Stevich v. Department of Labor and Industries, 25634.

• Decision Date: 09 July 1935
• Docket Number: 25634.
• Citation: 47 P.2d 32,182 Wash. 401
• Court: Washington Supreme Court
• Parties: STEVICH v. DEPARTMENT OF LABOR AND INDUSTRIES.

47 P.2d 32

182 Wash. 401

STEVICH v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 25634.

Supreme Court of Washington

July 9, 1935

Department 1.

Appeal from Superior Court, Pierce County; Ernest M. Card, Judge.

Proceeding under the Workmen's Compensation Act by Tony Stevich claimant, against the Department of Labor and Industries of the state of Washington for compensation for aggravation for injury received while working for the Pacific National Lumber Company. From a judgment for claimant, the Department of Labor and Industries appeals.

Reversed with instructions

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

J. Peter P. Healy, of Tacoma, for respondent.

BEALS Justice.

Tony Stevich was injured November 12, 1930, while engaged in extrahazardous employment and within the protection of the Workmen's Compensation Act (Rem. Rev. Stat. § 7673 et seq.). In his report of the accident, he stated that a falling timber struck the right side of his ribs and his back. He was treated at a clinic which was under contract to care for the employees of the Pacific National Lumber Company, for which plaintiff was working; the medical report stating that plaintiff's sixth rib was fractured, and that he was suffering from contusions. The department recognized the claim, and assumed the burden of paying time loss. It appears that the injured rib was displaced, as well as fractured, and one of the examining physicians recommended that the displacement should be corrected. A later report, dated June 1, 1931, indicated that a good union had taken place, although some misalignment persisted. At this time, the examining physician stated that, in his opinion, the claimant was able to return to work, that time loss should cease, and claimant be allowed two degrees permanent partial disability, based upon the deformity caused by the displacement.

December 3d following, after further examinations, claimant was operated on for the purpose of correcting the displaced rib, and at the same time the claim was reopened for the payment of time loss. During the month of February, 1932, after another examination, it was reported by one of the department's doctors that the incision made at the time of the operation was well healed, that claimant's condition was fixed, and that he was able to return to work. The allowance of an additional eight degrees permanent partial disability was recommended. Following this report, under date February 4, 1932, the department entered an order closing the claim, with time loss to February 3d and an allowance of the additional eight degrees permanent partial disability.

During the months of April and May following, claimant consulted other physicians as to his condition. One of these submitted a report, stating it as his opinion that claimant had been allowed too little time loss. June 25, 1932, the department advised claimant that the claim would not be reopened, and that the order of February 4th would stand. August 20, 1932, claimant applied for a reopening of his claim, which application, after further examination by a competent physician, was denied. No further steps in connection with the matter were taken until July 26, 1933, when claimant again applied for a reopening of his claim, and upon denial of this application appealed to the joint board. After a hearing, this body sustained the order of the supervisor refusing to open the claim, from which order claimant appealed to the superior court. The appeal was heard by the court sitting with a jury, and from a judgment entered upon a verdict in claimant's favor, the department has appealed.

Error is assigned upon the denial of appellant's motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial; it being also contended that the judgment entered by the court is erroneous in that it does not conform to the jury's verdict and grant respondent relief not warranted by the verdict or by the law.

Appellant acknowledges at the outset the rule recognized by this court in the case of Stickney v. Congdon, 140 Wash. 670, 250 P. 32, 34, in the following language: 'We have many times held that a judgment notwithstanding a verdict will be granted only when the court can say, as a matter of law, that there is neither evidence nor reasonable inference from evidence sufficient to sustain the verdict.'

Respondent's claim having been closed February 3, 1932, and no appeal having been taken either from this order or from the order denying his first petition for a reopening of the claim, which order bears date September 21, 1932, it is evident that respondent's second application for reopening the claim, dated July 26, 1933, presented only a claim for compensation based upon an aggravation of respondent's condition due to his injuries. Rem. Rev. Stat. § 7679, subd. (h). The court properly instructed the jury upon this question, telling them that, unless respondent's condition had grown worse or become aggravated since September 21, 1932, no basis existed for a verdict in his favor. No witnesses testified Before the superior court; the matter being submitted to the court and jury upon the written record made Before the department.

Respondent testifying Before the joint board, stated that he was then unable to work, and, in answer to the question propounded by his counsel: 'Do you feel stronger than you did a long time ago?' he answered, 'No, I feel worse and weaker.' An acquaintance of respondent, who had known...