La Vera v. Department of Labor & Industries

275 P.2d 426, 45 Wash. 2d 413, 1954 Wash. LEXIS 429

• Court: Washington Supreme Court
• Decided: October 19, 1954
• Docket: 32802
• Status: Published

Opinions

Hamley, J.

Vivian Shelton La Vera sustained an industrial injury on March 14, 1945. On July 27, 1948, the supervisor of industrial insurance entered an order finding her permanently and totally disabled, and placing her on the pension rolls. After an investigation conducted in the spring of 1951, the supervisor, on May 22, 1951, entered an order reclassifying claimant from permanent total disability to permanent partial disability. Under the new classification, she was awarded twenty-five per cent of the amputation value of the left minor arm at the shoulder.

Claimant appealed to the board of industriar insurance appeals, which sustained the department. Claimant then appealed to the superior court. The jury returned a verdict in favor of the department, and judgment was entered accordingly. Claimant now appeals to this court.

The sole question raised by the two assignments of error is whether the jury should have been instructed that, at the hearings before the board, the department had the burden of proof. This was proposed in the last paragraph of the following instruction, which was offered by appellant but refused by the court:

“You are instructed that the decision of the Board of Industrial Insurance Appeals is prima facie correct, and that -the burden is on the plaintiff to establish by a fair preponderance of the evidence that its decision is erroneous.

“By ‘prima facie’ is meant at first sight, and the presumption persists in this case only until the plaintiff has introduced credible evidence to the contrary.

“In deciding whether the decision of the Board of Industrial Insurance Appeals is erroneous, you are further instructed that the Department of Labor and Industries at the hearings before the Board of Industrial Insurance Appeals had the burden of proving by a fair preponderance of the evidence that between July 27, 1948 and May 22, 1951 the plaintiff’s condition improved to such an extent that she was no longer totally and permanently disabled and it was not the burden of the plaintiff to prove that she was still totally and permanently disabled between July 27, 1948 and May 22, 1951.”

It is our opinion that, in an appeal to the superior court from an order of the board, the question of burden of proof at the board level is immaterial. The appeal procedure is statutory. As to burden of proof, the statute (RCW 51.52.115, Laws of 1951, chapter 225, § 15) provides only as follows:

“In all court proceedings under or pursuant to this title the findings and decision of the board shall be prima facie correct and the burden of proof shall be upon the party-attacking the same ...”

Neither in this statutory provision nor elsewhere in the act has the legislature specified that the judge or jury should test the board’s decision with reference to the burden of proof at the board level. The sole fact-finding function in a court review of a board order is to examine the evidence and determine whether or not it clearly preponderates against the board’s findings. .If not, the appellant has failed to sustain his statutory burden of proof, and the prima facie correctness of the board’s order has been confirmed.

Were we to consider ourselves free to add to the statutory provisions regarding burden of proof, we would reach the same result. Appellant argues that, where the evidence presents a close question of fact, the correctness of the board’s order necessarily depends on who had the burden of proof before the board. As a proposition in logic, this may have merit. But the statutory appeal procedure is designed for practical application. In our judgment, the superimposing of this'procedural ramification would serve only to add complexity and confusion to a fact-finding task which is already most difficult.

In view of the opinion just expressed, it is unnecessary for us to consider respondent’s further contentions that appellant had the burden of proof before the board, and that, in any event, the failure to give the requested instruction was not prejudicial.

The judgment is affirmed.

Mallery, Weaver, and Olson, JJ., concur.