Sayler v. Department of Labor and Industries

• Decision Date: 08 December 1966
• Docket Number: No. 38292,38292
• Citation: 421 P.2d 362,69 Wn.2d 893
• Court: Washington Supreme Court
• Parties: Elmer SAYLER, Respondent, v. DEPARTMENT OF LABOR AND INDUSTRIES and Long Lake Lumber Company, Appellants.

Page 893

69 Wn.2d 893

421 P.2d 362

Elmer SAYLER, Respondent, v. DEPARTMENT OF LABOR AND INDUSTRIES and Long Lake Lumber Company, Appellants.

No. 38292.

Supreme Court of Washington, Department 2.

Dec. 8, 1966.

[421 P.2d 363] John J. O'Connell,

Atty. Gen., Gayle Barry, Asst. Atty. Gen., Seattle, George J. Tichy, Spokane, for appellants

Fredrickson, Maxey & Bell, Spokane, for respondent.

WEAVER, Judge.

Claimant has received a series of awards for an industrial injury to his ankle, which injury occurred June 24, 1954, during his employment at Long Lake Lumber Company. The more than ten-year procedural history of his claim is set forth in the appendix.

Claimant seeks an additional award for permanent partial disability of 75% Of the maximum allowable for unspecified injuries for a back condition allegedly resulting from his ankle injury of June 24, 1954. Claim for the back condition was first made March 5, 1962.

Claimant was born with congenital club feet. During childhood claimant had surgery on the heel cord tendons of his feet and a 'fusion or a stiffening of the calcaneal-cuboid and tarsal-scaphoid joints' of the right foot. April 14, 1955, in the course of treatment after his industrial accident of June 24, 1954, the ankle joint of his right leg was fused and made fixed.

The trial court found that claimant 'had a defect in the bony structure of the back termed spondylolisthesis,' ¹ which condition was dormant before his ankle injury. One medical expert testified that a vertebra having slipped, the 'back is then held entirely by muscles or ligaments rather than by bony support.' Another medical expert defined the condition as 'a congential defect in the spine'; and still another testified that the condition was possibly due to a severe trauma.

On several occasions claimant testified that he had not experienced any back trouble prior to June 24, 1954, the date his ankle was injured. At subsequent hearings claimant finally admitted that he had sustained an industrial injury (back strain) on February 3, 1954, while employed by the Ross Tire Company in Spokane; that he filed a claim with the Department of Labor and Industries; that he was treated by Dr. Joseph Finney for an injury to his back occurring 4 1/2 months prior to the injury to his ankle. The accident was described in this way: 'Putting a truck tire on the back of a truck, slipped, tire falling on patient.'

August 20, 1964, the Board of Industrial Insurance Appeals found that claimant's back condition did not result from his ankle injury and denied recovery. This finding affirmed the February 14, 1962 order of the Supervisor of Industrial Insurance.

The trial court, sitting without a jury, reversed, entered findings of fact, conclusions of law and judgment directing defendant,

Department of Labor and Industries, to reassume jurisdiction of plaintiff's claim and to accept responsibility for plaintiff's back condition and complaints and to provide treatment therefor, together with such other and further relief as may be indicated or authorized * * *.

The trial court's conclusion is, of course, contrary to the finding of the hearing examiner of the Board of Industrial Insurance Appeals

that any back complaints the claimant was suffering from on or about the closing date were not the result of any condition resulting from the 1954 industrial injury.

This appeal is by the Department of Labor and Industries and by Long Lake Lumber Company, claimant's employer at the time of the industrial injury to claimant's ankle. The appeal raises one issue: Is there substantial evidence to support the trial court's determination that claimant's back condition was either caused or made symptomatic as the result of his right ankle injury of June 24, 1954?

Although there is no litmus paper test which resolves RCW 51.52.115 provides that the findings and decision of the Board of Industrial Insurance Appeals are prima facie correct; the burden of proof is upon the party attacking them; the appellant must produce sufficient substantial facts, as distinguished from a mere scintilla of evidence, to make a case for the trier of fact. Sawyer v. Department of Labor and Industries, 48 Wash.2d 761, 769, 296 P.2d 706 (1956), and cases cited.

the issue, our former decisions have laid down certain guidelines.

A claimant must establish by the testimony of competent medical experts that there is a Probable (as distinguished from a Possible) causal relationship between an industrial injury and a subsequent physical condition. Sawyer v. Department of Labor and Industries, supra; Parr v. Department of Labor and Industries, 46 Wash.2d 144, 278 P.2d 666 (1955). Specifically, in the instant case, the burden is upon claimant to show by the testimony of medical experts that his back condition, for which he first made claim in 1962, was Probably caused by his 1954 ankle injury.

An expert medical opinion concerning causal relationship between an industrial injury and a subsequent disability must be based upon full knowledge of All material facts. An expert opinion given in response to a hypothetical question is without probative value if it is based upon the existence of conditions or facts not included in the question or established by the evidence and not necessarily inferable therefrom. Berndt v. Department of Labor and Industries, 44 Wash.2d 138, 265 P.2d 1037 (1954); Cyr v. Department of Labor and Industries, 47 Wash.2d 92, 286 P.2d 1038 (1955). The same rule applies to medical opinions based upon incomplete or inaccurate medical history. Parr v. Department of Labor and Industries, 46 Wash.2d 144, 278 P.2d 666 (1955). If the doctor has not been advised of a vital element bearing upon causal relationship, his conclusion or opinion does not have sufficient probative value to support an award. This court said in Parr, supra:

A claimant does not prove such causal relationship by the testimony of a doctor whose information is shown by We turn now to the record before us.

the claimant's own testimony to be neither complete nor accurate.

Dr. Leonard A. Dwinnell, claimant's medical witness, testified that '* * * at the time I examined him in 1961 he stated that he did not have back pain either prior to the accident of 1954 or immediately after the accident of 1954 (the ankle injury).' His original diagnosis that the ankle injury caused the back injury was based on the fact that there was no prior back trouble. The doctor admitted that had he known of the prior back trouble, he would have changed his...