Louderback v. Department of Labor & Industries

575 P.2d 246, 19 Wash. App. 138, 1978 Wash. App. LEXIS 2078
CourtCourt of Appeals of Washington
DecidedJanuary 26, 1978
DocketNo. 2513-2
StatusPublished
Cited by1 cases

This text of 575 P.2d 246 (Louderback v. Department of Labor & Industries) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Louderback v. Department of Labor & Industries, 575 P.2d 246, 19 Wash. App. 138, 1978 Wash. App. LEXIS 2078 (Wash. Ct. App. 1978).

Opinions

Petrie, J.

Roberta L. Louderback appeals from the trial court's denial of her motion for new trial following entry of a judgment on a jury verdict which had sustained an order of the Board of Industrial Insurance Appeals denying her claim for widow's benefits under the workmen's compensation act. We reverse with direction to grant her a new trial reasonably consistent with the trial we directed in our opinion on a prior appeal. Louderback v. Department of Labor & Indus., 14 Wn. App. 931, 547 P.2d 889 (1976).

In Louderback I, Mrs. Louderback contended that she should be permitted to present to a jury the question of whether or not her deceased husband suffered a fatal injury in the course of his employment on December 10, 1971, on two theories:

(1) physical strain when he ascended a steep stairway minutes before his death, and (2) emotional strain when he supervised reactivation of a boiler which started malfunctioning approximately 2 hours before his death.

Louderback v. Department of Labor & Indus., supra at 932.

In the course of explaining our opinion, we examined in some detail the meaning of the word "happening" in the statutory definition of an injury, RCW 51.08.100, as applied to so-called "heart attack" cases. We noted that Mr. Louderback's physical exertion in ascending the stairway "performed regularly and routinely several times a day during a normal day's activity, did not satisfy the minimal proof that a happening occurred." (Italics ours.) Louderback v. Department of Labor & Indus., supra at 937.

Nevertheless, we concluded that we could not say that he routinely and regularly performed that act under the "highly intense" atmosphere which existed on the date of his death. Accordingly, we directed that she be given the opportunity to present this theory of her case to a jury.

[140]*140The record before us clearly indicates that she has not yet had that opportunity.

We need only examine a few of the trial court's instructions to the jury to illustrate the point. She proposed an instruction which would have told the jury in part:

The exertion required in the normal routine duties of employment is not an injury within the meaning of this statute.
A workman who suffers a heart attack as a proximate result of unusual exertion, physical and/or mental, during his employment has sustained an industrial injury.

(Italics ours.)

The trial court subverted the impact of that instruction by deleting the word "routine" from the proposed instruction. (Instruction No. 7.) That error was compounded when the court instructed (No. 9A): "An instance of exertion is not 'unusual' simply because it occurs infrequently or only on occasion, so long as it is a usual or expected part of the workman's job."

By these two instructions the jury was told that if a workman is performing the normal duties which are an expected part of his job, he cannot sustain an industrial "injury" to his heart no matter how infrequently or sporadically he performs at that intensity level. The employer and the Department of Labor and Industries contend this is a correct statement of the law, citing Lawson v. Department of Labor & Indus., 63 Wn.2d 79, 385 P.2d 537 (1963) and Chittenden v. Department of Labor & Indus., 71 Wn.2d 899, 431 P.2d 622 (1967). We disagree.

Chittenden correctly summarized several prior opinions: Windust v. Department of Labor & Indus., 52 Wn.2d 33, 323 P.2d 241 (1958), Hodgkinson v. Department of Labor & Indus., 52 Wn.2d 500, 326 P.2d 1008 (1958), and Taylor v. Department of Labor & Indus., 69 Wn.2d 19, 416 P.2d 455 (1966), as holdings that there can be no "injury" in the routine act of 10 years, 1 1/2 years, and 6 to 8 weeks, respectively. Chittenden then proceeded to declare that Lawson v. Department of Labor & Indus., supra, held [141]*141"there is no 'injury' in the doing of an act for 2 days which, while done infrequently, is not an unusual or unexpected part of the occupation." Chittenden v. Department of Labor & Indus., supra at 902.

This dictum in Chittenden incorrectly summarized the true holding in Lawson. Mr. Lawson collapsed and died of a coronary occlusion on a Monday while working as a bricklayer with bricks weighing 8 to 9 pounds and of an awkward size and shape, whereas, "regular" bricks weigh from 4 to 5 pounds. The court found no evidence of an injury on Monday because

laying them, under such conditions, was work bricklayers were called upon to perform, and would clearly fall within the ambit of our cases construing the injury statute and holding that the exertion required in the normal routine duties of a job is not, in itself, an injury within the purview of the statute.

(Italics ours.) Lawson v. Department of Labor & Indus., supra at 81.

Furthermore, the Lawson court found no injury on the preceding Thursday and Friday, as Mr. Lawson's widow contended, when he had been working on a scaffolding, laying concrete blocks which weighed approximately 30 pounds each. Accepting Mrs. Lawson's testimony that her husband worked with concrete blocks only 10 percent of the time, the court held there was no evidence of an injury because

there is no contention that concrete-block work, or work on a scaffolding, is not customary and routine work for bricklayers.
. . . Concrete work may have been infrequent for Mr. Lawson, but it was not unusual and it was part of the routine requirements of a bricklayer's job.

(Italics ours.) Lawson v. Department of Labor & Indus., supra at 82, 83.

The force of these cases is that performance of routine tasks normally required of an occupation by one engaged regularly in that occupation cannot, as a matter of law in [142]*142this jurisdiction, be considered the "event" which caused or precipitated a so-called "heart attack," even though the individual worker may have performed the specific routine task infrequently. In this context, the word "routine" is used in the sense of "the habitual method of performance of established procedures," or "adherence to a pattern of behavior characterized by mechanical repetition." Webster's Third New Int'l Dictionary 1981 (1969). When such an "event" occurs, no amount of medical evidence tending to prove a causal connection between the resulting pathology and the work effort will support a conclusion that an injury occurred in the course of employment.

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Related

Bryant v. Department of Labor & Industries
596 P.2d 291 (Court of Appeals of Washington, 1979)

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Bluebook (online)
575 P.2d 246, 19 Wash. App. 138, 1978 Wash. App. LEXIS 2078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/louderback-v-department-of-labor-industries-washctapp-1978.