67 Wn.2d 71, CHRIST VENEZELOS, Appellant, v. THE DEPARTMENT OF LABOR AND INDUSTRIES, Respondent

[No. 37649. Department Two.      Supreme Court      October 7, 1965.]

CHRIST VENEZELOS, Appellant, v. THE DEPARTMENT OF LABOR
                     AND INDUSTRIES, Respondent.*

[1] TRIAL - TAKING CASE FROM JURY - SUFFICIENCY OF EVIDENCE. A challenge to the sufficiency of the evidence or a motion for nonsuit admits the truth of the nonmovant's evidence and all inferences which reasonably can be drawn therefrom, interpreted most favorably to the nonmovant and most strongly against the movant in an attempt to determine whether the evidence introduced by the nonmovant would support a difference of opinion in the minds of reasonable men;and, even though the nonmovant's evidence is in some respects unfavorable to him, he is not bound by the unfavorable portion. but is entitled to have his case submitted to the jury on the basis of the evidence which is most favorable to his contention.

[2] WORKMEN'S COMPENSATION - TRIAL - TAKING CASE FROM JURY - MEDICAL EVIDENCE. A complete retraction or negation of key medical testimony in an action seeking industrial insurance benefits which leaves nothing of an objective nature in the record on which the jury could find for the workman, will sustain a challenge to the sufficiency of the claimant's evidence, but inconsistencies not amounting to a complete retraction or negation will not vitiate the medical testimony as a matter of law.

[3] SAME - CAUSATION - REOPENING FOR AGGRAVATION. A claimant seeking industrial insurance benefits for aggravation of injuries suffered, need only establish by the testimony of medical experts the probability of a causal connection between the industrial injury and the subsequent aggravation.

[4] EVIDENCE - ADMISSIBILITY - HEARSAY - MEDICAL TESTIMONY. A doctor treating a patient for injuries may testify as to his medical conclusion even though based substantially on subjective symptoms which are in the realm of hearsay, but a doctor who examines a patient only for the purpose of qualifying as an expert witness may not rely on a claimant's relation of subjective symptoms in testifying as to his medical conclusions.

Appeal from a judgment of the Superior Court for King County, No. 601898, James W. Hodson, J., entered March 4, 1964. Reversed and remanded.

Action to review an administrative order. Plaintiff appeals from a judgment of dismissal.


* Reported in 406 P.2d 603.

[4] See Ann. 65 A.L.R. 1217; Am. Jur., Evidence (1st ed. 866).

 72    VENEZELOS v. DEP'T OF L. & INDUS. [67 Wn.2d

Roy E. Jackson and Daniel G. Goodwin, for appellant.

The Attorney General and H. Collyer Church, Assistant, for respondent.

FINLEY, J. -

[1] The plaintiff-appellant applied to the Department of Labor and Industries to reopen his industrial insurance case. He is seeking an increase in compensation on the ground of aggravation of an industrial injury. The Supervisor of Industrial Insurance, and, subsequently, the Board of Industrial Insurance Appeals, denied any additional benefits. Before commencement of trial in the superior court, counsel for the Department of Labor and Industries moved to dismiss the appellant's case on the ground that the certified appeal board record contained insufficient evidence to establish a prima facie case of aggravation. The trial judge granted the motion. The plaintiff-claimant has appealed. See e.g., Dayton v. Department of Labor & Indus., 45 Wn.2d 797, 278 P.2d 319 (1954), where we quoted from Mutti v. Boeing Aircraft Co., 25 Wn.2d 871, 877, 172 P.2d 249, 253 (1946):
"A challenge to the sufficiency of the evidence, or a motion for nonsuit, admits the truth of the plaintiff's evidence and all inferences which reasonably can be drawn therefrom, and requires that the evidence be interpreted most strongly against the defendant, and in the light most favorable to plaintiff. In the determination of such challenge or motion, even though the plaintiff's evidence is in some respects unfavorable to him, he is not bound by the unfavorable portion of such evidence, but is entitled to have his case submitted to the jury on the basis of the evidence which is most favorable to his contention."

In ruling that the plaintiff's evidence contained in the appeal board record was insufficient as a matter of law to establish a prima facie case to submit to a jury, the trial court characterized the testimony of the plaintiff's medical witness as "verbal gymnastics." Regardless of the accuracy of that characterization, the applicable principle, as stated in Mutti, supra, required the trial court to examine the record to determine whether the evidence introduced by the plaintiff would support a difference of opinion in the minds

 Oct. 1965]     VENEZELOS v. DEP'T OF L. & INDUS. 73

of reasonable men. Abbott v. Department of Labor & Indus., 49 Wn.2d 774, 307 P.2d 254 (1957); Ehman v. Department of Labor & Indus., 33 Wn.2d 584, 206 P.2d 787 (1949), and cases cited therein. Viewing the pertinent evidence in the light most favorable to the plaintiff, we think a question was presented for the jury, and the trial court was in error in granting the defendant's motion to dismiss.

[2] A distinction should be made between complete retraction or negation of key medical testimony and lesser inconsistencies and seeming contradictions therein. When the "verbal gymnastics" of a claimant's medical witness leave nothing of an objective nature in the record on which the jury could reasonably rely in affirmation of the claim of an injured workman, we have sustained trial court rulings granting challenges to the sufficiency of the claimant's evidence. Hyde v. Department of Labor & Indus., 46 Wn.2d 31, 278 P.2d 390 (1955). To the same effect, see Lyle v. Department of Labor & Indus., 49 Wn.2d 540, 304 P.2d 668 (1956); and Olson v. Department of Labor & Indus., 43 Wn.2d 85, 260 P.2d 313 (1953). But inconsistencies not amounting to a complete retraction should not vitiate the doctor's testimony as a matter of law. Such statements may be somewhat impeaching, but their weight is for the jury, not the court. Woods v. Department of Labor & Indus., 62 Wn.2d 389, 382 P.2d 1014 (1963); Halder v. Department of Labor & Indus., 44 Wn.2d 537, 268 P.2d 1020 (1954).

[3] Turning to the medical testimony given before the Board of Industrial Insurance Appeals in the instant case, the following excerpts from the record are exemplary of the degree of vacillation shown by the claimant's witnesswhich the defendant-respondent argues is fatal to the plaintiff's case.

Q. Do you feel this disability, as it existed from the date
     of your examination in 1960, was causally related to
     the accident of 1941?

A. Yes. My opinion is that the accident of 1941 is a factor
     in the production of this disability. This, again, based
     upon his history as I previously explained. (Italics
     ours.)

 74    VENEZELOS v. DEP'T OF L. & INDUS. [67 Wn.2d

Respondent argues that the witness, by avoiding the direct thrust of the question, evidences a reluctance to state that the 1941 injury to the plaintiff bears a causal relationship to the plaintiff's allegedly "worsened" condition. Respondent misconstrues the appellant's burden: we do not require the vocalization of thaumaturgical words in order to establish the necessary causal relation between the original injury and the aggravation. Plaintiff need only establish the probability of a causal connection between the industrial injury and the subsequent physical condition by the testimony of medical experts. Dayton v. Department of Labor & Indus., supra; Stampas v. Department of Labor & Indus., 38 Wn.2d 48, 227 P.2d 739 (1951). The testimony of the plaintiff's medical witness which respondent asserts is crucially fatal is:

Q. Do you think the worsening was precipitated - do you
     think - do you have an opinion as to whether this
     worsening was precipitated by the accident of 1941?

A. No, I don't have any opinion regarding that. However, shortly thereafter, the record reads:

Q. Doctor, do you have an opinion as to whether the
     conditions which worsened between about October of
     1956 and July of '60 were originally precipitated by,
     or causally related to the accident of 1941?

A. Yes.

Q. What is your opinion, sir?

A. That the conditions, namely, degenerative
     osteoarthritis, which worsened during the time interval you
     mentioned, is related in its symptomatology, to the
     injuries he sustained in 1941. We fail to see how the doctor's negative answer to the first question retracts, or completely negates, the latter answer.

The respondent also emphasizes the following testimony given by plaintiff's medical witness on cross-examination by way of support for the trial court's dismissal for failure to establish a prima facie case in the certified appeal board record:

Q. Doctor, do you have an opinion as to whether or not
     the worsening of conditions which you have described

 Oct. 1965]     VENEZELOS v. DEP'T OF L. & INDUS. 75

as occurring between 1956 and 1960 was actually due to an injury occurring back in 1941?

A. I feel that the arthritic process, which has been cre-ating his disability since 1941, worsened, both limitation of motion and symptomatology, between 1956
     and 1960. The arthritic process was not caused by the
     accident of 1941, but on the basis of history, particu-larly the hypothetical question which was provided
     me by plaintiff's counsel, the injury of 1941 was
     a precipitating or aggravating factor in the symptom-atological disability which thereafter presented. I
     trust that answers your question. I cannot state that
     the accident which occurred in 1941 was the thing
     that created the aggravation of symptoms between
     1956 and '60 because it would be impossible for an
     accident which occurred some fifteen years before to
     create this advancement of symptoms, but according
     to the history there were no symptoms prior to the
     accident of 1941, and immediately following the acci-dent and thereafter continuously for a nineteen-year
     period, these symptoms were present; therefore there
     must be a relationship between the symptoms and
     the disability which he presented at the time of my
     examinations and the accident which occurred in 1941. Undue emphasis on those portions of the above statement which are damaging to the plaintiff could well lead one to the conclusion that the plaintiff's medical expert was uncertain about the causal relation between the traumatic event and the present aggravation; but again, viewing the evidence in the light most favorable to the plaintiff, we think there is room for a difference of opinion in the minds of reasonable men as to the causal relation. Hence, there was a case for the jury.

Citing Kirkpatrick v. Department of Labor & Indus., 48 Wn.2d 51, 290 P.2d 979 (1955), as authority for flee proposition that this court will consider any argument supporting a judgment or order, whether such argument or reason was enumerated by the trial court or not, the respondent submits three additional grounds in support of the trial court's dismissal order. First, the respondent argues that the plaintiff-appellant did not establish that the alleged aggravation took place between the date of closure and the

 76    VENEZELOS v. DEP'T OF L. & INDUS. [67 Wn.2d

date of denial of the application to reopen, citing Phillips v. Department of Labor & Indus., 49 Wn.2d 195, 298 P.2d 1117 (1956). However, on several occasions, the plaintiff's medical witness certainly inferred - if he did not directly state - that a worsening did occur between the terminal dates. For example, in response to a hypothetical incorporating the operative facts surrounding the claimant's injury and asserted aggravation, the doctor specifically stated that "[m]y opinion is that his condition has worsened during that interval of time."

[4] Secondly, respondent argues that the hypothetical questions propounded to plaintiff-appellant's medical witness incorporate inadmissible hearsay and thus destroy any probative value that testimony may have had. In Petersen v. Department of Labor & Indus., 36 Wn.2d 266, 217 P.2d 607 (1950), we noted that, while a treating doctor may testify as to his medical conclusion, which may be based substantially on subjective symptoms which are in the realm of hearsay, a doctor who examines a patient only for the purpose of qualifying as an expert may not rely on a claimant's relation of subjective symptoms in testifying as to his medical conclusions. Even assuming arguendo that some of the hypotheticals propounded to plaintiff's medical expert fall within the proscription of Petersen, the doctor specifically testified that some of the findings he made in the 1960 examination were objective in nature. Our holding in this appeal is simply that the entire probative value of the testimony of plaintiff's witness was not destroyed by any alleged defects in the hypotheticals.

Finally, the defendant-respondent urges an additional argument in support of the trial court's judgment; namely, that the appellant had not supplied any objective evidence of aggravation of the conditions resulting from the industrial injury. Suffice it to say that the plaintiff's expert specifically noted the objective nature of some of his findings, and that those findings were to the effect that an aggravation had occurred between the terminal dates - and

 Oct. 1965]          STATE v. CRAIG                77

further, that the aggravation was related to the original injury.

For the reasons noted above, the trial court was in error in dismissing the case of plaintiff-claimant. The judgment of dismissal should be reversed and a new trial granted. It is so ordered.

ROSELLINI, C. J., DONWORTH and WEAVER, JJ., and BARNETT, J. Pro Tem., concur.