Tomovich v. Department of Labor & Industries of Washington

• Decision Date: 05 September 1923
• Docket Number: 17821.
• Citation: 126 Wash. 287,218 P. 197
• Court: Washington Supreme Court
• Parties: TOMOVICH v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.

218 P. 197

126 Wash. 287

TOMOVICH v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.

No. 17821.

Supreme Court of Washington

September 5, 1923

Department 2.

Appeal from Superior Court, Pierce County; M. L. Clifford, Judge.

Proceeding under the Workmen's Compensation Law (Rem. Comp. Stat. §§ 7673-7796) by Mike Tomovich, for compensation for injuries. An order of the Department of Labor and Industries of Washington was affirmed by the superior court, and claimant appeals. Affirmed.

Pemberton J., dissenting.

W. L Sachse, of Tacoma, for appellant.

Lindsay L. Thompson and John H. Dunbar, both of Olympia, for respondent.

TOLMAN J.

This case is very similar to that of Kavaja v. Department of Labor and Industries (Wash.) 218 P. 196. Appellant was engaged in falling and bucking logs for the same employer and, by reason of the turning of a log on which he was standing, he was obliged to jump, and in so doing fell and struck his abdomen on a small log. He immediately complained of pain in the region of the blow, went to the hospital the next day, where he was examined, ice packs were applied, and in a few days a case of appendicitis was found to exist, and later the appendix was removed. Other troubles and later operations appeared to have followed therefrom. The Department denied appellant's claim for compensation on the ground that his disability was caused by disease, and not by injuries, and an appeal to the superior court followed. That tribunal, at the close of appellant's case, dismissed the appeal, and affirmed the order of the Department. An appeal to this court followed.

It seems to be admitted that appellant actually had appendicitis, but it is contended in his behalf that the disease was induced by, or followed as a result of, the injuries. As in the Kavaja Case, there was testimony as to the possibility that appendicitis might so develop, or that the injuries might have contributed thereto; but the evidence goes no further, and, as we there said, in effect, we cannot hold that a mere possibility can prevail over the positively stated contrary opinions of expert medical witnesses in such a matter so as to meet the burden of proof which the statute casts upon the appellant.

The judgment appealed from, therefore, must be, and is hereby, affirmed.

MAIN, C.J., and FULLERTON and PARKER, JJ., concur.

PEMBERTON J.

I dissent. The testimony in this case shows that appellant prior to his injury was never sick a day, never took medicine, never had a pain in the region of the appendix, and that on the day on which he received his injuries he had performed hard manual labor by cutting through seven or eight logs seven or eight feet in diameter. At the time he received his injuries he was taken to the hospital, and the doctor made the following report to the department:

'Lower abdomen tender to pressure and rigid. Strain of abdomen muscles, possible fracture of right rectus muscle.'

On March 5 the doctors performed a partial preparatory operation for appendicitis, and on April 21 and operation was performed removing the appendix. Appellant left the hospital May 26, and was required to return on June 20 and underwent an...