Guy F. Atkinson Co. v. Webber , 15 Wash. 2d 579 ( 1942 )

I dissent upon the following grounds: (1) The evidence produced at the so-called joint board hearing was not sufficient upon which to base the order granting the pension and charging the employer with cost experience, but did, on the other hand, clearly demonstrate that Mr. Webber's death was not the result of a "sudden and tangible happening of a traumatic nature"; (2) that the department's conclusion is arbitrary and capricious and was based upon a theory which is fundamentally wrong, and that its order should not be accorded a presumption that it was correct; and (3) that the interpretation of the word "injury" is incorrect.

Mr. Webber's work, as shown by the following excerpts from the evidence, was not of a strenuous nature. Mr. Aker, who was in charge of the hiring of truck drivers and "cat skinners," testified:

"A. Well, he was operating a dozer around a shovel. A gas shovel that was moving dirt. It was his job to keep the roads level, and the material pushed up in front of the shovel, so that the shovel could pick the dirt up. Q. In the realm of bull-dozer operations, was that work, in your opinion, light or heavy work? A. Very light, very light. . . . Q. And just what did his work require him to do between July 27th and October 9th or 10th? A. Well, he was, he was on the same ``cat' and the same job pretty nearly all that, in fact I think he was on the same ``cat' and the same job all that time. We were on, we were moving some dirt to build a haul road from our main quarry into the dam, and his work was keeping the road level for the trucks to haul over, away from this shovel. And just kept the dirt pushed up in front of the shovel so that the shovel could pick up the dirt. Q. And what is he required to do in that type of work as an operator of a ``cat' or a dozer. Just what does he do, just sit on the ``cat'? A. He stays on the ``cat,' yes. He stays on the ``cat,' and if the road gets cut-up, it's quite rainy out there, and if the road gets cut up, why he takes the ``cat' then, and makes the trip up and back on this road, in these ruts, and smooths them out, and then if there's no trouble, why then he goes back and pushes the dirt up then to the front of the shovel again, and then if he's not doing much, he pulls up to the side of the road and waits there for someone, some foreman to tell him for some other work to do, if he wants, and just waits, maybe at times he's moving — there's just, he might move the ``cat' from the shovel to the dump, and then smooth the dump off. Q. Was there ever any heavy manual work in connection with that? A. No, no. Q. None whatsoever, is that correct? A. That's right. Q. How much difference is there in driving a caterpillar as compared to driving an automobile or compared as to driving the average truck? A. Well, personally I would say that, considering the size of the trucks we have out there, I'd say they're much harder to operate than a ``cat.' . . . BY MR. CHADWICK: Q. This specific work that he was on, though, was being done in soft dirt? A. Yes, it was, it was all soft dirt, there was no rock and it was on a level road most of the time where he was at that time. Q. And then in the operation of the ``cat' referred to, there would be a minimum of jarring in this particular work that he was involved in, wouldn't that be true? A. That's right."

George D. Potvin, excavating foreman, stated:

"Q. In your opinion, would you describe that in the class of caterpillar work as heavy or light work? A. Oh, it was very light work."

As I view the evidence, there was nothing to prove that Mr. Webber exerted any definite physical effort on the day of his death. The order was founded upon conjecture, which cannot be the basis of an allowance of a claim. Sheppard v. Department ofLabor Industries, 191 Wash. 80, 70 P.2d 792; Schafer Bros.Logging Co. v. Department of Labor Industries, 4 Wash. 2d 720,104 P.2d 747; Cooper v. Department of Labor Industries,11 Wash. 2d 248, 118 P.2d 942.

In cases of this nature, the actual facts must be obtained from medical men. Stevich v. Department of Labor Industries,182 Wash. 401, 47 P.2d 32; Cooper v. Department of Labor Industries, 195 Wash. 315, 80 P.2d 830; Eyer v. Departmentof Labor Industries, 1 Wash. 2d 553, 96 P.2d 1115; LaLonev. Department of Labor Industries, 3 Wash. 2d 191,100 P.2d 26; Weinheimer v. Department of Labor Industries, 8 Wash. 2d 14, 111 P.2d 221; Radich v. Department of Labor Industries, 10 Wash. 2d 107, 115 P.2d 1022.

The record discloses the doctors' evidence as follows: Dr. Havlina testified that Mr. Webber, on the night before the day of the death, had a coronary attack — "Either a spasm or a clot in one of his coronary arteries in the heart." He was thereafter asked the question:

"Q. Well, from your examination of him on October 9th, and his death on October 11th, would you say that the attack of October the 9th, was the start of the chain of events leading to his death?"

He stated:

"A. The cause of death was probably a similar attack like the one on October the 9th, which was undoubtedly, was just an attack, similar to the one on October 9th. If one were going to say that the one on October 9th. were the cause of it, this man never could have walked around, undoubtedly, and stood it. Although I feel that he probably had a spasm or a beginning of this situation, his clots were probably immediate, because when a clot fills the blood vessel, death usually occurs if it is a large blood vessel, within just a few minutes. . . . Q. . . . Doctor, what effect would exertion have upon a man in the condition that Mr. Webber was in, when you saw him on October 9th, 1940? A. That is impossible to say because a man may, with a spasm, go right ahead with a little rest and be able to carry on. The average individual, that is, like Mr. Webber, was conscientious in his work, might go back to work and get away with it. Q. Well, as you say, you were not able to determine from the examination which you made on October the 9th, whether this was just what you doctors call a spasm of the blood vessel or whether a clot had already started to form? A. That's right. Q. In the blood vessel? A. That's right. Q. Is that correct. And well, after talking to Dr. Wilson about the case, are you in any better position now to say whether there was a clot there or just a spasm when you saw him on October the 9th? A. I felt that since the man had survived and become a, began feeling better and stirring around, that it probably was just a spasm on October 9th. Q. And, Doctor, do you ascribe to the theory that exertion in a person's work, can produce a blood clot in the coronary artery, which will result in death? A. Yes. Q. And is there any degree of exertion necessary, Doctor, to produce a clot in the coronary artery that precipitates death? A. That, of course, is a matter of degree. Some men might be able to stand a lot of exertion and have nothing happen, now, and another man might again have such a thing happen with not so much. Usually it is quite a little exertion as I believe it, if that is the thing that causes it. It isn't the only thing that causes it. Q. Well, do you personally know what other things besides exertion may cause a clot in a coronary artery that would precipitate death? A. Infection in the cardiac region. With clots, or with particles of, of as we call, scar on the valve, that might let loose as emboli. Q. Well, there weren't any emboli in this case, though. A. No. Q. So far as that type of infection, that would be ruled out in this case from the autopsy examination? A. Yes. Q. And anything else — is there anything else that might produce a clot, other than exertion? A. I don't know of anything then, no."

Dr. Nickson, resident pathologist of the Swedish hospital in the city of Seattle, stated, in answer to hypothetical questions which included the history of the deceased:

"Q. Would it be your opinion upon the history as detailed to you that this man was a victim of a progressive disease which might have caused his death at any time or on any occasion with or without accompanied exertion? A. It is clearly shown so by both the post mortem record and by the preceding history which you read. This man on a night, of October 8th, if I'm not mistaken had his initial infarction, which is shown in the heart at the time of the post. At that time, he was at rest in bed. He had gotten up only to go to the bathroom, which is not considered muscular exertion of any considerable quantity. . . . Q. And then, Doctor, your opinion in this case, predicated upon his death on October 10th, 1940; was that in your opinion, the exertion that he had been engaged in, in carrying on his work as a ``cat' bull-dozer operator on that particular date, would not cause or precipitate this coronary thrombus from which he died? A. I don't think that the exertion that he was undergoing at that time had anything to do with the precipitation of his coronary thrombosis. . . . Q. It is your opinion, is it not, Doctor, that wherever this man might be, or whatever he might have been doing, with the condition of heart as found by Dr. Wilson's post mortem; death was going to catch up with him very shortly? A. Very shortly, yes sir. This is a progressive thing as illustrated by the post mortem findings, and sooner or later he was either going to wake up dead, or he was going to topple over, wherever he might have been, whether he was at work or not. Q. It wouldn't be a case of exertion at all. It would just be nature taking its due course? A. Just taking its toll, yes sir."

I am unable to conclude from the expert testimony that Mr. Webber's death was caused by any physical exertion which can be traced to his activities in driving the "cat."

The facts in this case are quite similar to those in O'Toolev. Department of Labor Industries, 182 Wash. 202,46 P.2d 388. In that case, a workman was engaged as a hook tender. He died suddenly of a heart ailment while alone in the woods a short time after he had attached a load by means of a heavy choker. The medical testimony introduced on behalf of the claimant indicated that the heavy physical labor and strain attendant upon his work might have been a contributing factor, and that, if he had not been working, his death might not have occurred. In passing upon that case, this court said:

"At the most, it indicates a bare possibility that severe and strenuous exertions might have induced death at the time, but it falls far short of establishing either that there was severe exertion at the time or, if so, that such exertion caused the death."

The order of the supervisor reads as follows:

"WHEREAS, A complete investigation of the full circumstances surrounding the injury of May 7, 1940, indicate that the claimant did not sustain any disability and after examinations by several doctors no disability was demonstrated either as to his heart or any other part of his anatomy, it is therefore indicated that death was not the result of this injury. Further investigation, however, of the work record of the deceased while in the employ of the Guy F. Atkinson Company at Mud Mountain Dam indicates that his work was of a strenuous nature and that he had to cease working on October 9, 1940 and was treated for a heart condition but later returned to work on the night of October 10, 1940 and about the end of this shift, namely 7:30 A.M., the deceased collapsed on the ``cat' which he was operating, and died, and, taking into consideration several Supreme Court decisions of the State of Washington, it must be conceded that death was the result of aggravation of an existing heart condition due to strenuous employment."

This order in stating that the deceased collapsed on the "cat" which he was operating, was entirely incorrect, for the undisputed evidence shows that, when Mr. Webber was found, he was lying on the ground a short distance from the "cat" and had not operated the machine for about fifteen minutes. The summary of record and proceedings made by the joint board stated:

"The deceased workman here was a cat driver employed at Mud Mountain Dam. His duties were to operate the cat with a bulldozer to level the road and while at work at about 7:30 A.M. he wasfound in a semi-conscious condition seated in the driver's placeon the cat. He was picked up from the seat of the cat and moved in a truck to the hospital where he died. The widow filed a claim for pension and same allowed. On Notice awarding the pension, the employer, Guy F. Atkinson Co., appealed contending that claimant's death was not the result of an injury while employed by them. Testimony has been presented. Inferences are made that claimant's heart trouble and death may have been due to another injury while claimant was employed by MacDonald Bldg. Co. at which time the deceased workman was employed by the MacDonald Bldg. Co. operating a cat on the Capitol grounds when an earth slide resulted in the cat going over the hill with the driver. The hearing is complete and all testimony has been transcribed.

"Subsequent to the granting of the petitioner's application for rehearing, the employer being the petitioner in this case and protesting the allowance of this claim and the charging of the cost against the employer, Guy F. Atkinson, the matter came on regularly for hearing and testimony has been presented and transcribed.

"After a review of the entire record and file the Board concludes that there is no evidence that would warrant a disturbance of the finding of the Supervisor of Industrial Insurance and the order of January 8th and January 9, 1941.

"The Supervisor is sustained. The orders of January 8th and January 9, 1941, are hereby affirmed." (Italics mine.)

The order dated October 27, 1941, was as follows:

"On this date, the complete record of the above claim being presented to the Joint Board in Executive Session and the Joint Board having carefully and thoroughly considered such record together with all evidence offered in the matter, and you being hereby notified, now:

"IT IS HEREBY ORDERED THAT the Supervisor's action be and hereby is sustained."

The order of the joint board bears the printed names of the members of that board, but was only signed by its secretary.

It will be noted that there was no finding by the supervisor or the joint board which took into consideration the evidence given by the doctors. But, in the face of that testimony, they allowed the claim. The supervisor and the board based their order not upon the evidence introduced, but upon several unnamed court decisions. That basis was fundamentally wrong.

The statute, Rem. Rev. Stat., § 7697 [P.C. § 3488], states that:

". . . In all court proceedings under or pursuant to this act the decision of the department shall be prima facie correct and the burden of proof shall be upon the party attacking the same. .. ."

On the rehearing, the testimony was taken on several occasions, none of which was attended by a member of the joint board. That board did not have the advantage of seeing or hearing the witnesses under oath, but all of the testimony was taken by one spoken of as an examiner, who reported the testimony to the joint board. This seems to have been the practice of the department for many years.

We have passed upon a like situation in the following cases:Cheney v. Department of Labor Industries, 175 Wash. 60,26 P.2d 393; Peterson v. Department of Labor Industries,178 Wash. 15, 33 P.2d 650; Church v. Department of Labor Industries, 179 Wash. 443, 38 P.2d 234; Dry v. Department ofLabor Industries, 180 Wash. 92, 39 P.2d 609; Rikstad v.Department of Labor Industries, 180 Wash. 591, 41 P.2d 391;Zankich v. Department of Labor Industries, 189 Wash. 25,63 P.2d 427; Matson v. Department of Labor Industries,198 Wash. 507, 88 P.2d 825; Barnes v. Department of Labor Industries, 6 Wash. 2d 155, 106 P.2d 1069.

In speaking of the presumption, Judge Main stated in theCheney case:

"It is said that the joint board was justified in disregarding the testimony of the father and son, and that, since the decision of the board is prima facie correct and the burden is upon the one attacking it to overcome that decision by evidence, the judgment of the superior court should be reversed and the order of the joint board sustained. The members of the joint board were in no better position to weigh and consider the testimony than was the superior court or than are we. They did not hear the witnesses testify, and received their impressions from a transcript of the testimony. Obviously, the statute (Rem. Rev. Stat., § 7697), which provides that the ``decision of the department shall be prima facie correct,' although to be kept in mind, cannot have the same presumptive effect when the testimony is taken before an examiner and a transcript thereof submitted to the board, as where it is taken before one or more members of the board. After reading and considering the testimony in this case, we see no reason why it should be disregarded or disbelieved."

We modified this rule in the Church case by stating:

"In the case at bar, the evidence passed on by the joint board was taken before an examiner, and appellant invites us to reconsider the rule which we laid down in Cheney v. Departmentof Labor Industries, 175 Wash. 60, 26 P.2d 393, as applicable in such cases. While it is true that the prima facie presumption applies to an order of the joint board whether the same be based upon a hearing before the board or upon evidence taken before an examiner, it is only reasonable that, on judicial review, an order has somewhat more weight when considered in connection with a case in which the joint board actually saw and heard the witnesses. The rule laid down in the Cheney case goes no further than this, and we see no occasion for modifying the doctrine therein promulgated."

In the last (Barnes) case cited, this court held:

"It is true, as appellant points out, that the presumption has less force and effect where, as in the present case, the joint board did not have the witnesses before it, but had only transcripts of their testimony taken before examiners. [Citing cases]

"This circumstance, however, affects the weight of the presumption rather than its validity. The statute which created it does not make any exception. The presumption has been recognized and applied where all the witnesses testified before examiners and none of the testimony was taken before the joint board."

In the present case, the presumption should be accorded little, if any, weight. In considering the case de novo, we are in a position equal to that of the joint board, because they decided the case upon the record and did not have the advantage of seeing or hearing the witnesses testify, a situation which is always the basis of according a presumption of correctness to the conclusions reached by triers of fact. I cannot escape the conclusion based upon the testimony that the claimant failed to prove that her husband died as a result of an injury received while engaged in his work of operating the "cat."

I adhere to my dissents in the cases of Bergagna v. Departmentof Labor Industries, 199 Wash. 263, 91 P.2d 551, andMcCormick Lbr. Co. v. Department of Labor Industries, 7 Wash. 2d 40, 108 P.2d 807. The interpretation of the statute defining injury in those cases was incorrect, and they should be overruled. The rule of interpretation now in effect aids an individual occasionally, but works to the disadvantage of the employers and employees alike. In such cases the employers are faced with the cost experience charge through no fault of their own and are therefore forced to hire only those men who are physically perfect. Their enforced action precludes the securing of jobs by a large body of men who have some physical disability. I can see no good reason for not overruling our recent cases. This court has corrected its decisions many times in the past and should make a correction at the present time.

The judgment of the trial court should be affirmed.