Sepich v. Department of Labor and Industries

• Decision Date: 13 February 1969
• Docket Number: No. 39382,39382
• Citation: 75 Wn.2d 312,450 P.2d 940
• Parties: Marion T. SEPICH, Respondent, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington; General Electric Company, and U.S. Atomic Energy Commission, Appellants.
• Court: Washington Supreme Court

Page 312

75 Wn.2d 312

450 P.2d 940

Marion T. SEPICH, Respondent, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of

Washington; General Electric Company, and U.S.

Atomic Energy Commission, Appellants.

No. 39382.

Supreme Court of Washington, Department 2.

Feb. 13, 1969.

Slade Gorton Atty. Gen., Olympia, Robert G. Swenson, Asst. Atty. Gen., Charles W. Billinghurst, Asst. U.S. Atty., Tacoma, for appellants.

Brodie, Fristoe & Taylor, E. Robert Fristoe, Olympia, for respondent.

STAFFORD, Judge. ^*

This is an appeal from a jury verdict which reversed an order of the Board of Industrial Insurance Appeals of the state of Washington (hereinafter called the Board). For reasons not important to this decision, the United States Atomic Energy Commission has been substituted for the General Electric Company as the employer. The Department of Labor and Industries of the state of Washington (hereinafter called the Department) and the Atomic Energy Commission shall be referred to jointly as the appellants herein.

The plaintiff-respondent, Marion T. Sepich, suffered a head injury on June 21, 1957, while employed by the General Electric Company at Hanford, Washington. Soon thereafter, he experienced dizziness and headaches which necessitated hospitalization. Exploratory surgery revealed a subdural hematoma on both sides of the head for which Sepich received treatment.

About 1 month after leaving the hospital in Seattle, Sepich moved to Phoenix, Arizona. Soon after his arrival, he began to suffer a paralysis on the right side of his body and consulted Dr. Harry Steelman of that city. In September of 1957, Dr. Steelman found it necessary to perform additional brain surgery.

Following the operation, the general symptoms of paralysis on Sepich's right side improved. However, approximately 6 weeks later, he developed a condition diagnosed as 'intermittent focal motor seizures' (also referred to as 'epileptic type' seizures) which involved the right side of his face and right arm. The seizures continued with some regularity until April 9, 1959 and with reasonable medical probability would have continued indefinitely into the future.

The Department held that the subdural hematomas were related to the industrial injury of June 21, 1957. Sepich was classified as 'totally and temporarily disabled' from the date of the industrial accident until March 20, 1959.

Dr. Steelman last examined Sepich, regarding the 1957 head injury, late in April of 1959. Thereafter, the doctor did not see him until after he had been severely injured by an automobile while crossing a street in Phoenix on June 12, 1959.

On August 13, 1963, the Supervisor of Industrial Insurance (hereinafter called the Supervisor) entered an order closing the Sepich claim with a permanent partial disability award of 30 per cent of the maximum allowable for unspecified disabilities. The Board affirmed the Supervisor's order and Sepich appealed to the superior court. Mr. Sepich's appeal resulted in a judgment which remanded the cause to the Department with instruction to place him on the pension rolls pursuant to the Workmen's Compensation Act of the State of Washington.

Appellants maintain that the trial court erred in rejecting exhibit Nos. 4, 5, 6, 7, and 8 which contained the transcripts of the testimony of five witnesses called by Mr. Sepich during the 1963 Arizona trial of his personal injury action arising out of the pedestrian accident.

The exhibits were first offered at the Board level by appellants because Sepich asserted that he was permanently and totally disabled Prior to June 12, 1959, the date of the automobile accident. Exhibit Nos. 4 through 8, however, indicate an inconsistency with the position he maintained before the Board. At the Phoenix trial, Sepich portrayed himself as a 'strong, robust, able-bodies man of 35 years, free from bodily injuries and nervous disorders' Immediately prior to the pedestrian accident. The five exhibits were offered pursuant to Rule of Pleading, Practice, and Procedure 43.16W, RCW vol. 0 (now CR 43(i)) which covers testimony of witnesses at former trials and which reads in part as follows:

(i) Testimony at Former Trial. If the judge finds a witness at a former trial * * * to be Unavailable as a witness within the conditions set forth in Rule 26(d)(3) governing the use of depositions, the testimony of such witness on the former occasion shall be admitted for use as testimony in a trial * * * involving Substantially the same matter when (1) the testimony is offered against a party who offered it in his own behalf on the former occasion, * * *. (Italics ours.)

At the Board hearing, Sepich did not object to exhibit No. 5. However, he did object to exhibit Nos. 4, 6, 7, and 8 on four specific grounds. All five exhibits were admitted by the Board.

Appellants again offered the same five exhibits at the superior court trial for the same purpose. Sepich objected to exhibit No. 5 For the first time. He also objected to the admission of exhibit Nos. 4, 6, 7, and 8, but on grounds Different than those preserved in the record of proceedings before the Board. The trial court rejected All five on the New grounds.

The trial court also rejected exhibit Nos. 6, 7, and 8 for a reason raised neither at the Board level nor at the trial. At the Board hearing, Sepich objected that exhibit No. 4 (the transcript of Dr. Steelman's testimony from the Arizona trial) was inadmissible because it had not been established that Dr. Steelman was 'unavailable as a witness' within the framework of CR 43(i), Supra. He argued that Dr. Steelman had been available in Phoenix at the time his deposition was taken in Arizona for the Board hearing in Washington. Thus, he urged, Dr. Steelman was not 'unavailable as a witness' for the purpose of admitting a transcript of his testimony from the former trial. This objection to Exhibit No. 4 was Not renewed at trial. The trial court sustained an objection to Exhibit No. 4 on other grounds Not raised in the Board record. On the other hand the trial court rejected exhibit Nos. 6, 7, and 8 because appellants had not established that the witnesses, whose former testimony was offered by way of transcript, 'were not wholly unavailable in This (Washington) proceeding'. (Italics ours.) It is important to note that Sepich raised no such objection to exhibit Nos. 6, 7, and 8 either at the Board level or at the time of trial.

The trial court erred by rejecting the five exhibits. Each party is required to present all of its evidence at the Board level when appealing from an order of the Supervisor. See RCW 51.52.102. The testimony is transcribed and filed in the record on appeal. See RCW 51.52.100. The trial court is not permitted to receive evidence or testimony other than, or in addition to, that offered before the Board or included in the record filed by the Board. See RCW 51.52.115.

The trial is de novo and the trial court is entitled to independently resolve questions relating to the admissibility of evidence. Mercer v. Department of Labor & Indus., 74 Wash.Dec.2d 97, 442 P.2d 1000 (1968). Nevertheless, the trial court has no original jurisdiction in such cases; it acts only in an appellate capacity. Shufeldt v. Department of Labor & Indus., 57 Wash.2d 758, 359 P.2d 495 (1961). The only evidence presented on appeal is that Contained in the Board record. Shufeldt v. Department of Labor & Indus., Supra; Floyd v. Department of Labor & Indus., 44 Wash.2d 560, 269 P.2d 563 (1954). Thus, even though the trial court may rule independently on evidentiary questions, as an appellate tribunal, it can only pass upon those matters that have first been presented to the Board and preserved in the Board's record for review. As a court of review, it cannot consider matters outside the record or presented for the first time on appeal. Objections to evidence can be considered only upon the specific grounds made before the Board. Kull v. Department of Labor & Indus., 21 Wash.2d 672, 152 P.2d 961 (1944). See also 58 Am.Jur. Workmen's Compensation § 527 at 901 (1948); 100 C.J.S. Workmen's Compensation §§ 700, 707 (1958).

The reason for such an appellate procedure is obvious. If proper objection is made at the Board hearing, the party offering the evidence is afforded an opportunity to obviate the objection or waive it intelligently. Kull v. Department of Labor & Indus., Supra. In the end, the appellate tribunal will be furnished with a complete record that will permit all the issues to be resolved. On the other hand, if new or different objections are permitted for the first time on appeal to the trial court, unsuspecting litigants will be faced with an undesirable trap. The practice would encourage counsel to reserve their objections until the time of appeal; or at least until it would be too late for an opponent to correct or complete the record. The effect of such a procedure would be to force the trial court to remand numerous cases to the Board for the completion of records made deficient by delayed objections. This alternative is not desirable.

At the time exhibit Nos. 4, 5, 6, 7, and 8 were offered at the superior court trial, some confusion arose concerning the application of CR 43(i) Supra.

Under the rule, a number of conditions must be complied with before the testimony of a witness, taken at a former trial, may be used. These are: (1) unavailability of the witness; (2) the trial at which the testimony is offered must involve substantially the same matters as the former trial; (3) the testimony must be offered (a) against a party who offered it in his own behalf on the former occasion, or (b) this section is not applicable here.

Whether one is 'unavailable as a witness' within the meaning of CR 43(i), is governed by RPPP 26(d)(3) (now CR 26(d)(3)). Subsection (B) of CR 26(d)(3), which applies in this case, provides in part that a deposition may be used when '* * * the witness resides out of the county and more...