McKinnie v. Department of Labor & Industries ( 1934 )

BEALS, C.J., STEINERT, and TOLMAN, JJ., dissent. Anna McKinnie, widow of W.B. McKinnie, filed a claim with the department of labor and industries for compensation under the workmen's compensation act, alleging that her husband died as the result of an accidental injury received in extrahazardous employment. The claim was rejected by the department upon its finding and conclusion that the death was not the result of an injury, as contemplated by the act. Being dissatisfied, the widow appealed to the joint board of the department of labor and industries for a rehearing, which was granted. Testimony of a number of witnesses on behalf of the claimant was taken before an examiner for the department, and reported to the joint board. The department offered no witness. Upon the files already in the case, together with the testimony on behalf of the claimant, the joint board sustained the finding and decision of the supervisor in rejecting the claim.

The widow appealed to the superior court, and upon a hearing, upon the record taken up from the department, the court found that, on and prior to October 30, 1931, deceased was employed in an extrahazardous occupation by the port of Longview, and was required to, and did, assist in tying up vessels at the dock; that, on the 21st day of October, 1931, while thus engaged, upon pulling one of the mooring lines of the steamship LOS ANGELES, being moored at the dock, he was required to, and did, exert a tremendous and extraordinary effort in pulling on the line. Further, that, at that time, the deceased was diseased (having what we may here speak of as a hardening of the arteries); and that, as a direct and immediate result of the extraordinary effort exerted by the deceased on October 21, 1931, a mesenteric thrombosis was caused or produced, which resulted in death on October 30, 1931. Conclusions of law accordingly were entered upon the findings. The department has appealed from a judgment in favor of the widow, upon the findings and conclusions.

[1] A preliminary question, or first assignment of error, relates to a matter of proof. Decedent's injury occurred on October 21st, and he died nine days later. There was abundant evidence that, after he was hurt, he did not look or act as well as before, his loss of appetite increased, his complaints were frequent, and finally, for considerable time before his death, he suffered from severe vomiting. The widow testified before the examiner that, on October 27th, six days after Mr. McKinnie was hurt, he told her that, as he was pulling on a rope a few days before, it seemed as though "something had come right up into his mouth." Of the same sort, the family physician testified before the examiner that, while attending Mr. McKinnie in his last sickness, Mr. McKinnie told him that, while lifting and pulling the cable or rope, he felt something break inside of him, that he felt compelled to sit down, and had not felt well since. This testimony on the part of the widow and the physician was objected to by the department as hearsay.

The testimony, technically speaking, may not have been admissible under the strict rules observed in court proceedings, but under Rem. Rev. Stat., § 7697 [P.C. § 3488], found in the workmen's compensation act, hearings upon appeals to the superior court are de novo, and informal and summary. Under the statute and practice, all proceedings before the department, prior to a hearing before the joint board, are informal, and uniformly include unsworn reports of investigators and physicians, which consist more or less of hearsay with respect to the case, much of it gathered from members of the injured person's family or friends and associates, all of which reports are, by statute, made a part of the record and required to be filed as such and transmitted to court upon appeal.

The manner in which such statements get into the record may affect the weight to be given to them, but, in our opinion, they are not incompetent or inadmissible, and may be considered for what they are worth. Significantly, in the present case, an assistant supervisor, upon making an investigation of this claim soon after the claim was filed, made a written report in the case, showing essentially the same statements as having been reported to him by the widow and the physician. This report was, under the statute, made a part of the case, upon which it should be determined, both in the department and in any appeal to the courts. This assignment of error is, in our opinion, without merit.

[2] The other assignments of error, as argued, are as follows: (1) That the deceased did not sustain an accident within the meaning of the workmen's compensation act; and (2) that, if he did sustain such an accident, death was due to a pre-existing disease, and not to the accident.

The two questions are so closely related that they may be considered together, in our opinion.

The accident happened on Wednesday, October 21, 1931. Harvey Hart, who was an employee of the port of Longview, worked with Mr. McKinnie in mooring the LOS ANGELES to the dock. He testified as follows:

"Q. Just state what was done there at that time, Mr. Hart? A. There were four men used in mooring the ship, two to take the head lines, two to take the stern lines. It was customary for Mr. McKinnie and myself to take the stern lines when the ship comes alongside as previously stated. The heaving lines were thrown ashore and being a large ship, naturally she used large hawsers. To the best of my knowledge that type of ship uses a Manila line approximately four inches in diameter and steel hawsers of about an inch in diameter. When it approaches the side, a line is thrown which we take and then a large line is fixed on, and it is drawn back from one hundred to a hundred and fifty feet from the ship and made fast to your cavel; next, after that, you take the spring line which is a stern line and draw it forward from midship from sixty to seventy-five feet and the same process is repeated. On German ships they, not knowing the mooring conditions of the Columbia river, usually insist on five or six lines made fast on each end of the ship. Q. Will you state whether that work of pulling on these lines is hard work? A. The work is very, very strenuous, it must be done fast and from my own personal experience, you sometimes pull to the utmost of your strength. At times you can't do anything with the line until more people are brought to help you. It's very strenuous. Q. Do you recall that particular occasion the amount of effort expended by yourself and Mr. McKinnie? A. As I remember, it was an average ship that required all our ability to pull. It was negotiated successfully but it was — well, I would say this: I could say it was a hard pull; it was an exhausting pull, I will say that. When you are through, you are absolutely tired out."

The widow, in addition to testimony already referred to in the first assignment of error, upon speaking of the decedent's being sick the week before he died and of his complaints to her, first on Friday, October 23rd, testified:

"A. Well, I asked him what was the matter and he said ``oh, I don't know' he said. He said ``my bowels is not normal' and then, well, I don't know, there is nothing else particular said, excepting that on Saturday why he didn't feel well and he wanted to lie down again. Q. What did he say at that time? A. Well, he said he wasn't feeling well, and wanted to lie down, and wanted to take a rest before he went back on duty. Q. To go back to Friday, did he go then and lie down? A. He did. Q. And was that usual for him to do that? A. No, not unless he was disturbed of his rest in the mornings; happened to get up for something. Q. Will you state whether or not that was the first time that he had acted in that way for a considerable period of time? A. Yes, it was. Q. Then on Saturday the same thing occurred, you say? A. Yes. Q. Did he lie down then? A. Yes, he did. Q. Then after Saturday, what happened, if anything, during that week? A. Well, there was nothing except on Sunday he laid down too, in the afternoon before he went to work. Q. Now, did he work all that week? A. No, on Tuesday we went to Portland. Q. What, if anything, happened in Portland? A. Well, he wasn't well and we went and had our eyes fitted and we went to a show. Q. Well, what, if anything happened while you went to the show? A. Well, there wasn't anything only he didn't seem to take any interest in it. Q. Now how long did you stay in Portland? A. Came back the 28th. Q. What did you do while you were there aside from going to the show and having your eyes examined? A. Well, we went out Tuesday evening, we went out to the stock show. Q. Was there anything happened while you were there that would indicate he was unwell? A. Yes, he didn't stay until it was out. He didn't feel well and we didn't stay until it was through. . . . A. The last day he worked was the night of the 29th, I guess. Q. What time did he get home? A. Well, he got home between twelve and one. Q. In the morning? A. Yes. Q. Then what happened when he came home on the last time? A. Well, when he came home why he was sick and went to throwing up. Q. Did he complain of any pain at that time? A. He had pain in his stomach he said. Q. And did you call the doctor? A. Yes. Q. What doctor? A. Dr. Hackett. Q. That is Dr. E.C. Hackett? A. Yes. Q. And he came and treated Mr. McKinnie? A. Yes. Q. Now Mrs. McKinnie aside from what Mr. McKinnie told you during those several days was there anything else you noticed that would indicate to you that he was not in his normal condition? A. Well only he was sick and he didn't seem to have any energy or anything. He kept his bed a good deal of the time and he could get up to his meals and then he would lie down again. Q. And was there anything else that would indicate to you that he wasn't normal — his usual self? A. No, I don't know as there was. Q. How was his appetite did he eat? A. He didn't have a good appetite, no, his appetite wasn't very good. Q. You mean that he never had a good appetite? A. No he didn't. Q. Was that usual? A. No, he was always a hearty eater. Q. Did he take a lunch with him the night he went to work? A. Yes. Q. And during that period there from October 21st until his death did you notice anything in respect to whether or not he had eaten his lunch? A. There was one time he brought part of his lunch back and the night he was taken sick, he brought part of his lunch back. He didn't eat it all. Q. Then there were two times that he brought part of his lunch back? A. I think twice he brought it back. Q. When was the first time? A. Well, I think it was the 22nd; the night of the 22nd I think it was. Q. That he didn't eat all of his lunch? A. Yes. Q. Was that usual? A. No, Mr. McKinnie was always a good eater and seemed to relish his food. Q. And during that period for the remainder of the time, how was his appetite? A. No, he didn't eat good. Q. Was that usual? A. No, it wasn't. Q. Had you noticed that failure of appetite prior to the 21st of October? A. No, I never noticed anything wrong with his appetite."

Doctor Earl C. Hackett, the family physician, who was familiar with Mr. McKinnie, who knew the history of the accident and the history of Mr. McKinnie's existing disease (hardening of the arteries), who, of course, was acquainted with his suffering after the injury until his death, and who was present at an autopsy upon the body of the decedent, the report of which witness had examined and was familiar with, in addition to testifying as already mentioned in the first assignment of error, testified that, in his opinion, death was due to mesenteric thrombosis, which, in turn, was caused by the strain suffered by the decedent on October 21st; and that the fact that the decedent worked after the injury from day to day, made a trip to Portland, visited a livestock show without disabling symptoms, until eight days after the injury, was not inconsistent with his opinion as to the cause of the death.

The doctor frankly declined to say that he was positive that death was due to mesenteric thrombosis, but said that his opinion was based on the clinical findings, personal knowledge of the decedent, and the history of the case with which he was conversant. We may say that this frankness, under all of the facts and circumstances, and considered in connection with all of the testimony on the part of the doctor, gives added weight and credence to his opinion. He further testified as follows:

"Q. Is your opinion based on what you know as to the cause of his death from your observation and findings? A. From my observations, and our experience. Q. Is that a reasonable opinion? A. Well, we think it is usually reasonable. Q. Well, doctor, is there sufficient evidence there for you to form a reasonably certain opinion as to the cause of Mr. McKinnie's death? A. Well, as near as one can, I think so. There was a question at the time he died and I called in two or three doctors. There were several that saw the man before he died, and we attended the autopsy in a bunch, three or four of us, and all felt satisfied it was a mesenteric thrombosis caused his death."

Doctor T. Homer Coffen, upon being made conversant with the facts connected with the injury, the subsequent suffering and death of the deceased, having seen the written report of the autopsy and having treated Mr. McKinnie for hardening of the arteries from 1929, testified that he saw him periodically, and sometimes frequently during that time, until January, 1931, the last time that he saw him professionally, and at which time, though still suffering from hardening of the arteries, "his condition was satisfactory." Then, after testifying in detail with reference to the facts and circumstances of the case as he knew and understood them to be, he testified as follows:

"Q. And what would you say, then, doctor, was the cause of his death? A. The thrombosis of the mesenteric arteries which were sclerotic and diseased. Q. And what, if anything, would you say, doctor, was the cause of the mesenteric thrombosis? A. I feel very sure it was due to the physical effort."

He further testified, summing up the situation as he saw it, as follows:

"Q. And, doctor, when you have facts such as your opinion has been based on here of muscular exertion, the symptoms of pain, etc., that he experienced following this muscular exertion, could you say you were speculating or conjecturing when you say his death was primarily due to muscular exertion? A. It is so obvious to me that it is definitely related to physical exertion. Q. In other words it is not a mere conjecture or guess? A. It is obvious."

This was clear and satisfactory, as much so as the opinion of an expert based on facts in evidence and personal knowledge reasonably can be.

Doctor E.W. St. Pierre, who testified that he heard the testimony of Doctor T.H. Coffen and also the testimony of Doctor C.H. Manlove, who performed the autopsy, and that he had examined the autopsy report, further testified:

"Q. And, doctor, you might just state whether or not your opinion coincides with Dr. Coffen's? A. It does."

Doctor C.H. Manlove testified that, as a physician who had specialized in pathology for eighteen years, he performed a post mortem on the body of Mr. McKinnie and made a written report of it. (This is the report referred to by all the doctors and that was filed with the department of labor and industries.) He testified:

"Q. Doctor, you have heard the testimony of Dr. Coffen with reference to the condition of Mr. McKinnie at the time he consulted Dr. Coffen? A. Yes, sir. Q. And you heard the questions which were propounded to Dr. Coffen in which certain facts were assumed as being shown in the record? A. Yes. Q. And doctor, taking all these things into consideration, what at this time would you say as to being the cause of the death of Mr. McKinnie? A. Well, I would answer that in this way. I would like to leave out entirely things that I heard in the other testimony and really make my own statement, and state what I feel about the case, and that is that it is a mesenteric thrombosis, regardless of what the other testimony might be. Q. I am not referring to the doctors opinions but merely to the facts showing his condition at the time? A. The point I would like to make is this: That Dr. Coffen knows a phase of medicine that I do not, and he studies that phase of medicine differently than I study that phase of medicine, and all I could say is that I would agree with Dr. Coffen. Well, there is that, but I said that I don't study that phase of medicine and when they came to me I knew nothing about this particular case. I was just called. I knew nothing outside of the fact that here was a dead man, and would I autopsy this man, and I said I would, and I did it out of the pure love of science; for nothing else than the true love of science I did that."

The post mortem report closes with what is termed an "anatomical diagnosis," in which it was stated that two probabilities were apparent as to the cause of death, the second of which was mesenteric thrombosis, with which, it seems, was considered former existing diseases of hardening of the arteries and pancreatitis. Then, upon his saying that the anatomical diagnosis was based entirely upon "facts and conditions he found," he further testified:

"Q. And since you have heard the other facts concerning the exertion expended by Mr. McKinnie on October 21st, 1931, and his acts and attitude and statements after that time, what would be your opinion as to the cause of his death? A. I think the cause of death is mesenteric thrombosis."

He then testified that he could not say why the thrombus occurred, but he was not asked for an opinion in that respect based upon the testimony or report concerning the history of the case, or as to the facts of severe muscular exertion performed by the decedent on October 21st. Upon being asked if he found any thrombus in the body, he answered that he did not, but that he was satisfied there was one "from the findings in the mesenteric tract."

As opposed to all this proof is the short written finding of the medical examiner of the department, dated and filed July 5, 1932, that there was no "relationship between the alleged strain and this man's death." His further finding or report was:

"Note that the accident, or aggravating incident, was supposed to have occurred October 21, 1931. The man continued to work until October 29th. Now, any mysentery thrombosis that occurred would show its symptoms immediately and must have occurred on October 29th, when he was taken ill. The alleged strain of a week prior had nothing to do with the formation of the thrombosis, in my opinion.

"Reject not due to injury."

The department's doctor, of course, was not under oath, examination or cross-examination. There is not the slightest intimation that he ever saw the deceased prior to or after the decedent's death, nor that he ever saw or talked with anyone who had seen the deceased, and certainly, he knew nothing about the full and convincing testimony of witnesses under oath in this case, because his report or apparently arbitrary finding was given months before the trial of the case before the joint board.

The weight of all the proof, in our opinion, is clearly against the findings and conclusions of the department and its joint board. It overcomes by a clear preponderance the statutoryprima facie correctness of the findings of the department, and at the same time, by a clear preponderance, supports and sustains the findings and conclusions of the trial court.

There is no question that the deceased was engaged in extrahazardous employment at the time he was injured, nor that the injury was a sudden and tangible happening of a traumatic nature under the statute as we have heretofore construed it, nor can there be any serious question that the injury happening on October 21st was the cause of the decedent's death.

While the distressing effects of the accidental injury involved in the case of Cole v. Department of Labor Industries, 137 Wn. 538, 243 P. 7, appeared more quickly, to the extent of manifest danger, than in the present case, nevertheless the principle of that case is in point in this one. There, it was said:

"While there was medical testimony showing that Cole was then afflicted with heart and artery disease, though he did not seem to appreciate such affliction, the evidence fully warranted the conclusion that his then physical effort caused a rupture in the region of his heart, constituting a sudden injury. While this affliction, suddenly coming upon Cole, may have been, in a sense, at or near the culmination of his general affliction, it, nevertheless, seems clear from the testimony that what he there did, by putting forth his strength, caused the breaking or giving away of something about his heart. Our decisions in Zappala v.Industrial Insurance Comm., 82 Wn. 314, 144 P. 54, L.R.A. 1916A 295; Shadbolt v. Department of Labor Industries,121 Wn. 409, 209 P. 683, and Frandila v. Department of Labor Industries, ante p. 530, 243 P. 5, just decided by us, seem decisive against the department's contention here made. In the last cited case, the question is reviewed at length. It seems to us, that the evidence was ample to support the findings and conclusion that Cole was injured as the result of a fortuitous event while engaged in extra-hazardous employment, and that, in so far as the findings and judgment establish that fact and award attorney's fees and costs, it must be affirmed."

To the same effect is the case of Metcalf v. Department ofLabor Industries, 168 Wn. 305, 11 P.2d 821, wherein this court said:

"Had Mr. Metcalf's violent efforts sawing the log, in an attempt to clear the road for Mr. Benson's passage, resulted in a sprained wrist, a torn tendon or a dislocated shoulder, any one of those injuries would clearly have been

"``. . . a sudden and tangible happening of a traumatic nature, producing an immediate or prompt result, and occurring from without, and such physical condition as results therefrom.'

"The fact that his arteries had so hardened that death was likely to result ``from a sudden and tangible happening of a traumatic nature,' does not deprive Mr. Metcalf's widow and minor child of their right to statutory benefits. It was not the legislature's purpose to limit the provisions of the workmen's compensation act to only such persons as approximate physical perfection."

That case was cited and the rule announced in it approved inMcArthur v. Department of Labor Industries, 168 Wn. 405,12 P.2d 418.

The evidence and all fair inferences from it show that the workman suffered from a very severe strain in docking the boat on October 21st, and that his suffering progressively continued thereafter until his death a few days later.

We have held that a case comes within the workmen's compensation act where it appears that the workman collapsed from severe or over-exercise, coupled with pre-existing disease, such as hardening of the arteries. Frandila v. Department of Labor Industries, 137 Wn. 530, 243 P. 5, and cases therein cited.

Two excellent cases that may be added to the great many already to be found in our reports are the recent cases ofFalmouth Docks Engineering Co., Ltd., v. Troloar, English Law Reports, Appeal Cases 1933, p. 481, and Jones Paton, Ltd., v.James, found in the same volume of English Law Reports, Appeal Cases, at page 501. The holding in the latter case is well expressed in the syllabus, as follows:

"An accident arises out of a workman's employment within the meaning of s. 1 of the Workmen's Compensation Act, 1925, when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of the workman's health. In each case the arbitrator adjudicating upon a claim for compensation must consider whether in substance, so far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it."

[3] Nor is there any merit in the suggestion of the appellant that Rem. Rev. Stat., § 7679 [P.C. § 3472], subd. (1), requiring a segregation to be made when there is a combination of pre-existing disease and an accident, is applicable. Clearly, that applies only to a claim by the injured workman himself, and not to a claim by the widow or other dependent of a deceased workman.

Judgment affirmed.

MILLARD, MAIN, HOLCOMB, BLAKE, and GERAGHTY, JJ., concur.