Smith v. Department of Labor and Industries

• Decision Date: 05 May 1941
• Docket Number: 28211.
• Citation: Smith v. Department of Labor and Industries, 113 P.2d 57, 8 Wn.2d 587 (Wash. 1941)
• Parties: SMITH v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

113 P.2d 57

8 Wn.2d 587

SMITH v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 28211.

Supreme Court of Washington

May 5, 1941

Department 2.

Proceeding under the Workmen's Compensation Act by George Smithclaimant, wherein the Department of Labor and Industries of the State of Washington entered an order sustaining the director's decision that director upon his own motion could not reopen a case for aggravation of claimant's injuries after more than three years had elapsed from the closing of claimant's case.From a judgment of the Superior Court reversing the order, the Department of Labor and Industries appeals.

Judgment affirmed.

Appeal from Superior Court, San Juan County; Ralph O. Olson, judge.

Smith Troy and T. H. Little, both of Olympia, for appellant.

Koenigsberg & Sanford, of Seattle, for respondent.

MILLARD, Justice.

Plaintiff while engaged in extrahazardous employment, sustained an injury to his left eye January 6, 1934.As the result of this injury he was awarded permanent partial disability for the loss of his left eye and his claim was closed May 19, 1934.On or about August 1, 1938, plaintiff lost the sight of his right eye as a result of the injury sustained by him in January, 1934.February 3, 1939, which was more than three years after his claim was closed, plaintiff applied to the department for a reopening of his claim on the ground of aggravation under Rem.Rev.Stat., § 7679(h).The application was denied for the reason that the claim was barred by the three-year statute of limitations.Plaintiff requested the director of Labor and Industries to use his discretion in the matter and proceed to reopen the claim.The director informed the claimant that under an opinion December 18, 1939, of the Attorney General the director could not, three years after the closure of the claim, on his own motion reopen the claim on the ground of aggravation of injuries.From the finding of the director that he had no authority to reopen the claim upon his own motion an appeal was taken to the joint board which sustained the director's decision.From that order the claimant appealed to the superior court for San Juan county.

On the foregoing facts the trial court concluded that under Rem.Rev.Stat.,§ 7679(h), the director of Labor and Industries has the authority and may upon his own motion and within his discretion reopen a claim for further compensation, although more than three years had elapsed since the termination of the claimant's compensation and closing of the claim.The department appealed.

The total blindness of respondent, as the result of the injuries he sustained in 1934, is conceded.The sole question is whether, under Rem.Rev.Stat., § 7679(h), the director of Labor and Industries has the authority, upon his own motion, to reopen a case for aggravation of a claimant's injuries after more than three years have elapsed from the closing of the claimant's case.

Prior to 1927the statute(Laws of 1919, Ch. 131, § 4, Subd. (h) page 363) read as follows: 'If aggravation, diminution, or termination of disability takes place or be discovered after the rate of compensation shall have been established or compensation terminated, in any case the department may, upon the application of the beneficiary or upon its own motion, readjust for further application the rate of compensation in accordance with the rules in this section provided for the same, or in a proper case terminate the payment.'

The statute, it will be noted, provides two methods of reopening claims based upon aggravation of disability.The first method is upon application of the beneficiary; and, second, upon the department's own motion.It is clear that under this statute the department had the discretion to reopen the claim for aggravation, diminution or termination of disability without limitation as to time.

The foregoing section of the Workmen's Compensation Act was amended by Laws of 1927, chapter 310, § 4, Subd. (h), page 844, to read as follows: 'If aggravation, diminution, or termination of disability takes place or be discovered after the rate of compensation shall have been established or compensation terminated, in any case the director of labor and industries, through and by means of the division of industrial insurance, may, upon the application of the beneficiary, made within three years after the establishment or termination of such compensation, or upon his own motion, readjust for further application the rate of compensation in accordance with the rules in this section provided for the same, or in a proper case terminate the payment: Provided, Any such applicant whose compensation has heretofore been established or terminated shall have three years from the taking effect of this act within which to apply for such readjustment.'(Italics ours.)

The 1927amendment preserved the two methods for reopening a claim, and the authority in this statute was lodged in the director of Labor and Industries.It will be observed that in the 1919statute quoted above the authority was vested in the department.

In the 1927amendment the methods for reopening the claim are (1)'upon the application of the beneficiary, made within three years after the establishment or termination of such compensation,' and (2)'upon his own motion, * * *'

The limitation of time in the statute has reference solely to the application of the beneficiary.There is no language which purports to limit the director in acting upon his own motion.The phrase 'made within three years' is a limiting clause and relates only to the application of the beneficiary.The discretionary portion of the statute which gives to the director authority to act upon his own motion is the same as in the 1919statute without any limitation as to time when the director acts upon his own motion.

In Botica v. Dept. of Labor and Industries,184 Wash 573, 52 P.2d...