Scott Paper Co. v. Department of Labor and Industries

• Citation: 440 P.2d 818,73 Wn.2d 840
• Decision Date: 09 May 1968
• Docket Number: No. 39395,39395
• Parties: SCOTT PAPER COMPANY, Respondent, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent, Cecil McDougle, Appellant.
• Court: United States State Supreme Court of Washington

Page 840

73 Wn.2d 840

440 P.2d 818

SCOTT PAPER COMPANY, Respondent, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent Cecil McDougle, Appellant.

No. 39395.

Supreme Court of Washington, Department 1.

May 9, 1968.

Rehearing Denied July 22, 1968.

William A. Stiles, Jr., Sedro-woolley, for appellant.

Bell, Ingram & Smith, Lewis A. Bell, Everett, John J. O'Connell, Atty. Gen., Edward B. Gough, Asst. Atty. Gen., Olympia, for respondent.

WALTERSKIRCHEN, Judge. ^*

The phase of this case now before us had its inception January 26, 1959, when claimant, Cecil McDougle, filed with the Department of Labor and Industries an application to reopen his prior 1955 claim. He asserted that his original injury, which had been compensated by an award for 30 per cent permanent partial disability, had been aggravated on November 12, 1958, when he assisted his brother-in-law. The case was before us previously, in 1964, McDougle v. Department of Labor & Industries, 64 Wash.2d 640, 645, 393 P.2d 631, 635 (1964), wherein we said:

The test to be applied, in cases such as the present, is whether the activity which caused the aggravation is something that the claimant might reasonably be expected to be doing, or whether it is something that one with his disability would not reasonably be expected to be doing.

We also said, at 641, 393 P.2d at 632:

Thus we start our consideration of our present problem with an individual who has a 30 per cent permanent partial disability based on a back injury. Such a disability implies the possession of considerable ability to participate in the usual affairs of life. Is should be anticipated that he will engage in many varieties of activities--including recreation, taking care of his home, helping his neighbors, and in gainful employment--all commensurate with his existing physical ability.

Thus the prior order awarding 30 per cent permanent partial disability has inherent in it a finding that claimant retains 70 per cent ability, i.e. 70 per cent of his ability to perform the work he had performed prior to the award, which was all hard physical labor.

In White v. Department of Labor & Industries, 48 Wash.2d 413, 414, 293 P.2d 764, 765 (1956), we said:

Two significant questions are presented to us: (1) whether the supervisor's closing order of June 16, 1949, indicating the claimant had suffered no permanent disability, is Res judicata as to the claimant's condition or disability as of that date; * * *.

As to the first question set out above, it is clear that no appeal was taken from the supervisor's order closing the claim on June 16, 1949. We think the department should be bound by this order. In other words, it was Res judicata as to the extent of the claimant's injury at that time. * * *

In Kleven v. Department of Labor & Industries, 40 Wash.2d 415, 416, 243 P.2d 488, 490 (1952), we said:

The department made an award and closed his claim on January 3, 1944. This order was not appealed from, and, therefore, became Res judicata as to the extent of his injury at that time. * * *

In Cirillo v. United Engineers and Constructors, Inc., 121 N.J.L. 511, 514, 3 A.2d 596, 598 (1939), the court made this statement, which we approve:

When once the degree of disability from which a workman suffers at a named time has been judicially determined, then in fairness both to the employer and to the employe the question of increase or decrease in disability must be predicated upon the condition as it was at the hearing out of which the determination emanated.

We have defined disability in Henson v. Department of Labor & Industries, 15 Wash.2d 384, 391, 130 P.2d 885, 888 (1942), as follows:

(T)he impairment of the workman's mental or physical efficiency. It embraces any loss of physical or mental functions which detracts from the former efficiency of the individual in the ordinary pursuits of life.

In reversing the trial court in McDougle, supra, we directed it to

(S)et aside the order of the Board of Industrial Insurance Appeals, which affirmed the supervisor, and to direct that Board to refer the matter back to the supervisor for further consideration in the light of this opinion. (p. 64 Wash.2d p. 646, 393 P.2d p. 635)

This was done. The supervisor again denied the claim to reopen for aggravation. Claimant again appealed to the Board of Industrial Insurance Appeals, which overruled the supervisor, and directed the supervisor and the Department of Labor and Industries to reopen the claim pursuant to the Board's decision.

Plaintiff, Scott Paper Company, appealed to the superior court, which reversed the Board of Industrial Insurance Appeals. Claimant again appealed to this court, and we are now considering this case for the second time.

We have repeatedly said that the burden is upon the party attacking the findings and decision of the Board to establish the incorrectness thereof by a preponderance of the evidence. ¹ Chalmers v. Department of Labor & Industries, 72 Wash.Dec.2d 591, 434 P.2d 720 (1967); Stampas v. Department of Labor & Industries, 38 Wash.2d 48, 227 P.2d 739 (1951); LaLone v. Department of Labor & Industries, 3 Wash.2d 191, 100 P.2d 26 (1940).

In Sayler v. Department of Labor & Industries, 69 Wash.2d 893, 896, 421 P.2d 362, 364 (1966), this court said:

(T)he 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. * * * (Italics ours.)

In Allison v. Department of Labor & Industries, 66 Wash.2d 263, 268, 401 P.2d 982, 986 (1965), we expressed the rule thus:

In this context, 'prima facie' means that there is a presumption on appeal that the findings and decision of the board, based upon the facts presented to it, are correct until the trier of fact finds from a fair preponderance of the evidence that such findings and decision of the board are incorrect. It must be a preponderance of the credible evidence. If the trier of fact finds the evidence to be equally balanced then the findings of the board must stand.

In the context of what was competent, credible, evidence before the Board in the instant case, we should keep in mind our statement in Floyd v. Department of Labor & Industries, 68 Wash.2d 938, 942, 416 P.2d 355, 358 (1966):

Nor can we accept claimant's contention that the version testified to by the physician from the history given him by claimant should be used as the description of the accident.

Also, in speaking of the testimony of physicians relative to medical aspects of labor and industries cases, we said, in Groff v. Department of Labor & Industries, 65 Wash.2d 35, 45, 395 P.2d 633 (1964):

(W)e have, in several cases, emphasized the fact that special consideration should be given to the opinion of the attending physician.

While appeals in workmen's compensation cases to this court are no longer tried de novo (see Benedict v. Department of Labor & Industries, 63 Wash.2d 12, 385 P.2d 380 (1963), and Groff v. Department of Labor & Industries, supra), it often becomes the duty of the appellate court to evaluate the evidence in a written record in testing conclusions and inferences which have been drawn from the facts--an exploration for sufficiency of the probative evidence to support findings of fact and an analysis of findings when the evidence is undisputed, uncontradicted, and unimpeached. Benedict v. Department of Labor & Industries, supra at 14, 385 P.2d 380. Such is the situation here.

Looking, then, at the evidence, we note that, in the initial hearing, claimant's counsel asked him: 'Did you do any lifting or Any type of physical exertion on or about November 12, 1958?' (Italics ours.) The record shows no answer to this question, the examiner having interrupted with a question on another subject. Counsel for claimant then resumed his interrogation with the following questions: Q. Well, did you work for your brother-in-law lifting sacks of oats or something one day around that time? A. Just voluntarily, yes. Q. About how long did you work for him? A. I wouldn't say, it wasn't very long. It was a few minutes. I happened to be visiting and talking with him and him and the hired man was unloading some ground feed, and he was loading it out of the van truck onto one of those cars and he was taking them to the grainary and visiting there with him, I got a load and helped and the next day I had to go in for treatments. (Italics ours.)

Later, counsel again asked:

Q. Now, are you sure you didn't experience any sharp pain at the time you were lifting these sacks? A. No.

This constituted the only competent evidence in the initial hearing relative to the incident. It should be noted that the principal thrust of each of the above questions was something other than the manner in which the aggravation was sustained and the unanswered initial question asked about 'lifting or Any type of physical exertion.' (Italics ours.)

At the hearing, after we remanded in McDougle, supra, in response to questions making specific inquiry concerning the circumstances surrounding the aggravation incident, claimant testified as follows:

Q. Had you done any type of physical exertion just prior to this--just prior to your going to the doctor? A. Well, not too much exertion. Q. What did you do? A. Well, I helped on a couple of sacks of grain, more or less slid them over. Q. We are trying to find out just exactly what you did, Mr. McDougle, where were you when you helped with these sacks of grain? Where were you? A. I was at Al Albertine's, at Lyman. Q. Now, while you were at Mr. Albertine's farm, would you explain to me exactly what happened to you in relation to these sacks of grain that you were talking about? A. Well, I just went down there to visit, and he was unloading this stand of ground feed; and while talking, I was...