trial court to affirm the joint board's order awarding fifteen degrees permanent partial disability and to dismiss the claimant's appeal from the joint board's order denying petition for rehearing on ground of aggravation of claimant's condition.

Appeal from Superior Court, Cowlitz County; J. E. Stone, judge.

G. W Hamilton, Atty. Gen., and J. A. Kavaney and T H. Little, both of Olympia, for appellant.

W. H. Sibbald, of Kelso, for respondent.

MILLARD Justice.

Frank Reid, age thirty-seven years, while employed as a common laborer in building a bridge March 30, 1932, sustained an injury to his left ankle and instep as the result of a log falling on his left foot. Thirty years continuously prior to the date of the accident Reid suffered from tuberculosis of the right hip by reason of which disease his right leg was six inches shorter than his left leg. From April, 1932, when Reid filed his claim for compensation with the department of labor and industries, to the present time, the claimant has been represented by four different attorneys.

July 15, 1932, the department entered an order terminating the time loss compensation of Reid to July 17, 1932, and awarding him no permanent partial disability by reason of the injury sustained by Reid March 30, 1932. A rehearing was had Before the joint board of the department September 8, 1932, on application of the claimant therefor. It was the position of the claimant that, by reason of the crippled condition of his right leg and the increased burden placed thereon by the injury to his left leg, he was entitled to an award for permanent partial disability. The medical examiner for the department reported that there was not any disability because of the injury of March 30, 1932, to the claimant's left foot and leg, hence there could not be increased disability due to a combination of that injury and the tuberculosis osteomyelitis of the right hip and shortening of the right leg from which the claimant had suffered for thirty years; that all of the disability present was due to the tuberculous process in the right hip which has no connection with the injury of March 30, 1932.

The claimant's request of October 22, 1932, for a further examination was granted. The examining physician reported November 4, 1932, that his inspection of the x-ray pictures of claimant's left leg disclosed that the claimant has a fracture of the external malleolus and that there was no evidence of any bony destructive process or of infection. The joint board entered an order November 7, 1932, directing payment of time loss to the claimant to October 5, 1932, and that the claimant be again examined by another physician. The claim was closed by the supervisor of the department December 5, 1932, with time loss to December 2, 1932.

In his application, filed January 18, 1933, for rehearing Reid claimed permanent partial disability on the ground that at the time of the injury of March 30, 1932, he suffered a fracture of the bones of his left ankle, together with a tearing of the ligaments which formed the basis of his left foot and ankle, thereby sustaining permanently broken arches. In that application for rehearing the petitioner stated that the disease of his right hip and right leg so crippled him as to require the use of a crutch when moving around and that the combined effects of the new injuries to his left leg and the serious condition of his right leg and right hip rendered him permanently partially disabled.

The evidence is not to the effect that because of the injury to his left leg he was compelled to use a crutch. The evidence is that the claimant used a crutch prior to that injury because of the shortened right leg.

On the rehearing the joint board found October 29, 1934, that the claimant failed to prove that the supervisor's order closing the claim was erroneous; that the preponderance of medical testimony was conclusive that the claimant had no permanent partial disability as a result of the injury; and that the disability, if any, suffered by the claimant was due wholly to the admitted and evident condition of the right leg which long preexisted the claimant's injury of March 30, 1932. However, the joint board concluded that the claimant should be given the benefit of any doubt as to permanent partial disability and entered an order awarding the claimant fifteen degrees permanent partial disability and closing the claim. Pursuant thereto, the supervisor paid four hundred and fifty dollars November 19, 1934, to the claimant's then attorney.

A third attorney representing the claimant gave notice December 13, 1934, to the department of claimant's appeal to the superior court from the order of November 19, 1934, mentioned above. That attorney advised the department by letter January 8, 1935, of claimant's withdrawal of his appeal; however, the appeal was not withdrawn. While that appeal was lying dormant in the superior court, claimant retained another attorney who now represents him. That attorney demanded of the department in letter dated November 19, 1937, 'reappraisement of this injury' as 'since said time [November 19, 1934, date of payment of award of $450.00 to claimant] the foot has not healed.'

The department advised claimant's attorney November 29, 1937 that the department did not understand whether the claimant sought reappraisement on the basis of obtaining further permanent partial disability award or whether he sought a reopening of the case on the ground of aggravation of disability. An application form was transmitted to claimant's attorney with the request that if reopening on the ground of aggravation of disability was desired to execute in detail that form and return it to the department. ...