Weinheimer v. Department of Labor and Industries, 28095.

• Decision Date: 10 March 1941
• Docket Number: 28095.
• Parties: WEINHEIMER v. DEPARTMENT OF LABOR AND INDUSTRIES et al.
• Court: Washington Supreme Court

111 P.2d 221

8 Wn.2d 14

WEINHEIMER v. DEPARTMENT OF LABOR AND INDUSTRIES et al.

No. 28095.

Supreme Court of Washington

March 10, 1941

Department 2.

Proceeding under the Workmen's Compensation Act by Roy Weinheimer opposed by the Weyerhaeuser Timber Company, employer. Order closing the claim was reversed and judgment entered that claimant was permanently, totally disabled, and the Department of Labor and Industries and the employer appeal. Claimant died subsequent to appeal, and Anna Weinheimer, as administratrix of his estate, was substituted for him.

Reversed and cause remanded with directions.

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

Smith Troy, T. H. Little, and Edward S. Franklin, all of Olympia for appellant Department of Labor and Industries.

L. B Donley, of Aberdeen, for appellant Weyerhaeuser Timber Co.

F. L. Morgan, of Hoquiam, and A. P. Wilson, of Montesano, for respondent.

MILLARD, Justice.

While in the course of hazardous employment as a logger March 5 1935, Roy Weinheimer 'slipped and fell backward hitting against a log' thereby injuring his back. He was paid time loss and given medical treatment until December 4, 1937, when the department of labor and industries closed his claim and classified him as permanently partially disabled. He was awarded forty-eight degrees permanent partial disability, or $1,440, which is sixty per cent of the maximum award for unspecified permanent partial disability under the provisions of Rem.Rev.Stat. § 7679(f). Weinheimer requested that his claim be closed with the understanding that he felt that his condition was stationary; and that he had the ability, if he could get a store or some business of his own, to carry on a gainful occupation.

During the course of his treatment and compensation, physicians found that the claimant had certain congenital abnormalities of the spine in addition to an arthritic condition of the spine; however, in closing his claim December 4, 1937, the department did not make any segregation for a pre-existing congenital abnormality nor for a pre-existing disease of arthritis under provisions of Rem.Rev.Stat. § 7679, but compensated him to the full extent of his injury of March 5, 1935.

The claimant appealed January 18, 1938, to the joint board from the order closing his claim December 4, 1937. After a series of extended hearings the joint board entered an order October 28, 1938, sustaining the closing of the claim by the supervisor. The claimant appealed to the superior court for Grays Harbor county. Trial of the cause to that court, sitting without a jury, resulted in reversal of the order of the joint board and entry of judgment that the claimant is permanently totally disabled. From that judgment the department of labor and industries and the claimant's employer appealed. Claimant died subsequent to the appeal and the administratrix of his estate has been substituted as respondent.

In all court proceedings under, or pursuant to, the workmen's compensation act the decision of the department shall be prima facie correct and the burden of proof is upon the party attacking the decision. Rem.Rev.Stat. § 7697; Schraum v. Dept. of Labor & Industries, 197 Wash. 336, 85 P.2d 262; McLaren v. Dept. of Labor & Industries, Wash., 107 P.2d 230.

That the claimant failed to sustain the burden of proof imposed upon him by the statute is clear from a review, as follows, of the evidence:

Following the granting of the claimant's application for rehearing February 9, 1938, the testimony of claimant taken March 16 1938, was to the effect that...