Wilber v. Department of Labor and Industries

• Decision Date: 14 February 1963
• Docket Number: No. 35779,35779
• Citation: 378 P.2d 684,61 Wn.2d 439
• Court: Washington Supreme Court
• Parties: Lockwoul B. WILBER, Appellant, v. The DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent.

Page 439

61 Wn.2d 439

378 P.2d 684

Lockwoul B. WILBER, Appellant, v. The DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent.

No. 35779.

Supreme Court of Washington, En Banc.

Feb. 14, 1963.

Fredrickson, Maxey & Bell, Spokane, for appellant.

John J. O'Connell, Atty. Gen., Michael J. Cronin, Asst. Atty. Gen., Olympia, for respondent.

BY THE COURT.

The appellant, who was the plaintiff in the superior court, appeals from a judgment setting aside a verdict in his favor. He sought a reopening of his industrial insurance claim because his disability increased after the claim was closed. The jury so found, but this verdict was set aside by the trial court and the action dismissed.

Appellant was injured on December 11, 1951, and reported the accident to the industrial insurance division of respondent, which allowed the claim. An award was made from which appellant also appealed, and in which proceeding he obtained an increase in the claim agent's award. The claim was closed on March 7, 1957.

On November 26, 1957, the appellant made application to reopen his case because his condition had become worse, which application the industrial insurance supervisor denied. The appellant then appealed to the board of industrial appeals, before which tribunal he presented his case on June 27, 1958. On January 6, 1959, respondent presented its case in opposition to the same tribunal. On October 26, 1959, the industrial insurance appeal board made its decision affirming the refusal of the supervisor of industrial insurance to reopen the case.

When appellant presented his case to the board of industrial appeals over four years ago, he was 57 years of age, six feet one-half inch tall, and weighed 180 pounds. He is now 61. At the time of the accident, eleven years ago, he had worked for the same employer, the Sunshine Biscuit Company, for over thirty years. The undisputed medical evidence of both parties discloses that the fifth intervertebral disc ruptured while appellant was pushing a cart. Nevertheless, he continued working for several days before he consulted Dr. McKinlay of Spokane, who at all times since has been the appellant's only attending physician.

He was subsequently employed by the same company as a night watchman until the company removed its business to California and closed its Spokane plant in 1956. Although other employees were transferred to California, appellant was refused employment; since then he has worked but three days and then as a flagman.

The appellant testified that his condition has become progressively worse in the left leg and that he has had periods of total disability, during which time he is in acute distress and even unable to sleep. His education was limited to two years in high school. He has no training except for manual labor. He described the acute attacks as follows:

'A. You get up in the morning and the first thing I have an attack and I am no good. I lay down on the floor or wherever I am until I get straightened out again. I don't know if something goes out of place, but that is the way it affects me. Q. Does this come about on frequent occasions, or odd occasions? A. It is more frequent now than it was.'

Such attacks have increased in frequency. When the claim was originally closed, all physicians advised surgical repair of the ruptured intervertebral disc. This he declined because of conflicting medical opinion respecting its success. During the period of an acute attack, he is totally disabled. During periods of remission, however, he is able to get about.

Dr. McKinlay testified that the appellant's acute attacks had increased to the point where he was practically immobilized and that the intervals when free of pain were less frequent. Dr. McKinlay testified that, from his experience in similar cases, unless a ruptured intervertebral disc was surgically corrected the disability progresses.

Dr. McKinlay testified that there was more limitation of motion at the time of his last examination, that such was characteristic of cases of ruptured intervertebral discs, and that, in periods of acute attack, the motion is more restricted than in periods of remission. He had seen him in times of remission and in periods of acute distress. He testified that at the time of his last examination there was muscle spasm. He testified unequivocally that a man with a ruptured disc, unless it was surgically corrected, would become progressively worse, and he advised surgery.

Dr. McKinlay testified unequivocally that appellant was having more pain in November of 1957, when the application to reopen was made, than previously. He made it abundantly clear that persons suffering from a ruptured intervertebral disc have periods of remission and periods of exacerbation, and that appellant had a ruptured intervertebral disc which had never been repaired.

'Q. Well, this condition or situation of pain that you happened to see the man in on November 25, 1957 is sort of a thing that might not be there the next day, if you should examine him again and he was in a period of remission, so to speak; isn't that correct? A. That is correct, yes. The point I thought was important was that according to his own statements these periods of remission were becoming shorter and periods of pain were becoming so frequent he was unable to do any type of gainful employment, which again is characteristic of this type of an injury.'

On cross-examination by respondent's counsel, Dr. McKinlay testified:

'Q. Doctor, I see you have a copy of the medical report of Dr. Wallace and Dr. Lambert performed on January 7, 1958? A. Yes, I do. Q. In that the doctors state that whatever aggravation he had in October or November of 1957 had subsided again by January of 1958. Is that a typical situation again in a case like this? A. Yes, it is. It is very typical. He may have had various periods of exacerbation between the time of my examination and their examination. It is very possible.'

It was Dr. McKinlay's opinion that the case should be reopened for an operation:

'Q. Did you recommend the surgery again to him in November of 1957? A. Yes, I did. Q. Did he indicate what his thinking was in that regard? A. It was my understanding that he said he would like to have it done. I didn't write that down on my card, his answer, but I don't think I would have written this recommendation if he had not been willing, because I could see no point in reopening on any other basis.'

He expressed the unqualified opinion that, in periods of acute attack, a person suffering from the same affliction would be totally disabled, and that there was no possibility of determining in advance when such acute attacks would occur:

'Q. From your knowledge of medicine and physical injuries of this type, you feel that would substantiate his claim that he has these periods of exacerbation when he gets worse more frequent than he did in 1954 when he was actually working and able to hold down a light job? A. I felt definitely his statement was likely true from my knowledge of other patients of a similar type.'

The claims of the appellant were abundantly confirmed and reinforced by the testimony of the department's physicians. On direct examination, by counsel for respondent, its own examining physician testified that appellant's complaints of acute attacks were entirely consistent with the admitted condition of a ruptured intervertebral disc.

Dr. Lambert, called by respondent, testified that the left Achilles reflex was decreased, that this is a significant finding in case of ruptured intervertebral discs, and that his complaints of pain were not of his own fantasy but were substantially objective. He admitted that periods of exacerbation and acute attacks and periods of remission were natural results of ruptured intervertebral discs. He explained acute attacks as follows:

'A. I would say yes to your question because a disc can pop out if a man sneezes, coughs, takes a deep breath, twists in his sleep, and as you mentioned, why, it is going to flare up and flare up and subside. Any little thing will cause it to pop again.'

He admitted that he would expect flareups from time to time when the appellant would be unable to work. He explained the mechanics of a ruptured disc as follows 'Q. This condition, that is a condition that exists between two of the bony vertebrae in the back; isn't that correct? A. Yes. Q. Some material protrudes out and presses itself on the nerve causing the results you find, the muscle spasm and trouble in the legs and so on? A. It pinches the nerves, jams against. Q. That is, the nerve itself comes out between the vertebrae and there isn't enough room, I take it, and the disc material protrudes out? There is no place else for it to go? A. Right.'

He admitted that appellant would have to find some other employment and that he could not do manual labor. The only occupation that the physician could think of was running an elevator or sorting mail. The department's physicians were unequivocal in their testimony that the appellant's complaints were entirely substantiated because of the ruptured disc. Respondent's other physician witness, Dr. Wallace, testified:

'A. (Reading) 'There is some pain and some tenderness about L-5. He flexes to within 8"' of the floor. Extension and rotation are normal. Tilting is guarded. The straight leg raising test is decreased on the left side. Motion of the hips and knees is normal. The right thigh measures 18"', the left 17 1/2"'. The right calf measures 13 1/2"', and the left 12 7/8"'. There is an obvious decreased sensation on the left thigh and left calf. The left Achilles reflex is decreased. * * *'

The industrial insurance act, from its inception, has authorized a reopening of a case if an increase in the disability occurred or was discovered after closure. Laws of 1911, chapter 74, § 5(h) (presently codified as RCW 51.32.160) provided:

'If aggravation, diminution,...