Bartlett v. Department of Labor & Industries

245 P.2d 1018, 40 Wash. 2d 722, 1952 Wash. LEXIS 382
CourtWashington Supreme Court
DecidedJuly 3, 1952
DocketNo. 32110
StatusPublished

This text of 245 P.2d 1018 (Bartlett v. Department of Labor & Industries) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bartlett v. Department of Labor & Industries, 245 P.2d 1018, 40 Wash. 2d 722, 1952 Wash. LEXIS 382 (Wash. 1952).

Opinion

Donworth, J.

Respondent is a workman whose application for compensation for an injury allegedly suffered in the course of extrahazardous employment at appellant’s plant in Evans, Washington, was rejected by the supervisor of industrial insurance. Upon appeal and hearing, the board of industrial insurance appeals sustained the order of the supervisor. Respondent thereupon appealed to the superior court, which tried the action sitting without a jury. The trial resulted in a judgment reversing the decision of the [723]*723board and referring the case to the supervisor for further proceedings in accordance therewith. The employer has appealed.

Respondent was employed by appellant as a kiln fireman and, at the time of the injury, was working alone. According to his testimony, about two a. m. on July 2, 1950, while firing a kiln with slabs of wood weighing about sixty pounds apiece, respondent experienced a sharp pain in his back. He thought he had strained his back, lay down for a short while, and then finished his shift, which ended at seven a. m. He did not report the accident to appellant, but complained to his wife on returning home that the slabs were too heavy.

He did not work for about a week following this incident because a railroad strike had compelled the plant to suspend normal operations. He returned to work on July 9th (when the strike ended), and performed his duties continuously forty hours per week until August 11th, although he testified that he no longer fired the kiln with heavy slabs, but laid them aside. During all this time, his back and right hip and leg pained him and became progressively more painful. He complained of the pain to several of his fellow workmen and finally to his foreman, but did not mention that his trouble was due to the strain caused by lifting slabs on July 2nd. He thought he had rheumatism or neuritis. He denied that he had suffered any accident or fall subsequent to July 2nd.

Respondent was entitled to a week’s vacation, which he took beginning August 12th. During his vacation, he remained at home except that he worked one shift on August 17th. He laid off work again the next day and remained home. On August 19th, the pain having become very severe, respondent consulted Dr. Roy Lowell, a physician and surgeon, who diagnosed his condition as a ruptured intervertebral disc, which was necessarily of traumatic origin. Dr. Lowell could not recall whether respondent had told him that he had been injured on any certain date, but he did recall discussing with respondent the possibility [724]*724that the injury could have been caused by heavy lilting on the job. In answer to a hypothetical question, propounded by counsel for respondent, the doctor testified that the injury “very likely could have” originated with the exertion of heavy lifting on July 2nd, and on cross-examination stated that “it probably was the factor that precipitated it” and “if he [respondent] did nothing else of a strenuous nature, it is probable.”

Respondent’s wife testified that he complained when he came home on the morning of July 2nd that the wood slabs were too heavy and said that it was a wonder that a man did not break his back lifting them. She further testified that respondent was “miserable” that day, that from then on he had pain in his lower back, hip,, and right leg, and that he just lay around the house during his vacation (which began about August 12th) until he went to see Dr. Lowell.

Appellant had no knowledge of the alleged injury until September 2nd, when its foreman went to respondent’s home to find out why he had not reported for work. Respondent then informed the foreman that he had hurt his back on July 2nd. Respondent subsequently underwent an operation on his back on November 29, 1950, and the ruptured disc was removed. He was unable to work for six months. At the time of the board hearing (June 12, 1951), he had been employed as a night watchman at a sawmill for about two weeks.

At the suggestion of appellant’s officers, respondent, after consulting his attorney, put in a claim for nonoccupational injury under a group accident policy carried by appellant for its employees and later received payments from the insurer compensating him for his hospital and medical expense. He testified that, if he should receive industrial insurance, he will be obligated to repay the amount received from the insurer.

Appellant introduced in evidence a claim made by respondent under the group insurance policy for an injury sustained on December 16, 1946 (3% years prior to the [725]*725injury involved in this case), in which respondent made claim for a low back injury caused by cranking a car.

Appellant first assigns error to the failure of the court to sustain its objection to a hypothetical question asked of Dr. Lowell. In the question, counsel for respondent asked the witness to assume, among other things, that the workman had never previously had a back condition or injury, and that after the injury of July 2nd he did not work the next day nor for several days thereafter. Appellant complains because the question did not include the fact (which was later brought out by its own witness) that respondent had suffered a “low back strain” in 1946 while cranking his car and had not worked for two weeks thereafter.

That the hypothetical question did not include matters subsequently adduced by appellant in defense, did not constitute error. Flessher v. Carstens Packing Co., 93 Wash. 48, 160 Pac. 14. Appellant had an opportunity upon cross-examination to include the element of the 1946 injury had it desired to do so.

Appellant further argues that this hypothetical question was improper because it did not include a statement subsequently made by respondent in his testimony that he would have returned to work the day following the injury if the railroad strike had not closed down the plant. The record clearly establishes that, regardless of the reason, respondent did not work for a week after July 2nd and the court did not err in overruling appellant’s objection to the form of the hypothetical question.

Appellant assigns error to the findings of the court that the injury occurred on July 2nd and that respondent was totally disabled from August 17, 1950, to March 27, 1951. Incidentally, this latter date appears to be a typographical error and should be May 27, 1951. There is no dispute in the evidence that respondent was totally disabled from August 17, 1950, to May 27, 1951. Appellant makes no argument contradicting the finding that respondent was totally disabled during this period.

There is likewise no dispute in the evidence that respond[726]*726ent suffered a ruptured intervertebral disc which was traumatic in its origin. The only question is whether the evidence sustains the finding that the injury occurred on July 2, 1950, while respondent was in the course of his employment. All the testimony upon this\issue of fact was given by respondent, his wife, and Dr. Lowell, who first treated him some six weeks after July 2nd.

Appellant relies heavily upon Olympia Brewing Co. v. Department of Labor & Industries, 34 Wn.. (2d) 498, 208 P. (2d) 1181, wherein we said that a person who claims under the industrial insurance act should be held to strict proof of his right to receive the benefits provided thereby, and Stampas v. Department of Labor & Industries, 38 Wn. (2d) 48, 227 P.

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Related

Stampas v. Department of Labor & Industries
227 P.2d 739 (Washington Supreme Court, 1951)
Rambeau v. Department of Labor & Industries
163 P.2d 133 (Washington Supreme Court, 1945)
Olympia Brewing Co. v. Department of Labor & Industries
208 P.2d 1181 (Washington Supreme Court, 1949)
Guiles v. Department of Labor & Industries
126 P.2d 195 (Washington Supreme Court, 1942)
Demastes v. State Compensation Commissioner
165 S.E. 667 (West Virginia Supreme Court, 1932)
Flessher v. Carstens Packing Co.
160 P. 14 (Washington Supreme Court, 1916)
Flucker v. Carnegie Steel Co.
106 A. 192 (Supreme Court of Pennsylvania, 1919)

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Bluebook (online)
245 P.2d 1018, 40 Wash. 2d 722, 1952 Wash. LEXIS 382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bartlett-v-department-of-labor-industries-wash-1952.