Smith v. Department of Labor and Industries of Washington

• Decision Date: 19 December 1934
• Docket Number: 24860.
• Citation: 38 P.2d 1016,180 Wash. 84
• Parties: SMITH v. DEPARTMENT OF LABOR AND INDUSTRIES OF STATE OF WASHINGTON.
• Court: Washington Supreme Court

38 P.2d 1016

180 Wash. 84

SMITH v. DEPARTMENT OF LABOR AND INDUSTRIES OF STATE OF WASHINGTON.

No. 24860.

Supreme Court of Washington, En Banc.

December 19, 1934

Appeal from Superior Court, Lewis County; C. A. Studebaker, Judge.

Proceeding under the Workmen's Compensation Act by J. L. Smith opposed by the Department of Labor and Industries of the State of Washington.From judgment of the superior court reversing an order of the joint board sustaining the action of the department in refusing claimant further compensation the Department of Labor and Industries appeals.

Affirmed.

G. W Hamilton and Browder Brown, both of Olympia, for appellant.

Vanderveer & Bassett, of Seattle, for respondent.

GERAGHTY Justice.

During the month of January, 1932, J. L. Smith, then engaged in extrahazardous work and within the provisions of the Workmen's Compensation Act, suffered an injury which resulted in his receiving care and compensation for time lost.His claim was closed March 12, 1932 without award for any permanent partial disability.July 15, 1932, he applied for a rehearing Before the joint board, alleging aggravation of his injuries.Claimant not having applied for such a rehearing within sixty days from the date of the closing of his claim by the department was limited Before the joint board to the contention that his condition had become aggravated since his claim was closed.The joint board entered an order sustaining the action of the department and refusing claimant further relief.From this order the claimant appealed to the superior court, which after a hearing entered judgment reversing the order of the joint board and awarding Smith $600 for a twenty-degree permanent partial disability found by the court to be legally traceable to aggravation of compensable injuries suffered by claimant.From this judgment the department appeals, assigning error upon certain of the findings of the trial court and upon the entry of judgment in claimant's favor.

The trial court found respondent disabled to the extent of forty degrees (in other words, that he was 50 per cent. disabled, a disability estimated at eighty degrees representing total disability), but that one-half of this disability was due to high blood pressure having no connection with the injuries which respondent had suffered, and that respondent was entitled to compensation from the state only to the extent of twenty degrees.

Respondent was first injured May 28, 1930, on which date he was kicked by a horse.After this injury respondent was cared for by the department, and received some compensation for loss of time.He resumed work June 28, 1930, and continued to work until January 22, 1932, when he was again injured under the following circumstances: In order to climb through a window through which he was about to throw wood which he was delivering to a customer, he stepped upon a box, which slipped out from under him, throwing him down in such a manner that he struck the lower portion of his back upon a board.Respondent stated that he fell about two and one-half feet, 'from that box to the bottom of the window.'Before the joint board respondent contended that his condition had become aggravated, and that he was entitled to an award on the basis of permanent partial disability.Testifying on his own behalf as to his present condition, respondent said that it was difficult for him to stoop, and that 'it seems to be a nervous thing, that back will hurt me across there at night when I lay down, maybe I will go to sleep for an hour, and it hurts so bad I have to get up and sit on the edge of the bed.'

He testified that he was in pain all the time, but that the pain was worse when he stooped or lay down.He complained of lameness in his right leg, and that he suffered from bladder trouble.It clearly appears that at the time of the hearing he was suffering from high blood pressure, his own witnesses testifying that this was a factor seriously contributing to his disability.

Physicians called by respondent, who had examined him shortly Before the hearing and had studies X-rays of his spinal and pelvicstructure, testified that the X-rays showed evidence of considerable arthritis around the fourth and fifth vertebrae, and that in their opinion the arthritis was traumatic in its origin, because it included only the two vertebrae.Respondent's medical witnesses testified that a reading of the X-ray plates indicated a fracture of the fifth lumbar vertebra on the right side, as well as a displacement of the fourth and fifth vertebrae.They testified that, because of this condition, respondent was suffering from nerve irritation.One of these witnesses estimated respondent's disability at sixty degrees, testifying that in his opinion this condition was the result of the fractured vertebra; it being his theory that the fracture brought about the disability 'through pressure on the nerves, or irritation of the nerves.'

Physicians called by appellant testified, from an examination of respondent and of the X-ray plates, that in their opinion the respondent was suffering from arthritis of long standing.The presence of an arthritic condition was admitted by respondent's physicians, but it was their view that it had developed as the result of the fracture.The testimony of the doctors is conflicting and in some particulars irreconcilable.The testimony of one of respondent's physicians, Dr. Banks, however, is, we think, entitled to much weight, and had probative force independently of any technical interpretation of the X-ray pictures.He had been the respondent's physician Before and after the accident.Testifying Before the joint board, he said:

'Q.Doctor, what was Mr. Smith's condition March 9, 1932, when the state closed his claim?A.He was still disabled.

'Q.Stillcomplaining of pain in his back?A.Yes.

'Q.Anything else besides that?A.Well, inability to work.

'Q.Was he able to work?A.Not to resume his occupation.

'Q.Have you treated him since March 9, 1932?A.Yes.

'Q.Is he improving under your treatment?A.I cannot say he is.

'Q.Would you say his condition is stationary?A.I would say it is even worse than it was Before .

'Q.Before what?A.Before he was discharged.

'Q.In what way?A.He is less able to engage in occupation.

'Q.What is the basis of that belief?A.The man needs to go ahead with his work to earn a living, and he is unable to do it.

'Q.What examination or facts lead you to conclude his physical condition has become worse since March 9, 1932?A.The fact he is unable to go ahead with any work at all at the present time, practically.

'Q.Was he able to do any work on March 9, 1932?A.He did some light work, but it seems to cause him pain, and he suffers more than he did at that time, apparently.

'Q.Is your conclusion that his condition is worse merely based on the fact he complains to you the pain is worse?A.No, I wouldn't say that.I think he is less able to do things.

'Q.What objective findings have you to substantiate the statement that his physical condition is worse than on March 9, 1932?A.I don't know as I can give you specific data in regard to that.

'Q.I your opinion, Doctor, if there is any increase in pain in the right side and back, is that due to the progress of the disease of arthritis, aggravated by the injury?A.Probably so.'- The burden rested upon respondent to show that after the closing of his claim the condition caused by his injury had become aggravated.A painstaking reading of the record

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