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Floyd v. Department of Labor & Industries

416 P.2d 355, 68 Wash. 2d 938, 1966 Wash. LEXIS 826
CourtWashington Supreme Court
DecidedJune 30, 1966
Docket38080
StatusPublished
Cited by7 cases

This text of 416 P.2d 355 (Floyd 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
Floyd v. Department of Labor & Industries, 416 P.2d 355, 68 Wash. 2d 938, 1966 Wash. LEXIS 826 (Wash. 1966).

Opinion

Revelle, J. †

Claimant appeals from an order granting summary judgment and. a judgment of dismissal which sustained the findings and decision of the Board of Industrial Insurance Appeals. The board concluded that claimant’s *939 condition was not the result of the injury because there is no medical testimony in the record sufficient to sustain the contention of causal relationship.

Respondent first moves to dismiss the appeal because claimant has failed to serve and file a certified statement of facts of the proceedings in the trial court. In support of the motion, respondent cites three cases 1 for the proposition that, in the absence of a statement of facts revealing the basis of the trial court decision in any rulings of admissible or probative value of evidence before the trial court, the Supreme Court will not review the action of the trial court in granting a motion to dismiss. In all of these cases, however, the cause was tried to a jury and the motion to dismiss came either at the end of the case or after the close of claimant’s case, each before submission to the jury. Since the issue here reaches us from a summary judgment under Rule of Pleading, Practice and Procedure 56, RCW vol. 0, a statement of facts is not necessary. 2 Claimant here selected the alternative method of a transcript certified by the clerk. We have all the documents 3 *940 referred to by the trial court in the order granting summary judgment except one affidavit. It was filed in support of a separately brought summary judgment motion filed by claimant. Respondent argues that this deficiency, too, supports its motion to dismiss.

Respondent’s remedy for such a deficiency lies not in a motion to dismiss but in proper steps to have the transcript on appeal record corrected as prescribed in Rule on Appeal 44, RCW vol. O.

Respondent’s motion to dismiss the appeal is denied. 4

Issue on appeal: Whether the facts and the reasonable inferences therefrom, considered in the light most favorable to the claimant, present a prima facie case to go to the jury that the industrial injury was the cause of the disability.

Such cause must be established by competent testimony of a medical expert. Stampas v. Department of Labor & Indus., 38 Wn.2d 48, 227 P.2d 739 (1951).

The only admissible description of the injury cause came from claimant who testified at the hearing that he was lifting %-inch, 20-foot long, 120-pound reinforcement steel rods, standing them up and lifting them up about a foot, standing them over behind some other rods, “another guy tied them off while I was holding them up,” when he noticed a sharp pain, couldn’t breathe, dizziness, pain in upper part of his back and between his shoulder blades.

That same day, claimant was hospitalized with a suspected heart attack, was released the next day and immediately returned home where he saw another physician 2 weeks later. He received no treatment here and returned 4 months later to his home in Oklahoma.

*941 Seven and one-half months after the injury, he consulted a physician in Oklahoma who testified by deposition at the hearing that claimant told him as part of the history:

He complained of pain in his back and said that he was injured in an accident on September 30, 1960 in Goldendale, Washington, when he was lifting some steel rods, that he was holding up a 16 foot rod and became over balanced and strained his back. He was treated at the Klickitat Valley Hospital. He had severe pain in his shoulders, chest and also involving his low back. (Italics ours.)

After examination the diagnosis was “very severe injury to the muscles and ligaments and soft tissue of the back including the lower dorsal and lumbar spine.”

We conclude that the cause was not established by competent testimony of a medical expert for these reasons:

1. The information upon which the physician based his opinion of cause was shown by the testimony of claimant to be neither complete nor accurate. 5 The record shows they each were speaking of significantly different events and conditions:

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Related

Rosales v. Department of Labor & Industries
700 P.2d 748 (Court of Appeals of Washington, 1985)
Dillard v. Washington Public Employees' Retirement System
597 P.2d 428 (Court of Appeals of Washington, 1979)
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547 P.2d 899 (Court of Appeals of Washington, 1976)
State v. Fullen
499 P.2d 893 (Court of Appeals of Washington, 1972)
Vaupell Industrial Plastics, Inc. v. Department of Labor & Industries
481 P.2d 577 (Court of Appeals of Washington, 1971)
Vaupell Indus. v. Dep't L. & Indus.
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Scott Paper Co. v. Department of Labor & Industries
440 P.2d 818 (Washington Supreme Court, 1968)

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Bluebook (online)
416 P.2d 355, 68 Wash. 2d 938, 1966 Wash. LEXIS 826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/floyd-v-department-of-labor-industries-wash-1966.