Roellich v. Department of Labor and Industries

• Decision Date: 15 May 1944
• Docket Number: 29102.
• Citation: 148 P.2d 957,20 Wn.2d 674
• Parties: ROELLICH v. DEPARTMENT OF LABOR AND INDUSTRIES et al.
• Court: Washington Supreme Court

148 P.2d 957

20 Wn.2d 674

ROELLICH v. DEPARTMENT OF LABOR AND INDUSTRIES et al.

No. 29102.

Supreme Court of Washington

May 15, 1944

Rehearing Denied June 22, 1944.

Department 2.

Proceeding under the Workmen's Compensation Act by E. W. Roellich employee, opposed by the Weyerhaeuser Timber Company employer, and the Department of Labor and Industries of the State of Washington. On an appeal from an order of the joint board of the Department, the employee recovered a verdict in the superior court. The employer and the Department moved for judgment notwithstanding the verdict and in the alternative for a new trial. After the employee's death, Clara Roellich, as his widow and executrix, petitioned to be substituted as claimant. The petition to be substituted individually was granted, but substitution as executrix was denied, as were also the motions filed by the employer and Department. From the judgment, the employer and the Department appeal, and the widow moves for dismissal of the appeals.

Motions denied and judgment reversed and cause dismissed.

BLAKE J., dissenting.

Appeal from Superior Court, Clark County; Charles W. Hall, judge.

Smith Troy and L. E. O'Neill, both of Olympia, for appellant Department of Labor and Industries.

T. J Hanify, of Seattle, W. E. Heidinger, of Tacoma, and Lester Huntington, of Kelso, for appellant Weyerhaeuser Timber Co.

Griffin & Gershon, of Seattle (J. A. Kavaney, of Seattle, of counsel), for respondent.

ROBINSON Justice.

On an appeal from an order of the joint board of the department, E. W. Roellich recovered, in the superior court of Clark county, on October 30, 1942, the following verdict:

'We, the jury in the above entitled cause, answer the following interrogatory, as follows:

'Has the disability of the plaintiff been aggravated after March 22, 1940 and Before June 11, 1941, as a proximate result of the injury of December 27, 1939? Answer: 'Yes."

Both the department and the employer, Weyerhaeuser Timber Company, which participated, by counsel, in the hearings, both Before the joint board and the superior court, moved for judgment notwithstanding the verdict, and, in the alternative, for a new trial. On November 17, 1942, Mr. Roellich died, and Mrs. Roellich, as his widow, and also as the executrix of his estate, petitioned to be substituted as claimant. The petition to be substituted individually was granted, but substitution as executrix was denied, as were also the post trial motions filed by the employer and the department, and on February 9, 1943, judgment was entered remanding the case to the department for further proceedings in accordance with the verdict.

In due course, the employer, Weyerhaeuser Timber Company, filed notice of appeal. Subsequently, but within the time prescribed by statute, the department also filed a notice of appeal, addressed to Mrs. Roellich and her attorneys and beginning as follows:

'You, and each of you, will please take notice that the above named defendant, department of labor and industries of the State of Washington, has joined in the appeal and does hereby join in the appeal of the Weyerhaeuser Timber Company, appealing to the Supreme Court of the State of Washington from the decree and judgment [designating and describing it].'

The respondent has moved to dismiss the appeal of the Weyerhaeuser Timber Company, on the ground that an employer has no right of appeal, and follows that motion with another to dismiss the appeal of the department. In connection with the second motion, it is said:

'It is the position of the respondent, that the above joinder in the Weyerhaeuser Timber Company appeal, is a nullity; it is like multiplying a given number by naught, the answer is still naught. In other words the department joined in something which does not exist, therefore there is no joinder.'

This court has so repeatedly held, that, under similar circumstances, an employer has the right to appeal, that we feel warranted in denying the first motion without citation of authority. This ruling cuts the ground from under the second motion; at all events, the ground relied upon. We may say further that, even if we held the employer's appeal to be a nullity, we could not grant the motion to dismiss the department's appeal. Despite its somewhat unusual wording, it clearly notifies the respondent that the department is appealing to this court from the judgment of the superior court, and, therefore, adequately satisfies the purpose for which such notices are required.

At 2:15 p. m., on December 27, 1939, Roellich was clearing up at the foot of a sawmill stacker. This work consisted in picking up broken lumber and small sticks, sweeping up sawdust and other debris, and putting it in a box called a clean-up box. He testified:

'I was picking up or raking out rather under there. * * * that is, stacker 1, and a piece of wood hit me over the back. Of course I had a pile of stuff on each side, so I don't know just exactly which piece it was. It kind of temporarily knocked the breach out of me.'

The piece of wood or 'sticker,' as he called it, fell from the top of the stacker which he thought twenty or thirty feet high. There is no evidence whatever as to the size of the piece of wood which struck him. Roellich kept on working. He also worked the next day, December 28. On that day, he injured his toe. On the 29th, he decided to consult a doctor about these injuries. The doctor, Dr. Harry M. Morgan, corroborates this, testifying as follows:

'Q. Will you state, please, what complaints, if any, he made to you on that date and what findings, if any, you made at the same time? A. He came in complaining of having injured his toe. An x-ray was taken and a chip fracture of one of the toes was found. He also complained at that time of soreness in his back. He stated that he had been struck over the back by a falling board three or four days previously. The examination of his back showed nothing of any consequence. No tender areas, no irregularities of anything.

'Q. Was he complaining of any pain in the chest or anything of a like nature? A. No.'

The mill shut down for four days. When it reopened on January 2, Roellich returned to work. On January 16, while pushing the clean-up box or car loaded with small pieces of lumber and debris with which he had filled it, he 'strained' himself.

'Well, when I strained myself there, it just felt like a gathering or something like that had bursted internally. * * * It felt like just behind my heart on toward the back that way.'

He managed to get home. A doctor was called, gave him a hypodermic, observed him for half an hour, called an ambulance, and sent him to a hospital where he remained until February 14, 1940. For a few days Before this attack, he had been troubled with shortness of breath and pains in the chest, especially during the afternoon. The medical witnesses are in agreement that, on this occasion, he suffered a severe coronary thrombosis, a sure and certain manifestation of a preexisting and progressive disease of the heart.

It should be remembered throughout that the claim with which we are concerned in this action does not arise out of this heart attack of January 16, 1940. The claim with which we are here directly concerned is No. 937051, and covers the accident which occurred on December 27, 1939. The claim upon which this suit is founded was signed by Roellich when he was in the hospital after the heart attack and makes no reference to that attack. That the heart attack was not directly involved was conceded by the respondent's counsel when the employer's attorney objected to the admission of evidence concerning it. Respondent's counsel thereupon stated:

'Mr. Gershon: We are not claiming there was any injury on that date, if that will satisfy you. This claim is based on the injury that occurred December 27, 1939. But this is one of the facts we wish to bring out. In other words we want to point out to the Board all the facts that occurred ever since December 27, 1939.'

It appears in the record that a separate claim was filed with respect to the heart attack of January 16, and given No. 946050, which was later rejected by the department. Apparently, the rejection was acquiesced in by Roellich, since he took no appeal from it. It is reasonably inferable that the rejection was made on the ground that no accident occurred on January 16, 1960; for, in June of that year, Roellich applied to The Equitable Life Assurance Society, under a group policy which expressly excluded industrial injuries from its coverage, for benefits on account of total disability. Answering the question on the blank, 'Is present disability due to accident or injury?' Roellich said, 'No.' Roellich's signed application is supported by the statements of his attending physician and of his employer made on the same blank. His physician certified that he was taken sick on January 16, 1940, first treated that day, and first hospitalized that day. He filled in other parts of the blank as follows:

'What was the cause of the disability? Coronary Thrombosis.

'If due to accident, where and how did it occur? Not an injury.

'Has any industrial injury contributed to the disability? No.

'Give your diagnosis as finally decided. Coronary Thrombosis.

'How long was he physically unable to perform any and every duty of his occupation solely by reason of this sickness or injury described above? From January 16 to June 7, 1940, still disabled.'

In the employer's statement, we find, among others, the following question:

'Is there possibility of Workmen's Compensation Liability in this case?' to which the employer, by its manager, answered 'No.'

The claim as to the accident of December 27, 1939, that is No....