Zankich v. Department of Labor and Industries

• Decision Date: 30 December 1936
• Docket Number: 26031.
• Citation: 63 P.2d 427,189 Wash. 25
• Parties: ZANKICH v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

63 P.2d 427

189 Wash. 25

ZANKICH v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 26031.

Supreme Court of Washington, En Banc.

December 30, 1936

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

Proceeding for compensation under the Workmen's Compensation Act by George Zankich, employee, opposed by the Schafer Bros Logging Company, employer. From a judgment reversing an order of the joint board of the Department of Labor and Industries sustaining the Department's order closing the claim with allowance for time loss and one degree permanent partial disability and directing the Department to reclassify the claim as one of total permanent disability, the Department appeals.

Reversed with direction.

G. W Hamilton and J. A. Kavaney, both of Olympia (W. H. Abel, of Montesano, of counsel), for appellant.

L. B. Donley, of Aberdeen, for respondent.

STEINERT Justice.

This is an appeal from a judgment of the superior court reversing an order of the joint board of the Department of Labor and Industries and directing the department to reclassify a workman's claim for compensation as one of total and permanent disability.

The respondent workman was, at the time of receiving the injury complained of, about fifty-seven years of age. He had been employed for many years as a bucker in various logging camps in western Washington. On May 13, 1932, he was working as a fireman for Schafer Bros. Logging Company at its camp near Aberdeen. His claim is that, while splitting wood for the purpose of firing a donkey engine, he sustained an injury which later proved to be a fracture of the seventh cervical and first dorsal spinous processes of his back.

According to the initial report filed by respondent, he 'was lifting a plank on donkey when a sharp pain was felt in back of neck.' According to his testimony Before the joint board, he was throwing a heavy block, and, while bending over, something hit him in the upper part of his back between the shoulders. He did not see the object that struck him and did not know what it was. There were no eyewitnesses to the accident. Respondent continued at his work during the remainder of that day and most of the next, although suffering considerable pain and discomfort.

On the day following the occurrence, respondent was given a ticket by the foreman of the company and was directed to go to a physician in Aberdeen who, at that time, was the chief medical adviser of the department. Examination by the physician did not reveal any external evidence of injury. However, the respondent was sent to a hospital in Aberdeen, where an X-ray picture was taken, which showed the fracture above referred to. A few days later, the physician performed an operation in which a shallow incision about three inches in length was made in respondent's back, and the tip of the spinous process was removed. Respondent remained in the hospital thirteen days and then went out to a farm where he endeavored to work but, according to his testimony, was unable to do so.

The department allowed respondent's claim for compensation by providing immediate medical aid and also time loss. After a subsequent investigation by the department, the claim was finally closed on January 6, 1933, with the allowance of four months' and fourteen days' time loss and one degree permanent partial disability. Thereupon, an appeal was taken by the claimant to the joint board, and hearings were had upon successive occasions and after repeated investigations and examinations, continuing up to November 16, 1934, when the joint board entered its final order sustaining the order of the department closing the claim. From that order, an appeal was taken by the claimant to the superior court, where the cause was heard solely upon the certified record of the department, without any additional evidence being taken.

After consideration of the record and argument of counsel, the court made findings to the effect that the claimant had sustained a total and permanent disability as the direct result of a fracture of the process of one of tne vertebrae. From such findings, the court concluded that the order of the joint board should be reversed and the department directed to reclassify the claimant as being totally and permanently disabled, to be compensated accordingly. A decree was entered in accordance with the court's findings and conclusions. Thereupon, the department appealed to this court.

The question Before us is wholly a question of fact. The record is a voluminous one, consisting of the preliminary correspondence and reports of the department and culminating in the testimony taken Before the joint board. In addition to the respondent himself, there were four lay witnesses and four physicians who testified in his behalf; for the appellant department, there were two lay witnesses and ten physicians who testified. In the total number of physicians were included many specialists, called from Tacoma, Seattle, and Aberdeen. The number and extent of personal examinations made of the respondent, the length of time consumed in the various investigations and examinations and in the many hearings Before the joint board, and the detail to which the expert testimony went, amply demonstrate that the question of the nature and extent of respondent's injury was fully investigated and considered by the persons upon whom that responsibility lay, Before the final order of the joint board was made. Time and space will not permit us to detail the evidence to any great extent. We limit ourselves to its substance.

Respondent's contention, and the evidence in support thereof, was to the effect that prior to his injury he was in good physical condition; that shortly after the accident his eyes became red and blue and were swollen; that he had lost sleep and weight and suffered much pain on moving or bending; that the operative scar on his back had formed scar tissue affecting the muscles, ligaments, and nevers, resulting in a stiffiness of the back, marked limitation of motion of the arms, and some muscular spasm; that his vision had been reduced to twenty sixty-fifths of normal, caused by optic atrophy, which was found to be progressive; that the auditory nerve had been affected and that...