Woods v. Department of Labor and Industries

• Decision Date: 20 June 1963
• Docket Number: No. 36479,36479
• Citation: 382 P.2d 1014,62 Wn.2d 389
• Parties: John E. WOODS, Appellant, v. The DEPARTMENT OF LABOR AND INDUSTRIES OF the State of Washington, Respondent.
• Court: Washington Supreme Court

Page 389

62 Wn.2d 389

382 P.2d 1014

John E. WOODS, Appellant, v. The DEPARTMENT OF LABOR AND INDUSTRIES OF the State of Washington, Respondent.

No. 36479.

Supreme Court of Washington, Department 2.

June 20, 1963.

McCrea, Kafer, Gissberg & Wilson, Clarence J. Coleman, Everett, for appellant.

John J. O'Connell, Atty. Gen., John J. Quine, Franklin K. Thorp, Asst. Attys. Gen., Olympia, for respondent.

DAWSON, Judge. ^*

One September 3, 1958, appellant John E. Woods, a 64-year-old man, suffered a coronary occlusion while engaged in peeling a large cedar tree. He was employed, and had been for three years, by J. R. Keaton in a two, and sometimes three-man operation. He was engaged primarily as a donkey engine operator. However, he also trimmed trees, measured pulpwood, and, on occasion, 'peeled' or 'barked' cedar logs, a necessary process in building a pole.

His claim for benefits under the Workmen's Compensation Act was rejected on December 3, 1958, by the supervisor, upon the ground that claimant had not sustained an 'injury' within the meaning of the act. Thereafter, the Board of Industrial Insurance Appeals sustained the supervisor's order, and claimant appealed to the superior court.

Prior to trial, the department, in effect, challenged the sufficiency of the evidence by its motion to dismiss. Abbott v. Department of Labor & Industries, 49 Wash.2d 774, 307 P.2d 254. This motion was granted, and claimant's case was dismissed. This appeal followed.

1. The department urges that the medical evidence fails to establish a causal relationship between the injury and employment, in terms of probability, and suggests this ground as a supporting base for dismissal. In other words, the trial court shall be affirmed, if its ruling is correct on any ground. Peterson v. Hagan, 56 Wash.2d 48, 351 P.2d 127.

There was the usual lack of medical unanimity, but the testimony of Dr. Cedric E. M. Tuohy, Jr., who testified on behalf of claimant, we think is more substantial than conjecture. He testified on direct examination as follows:

'Q. Now, Doctor, have you any opinion as to any connection between the work on the poles and the incident of this heart attack? A. In my prior experience with Mr. Woods, I had never been consulted concerning any chest or cardiac difficulties of his, although I had treated for some other things, and I had checked his blood pressure prior and listened to his heart previously on other occasions and we had not had any indication that there was any cardiac difficulty or symptomatology in his case until the time when I was called. One would, could presume that an exertion of this type could be the instigating factor in bringing about an occlusion. Q. In this particular case, Doctor, do you have any opinion as to whether that exertion was the initiating factor that took place? A. Well, since he did not have any other difficulty and since this occurred when he was doing this heavy exertion, the conclusion would be drawn that this was the instigating factor.'

On cross-examination, the doctor testified:

'Q. Now, doesn't it boil down to this, Doctor, your testimony about you feeling that the exertion could have brought on the occlusion, is based--A. I said I thought it could have been the instigating factor. Q. Would you specifically designate what exertion would be the instigating factor in this case? A. In this case, this man was barking this log, which is a very strenuous activity, at the time he experienced pain, therefore, I would presume that that is the moment that he had a coronary occlusion. * * * Q. Doctor, the fact that there was no symptomatology before 9-3-58, in and of itself does not mean that the man couldn't have been suffering from a disease process within the coronary arteries, isn't that true? A. It is essentially true. Q. And the coronary occlusion, having the occlusion of the diameter of the heart vessels itself, could be just as easily have brought about the progressiveness of the disease, isn't that true? A. This could be true, but in a person carrying on the strenuous activities that he had from day to day, one would not think that this were true. Q. Why is that, Doctor? A. Well, usually to me if he had a narrowed--severely narrowed coronary arteries, then if he were carrying on an active job in the woods as he was, he should have had some angina pectoris, one would think some pain of a coronary nature. * * *

'Q. Now, Doctor, the exertion that you speak about bringing on this occlusion, you mentioned that on the day of injury, on 9-3-58, that he was, in the history received, that while peeling, barking some poles he was seized with a severe pain, is it your opinion that barking poles in and of itself is a strenuous exertion? A. Yes, I think it is a strenuous exertion. * * * Q. I see. Then assume as a fact, Doctor, that this man had for some three years prior consistently, and not 8 hours a day constantly, but consistently intermittently had trimmed and barked poles, and in light of the fact that you state that this is severe exertion, does that in any way affect your opinion as to causal relationship? * * * A. I don't think it alters my opinion, No. Q. Well, then Doctor, it comes down to this, if the man is doing--if this man has been doing what you consider severe exertion for 3 years, in barking poles, why would this particular incident cause you to feel that this was the particular instance that produced the occlusion if it was not an unusual type of thing? A. Because the occlusion was that the time he was doing this particular activity. Q. Even though this activity was routine? A. He gave me the opinion that this was not a routine activity, that although he had previously done it, this was not a routine activity. Q. I see. And you had received the history 2 days later that he had worked very hard the day prior to September 3, namely September 2, 1958? A. Yes, I did. Q. Does that affect your opinion as to probabilities--as to causal relationship of this heart condition? A. No.'

Dr. Tuohy's testimony as to causal relationship is essential to appellant's cause. If the doctor repudiated the same by direct retraction or by inconsistencies and contradictions, we must consider their effect. Thiel v. Department of Labor & Industries, 56 Wash.2d 259, 352 P.2d 185.

His inconsistency, if any, is found in one answer and one interjection, wherein the doctor used the auxiliary verb 'could', which, in normal usage, merely expresses a contingency. If this be termed a retraction, it is only because we take the word out of context and disregard all else. The doctor is not a lexicographer; nor does the law expect such a qualification or demand that answers be entirely positive and categorical. We think his testimony was responsive, consistent, and quite positive, when interpreted in the light of the entire examination. If accepted, it meets the test of the following standard: 'The rule is that it must appear from medical testimony that the incident relied upon was more likely than not the cause of the injury claimed. * * *' Barrett v. Department of Labor & Industries, 52 Wash.2d 439, 441, 325 P.2d 896, 898.

So considered, we should not vitiate the doctor's testimony as a matter of law. Its weight is for the jury, not the court. Halder v. Deparment of Labor & Industries, 44 Wash.2d 537, 268 P.2d 1020.

2. Appellant urges that the evidence in the record bearing on the question of industrial injury, as defined by the Workmen's Compensation Act, offers room for a difference of opinion in the minds of reasonable men, and thus withstands the challenge to its sufficiency. Abbott v. Department of Labor & Industries, supra.

Since Windust v. Department of Labor & Industries, 52 Wash.2d 33, 323 P.2d 241, it is certain that '* * * a sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without, * * *.' (RCW 51.08.100) does not cover the normal routine act of an employee. But the Windust case did not disturb the rule that

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