McCormick Lumber Co. v. Department of Labor & Industries

I am of the opinion that the majority has failed to properly interpret the provisions of our workmen's compensation act, in so far as the act deals with the purposes underlying it and the definition of that which is meant to be compensable thereunder. It is, of course, obvious that the definition of a compensable injury under the act requires an inquiry into both the wording of the section dealing therewith and the wording of the sections setting forth the basic, fundamental objectives sought by the framers of the act.

It must be remembered that the act was passed to replace the common law right of action, which the workman might have for injuries occasioned by the negligence of the employer or his fellow workmen, and to compensate the employee for industrial accidents, in which no negligence was present. The act was not passed to guarantee a life insurance or a pension to the employee. State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156,117 P. 1101, 37 L.R.A. (N.S.) 466. The intent of the legislature was simply to provide payment for accidental injuries occurring in extrahazardous employment.

In construing the act, it is the duty of the court to interpret it as a whole and adopt that construction which will harmonize the entire statute and make it sensible and effective. Klippertv. Industrial Ins. Department, 114 Wash. 525, 196 P. 17;Murray v. Department of Labor Industries, 151 Wash. 95,275 P. 66; Carsten v. Department of Labor Industries, 172 Wash. 51,19 P.2d 133; Hill v. Department of Labor Industries,173 Wash. 575, 24 P.2d 95; Long v. Thompson, 177 Wash. 296,31 P.2d 908; Lindquist v. Department of Labor Industries,184 Wash. 194, 50 P.2d 46.

In addition, when the statute is amended, we must consider the intent of the lawmaking body as evidenced by the statute as amended and the evident purpose of the amendment. Sandahl v.Department of Labor Industries, 170 Wash. 380, 16 P.2d 623.

Looking to Rem. Rev. Stat., § 7674 [P.C. § 3469], we find:

"There is a hazard in all employment, but certain employments have come to be, and to be recognized as being inherently constantly dangerous. This act is intended to apply to all such inherently hazardous works and occupations. . . ."

Clearly, it was against the hazards of the employment itself that protection was to be had. This is again emphasized by Rem. Rev. Stat., § 7676 [P.C. § 3471], which provides:

"Inasmuch as industry should bear the greater portion of the burden of the cost of its accidents, each employer shall . . . pay . . ."

It is apparent that the act as a whole was intended by the legislature to charge industry with the burden of compensating those of its workers to whom the hazards of industry had brought injuries, and that it was not intended as a blanket provision for compensation to employees for any and all disabilities sustained by workmen while in the course of their employment. It was the hazards, the accidents of industry, which the act was to cover, and not those disabilities whose origins lay elsewhere than in industry itself.

Keeping the foregoing principles in mind, let us look to the statutory definition of the word "injury," for it is the interpretation to be given to that word which is controlling in the disposition of the case at bar.

The original act, Laws of 1911, chapter 74, p. 346, § 3, defined "injury" as follows:

"The words injury or injured, as used in this act, refer only to an injury resulting from some fortuitous event as distinguished from the contraction of disease."

The identical definition was used in the Laws of 1917, chapter 120, p. 474, § 1; Laws of 1919, chapter 131, p. 342, § 2; and in the medical aid act, Laws of 1921, chapter 182, p. 720, § 2.

In 1926, this court decided the case of Frandila v. Departmentof Labor Industries, 137 Wash. 530, 243 P. 5, in which case a workman, afflicted with hardening of the arteries, collapsed and died while chopping a root at the bottom of a ditch, the work having been usual, calling for no overexertion. We held that his widow was entitled to compensation, and that an injury, within the definition of the act, existed whenever a man undertaking work was unable to withstand the exertion required to do it, whatever might be the degree of exertion used or the condition of the workman's health.

The legislature, at its next session, sought to avoid the effect of the holding in the Frandila case, supra, by amending the definition of "injury" to read as follows:

"The word `injury' as used in this act means 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." Laws of 1927, chapter 310, p. 815, § 2.

The same definition was carried into the Laws of 1929, chapter 132, p. 325, § 1, Rem. Rev. Stat., § 7675 [P.C. § 3470].

It is readily to be seen that the legislative intent, as expressed by the definition of "injury," in the 1927 and 1929 acts, as well as by the general statements as to the purpose of the law as a whole, was directed at a type of occurrence far different from that which we brought within the operation of the act by our holding in the Frandila case, supra, and which we would again have to bring within the operation of the act in the case at bar, if recovery were allowed.

In support of this contention, I cite Pellerin v. WashingtonVeneer Co., 163 Wash. 555, 2 P.2d 658 (1931), and Flynn v.Department of Labor Industries, 188 Wash. 346, 62 P.2d 728 (1936).

In the first case, we stated:

"`Traumatic' is defined by Webster as `a wound; of or pertaining to wounds; applied to wounds.' The words in the act of 1927, defining injury, referring to a sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without, therefore undoubtedlymean some blow or wound, suddenly and tangibly happening, producing an immediate or prompt result as opposed to something in the nature of occupational disease with which we dealt in theSeattle Can Co. decision, supra [147 Wash. 303,265 P. 739].

"The manifest intention of the legislature in the enactment of the new definition of injury was to make more certain the definition of injury and make it apply strictly to sudden andtangible happenings occurring from without of a traumatic nature producing an immediate or prompt result, as distinguished from anything like an occupational disease." (Italics mine.)

In the latter case, this court held:

"The statute is in no respects ambiguous or uncertain. It is plain, clear, concise, and is therefore not subject to construction, but the language used must be given its plain and ordinary meaning. Had it been the legislative intent to cover every kind of physical impairment occurring while a workman was in the course of his employment, it might very easily have employed language to express that intent, but it did not do so.

"The statute, segregated into its component parts, indicates very clearly that first, there must be a `happening;' second, the happening must be of a `traumatic nature;' and third, the happening must occur `from without.'

"It seems apparent that the two phrases, `of a traumatic nature' and `occurring from without,' both modifying as they do, the word `happening,' can only mean that there must be an external act or occurrence which caused the injury and that such act or occurrence must be `of a traumatic nature.' The source as well as the nature or character of the `happening' are both determinative factors under the statutory definition.

"In this case, the source or cause of the physical impairment of the deceased workman did not occur outside his body or `from without.' According to the admitted facts, he called, swallowed some tobacco, coughed, strangled, and from the coughing a fatal strain was placed upon his heart. The cause therefore originated within and not without the body. But, even if there was anything without the body in the origin of the cause, then that which was without was not `of a traumatic nature.'

"If there was a quick intake of breath following the calling, then air only entered, and air entering through natural passages and in a natural way cannot be a `happening of a traumatic nature.'

"There was then no `happening of a traumatic nature . . . occurring from without.' Therefore, there was no `injury' within the contemplation of the statute."

The two cases, from which I have just quoted, have never been changed, modified, or overruled by this court. They stand as the expressed interpretation by this court of the meaning of the amendments of 1927 and 1929. The legislature has evidently been satisfied with our interpretation of those acts because the law has not been changed since 1929.

The legislature must be held to have knowledge of court decisions, and, where legislatures fail to amend statutes construed by the court, they are doubtless satisfied with the construction placed upon it by the court. Barlow Sons v. H. B. Lumber Co., 153 Wash. 565, 280 P. 88.

It is established by the evidence in the instant case that the work being done by the decedent at the time he suffered his heart attack was not in any way extraordinary, and called for no overexertion. It was simply the usual effort expended in wielding a saw, and was not complicated in any way by any unusual circumstances. In order for us to award compensation, therefore, we must again adhere to the principle set forth in the Frandila case, supra, to the effect that disability following anyexertion which is too much for the individual in question constitutes an injury within the meaning of the act. In addition, we must disregard the amendments of 1927 and 1929 and our holdings in the Pellerin and Flynn cases, supra.

It is true that statements have appeared in several more recent holdings of this court which seem to indicate that we still adhere to the position taken in the Frandila case, supra. However, as is pointed out in the majority opinion, not one of those cases presented a situation calling for such statements, and not one of them is applicable to the factual situation presented by the case at bar, namely, a situation in which nothing unusual occurred, in which no overexertion or overstrain took place.

We are, then, faced with the problem of again having to interpret the legislative intention in a case where there was a preexisting bodily weakness of a progressive nature, the climax thereof being hastened by ordinary exertion, which happened to be used while the workman was on the job, performing his usual functions, and without mishap. Since the legislature changed the definition of the word, "injury," at a date subsequent to theFrandila case, supra, that case is not binding upon us. I therefore feel free to consider the question anew.

My study of cases decided in other jurisdictions has brought to light a number of instances in which appellate courts, dealing with statutes similar to ours, have expressed themselves as not regarding injuries of the nature of that now before us as coming within the wording of their acts. Although the acts in some of the other jurisdictions refer to "injuries by accident," or to "accidental injuries," whereas our act refers to injuries which are "traumatic," I believe the principles which govern the cases are applicable to either type of act. As a matter of fact, the word "traumatic," when used in workmen's compensation acts, has been construed to refer to the emanation of an accident, as contradistinguished from disease. Prino v. Austin Co.,120 N.J.L. 19, 197 A. 731.

In Lesko v. Lehigh Valley Coal Co., 270 Pa. 15, 112 A. 768, the dismissal of the claimant's petition for compensation was sustained, the claim having been based on the suffering of a cerebral apoplexy while engaged in ordinary work. The evidence was to the effect that the claimant was afflicted with arteriosclerosis and an enlarged heart. The findings of the board, approved by the appellate court, were as follows:

"`That at the time of the cerebral hemorrhage and the consequent apoplexy the claimant was performing the kind of work he had been engaged in off and on during the entire day; that there was no unusual happening in the course of his work, nor marks nor evidence of external violence to his person, nor was there shown any sudden unlooked for occurrence in the course of his work calling for any extra exertion or strain other than that required by his usual and ordinary labor for the day and that what happened to him was not an accident within the meaning of the Compensation Act of 1915.'"

Gausman v. R.T. Pearson Co., 284 Pa. 348, 131 A. 247, presented a factual situation in which compensation was denied to the claimant, there having been no evidence of any unusual strain, exertion, or mishap. I deem the language of the court worthy of quotation at this point:

"Disability, overtaking an employee at his work, is not compensable unless the result of accident. And the burden is on claimant to prove it was such and not from natural causes: Skinner's Pennsylvania Workmen's Compensation Law 54, and cases there cited. True, Dr. Frederick attributed the exhaustion, or stroke, to claimant's exertion in the performance of his work and expressed the opinion that but for the work it would not have happened at that time; in other words that the disability was hastened by the work; even so, that alone would not constitute an accident; otherwise it would be unsafe to give employment to anyone advanced in years. Disability, hastened by such exercise, cannot be treated as accidental; neither can death or disability, overtaking an employee in the course of his employment and resulting from a natural cause; if it could, it would render the employer an insurer of the life and health of the employee."

In Mooney v. Yeagle, 107 Pa. Super. 409, 164 A. 82, a plumber had been suffering from a progressive heart disease, and finally succumbed while at his regular work. No unusual circumstances were found to have existed at the time he suffered the collapse, and his widow's claim was denied. The court, after citing the Lesko and Gausman cases, supra, with approval, went on to say:

"A careful review of the record in this case has failed to disclose any sufficient competent evidence on which to base the finding that Mooney's death was due to an accident — using that term as construed by the decisions of the Supreme Court — in the course of his employment, rather than from the natural development of the disease of the heart from which he was suffering, which may have been hastened by his usual and ordinary work as a plumber, but for which, since it caused no great or unusual physical strain, the law does not make his employer liable by way of compensation."

The same rule as was set forth in the foregoing cases was applied by the Pennsylvania court to situations similar to the case at bar in O'Neill v. Lehigh Coal Nav. Co., 108 Pa. Super. 425,165 A. 60; Pelusi v. Mandes, 109 Pa. Super. 439,167 A. 456; and Foster v. Borough of State College,110 Pa. Super. 452, 168 A. 693.

The case of Madden's Case, 222 Mass. 487, 111 N.E. 379, was cited by this court to sustain the position taken in theFrandila case, supra, but an examination of it will show that in reality it is a better authority for the position I am taking in this case. The facts of the case show that the claimant suffered a heart strain while engaged in the performance of her ordinary work. The claim was allowed, even though there was a showing that the claimant's heart was weakened by a progressive disease, and that nothing out of the ordinary was done to induce the attack. The court, however, took pains to point out that the Massachusetts act provided for compensation for "personal injuries," and distinguished the act from those of other jurisdictions which apply to "accidental injuries," "injuries by accident," etc. Since our act, in effect, does apply only to accidental injuries, it would seem that there is clearly a distinction between the two acts which makes the holding in that case of no particular value to us. However, the Massachusetts court set forth a paragraph which I desire to quote at this time, for, although the court arrived at an opposite conclusion, it would seem to lend weight to the position which I am taking:

"The act is not a substitute for disability or old age pensions. It cannot be strained to include that kind of relief. Its ultimate purpose simply is to treat the cost of personal injuries incidental to the employment as a part of the cost of the business. It does not afford compensation for injuries or misfortunes, which merely are contemporaneous or coincident with the employment, or collateral to it. Not every diseased person suffering a misfortune while at work for a subscriber is entitled to compensation. The relief is so new that the tendency may be to inquire only as to the employment and the injury and to assume that these two factors constitute ground for compensation. But the essential connecting link of direct causal connection between the personal injury and the employment must be established before the act becomes operative. The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery. In passing upon this question, an humanitarian emotion ought not to take the place of sound judgment in the weighing of evidence. The direct connection between the personal injury as a result and the employment as its proximate cause must be proved by facts before the right to compensation springs into being. Ahigh degree of discrimination must be exercised to determinewhether the real cause of an injury is disease or the hazard ofthe employment. A disease, which under any rational work is likely to progress so as finally to disable theemployee, does not become a `personal injury' under the actmerely because it reaches the point of disablement while work fora subscriber is being pursued. It is only when there is a direct causal connection between the exertion of the employment and the injury that an award of compensation can be made. The substantial question is whether the diseased condition was the cause, or whether the employment was a proximate contributing cause. In the former case, no award can be made; in the latter, it ought to be made." (Italics mine.)

I am of the opinion that the quoted portion of the case just cited very aptly expresses the point which I am making in this dissenting opinion, even though the court there did not see fit to apply the principles enunciated to the factual situation before it. To me, the very crux of the entire problem is to be found in the question: What was the real cause of the injury, industry or the man's physical condition? To my mind, the use of the approach and guiding concepts set forth in the Madden case,supra, should lead one to the conclusion that, in the case at bar, wherein the climax of the progressive disease was reached while the victim was engaged in "rational" work, unaccompanied by any excessive strain or exertion, the answer should be that it was the man's physical condition, and not the hazard created by industry, which was the real, the material, cause of the injury.

I quote from a later Massachusetts case in order to point out the fact that the Madden case, supra, reached a result which is not in accord with the majority of cases dealing with this subject.

"As was said in Maggelet's Case, 228 Mass. 57, 62, this court has gone further than most courts in allowing recovery in cases of heart lesions, where there has been a weak heart before the injury was received. Brightman's Case, 220 Mass. 17. Fisher'sCase, 220 Mass. 581. Madden's Case, 222 Mass. 487. Mooradjian's Case,229 Mass. 521." Burn's Case, 266 Mass. 516, 165 N.E. 670.

In Jakub v. Industrial Commission, 288 Ill. 87, 123 N.E. 263, the decedent suffered from a progressive heart ailment, and died from a heart attack sustained while he was engaged in his regular employment, which was the operation of an electric baling press. There was testimony to the effect that the work he was doing would hasten his death. In denying compensation, the court stated:

"In this case there was no evidence tending to prove any accident or accidental injury to the deceased. There was no mark upon his person and nothing from which it could be inferred that an accident had occurred, and it is not claimed that there was any accident but only that the heavy work which he was doing in the ordinary course of his employment caused or hastened his death."

The Michigan act has been construed by the supreme court of that state to be inapplicable to cases in which there was a physical weakness whose climax was simply hastened by the ordinary exertion involved in the work done by the victim.Kutschmar v. Briggs Mfg. Co., 197 Mich. 146, 163 N.W. 933;Stombaugh v. Peerless Wire Fence Co., 198 Mich. 445,164 N.W. 537; Tackles v. Bryant Detwiler Co., 200 Mich. 350,167 N.W. 36. The basis for these holdings was the failure of such injuries to come within the meaning of the term, "accidental injuries," used in the act.

In McNamara v. Industrial Accident Commission, 130 Cal. App. 284, 20 P.2d 53, the court, in denying compensation, made the following statement:

"Considerable is said in the briefs regarding the liability of the employer for aggravation of a preexisting disease. Speaking generally, there is no question about such a liability. It is statutory. . . . However, that claim when asserted must be supported by proof. In a certain sense every day's work consumes so much reserve force of the heart of every laborer. But such fact standing alone will not support an award of compensation chargeable against industry. In the case under consideration both experts testified that every exertion during the entire day of twenty-four hours tends to consume the reserve force of a damaged heart, and in that sense, is an injury to it — is an aggravation to it. But not every such exertion in the line of the employee's duties will constitute a legal claim under the statutes providing for workmen's compensation."

In Pierce v. Phelps Dodge Corp., 42 Ariz. 436,26 P.2d 1017, compensation was denied in a case in which the victim suffered from advanced myocarditis, and in which the court agreed that the death was accelerated to some degree by the ordinary and usual conditions of the work which he did, but not by any sudden or extraordinary strain or fortuitous happening.

The claimant's petition was denied by the court in Martin v.State Compensation Commission, 107 W. Va. 583, 149 S.E. 824, the facts of that case being that the decedent had been suffering from a progressive heart disease, and had sustained an attack immediately after helping to push a heavy mine car, such work being part of his ordinary employment. The court recognized the rule which I am supporting in the following language:

"There is a great mass of decisions involving claims where the applicant was afflicted with heart disease at the time of the alleged injury. . . . Without analyzing and discussing those decisions . . ., it may be deduced therefrom that compensation will not be awarded where the employee has chronic heart trouble which has reached such a stage that death is liable to ensue at any time, from any exertion, and death came while he was doing the ordinary work of his employment."

In DeLille v. Holton-Seelye Co., 334 Mo. 464,66 S.W.2d 834, there was a factual situation very similar to that involved in the case under consideration. The victim was suffering from a progressive heart ailment, and sustained an attack immediately following the sawing of a piece of lumber with a ripsaw. Nothing of an unusual nature had characterized his activities. Compensation was denied, the court citing the Lesko andGausman cases, supra, as authority for the view that disability which is merely hastened by ordinary exertion involved in performing one's usual tasks is not a result of accidental injury, within the meaning of the workmen's compensation act.

The case of Meldrum v. Southard Feed Mill Co.,229 Mo. App. 158, 74 S.W.2d 75, was one in which a workman who had a weak, diseased heart suffered an attack while performing his regular work of loading sacks of meal. In that case, as in the others cited, it was held that the mere fact that the ordinary exertion involved in the performance of the usual duties may have hastened the arrival of the climax of the progressive disease was not enough to constitute an accidental injury within the meaning of the act.

There are a number of cases from the British courts which sustain the view that disability following ordinary exertion isnot compensable under workmen's compensation acts: Coe v. FifeCoal Co., 46 Sc. L.R. 328, 2 B.W.C.C. 8; O'Hara v. Hayes, 44 Ir. L.T.R. 71, 3 B.W.C.C. 586; Spence v. W. Baird Co., S.C. 343, 49 Sc. L.R. 278, 5 B.W.C.C. 542; Kerr v. Ritchies, 50 Sc. L.R. 434, 6 B.W.C.C. 419; and Black v. New Zealand ShippingCo., 6 B.W.C.C. 720.

By way of summation, I wish to reemphasize the following propositions. In the first place, the position which I am taking in no way conflicts with the earlier holdings of this court enumerated in the majority opinion, since the only case in which there actually was a situation in which the effort expended by the diseased workman was usual and ordinary was the Frandilla case, supra, and the effect of that case was nullified by the modification of the act in 1927. As for the statements in subsequent cases which are of a similar tone to those appearing in the Frandila case, they may be regarded as of no effect, since in none of those cases did the occasion for such statements present itself. In short, they were gratuitous. In each and every one of such cases there was something unusual, something extraordinary, as the majority opinion admits.

In the second place, I wish to reiterate the fact that the policy behind the passage of the workmen's compensation act was the desire to place upon the shoulders of industry the burden of paying for injuries and deaths which it caused, of compensating its workmen for disabilities which resulted from the hazards which industry created. Keeping that fact in mind, the interpretation of the definition of "injury" in the act should attach great weight to the element of causation. In other words, as was said in the Madden case, supra, one of the basic propositions which presents itself in such an interpretation is whether the disability or death is, as a matter of fact, the result of the man's disease, or whether industry was a material, real, contributing factor. The mere fact that the man happened to be engaged in performing the functions of his employment at the moment his progressive disease reached its climax, at which point any exertion, any movement, any effort would cause the diseased heart to cease its function, should not be considered as creating a situation in which compensation becomes proper. In such a case, industry is not the cause of the injury, but simply provides the setting for it. To impose upon industry the risk created by progressive diseases, such as heart trouble, apoplexy, embolism, and the like, reaching their climaxes at a time while the workmen are engaged in performing their everyday functions, is to greatly out-distance the legislature's intention, and throws a far greater burden on industry than the act itself was intended to impose, if its language is to be regarded as expressive of its intent. In effect, as was stated in some of the cases quoted earlier in this dissent, the interpretation of the majority serves to make of our act an insurance system, rather than a compensation system, and to do so certainly violates the purpose of those who passed the act.

It may be that every workman injured or suffering in any manner while he is working should receive compensation or insurance therefor. However, such matters are within the province of the legislative body. In my opinion, the majority, by assuming its position, does invade that province, and goes much farther than the workmen's compensation act itself.

The judgment should be reversed.

ROBINSON, J., concurs with SIMPSON, J.