Page v. Department of Labor & Industries , 52 Wash. 2d 706 ( 1958 )

Rosellini, J.

The department of labor and industries appeals from a judgment on a verdict increasing a permanent partial disability award from thirty-five per cent to seventy-five per cent.

The respondent was injured on February 3, 1953, while working on the construction of a false ceiling for a large hangar at Boeing airfield, Seattle. The ceiling collapsed, dropping him about thirty-five feet, and covering him with sand. The respondent suffered injuries to his back and chest.

Drs. Brugman, Rickett, and McConville examined the respondent for the department; however, Dr. Brugman was called as the respondent’s witness. The doctors agreed that the appellant’s disability resulting from his injuries did not exceed thirty-five per cent of the maximum allowable for unspecified disability, that he was able to engage in gainful occupation and to do medium work, but he was not able to return to heavy arduous labor.

On cross-examination, Dr. Brugman stated that the respondent could not lift more than fifty pounds, and that he could not do this more than once in an hour.

The' respondent’s wife testified that prior to her husband’s injuries he was in excellent health and “strong as a müle,” but that afterward he seemed to experience constant pain in his back when performing even the lighter tasks around the home.

Mr. A. L. Atherton, owner of the construction company, testified that during the late summer or early fall of 1953, respondent came to him several times seeking light employment, but that he had none available. He stated that prior to the accident, the respondent put in above an average day’s work. He said that when respondent visited him seeking lighter work, he was limping, appeared rather stiff, and still had a brace on his back. Mr. Buchanan, business agent for the union, testified that prior to the injury, respondent was “quite able,” that since then he had been trying to get a lighter job in industry for Mr. Page, but had been unable to do so because there were so few available.

The respondent concedes that there is no medical opinion in this record to the effect that Mr. Page should be awarded a certain percentage of disability in excess of that previously granted by the department. It is his contention, however, that given the necessary lay and medical evidence as to the fact of disability, it is up to the jury under proper instructions to interpret or project such evidence in terms of total disability or statutory percentage of partial disability.

In industrial insurance cases, permanent partial disability awards are fixed, or rated, on a percentage basis. In the case of Kirkpatrick v. Department of Labor & Industries, 48 Wn. (2d) 51, 290 P. (2d) 979 (1955), where an injured workman attempted to recover an increased award for a permanent partial disability, the court stated:

“In addition to proving by medical testimony that the injury caused some disability, there must be sufficient medical testimony to support the claim that, at the terminal date, the rate of disability was more extensive than that fixed by the department. Johnson v. Department of Labor & Industries, 45 Wn. (2d) 71, 73, 273 P. (2d) 510 (1954). The extent of disability, as it exists at any relevant date, must be determined by medical testimony, some of it based upon objective evidence. Harper v. Department of Labor & Industries, 46 Wn. (2d) 404, 406, 281 P. (2d) 859 (1955).”

In Dotson v. Department of Labor & Industries, 48 Wn. (2d) 855, 296 P. (2d) 1006 (1956), where a judgment granting the injured workman one hundred per cent of the maximum allowable for unspecified permanent partial disability was set aside because of failure of medical proof, we stated:

“In addition to proving by medical testimony that the injury has caused some disability, the claimant must show by medical testimony that on the closing date the rate of disability was greater than that fixed by the department. Kirkpatrick v. Department of Labor & Industries, ante p. 51, 290 P. (2d) 979; Johnson v. Department of Labor & Industries, 45 Wn. (2d) 71, 273 P. (2d) 510; Moses v. Department of Labor & Industries, 44 Wn. (2d) 511, 268 P. (2d) 665.

“The extent of the disability, as it exists at any relevant date, must be determined by medical testimony, some of it based upon objective symptoms. White v. Department of Labor & Industries, ante p. 413, 293 P. (2d) 764; Kirkpatrick v. Department of Labor & Industries, supra; Harper v. Department of Labor & Industries, 46 Wn. (2d) 404, 406, 281 P. (2d) 859; Hyde v. Department of Labor & Industries, supra.”

The rule as thus stated is that medical testimony is necessary to establish permanent partial disability.

This court has consistently held that in order for a claimant to recover on a claim of aggravation, he must prove more than the fact that there has been some increase of disability during the aggravation period. The percentage of aggravation must be established by medical testimony. See Moses v. Department of Labor & Industries, 44 Wn. (2d) 511, 268 P. (2d) 665; Prince v. Department of Labor & Industries, 47 Wn. (2d) 98, 286 P. (2d) 707; Clayton v. Department of Labor & Industries, 48 Wn. (2d) 754, 296 P. (2d) 676. In the last cited case, the claimant had received awards amounting to 52.25 per cent of the maximum allowed for unspecified permanent partial disability. In holding that the evidence was sufficient to sustain the jury’s finding that the claimant had suffered an additional 22.75 per cent of permanent partial disability during; the aggravation period, this court stated:

“It was, of course, necessary for the claimant to prove "the percentage of additional permanent partial disability between. the terminal dates. . . . . Medical men are. the only ones considered qualified to give an opinion on the amount of disabililty in terms of percentages, [Citing cases.] . . .

“Dr. .DeDonato testified that the. claimant’s increased disability during the aggravation period, in terms of percentages, was 50%. Without his testimony there would be no support for the jury’s finding of an additional 22.75% of permanent partial disability suffered between May 15,1946, and October 4, 1951.” (Italics ours.)

Expert testimony on the extent of an unspecified disability need not be in the language of the statute RCW 51.32.080, provided that the evidence adduced is probative of that fact. Ziniewicz v. Department of Labor & Industries, 23 Wn. (2d) 436, 161 P. (2d) 315 (1945).

The jury in an industrial insurance appeal, as in the case of any other jury question, may arrive at a verdict that lies between the opinions of expert witnesses who have testified. If there are two or more experts who disagree, nothing compels a jury to accept the exact opinion of any one or two of the experts; if, however, all of the experts’ opinions are in substantial agreement as to the maximum compensation to be allowed, a jury cannot exceed the maximum amount testified to by the experts,

An expert witness, in fixing the extent of the unspecified permanent partial disability, should testify to the comparison of the unspecified disability with the schedule of disability it most closely resembles. RCW 51.32.080 (2) Dowell v. Department of Labor & Industries, 51 Wn. (2d) 428, 319 P. (2d) 843.

The jury in the instant case was apparently moved by the fact that the respondent’s injuries had rendered him totally unable to do the work for which he had been previously qualified and thereby greatly curtailed his earning power. But compensation for unspecified permanent partial disability is awarded, not on the basis of loss of earning power, but loss of bodily function. All of the medical witnesses were agreed that, in the respondent’s case, the extent of such loss did not exceed thirty-five per cent.

Since, as this court has consistently held, a finding of disability in excess of that fixed by the department must be based upon medical testimony, the court erred in submitting the question to the jury.

A further error occured which merits comment. The only instruction regarding the extent of unspecified permanent partial disability was instruction No. 6 which recited that unspecified permanent partial disability must be expressed in percentage, but did not set forth a criterion or standard to follow in ascertaining this percentage.

The appellant took the following exception to this instruction:

“The statute provides that the unspecified disabilities will be determined by comparing them with that specified disability that most nearly resembles their disability in degree. The net result is to leave the jury without a guide that will enable it to have a reasonable basis for its decision.”

The appellant’s contention is borne out by RCW 51-.32.080 which provides in part:

“(1) For the permanent partial disabilities here specifically described, the injured workman shall receive compensation as follows:

“Loss By Amputation

“Of one leg so near the hip that an artificial limb cannot be worn ................................. $6000

“Of one leg at or above the knee so that an artificial limb can be worn................................ 4110

“ (2) Compensation for any other permanent partial disability shall be in the proportion which the extent of such other disability, called unspecified disability, shall bear to that above specified, which most closely resembles and approximates in degree of disability such other disability, but not in any case to exceed the sum of six thousand dollars: Provided, That the total compensation for all unspecified permanent partial disabilities resulting from the same injury shall not exceed the sum of six thousand dollars. For disability to a member not involving amputation, not more than three-fourths of the foregoing respective specified sums shall be paid: Provided further, That payment for any injury to minor hand or arm or any part thereof, shall not exceed ninety-five percent of the amounts hereinbefore enumerated: ...”

Thus, the legislature established a specific cash award for specific amputations and losses of faculties. However, because the multitude of possible injuries which would not involve those specific disabilities could not be foreseen nor individually provided for, the legislature established compensation on their account in accordance with the proportion of loss that the disability arising from any such injury should bear to the disability which would arise from a specified amputation or loss of faculty, etc., for which an award is provided. This was necessary if the legislative plan of compensation in accordance with loss of bodily function (as distinguished from partial loss of earning power) was to be accomplished.

Of course, the legislature could not foresee the disability which would arise in every case from, for example, a ruptured spleen, a concussion, a damaged liver, a herniated intervertebral disk between any two of the various vertebrae of the back, or an injury to the ear with consequences beyond loss of hearing. Consequently, it was not in a position to establish a fair measure of compensation for' any such disability until the degree of such disability had been competently evaluated; and, if the plan was to be workable and fair, the evaluation must bear a relationship to the evaluations of specific disabilities for which the legislature had been able to provide in advance. Such a comparative evaluation was so provided in RCW 51.32.080, supra, and this proviso is the only authority in the law for payment of compensation on account of the so-called “unspecified disability.”

The failure of the evidence to sustain the jury’s verdict for an increase in the award for permanent partial disability, compels .us to reverse.

The judgment is reversed.

Hill, C. J., Mallery, Donworth, Weaver, and Ott, JJm concur.