State ex rel. Stone v. Olinger

• Decision Date: 23 December 1940
• Docket Number: 28222.
• Citation: 108 P.2d 630,6 Wn.2d 643
• Parties: STATE ex rel. STONE v. OLINGER, Supervisor of Industrial Insurance of Department of Labor and Industries.
• Court: Washington Supreme Court

108 P.2d 630

6 Wn.2d 643

STATE ex rel. STONE v. OLINGER, Supervisor of Industrial Insurance of Department of Labor and Industries.

No. 28222.

Supreme Court of Washington

December 23, 1940

Department 1.

Original proceeding for writ of mandate by the State of Washington, on the relation of A. E. Stone, against Jay Olinger, Supervisior of Industrial Insurance of the Department of Labor and Industries of the State of Washington.

Writ denied.

George E. Clark, of Yakima, for relator.

Smith Troy and T. H. Little, both of Olympia, and E. S. Franklin of Seattle, for respondent.

STEINERT Justice.

Relator A. E. Stone, filed in this court an application for a writ of mandate to compel respondent, supervisor of the Department of Labor and Industries, to transmit a voucher to the state auditor in payment of a permanent partial disability award theretofore made by the supervisor in favor of relator. Respondent demurred to relator's application, and at the same time filed an answer admitting in part, and denying in part, the allegations contained in relator's pleadings.

The essential facts are undisputed, and are as follows: On November 30, 1935, relator, while engaged in extrahazardous employment, sustained an injury to his right foot. The department recognized relator's claim of injury, and awarded him compensation for time loss, and allowed him medical treatment, until June 14, 1937. By order dated June 15, 1937, and pursuant to a prior finding by respondent that relator's condition had then become 'fixed,' the claim was closed with an award of $850, of which the sum of $780 was for twenty-six degrees of permanent partial disability, and the balance of $70 was for unpaid time loss. A warrant for the total amount was accordingly delivered to relator.

On July 6, 1937, relator, deeming the closing order to be unjust and unlawful applied for a rehearing Before the joint board. In his application for rehearing, relator alleged that for the past eighteen months the condition of his foot had become progressively worse; that because of the pain and suffering resulting from the injury he was unable to engage in any gainful occupation; that he was then permanently and totally disabled; and that the amputation of his right foot would become necessary in the near future.

In response to relator's application, the joint board advised him by letter that his retention of the award for permanent partial disability would constitute an acknowledgment of the correctness of the supervisor's finding that his condition had become fixed. The letter concluded with the specific request that if relator intended to stand upon the contention that his condition was not fixed, as indicated in his petition for a rehearing, he immediately return so much of the amount theretofore received by him as represented the permanent partial disability portion of the award, namely, $780. Relator responded to that letter by returning the warrant to the department on July 14 1937. That portion of the original award amounting to $70 for time loss is not involved in this proceeding.

Pursuant to relator's application for a rehearing, the joint board, on August 23, 1937, after reviewing the record of relator's claim, reversed the supervisor's order closing the claim, and directed that official to 'reopen' the matter as of June 15, 1937, for compensation and treatment as indicated. Relator was accordingly restored to his former temporary total disability, or time loss, classification, and, shortly thereafter, upon authorization of the department, underwent an operation in which his right foot was amputated.

On May 7, 1940, respondent, upon a review of the entire record as it then stood, including the medical reports, concluded that relator's condition had then become fixed, and accordingly entered an order directing that he be classified as permanently and totally disabled, and that he be placed on the pension rolls as of May 15 of that year. At the same time, a charge of $4,000 was made against the accident cost experience of relator's employer, as required by statute.

After the claim had thus been closed, relator, on July 26, 1940, requested the return of the prior award for permanent partial disability, namely, $780. His contention was, and is, that he was entitled to the prior award in addition to the pension which was subsequently granted to him. The request was refused on the ground that relator's condition had at all times been one of permanent total disability, and that he was therefore not entitled to an additional award for permanent partial disability. Upon that refusal, relator instituted this proceeding.

Relator's contention is, specifically, that his present condition of permanent and total disability is due to aggravation of his condition as of June 15, 1937, when his claim was closed as a permanent partial disability case, and that he is, therefore, by virtue of prior holdings of this court, entitled to repayment of the former award for partial disability. That contention is erroneous, both in fact and in law.

Relator's application for a rehearing, following the first closing of his claim on June 15, 1937, shows upon its face that his condition had not at that time become 'fixed,' as that term is used and understood in the procedure relative to workmen's compensation cases, and further, that 'aggravation' of his disability did not occur after his claim had been closed upon a permanent partial disability classification. On the contrary, his application for a rehearing pleaded specifically, by date and description of ailments, that his condition was continuous, though progressive, from the time of his original injury to the time when he was finally classified as eligible for a pension.

Before an allowance can properly be made for a permanent partial disability, the condition of the injured workman must have reached a fixed state. Ray v. Department of Labor & Industries, 177 Wash. 687, 33 P.2d 375; Lackey v. Department of Labor & Industries, 179 Wash. 594, 38 P.2d 345; Elliott v. Department of Labor & Industries, 187 Wash. 656, 61 P.2d 291; Id., 188 Wash. 703, 62 P.2d 1343; Miller v. Department of Labor & Industries, 200 Wash. 674, 94 P.2d 764.

In considering cases of 'aggravation,' following a classification of 'permanent partial disability,' this court has always proceeded upon the...