Schwab v. Department of Labor and Industries
| Decision Date | 04 August 1966 |
| Docket Number | No. 37793,37793 |
| Citation | 69 Wn.2d 111,417 P.2d 613 |
| Court | Washington Supreme Court |
| Parties | Robert W. SCHWAB, Deceased, Dorothy E. Schwab, Appellant, v. The DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent. |
Walthew, Warner & Keefe, James E. McIver, Seattle, for appellant.
John J. O'Connell, Atty. Gen., Virginia O. Binns, Wesley G. Hohlbein, Asst. Attys. Gen., Seattle, for respondent.
This case involved a claim for a widow's pension under the Workmen's Compensation Act filed by the widow of a deceased worker. The widow is plaintiff-appellant. Her claim was rejected by the Department of Labor and Industries because the supervisor found that the workman died from causes 'entirely unrelated to his industrial injury or his medical treatment therefor.' She appealed to the Board of Industrial Insurance Appeals, which after numerous hearings entered an order sustaining the action of the department. Thereafter, the widow appealed to the Superior Court for King County, which refused to submit the question of causation of the worker's death to the jury, but ruled, as a matter of law, that the death of the worker was not caused by a prior industrial accident. From the dismissal of her appeal, the widow has appealed to this court.
The basic question in this appeal is whether there was sufficient evidence, when viewed in the light most favorable to plaintiff-appellant's theory, to submit to the jury as a question of fact, whether the compensable injury which the decedent suffered on May 24, 1956, was the proximate cause of his death in 1959.
Robert W. Schwab, the decedent, was injured (back injury) on May 24, 1956, while working for W. P. Fuller Company. This back injury was covered by industrial insurance. He was confined in the hospital from a few days after the injury until September 9, 1956.
While confined in the hospital, Mr. Schwab received conservative treatment for about the first 10 days. When this proved ineffective, Mr. Schwab received X rays and a myelogram in an attempt to diagnose the nature and severity of his injuries. On June 25, 28, and July 2, and 9, Mr. Schwab received epidural injections in an attempt to give him some relief. Finally, on July 27, 1956, Mr. Schwab received a hemilaminectomy and foramenectomy. After this operation, Mr. Schwab stayed in the hospital and received further conservative treatment (medication and physiotherapy). September 9, 1956, he was discharged.
Mr. Schwab continued to receive outpatient and hospital care for this injury until his claim was closed, on September 8, 1958, by the Department of Labor and Industries, with an award for a permanent partial disability of 25 per cent of the maximum allowable for unspecified disabilities ($1,500).
An appeal from this order was taken on November 13, 1958, and on February 27, 1959, the Board of Industrial Insurance Appeals 'modified' the department's order by reversing the closure of the claim and ordering it reopened for further medical treatment.
After Mr. Schwab's claim was reopened, the treatment of the back condition was resumed March 4, 1959, and continued through June 22, 1959, during which interim Mr. Schwab was seen by Dr. Gray a total of 14 times. During that period, Dr. Gray had examined the decedent twice in a very thorough manner--on March 30, 1959, and again on May 5, 1959. It is a fair summary of Dr. Gray's testimony to say that Mr. Schwab complained of constant pain in his back and legs, and that there was physical evidence to justify such pain, in that the vertebrae of the lumbar spine had not been immobilized because the attempted fusion of the vertebrae had failed. (The decedent apparently had at least 3 laminectomies of the lumbar spine, the last of which was in 1956, after the industrial accident.) Dr. Gray testified that Mr. Schwab was hospitalized for this condition on April 5, 1959. He evaluated Mr. Schwab as a physical and psychological back cripple, who probably could not be helped by surgery and whose main problem was how to obtain relief from pain. Dr. Gray had recommended physiotherapy and medication.
There is considerable testimony from Mr. Schwab's relatives which shows that he had an alcoholic problem which began in the 1940's, and that he had a history of mental instability which began in 1952, with hospital confinements for both his back problems and his alcoholism, and his mental instability. Hospital and medical records show that he had unsuccessfully tried to commit suicide probably at least four, and perhaps as many as eight, times by various means, including the use of sleeping pills, driving his automobile against an abutment, and using razor blades or knives to cut veins or arteries in his arms. All except two of these instances apparently preceded the industrial injury of May 24, 1956.
After the industrial injury, Mr. Schwab apparently tried twice to commit suicide. The first time was in August, 1957, according to the expert witness testifying for the Department of Labor and Industries. The last unsuccessful attempt was on July 14, 1958. Immediately after this event, he was taken to the King County Hospital (Harborview) for emergency restraint. According to the hospital record, the reason for admission to the King County Hospital at that time was that the decedent had threatened to kill himself because he was in so much pain and was so depressed, and that a knife had to be forced from him by his eldest son. The diagnosis was manic depressive. Mr. Schwab previously had been confined intermittently from 1952 to 1955 in Western State Hospital, twice at his own request, and once by court order. The diagnosis at that institution had been that Mr. Schwab was suffering from manic depressive characteristics, with some schizophrenic pattern appearing in the diagnostic record occasionally. He was 'released' by Western State Hospital completely on January 17, 1957, although he had not actually been confined there since August, 1955.
On June 27, 1959, the afternoon and evening before Mr. Schwab took the overdose of sleeping pills, he and his wife had visited with Mr. and Mrs. DeLong. Mr. DeLong was a crew foreman for the Olympia Stone Company, where Mr. Schwab was employed as bookkeeper and cost accountant to the adequate satisfaction of his employer. Mr. DeLong testified that the afternoon and evening was simply a friendly, sociable visit between friends, and that the only problem which developed was that Mr. Schwab had invited Mr. DeLong to have a drink with him from a bottle of liquor that Mr. Schwab had brought in from his car. Mr. DeLong took only one drink, Mr. Schwab took several. Then after Mr. Schwab had become intoxicated, Mr. DeLong feared that Mr. Schwab would not be able to drive his car if he drank any more, and told him so, and asked him to go home because Mr. DeLong did not wish his family to be exposed to drinking. Mr. Schwab had been jovial but had not been unruly or unacceptable as a guest, except that he was drinking. Mr. and Mrs. Schwab left the DeLong home about 11 p.m. and drove home.
On arriving home, Mr. Schwab telephoned Mr. DeLong and apologized for his drinking at the DeLongs' home without being invited to do so. It was a natural but very remorseful apology. Mr. DeLong thought nothing more about the matter.
At about 1:15 a.m., according to Mrs. Schwab, her husband being unable to fall asleep, took about 6 carbrital capsules, which had been prescribed for him a few days before by Dr. Springer for a shoulder condition not related to the back injury of 1956. She testified that her husband, at the time he took the pills, stated that the doctor had given him some sleeping pills but that they were not really sleeping pills and that he was going to prove it, whereupon he took the pills. She became alarmed and telephoned the prescribing physician. Mr. Schwab took at least 6 more pills while she was telephoning.
At the direction of the physician, Mr. Schwab was rushed to Ballard General Hospital, where his stomach was pumped out and he was given a stimulant. He was then moved to King County Hospital (Harborview), where he remained until August 21, 1959, when he died, never having regained consciousness.
Three doctors testified in answer to lengthy hypothetical questions which purported to include the testimony and documentary evidence in the record, of which not all have been discussed above. The two doctors who were witnesses for appellant were a psychiatrist and a general practitioner. They testified that the 1956 back injury was probably the 'major contributing cause' and the 'triggering cause' of this man's taking his own life. They testified that 'his defenses were down,' so that his suicidal tendencies controlled his actions. The psychiatrist testifying for the Department of Labor and Industries testified that he believed that the work injury was only one stress on Mr. Schwab, and that, If Mr. Schwab did commit suicide, the industrial injury of 1956 was not a cause.
At the end of the presentation of all the evidence to the jury, the Department of Labor and Industries moved for a dismissal of the case on the ground that the evidence did not show that the deceased was acting under a delirium or from an uncontrollable impulse at the time he took the sleeping pills. The trial court ruled that there was no evidence, including the testimony of appellant's expert witnesses summarized above, which showed the presence of an 'uncontrollable impulse.'
In deciding whether the question of the causation of the death of the deceased should be presented to...
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