Hunter v. Department of Labor & Industries

MILLARD, MAIN, and HOLCOMB, JJ., dissent. In a proceeding arising under the workmen's compensation act, and after the original claim therein had been closed, the injured workman made application to the department of labor and industries to have his claim reopened and compensation allowed on the ground of aggravation of injuries. The application was denied, and the claimant thereupon appealed to the joint board, which, in turn, affirmed the order of the department. The claimant thereupon appealed to the superior court. After a hearing, the court made findings of fact and conclusions of law, and thereupon entered judgment reversing the order of the department and remanding the cause for further action on the claim for additional compensation. The department has appealed.

The respondent has moved in this court for an order striking the statement of facts because it was not timely served and filed, and also for an order striking the departmental record on the ground that it was erroneously made a part of the transcript on appeal, instead of being incorporated as a part of the statement of facts.

[1] We will first consider the motion to strike the statement of facts.

The judgment was rendered April 20, 1936. The statement of facts was served and filed July 29, 1936, which was ten days after the expiration of the time allowed for that purpose by rule of practice VII, Rem. Rev. Stat., § 308-7 [P.C. § 8676-10]. We have repeatedly held that a statement of facts filed after the time prescribed by the statute will, upon motion, be stricken.McCrabbe v. Jones, 171 Wash. 326, 17 P.2d 860; Kaplow v.McCrory, 175 Wash. 578, 27 P.2d 1107; State v. Parkinson,181 Wash. 69, 41 P.2d 1095; Tremblay v. Nichols, 187 Wash. 109,59 P.2d 1123.

This rule applies with equal force to cases arising under the workmen's compensation act. Simmons v. Department of Labor Industries, 175 Wash. 290, 27 P.2d 567. The motion to strike the statement of facts is, therefore, granted.

[2] We will next consider the motion to strike the departmental record.

Respondent contends that, inasmuch as, by Rem. Rev. Stat., § 7697 [P.C. § 3488], the applicant for workmen's compensation may not, upon appeal to the superior court, offer any evidence or testimony other than, or in addition to, that offered before the joint board, or included in the record filed by the department, therefore such evidence is properly a part of the statement of facts and can not be brought to this court as part of the transcript on appeal. Respondent's conclusion is that, since the statement of facts must be stricken, the departmental record, considered as a component part of the statement of facts, must likewise be stricken. We do not agree with this contention.

Rem. Rev. Stat., § 7697, provides, among other things, that a certified copy of the departmental record shall be filed with the clerk of the court before trial and, when so filed, shall become a part of the record in such case. See Vol. 8, Rem. Rev. Stat., p. 742.

Rem. Rev. Stat., § 395 [P.C. § 7823], specifies in detail what shall be a part of the record in a given cause, and includes therein all papers and matters hitherto deemed a part of the record. It then provides that it shall not be necessary or proper, for any purpose, to embody such parts of the record in any bill of exceptions or statement of facts.

Rem. Rev. Stat., § 391 [P.C. § 7819], provides that the statement of facts shall be certified to contain all material facts, matters and proceedings not already a part of the record.

Rule of practice X, Rem. Rev. Stat., § 308-10 [P.C. § 8676-13], governing appellate procedure, provides that, within thirty days after an appeal shall be taken, the clerk of the superior court shall prepare, certify and file in his office a transcript containing so much of the record and files as the appellant shall deem material to the review of the matters embraced within the appeal and thereafter, within a prescribed time, send such transcript and the briefs then on file to the supreme court. The rule then provides that the papers and copies so sent up, together with any thereafter sent up, as provided therein, shall constitute the record on appeal. The rule further provides that any bill of exceptions or statement of facts on file when the record is forwarded shall be sent up as a part thereof. See, also, Rem. Rev. Stat., § 1729 [P.C. § 7305], wherein a similar procedure is prescribed.

It is thus apparent that a bill of exceptions or statement of facts is but a part of the record, and that it is unnecessary to incorporate therein that which is itself already a part of the record. The departmental record herein being, by statute, a part of the record in the case, it was unnecessary to include it in the statement of facts, which likewise is only a part of the record. The motion to strike the departmental record from the record on appeal is, therefore, denied.

[3] This leaves the record in this situation: We have before us the departmental record, but no statement of facts. To put the matter in another way, we have before us a part of the record, but in the absence of a statement of facts we can not know or say whether we have the entire record bearing upon the facts involved.

We have definitely laid down the rule that we will not in any case say that the judgment of the trial court is wrong upon questions of fact, unless we have before us all the evidence upon which the court passed judgment, and that this fact must affirmatively appear from the record. The presumption is that the court acted upon sufficient evidence. Authorities upon this point are assembled in Simmons v. Department of Labor Industries,175 Wash. 290, 27 P.2d 567. See, also, Strmich v. Departmentof Labor Industries, 186 Wash. 649, 59 P.2d 372.

In the absence of a statement of facts in this case, we are unable to say upon what evidence the court based its findings, or that its findings were based solely upon the departmental record. The only question then left is whether the findings and conclusions support the judgment. Simmons v. Department of Labor Industries, 175 Wash. 290, 27 P.2d 567; Strmich v.Department of Labor Industries, 186 Wash. 649, 59 P.2d 372.

[4] On the merits of the case, two questions are presented. The first arises upon appellant's assignments of error based upon a finding of fact made by the court.

This assignment will not be considered because, the statement of facts having been stricken, leaving the record incomplete on the question of fact, it must be assumed that the court acted upon sufficient evidence.

[5] The second, and principal, question in the case is based upon a group of assignments challenging the sufficiency of the findings to support the court's conclusions and judgment. This is a question of law arising out of the findings themselves and is independent of any reference to the statement of facts or departmental record.

The necessary facts to be considered in this connection, and as found by the court, are these: Respondent, while engaged in extrahazardous employment covered by the workmen's compensation act, was injured on March 25, 1931, and was thereafter allowed compensation by the supervisor of the department. The claim was closed January 12, 1932, by the payment to respondent of time loss and eight degrees permanent partial disability. The respondent's appeal from the order closing the claim was affirmed by the joint board. The respondent then timely appealed to the superior court, and, upon a hearing, judgment of dismissal of respondent's case was entered November 12, 1932.

On June 6, 1935, respondent filed a petition before the department for the reopening of his claim on the ground of aggravation of injuries. The petition was denied by the department, and subsequently by the joint board, on the ground that the statute of limitations had operated against the claim. From the order denying the petition to reopen, respondent in due time appealed to the superior court.

From these findings touching the matters above referred to, the court concluded that respondent's rate of compensation had not been established, nor his compensation terminated, until the entry of the judgment of the superior court on November 12, 1932; that the petition to reopen the claim for aggravation of injuries, filed June 6, 1935, was within three years after the establishment or termination of compensation; and that, therefore, respondent was entitled to have his claim for aggravation heard upon its merits by the department. The judgment of the court followed the theory of its conclusions.

The applicable statute is Rem. Rev. Stat., § 7679 [P.C. § 3472] (h), the pertinent part of which reads as follows:

"If aggravation, diminution, or termination of disability takes place or be discovered after the rate of compensation shall have been established or compensation terminated, in any case the director of labor and industries . . . may, upon the application of the beneficiary, made within three years after theestablishment or termination of such compensation, or upon his own motion, readjust for further application the rate of compensation in accordance with the rules in this section provided for the same, or in a proper case terminate the payment:. . ." (Italics ours.)

The question raised by the challenging assignments is whether the three-year period for filing an application to readjust compensation on account of aggravation of disability began, in this instance, to run from the date on which respondent's original claim was closed by the supervisor, namely, January 12, 1932, or from the date on which the superior court entered its judgment dismissing respondent's first appeal, namely, November 12, 1932. If the period of limitation began to run from the time that the claim was originally closed by the department, then the claim for readjustment, filed June 6, 1935, was barred; if, on the other hand, the period began with the entry of the court's judgment, then the claim for readjustment was not barred.

It may appear from a casual or first reading of Rem. Rev. Stat., § 7679 (h), considered by itself, that it has reference solely to the decision of the director or supervisor of the department in establishing or terminating compensation, and that the statutory period begins to run from the date of such decision of that officer. Appellant contends that the statute should be so construed. It is to be noted, however, that Rem. Rev. Stat., § 7679 (h), does not say, nor indicate, that the application for readjustment must be made within three years after establishment or termination of compensation by order of the supervisor or ofthe joint board. The legislature might have specified some particular date from which the three-year period should run, as, for instance, the date of the supervisor's order, the date of the injury, or the date of the last payment to the workman.

Some states, in the provisions of their workmen's compensation acts, have specified one, or another, of such dates. But our legislature has not as yet seen fit to do so. It has employed only general language with reference to the establishment or termination of compensation, and has made no specific declaration as to the point of time or the character of the adjudication at or by which the compensation shall be established or terminated. Undoubtedly, the supervisor would be expected, and is authorized, in the first instance, to establish or terminate the compensation, but his act is not final in the sense of being conclusive in all events.

Section 7679 (h) must be read and considered in connection with the remainder of the workmen's compensation act, and particularly with Rem. Rev. Stat., § 7697. The act as a whole outlines a complete scheme of procedure for the relief of workmen injured in extrahazardous employment. Gross v. Department ofLabor Industries, 177 Wash. 675, 33 P.2d 376; Dry v.Department of Labor Industries, 180 Wash. 92, 39 P.2d 609. Section 7697, as it now stands, affords a complete review by the court having jurisdiction of the parties. Johnston v. Departmentof Labor Industries, 163 Wash. 549, 2 P.2d 67. By § 7697, every order, decision, or award of the department, by which any claimant, employer, or other person may be aggrieved, is subject to review by the court on appeal. The hearing upon such appeal isde novo and summary, and, with certain exceptions, the court may, in its discretion, call a jury. Upon its determination of the appeal, the court is required to confirm, or else to reverse or modify, the decision of the department. The statute further provides that, except as prescribed therein, the practice in civil cases shall apply; and that, from the judgment of the superior court, an appeal shall lie as in other civil cases. The court, therefore, has full authority to review an order of the supervisor, when affirmed by the joint board, touching the matter of establishment or termination of compensation.

The order or decision of the department, resting upon findings made by that board, amounts to a judgment which becomes final and binding upon the department and the claimant, unless reversed or modified upon appeal to the court. Abraham v. Department of Labor Industries, 178 Wash. 160, 34 P.2d 457; Luton v.Department of Labor Industries, 183 Wash. 105, 48 P.2d 199. Stated somewhat more specifically, and as we now hold, such judgment of the department is final in the sense that an appeal may be taken therefrom, but its conclusive effect is suspended until affirmed by the superior court, if an appeal from the judgment be timely taken.

In support of its contention, appellant cites and relies upon the following compensation cases decided by this court: Ek v.Department of Labor Industries, 181 Wash. 91, 41 P.2d 1097;Stevich v. Department of Labor Industries, 182 Wash. 401,47 P.2d 32; Botica v. Department of Labor Industries,184 Wash. 573, 52 P.2d 332; to which may be added Cloquet v.Department of Labor Industries, 154 Wash. 363, 282 P. 201, and Cox v. Department of Labor Industries, 177 Wash. 529,32 P.2d 570. In none of those cases, however, did the injured workman appeal from the original order establishing or terminating his compensation. Because of that very fact, the decision of the department became final and binding. In the Ek case, supra, it was said:

"The rejection of the claim by the department was a final judgment; and when the time for appeal expired, that judgment became a complete and final adjudication, . . ."

In the case at bar, however, an appeal was taken from the department's order, and therefore the decision as to the claimant's compensation and its termination did not become final and conclusive until the decision was affirmed by the superior court on November 12, 1932. If, in the Ek case, the expiration of the time for appeal was necessary to establish the finality and completeness of the adjudication, it must follow that, had an appeal been taken therein, the finality and completeness of the adjudication would have been postponed until the appeal was determined. That is the exact situation presented by the facts in this case. The decision of the department became final and conclusive only when it was affirmed by the superior court. The petition for reopening the claim for readjustment was filed within three years after the entry of the judgment of affirmance.

The judgment of the superior court involved in the present appeal is affirmed.

BEALS, BLAKE, GERAGHTY, TOLMAN, and ROBINSON, JJ., concur.