Spalding v. Department of Labor and Industries

• Decision Date: 30 October 1947
• Docket Number: 30197.
• Citation: 186 P.2d 76,29 Wn.2d 115
• Court: Washington Supreme Court
• Parties: SPALDING v. DEPARTMENT OF LABOR AND INDUSTRIES.

186 P.2d 76

29 Wn.2d 115

SPALDING v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 30197.

Supreme Court of Washington

October 30, 1947

Department 2

Proceeding under the Workmen's Compensation Act by Roger S Spalding, claimant, wherein the claimant appealed to the joint board from the award of the supervisor. From a judgment of the Superior Court in favor of the claimant, on appeal from the order of the joint board, the Department of Labor and Industries of the State of Washington appeals.

Judgment affirmed.

Appeal from Superior Court, Grays Harbor County J. M. Phillips, judge.

Smith Troy and John F. Lindberg, both of Olympia, for Department.

J. W Graham, of Shelton, for Simpson Logging Co.

F. W Loomis, of Aberdeen, for respondent.

JEFFERS, Justice.

Roger S. Spalding was injured on March 3, 1942, while in the employ of Simpson Logging Company. At the time of the injury, Mr Spalding was setting chokers. A sapling about eighteen inches thick broke off when it was struck by a log, the top coming down and striking Mr. Spalding across the small of his back.

A claim for this injury was duly filed with the department of labor and industries, which claim was allowed, and claimant was paid fourteen months and five days time loss. The supervisor finally closed the claim, with a permanent partial disability award of twenty-five per cent as compared to the maximum for unspecified disability. From this decision, claimant appealed to the joint board for a rehearing. A rehearing was granted, after which hearing the joint board entered an order, dated April 30, 1945, sustaining the action of the supervisor. Claimant appealed from the order of the joint board to the superior court for Grays Harbor county.

The cause came on for hearing Before the court and a jury on January 8, 1947, on the record as made Before the joint board, and thereafter the jury returned a verdict in favor of claimant, in which, as appears from the judgment thereafter entered by the court, the jury found that claimant, as a proximate result of the accident occurring on March 3, 1942, had suffered permanent partial disability to the extent of '100% of $2,400.' The judgment further provides:

'And it further appearing to the Court from the records and files of said Department in said matter that the said Department has paid the said claimant on his said claim for permanent partial disability, the sum of $600.00 and no more;

'Now, therefore, it is hereby ordered, adjudged and decreed that the said matter be and herewith is referred to said Department of Labor and Industries which is directed to proceed accordingly and in accordance with the statutes in such cases made and provided; to reopen said claim and to allow and pay to the said claimant an additional award for permanent partial disability on account of his said injury in the sum of $1800.00.'

By the judgment, claimant's attorney was awarded the sum of $400.

Interrogatories were submitted to the jury, which, together with the answers thereto given by the jury, are as follows:

'1. Is the claimant, under the instructions of the Court and approximately growing out of his industrial accident, permanently and totally disabled?

'Answer: No.

'If your answer to the foregoing Interrogatory is in the affirmative of 'Yes', then you need not answer the following Interrogatory; but if your answer is in the negative or 'No', then you will answer the following Interrogatory.

'2. Do you find that the claimant has sustained a disability permanent but partial, greater than that for which he has already been allowed compensation?

'Answer: Yes.

'3. If your answer to No. 1 is 'No' and to Interrogatory No. 2 is 'Yes', state the percentage of the claimant's disability as compared with the scheduled specified disability which it most closely resembles and approximates in degree of disability but not in any case to exceed the sum of $2400.00.

'100% of $2400.00.'

These interrogatories and answers formed the basis for the judgment entered by the trial court.

The department filed a motion for judgment notwithstanding the verdict, or in the alternative for a new trial, which motions were denied.

The department has appealed from the judgment entered, and has assigned as error (1) the refusal of the court, on appellant's motion, to withdraw the cause from the jury and dismiss the appeal to the superior court; (2) the submission of the case to the jury; (3) the denial of appellant's motion for judgment n. o. v.; (4) the denial of appellant's motion for new trial; (5) the entry of judgment on the verdict; and (6) the award to respondent of judgment for an attorney's fee.

Appellant in its brief first discusses assignments Nos. 1 and 2. At the conclusion of the testimony, appellant made a motion requesting the court to withdraw the case from the consideration of the jury and dismiss the same, on the ground that there was not sufficient substantial evidence to warrant the submission of the case to a jury.

Appellant states that, in order for respondent to recover, there must be medical testimony to substantiate the claims made by respondent, and cites the following cases to sustain its contention:

Cooper v. Department of Labor & Industries, 195 Wash. 315, 80 P.2d 830, 831. This case was tried to the court. The attending physician had diagnosed the case as influenzal bronchial pneumonia. We do not think the opinion in this case goes quite as far as the above statement of counsel for appellant implies. We did state: 'While the testimony of non-expert witnesses has some bearing upon the question involved [namely, whether the pneumonia was the result of the alleged injury or of a trauma], yet the actual facts in the present situation must be determined mostly from the testimony of the medical witnesses. Stevich v. Department of Labor & Industries, 182 Wash. 401, 47 P.2d 32, and cases cited.' (Italics ours.)

Weinheimer v. Department of Labor & Industries, 8 Wash.2d 14, 111 P.2d 221, 222. This case was also tried to the court. The opinion states: 'The medical evidence in support of the action of the joint board is unanimous. The only evidence opposed to the finding of the medical authorities that respondent is not permanently and totally disabled is the testimony of appellant as to his condition.'

The opinion then continues: 'In cases of this kind, the actual facts must be determined from the testimony of the medical witnesses.'

In the instant case, the testimony of four doctors was considered by the joint board. Drs. Kenneth partlow and George A. LeCompte were called by claimant; and Drs. W. E. Steele and H. J. Wyckoff by the department. Drs. Partlow, Steele and Wycoff all concluded that claimant's condition was fixed; that no further treatment was indicated; and that claimant had a resulting permanent partial disability of twenty-five per cent as compared with the maximum for the unspecified injury.

It is upon the testimony of Dr. LeCompte and the nonexpert witnesses that claimant bases his contention that the evidence was sufficient to take this case to the jury, and a sufficient basis for the verdict returned by the jury. Appellant contends that Dr. LeCompte's testimony was based solely upon claimant's subjective complaints, and it therefore has little, if any, probative value, citing Cooper v. Department of Labor & Industries, 20 Wash.2d 429, 147 P.2d 522, 524, wherein we stated: 'There is no evidence of even one objective symptom on which to base an opinion that since respondent's claim was closed his physical condition had become aggravated due to the injury for which he had already been compensated. Respondent's physician based his opinion as an expert upon subjective symptoms found, they being the things told him March 29, 1942, by respondent while being examined by the physician for the purpose of testifying as an expert witness. (The examination was not for the purpose of treatment.) Such things are none the less hearsay when they come from a physician than if from a layman. A physician may not base an opinion as to causation of a physical condition on subjective symptons and self-serving statements.' (Italics ours.)

The department states that the ruling last above referred to was affirmed in Roellich v. Department of Labor & Industries, 20 Wash.2d 674, 148 P.2d 957, and Kralevich v. Department of Labor & Industries, 23 Wash.2d 640, 161 P.2d 661. It is true that in the Roellich case, supra, in referring to the testimony of the claimant's doctor, we quoted from Cooper v. Department of Labor & Industries, 20 Wash.2d 429, 147 P.2d 522, which quotation was to the effect that claimant's doctor had seen the claimant only once, and that, solely on the basis of statements made to him by claimant respecting the pains he was undergoing, and that he was worse than when the claim was closed, the doctor gave as his opinion that claimant's condition had become aggravated since the claim was closed. We then stated in the Roellich case [20 Wash.2d 674, 148 P.2d 962]: 'All that is said in the foregoing quotation applies in this case.' It will be noted that in the Roellich case we stated: 'In this particular case, Dr. Rickards made his apparently customary single examination on April 17, 1941. Whatever may have been the fact as to the other seventy-nine cases, we are clear that more than one examination was necessary in order to give substantial testimony that the claimant's disability was aggravated during the period involved.' (Italics ours.)

In the Kralevich case, supra, many of our prior cases are cited and quoted from. We shall not discuss this case, other than to quote from the opinion at page 656 of 23 Wash.2d, at page 669 of 161 P.2d:

'While appellant's [claimant's] testimony was that, after...