Wiles v. Department of Labor and Industries of State

• Decision Date: 06 September 1949
• Docket Number: 30891.
• Citation: 34 Wn.2d 714,209 P.2d 462
• Court: Washington Supreme Court
• Parties: WILES v. DEPARTMENT OF LABOR & INDUSTRIES OF STATE.

209 P.2d 462

34 Wn.2d 714

WILES v. DEPARTMENT OF LABOR & INDUSTRIES OF STATE.

No. 30891.

Supreme Court of Washington

September 6, 1949

Department 1

The joint board of the Department of Labor and Industries reopened the compensation claim of J. S. Wiles, adjudged him permanently and totally disabled, and awarded him a pension deducting from his pension reserve, amount which was previously awarded and paid to him. J. S. Wiles, deeming himself aggrieved, prepared his written notice of appeal to the Superior Court but, prior to notice of appeal, the joint board withdrew such order.

From a judgment of the Superior Court of Skagit County, W. L Brickley, J., dismissing the appeal, J. S. Wiles appealed.

The Supreme Court, Steinert, J., affirmed the judgment holding that the department had the right to withdraw its order and that when it did so prior to notice of appeal therefrom there was no longer any final order from which an appeal to a superior court could be taken.

Determination of question whether closing of compensation claim was for permanent partial disability only, was exclusively within the original jurisdiction of the Department of Labor and Industries, and neither superior court nor Supreme Court had power to make such a determination in the first instance.

Walthew & Gershon, Seattle (now Walthew, Gershon Yothers & Warner, Seattle), for appellant.

Smith Troy, Theodore M. Ryan, Olympia, for respondent.

STEINERT Justice.

This is an appeal by the plaintiff in the above entitled action from an order of the superior court for Skagit county vacating a judgment entered in that same court and cause upon a verdict previously rendered by the jury in plaintiff's favor.

Appellant, J. S. Wiles, a logger, sustained an industrial injury on or about June 21, 1944. His claim was duly filed with respondent, department of labor and industries of the state of Washington, and was allowed. Pursuant to an order of the supervisor of industrial insurance, dated October 25, 1945, the claim was closed with a permanent partial disability award of $1,094 for injuries to appellant's back and legs.

Appellant, being dissatisfied with the amount thus awarded, filed with the joint board of the department an application for rehearing and reopening of his claim. The application for rehearing having been granted, evidence with relation to the nature and extent of appellant's injuries was received during the course of several hearings Before the joint board, the first of these hearings being held on March 13, 1946, and the last on April 8, 1947.

Upon conclusion of the several hearings, the joint board, by its order 'Dated May 12, 1947,' reversed the order of the supervisor, with instructions to reopen the claim, adjudge appellant permanently and totally disabled, and award him a pension, deducting from appellant's pension reserve, however, the sum of $1,094, which was the amount previously awarded and paid to him under the supervisor's order, and reducing the monthly payments accordingly.

Deeming himself aggrieved by the entry of the joint board's order, appellant, on May 28, 1947, prepared his written notice of appeal to the superior court, his position upon that appeal being that he was not permanently and totally disabled, but only permanently and partially so, and that he was entitled to an additional amount of permanent partial disability compensation. This written notice of appeal was received by the department on May 29, 1947, and a similar notice was filed in the superior court on that same date.

Prior to this notice of appeal, however, the joint board had entered a further order with relation to appellant's claim. This further order, 'Dated May 26, 1947,' sets out the provisions of the May 12th order, and concludes as follows:

'And Whereas it now appears that claimant [appellant] was previously adjudged permanently and totally disabled under claim 202988 by the Department of Labor and Industries,

'Now Therefore It Is Hereby Ordered That the order dated May 12, 1947 be and the same is hereby withdrawn and held for naught and the matter is continued for further hearings.'

The recital contained in the order above quoted concededly has reference to an industrial injury classification alleged to have been made by the department in connection with its disposition of a claim filed by appellant in 1922 or 1923, pursuant to which an award was made to him. Although the order of withdrawal dated May 26, 1947, referred to above, was itself made a part of the departmental record certified to the superior court on appeal to that court, no evidence in support of the recital therein contained was included in that record.

The cause did not come on for trial in the superior court until March 9, 1948. Before a jury was empaneled, respondent moved that the cause be dismissed, on the ground that, in November, 1923, appellant had been adjudged by the department permanently and totally disabled as the result of an injury sustained by him in 1922, thus rendering him ineligible for any further award of compensation. This motion was denied.

A jury was then called, and, after pertinent evidentiary portions of the departmental record had been read to the factfinding body, a verdict was rendered, wherein, by its answers to the written interrogatories propounded by the court in connection with its instructions, the jury found that appellant was not permanently and totally disabled as the result of his latest injury, and that he was entitled to additional permanent partial disability compensation in the amount of $3,500.

Respondent thereupon filed its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, urging as grounds therefor the insufficiency of the evidence to justify the verdict and error of law occurring during the trial. Both motions were denied by the trial court, and judgment was thereupon entered on the verdict on March 22, 1948. No appeal was taken from the judgment by either of the parties hereto.

Thereafter, on April 15, 1948, respondent filed its motion, in the form of a petition and affidavit, entitled in the same cause, to vacate the above judgment, alleging in its petition that the judgment had been obtained by 'fraud or error or irregularity' practiced by appellant and his attorneys.

We will not burden this opinion with a detailed analysis of the allegations, denials, and affirmative defenses which apparently formed the issues presented to the trial court upon the hearing of the motion to vacate judgment. In all fairness, however, we deem it appropriate here to state that, in our opinion, there is nothing in the record which would support a contention that either the appellant or his attorneys were guilty of any conduct which amounted to fraud upon either the respondent or the trial court. Furthermore, the matters alleged in the petition as constituting fraud were fully known to respondent throughout the entire proceedings in the superior court, and their general nature was likewise made known to the trial court itself.

However, on December 6, 1948, the trial court granted respondent's motion and entered its order vacating the judgment and dismissing the appeal previously taken by appellant from the joint board's order of May 12, 1947, upon which appeal the judgment had been entered. The trial court nowhere states its reasons for the entry of the order vacating judgment, although the agreed statement of facts certified to this court upon this appeal recites that the motion to vacate was made upon the statutory ground of fraud. On the other hand, the statement of facts further recites that 'no evidence was offered or introduced' in support of the motion to vacate.

Upon the record so constituted, and through the procedure above outlined, the matter is now Before us to rule upon the legality and correctness of the final order vacating judgment.

The failure of the trial court to state its reasons for granting the motion to vacate, taken in conjunction with the total absence in the record of any evidence in support of the allegation of fraud, renders it difficult, if not impossible, for this court to affirm the order of the trial court upon the ground alleged by the respondent. Certainly, the stigma of fraud should not be allowed to rest upon a foundation of sheer conjecture; and, where the claim of fraud is made in characterization of a course of conduct by an attorney Before a court in which he has been entrusted to appear, we should be loath to affirm an order so entered, in the absence of clear evidence in support of such an allegation.

There is, however, one other salient feature in this case, which was not argued Before this court, but which appears with disquieting obtrusiveness upon an examination of the departmental record.

At the time review was sought with respect to the joint board's order of May 12, 1947, by way of an appeal to the superior court, there existed in the departmental record, for all to see, an order of the joint board 'Dated May 26, 1947,' which expressly withdrew and nullified the May 12th order, and which directed that the matter be continued for further hearings on the question of appellant's eligibility for an award under his instant claim.

The right and power of the department, acting through its joint board and upon proper grounds, to retain jurisdiction of a claim, and to order the further investigation of any fact pertaining to...