Miller v. Dept. of Labor & Industries, 200 Wash. 674, 94 P.2d 764

 674    MILLER v. DEPT. OF LABOR & INDUSTRIES.
                Statement of Case.           200 Wash.

           [No. 27476. En Banc. October 16, 1939.]
CLINTON M. MILLER, Appellant, v. THE DEPARTMENT OF
          LABOR AND INDUSTRIES, Respondent. «1»

[1] MASTER AND SERVANT - REMEDIES UNDER WORKMEN'S
COMPENSATION ACT - PERMANENT PARTIAL DISABILITY -
EVIDENCE SUFFICIENCY. Under the workmen's compensation
act, no allowance can be made to an injured workman for
permanent partial disability until his condition has
reached a fixed state; and held in this case that the
evidence amply supports the findings of the department
that the workman's condition had become fixed, and that
the fixed condition was one of permanent partial disability.

[2] SAME - PERMANENT PARTIAL DISABILITY - DETERMINATION OF
COMPENSATION - PREEXISTING CONDITION. In determining the
proper and just compensation to be awarded an injured
workman for permanent partial disability as prescribed
by Rem. Rev. Stat., SS 7679, where it appears that his
condition is partly due to the injury and partly to a
congenital weakness, it is error to limit the allowance
to disability due to the injury only and not to include
so much of the disability as may have been due to the
congenital weakness; and compensation should be awarded
for the full disability without regard to such
weakness (overruling Elliott v. Department of Labor &
Industries, 187 Wash. 656,
     188 Wash. 703).

[3] SAME - REFUSAL TO SUBMIT TO TREATMENT. Rem. Rev.
Stat., SS 7688, providing for reduction or suspension of
compensation where the injured workman unreasonably refuses
to submit to treatment, has reference only to monthly
payments during the period of recuperation from an injury,
and does not apply to a lump sum settlement for permanent
partial disability determined after the condition of
the workman has become fixed.

Trial Court: Superior Court, Pierce County, Hodge, J.,
January 18, 1939.

«1» Reported in 94 P.2d 764.

[3] See 105 A. L. R. 1470.

          MILLER v. DEPT. OF LABOR & INDUSTRIES.      675
 Oct. 1939          Opinion Per STEINERT, J.

V. D. Bradeson, for appellant.

The Attorney General and J. A. Kavaney, Assistant,
for respondent.

 676    MILLER v. DEPT. OF LABOR & INDUSTRIES.
                Opinion Per STEINERT, J.      200 Wash.

April he did not work at all, and during that entire
period was under the care of a physician, who, with
the consent of the department, prescribed a sacroiliac
belt and administered a course of intravenous
injections.

On March 24, 1938, at the direction of the
department, appellant was examined by another physician,
who later reported that appellant had no disability
resulting from the injury of August 4, 1937, and that
he should be requested to go back to work, with no
permanent partial disability rating. On April 4, 1938,
the supervisor of the department entered an order
closing the claim with payment for time loss to April
1st, but with no allowance for permanent partial
disability. Thereupon, appellant filed an application for,
and was granted, a rehearing before the joint board.
The joint board then referred the matter to a
commission of medical specialists for examination of, and
report concerning, appellant. On May 31, 1938, the
commission made a report of its findings to the effect
that there was a definite tenderness at the lumbosacral
joint and that the X-ray films showed a congenital
absence of the neural arch of the first sacral segment,
and further reciting, as its conclusions, the following:

"It is our opinion that (1) The claimant's condition
is not fixed; (2) That his disability - in part at least
is due to the injury of which he complains; (3) The
claimant is not able to carry on a gainful occupation;
(4) Treatment by surgical operation is indicated. We
believe that a well planned and efficiently executed
fusion operation including the 5th lumbar and upper
two sacral segments is definitely indicated in this case."

On June 1, 1938, the rehearing before the joint board
began. The report of the specialists was offered in
evidence and the testimony of appellant and his
witnesses, including his attending physician, was taken.

           MILLER v. DEPT. OF LABOR & INDUSTRIES.      677
 Oct. 1939          Opinion Per STEINERT, J.

The physician testified that appellant was suffering
from a lumbosacro-iliac ailment; that his condition
had not materially improved; that further medical
treatment would be of no value; and that the only
thing that possibly could do appellant any good would
be a surgical operation, but that even an operation
offered only a fifty-fifty chance of improvement. The
physician was not asked whether appellant's disability
was total or partial. The rehearing was then
adjourned to a later date for the taking of testimony
offered by the department.

In the interim, that is, on July 8, 1938, the
department informed appellant, who was then in Portland,
Oregon, that the evidence in the case indicated the
advisability of having a fusion operation upon his
spine and authorized appellant to have it performed
by a certain orthopedic specialist in that city.
Appellant promptly notified the department that he rejected
the proposal, and further requested that his case be
closed with a lump sum settlement.

The department thereupon again referred the matter
to the commission of specialists for further
examination of appellant and for report as to whether
appellant's condition was of traumatic origin and the result
of the injury complained of and, if so, whether his
condition was fixed and, if fixed, the extent of
permanent partial disability due to the injury, to be
expressed in terms of percentage as compared to a
maximum of the maximum award for unspecified disability
amounting to eighty degrees; or, if his condition was
not fixed, whether further treatment was indicated
and, if so, the treatment recommended; and also as to
whether appellant was able to carry on a gainful
occupation. On July 26, 1938, the commission made its
report, which, after confirming its former report,
concluded as follows:

 678    MILLER v. DEPT. OF LABOR & INDUSTRIES.
                Opinion Per STEINERT, J.      200 Wash.

"We are of the opinion that he has an extensive
permanent disability, partly due to a congenital
weakness as formerly described, and partly due to his
injury to this already weakened structure, which has
resulted in a chronic strain at the lumbosacral area
and the formation of localized traumatic arthritis.

"It is our opinion further that he should be awarded
a PPD [permanent partial disability] of 40 degrees
as a result of the injuries he received in April and in
August of 1937."

The rehearing was resumed September 9, 1938, at
which time the testimony of the three specialists and
the physician who first recommended that appellant's
claim be closed was taken. The three specialists
testified that, in their opinion, an operation would greatly
improve appellant's condition, although such result
could not be predicted with certainty; that the fusion
should be successful if the operation was properly
performed; that appellant's present infirmity was
produced by a combination of the injury and a congenital
weakness of his back; that such infirmity then
constituted a permanent partial disability; and that, in their
opinion, appellant should have a rating of forty degrees
(which is equivalent to one-half of the maximum)
permanent partial disability.

Only one of the three specialists testified directly
upon the question whether appellant was able to
engage in a gainful occupation. With reference to that
matter, the witness testified that appellant was not
totally disabled and that, while he would not be able
to do heavy manual lifting, he "could go ahead and
do light work."

Each of the three specialists was questioned as to
how he arrived at the figure of forty degrees for
permanent partial disability. One of them stated that
they had taken into consideration the congenital
anomaly which caused a weakened condition of

          MILLER v. DEPT. OF LABOR & INDUSTRIES.      679
 Oct. 1939          Opinion Per STEINERT, J.

appellant's back and that they thought they were
dealing fairly with him in classifying him in such a way
as to give him fifty per cent of the highest amount
allowable for a permanent partial disability not
specifically described in the statute. The second specialist
testified that the award was made for appellant's
condition as it then existed, which was a sprain
superimposed on a congenitally weak back; he further
testified that the basis of the award was the loss of
function. The third specialist concluded that
appellant was not totally disabled and that, in justice both
to the state and appellant, forty degrees was a proper
figure.

The fourth medical witness, who had examined
appellant on March 24, 1938, testified that the workman
had a congenitally weak back; that, in the opinion of
the witness, the pain suffered by appellant came from
the use of his back during hard labor rather than
from injury; that, when the witness made the
examination, he thought that appellant was able to work, but
that appellant should not follow hard manual labor.

Later, at a continued hearing, appellant called, in
rebuttal, a physician witness, who testified that
appellant had a small congenital defect but that it did not
materially contribute to the ailment; that appellant's
condition was due to chronic lumbosacral strain which
might be remedied either by complete rest or by a
fusion operation, although there was no assurance
that the latter would be successful; and that appellant
could not in his condition perform hard manual labor,
but that there were many types of sedentary work
in which he could engage.

At the conclusion of the rehearing, the joint board
made a summary of the proceedings, from which it
concluded that appellant's permanent partial disability
due to injury did not exceed forty degrees, and that

 680    MILLER v. DEPT. OF LABOR & INDUSTRIES.
                Opinion Per STEINERT, J.      200 Wash.

the permanent partial disability, if any, in excess of
forty degrees was not due to injury but to congenital
defects. Basing its findings on this summary, the joint
board entered an order directing the supervisor of the
department to reopen the claim, to award the
appellant additional time loss compensation, together with
forty degrees permanent partial disability, and to close
the claim on that basis. The order of the joint board
was affirmed by the trial court.

We now take up the questions involved upon the
appeal.

[1] Appellant contends, first, that his condition was
*not fixed*, and that, therefore, he could not be given
a rating of permanent partial disability.

The rule in this state undoubtedly is that, before
an allowance can be made for a permanent partial
disability, the condition of the injured workman must
have reached a fixed state. Ray v. Department of
Labor & Industries, 177 Wash. 687, 33 P.2d 375;
Lackey v. Department of Labor & Industries,
179 Wash. 594, 38 P.2d 345; Elliott v.
Department of Labor & Industries,
187 Wash. 656, 61 P.2d 291,
188 Wash. 703, 62 P.2d 1343.

Appellant's contention is based upon the first report
of the specialists, in which they found that his
condition was not fixed; and upon the statement in their
second report that, in their opinion, the claimant's
condition was the same as that expressed in their
former report.

The record discloses that the first report was made
on the assumption that an operation would be
performed, from which the doctors concluded that
appellant's condition was not fixed, because, in their
opinion, surgical treatment would either rectify or
materially improve his condition; while the second
report was made upon the assurance that no operation

          MILLER v. DEPT. OF LABOR & INDUSTRIES.      681
 Oct. 1939          Opinion Per STEINERT, J.

would be had and upon the doctors' belief and decision
that the condition was permanent. Moreover,
regardless of any prior reports, there is ample evidence to
support the finding of the department that appellant's
condition had become fixed, because, without an
operation, no improvement could be expected. Appellant's
condition having become fixed, it was necessary for
the department to determine whether the disability
was total or partial. Upon that question, the evidence
abundantly supports the finding that the fixed
condition was one of permanent partial disability. We,
therefore, conclude that the classification made by the
department should be affirmed.

[2] The second question is whether, for the
disability as classified by the department, the amount of
the award was proper and just.

Compensation for permanent partial disability is
prescribed by Rem. Rev. Stat., SS 7679 [P. C. SS 3472]
(f). That section sets up a schedule of amounts
allowable for specifically described disabilities, and then
proceeds:

"Compensation for any other permanent partial
disability shall be in the proportion which the extent of
such other disability shall bear to that above
specified, which most closely resembles and approximates
in degree of disability such other disability, but not
in any case to exceed the sum of two thousand four
hundred dollars ($2,400.00) . . ."

The disability shown in this case is not one of those
mentioned in the schedule, and, hence, the amount of
allowable compensation must be estimated by a proper
application of the statutory provision just quoted.

In determining the correct amount of compensation,
it becomes necessary to decide whether appellant's
existing disability is to be considered as integral or
whether it is to be regarded as divisible and, thus,

 682    MILLER v. DEPT. OF LABOR & INDUSTRIES.
                Opinion Per STEINERT, J.      200 Wash.

attributable in part to trauma and in part to a
preexisting congenital defect. The findings of the joint
board seem to indicate that in awarding appellant
compensation for permanent partial disability of forty
degrees, the board limited the allowance to disability
due to trauma only, and did not include so much of
the disability as may have been due to the congenital
anomaly. If that was the intention of the department,
we are of the opinion that it erred.

We have held in an unbroken line of decisions that,
if an injury, within the statutory meaning, lights up
or makes active a latent or quiescent infirmity or
weakened physical condition occasioned by disease,
then the resulting disability is to be attributed to the
injury, and not to the preexisting physical condition.
Ray v. Department of Labor & Industries,
177 Wash. 687, 33 P.2d 375; Brittain v. Department
of Labor & Industries, 178 Wash. 499, 35 P.2d 49;
McGuire v. Department of Labor & Industries,
179 Wash. 645, 38 P.2d 266; Rikstad v. Department of Labor &
Industries, 180 Wash. 591, 41 P.2d 391;
Johnson v. Department of Labor & Industries,
184 Wash. 567, 52 P.2d 310; Pulver v. Department
of Labor & Industries, 185 Wash. 664, 56 P.2d 701;
Matson v. Department of Labor & Industries,
198 Wash. 507, 88 P.2d 825.

If this be true with respect to a weakened physical
condition resulting from disease, it must likewise be
true with respect to a similar infirmity resulting from
some structural weakness of the body. As we have
many times stated, the provisions of the workmen's
compensation act are not limited in their benefits to
such persons only as approximate physical perfection,
for few, if any, workmen are completely free from
latent infirmities originating either in disease or in
some congenital abnormality. It is a fundamental

          MILLER v. DEPT. OF LABOR & INDUSTRIES.      683
 Oct. 1939          Opinion Per STEINERT, J.

principle which most, if not all, courts accept, that, if the
accident or injury complained of is the proximate
cause of the disability for which compensation is
sought, the previous physical condition of the
workman is immaterial and recovery may be had for the
full disability independent of any preexisting or
congenital weakness; the theory upon which that
principle is founded is that the workman's prior physical
condition is not deemed the cause of the injury, but
merely a condition upon which the real cause
operated. Hartz v. Hartford Faience Co., 90 Conn. 539,
97 Atl. 1020; Studebaker Corp. v. Jones, 104 Ind. App.
270, 10 N. E. (2d) 747; Doane v. Board of Commissioners,
163 So. (La. App.) 717; Wilkins v. Ben's Home
Oil Co., 166 Minn. 41, 207 N. W. 183; Dymak v. Haskins
Bros. & Co., 132 Neb. 308, 271 N. W. 860; Vallee v.
Spaulding Fibre Co., 89 N. H. 289, 197 Atl. 697; Gorman
v. Miner-Edgar Chemical Corp., 1.6 N. J. Misc. 170,
198 Atl. 404; Cole v. State Highway Department, 190
S. C. 142, 2 S. E. (2d) 490.

Applying this principle to the instant case, we are
of the opinion that the accident or injury was the
proximate cause of appellant's ultimate disability, and
that his prior congenital weakness was but a
condition upon which the injury became operative. The
evidence discloses that appellant for many years had
been undergoing arduous manual labor and, prior to
the accident, was not suffering from the congenital
defect.

In our consideration and determination of this
particular question, we have not overlooked Rem. Rev.
Stat., SS 7679 [P. C. SS 3472] (g), which provides, in
part, as follows:

"Should a workman receive an injury to a member
or part of his body already from whatever cause
permanently partially disabled, resulting in the

 684    MILLER v. DEPT. OF LABOR & INDUSTRIES.
                Opinion Per STEINERT, J.      200 Wash.

amputation thereof or in an aggravation or increase in such
permanent partial disability but not resulting in the
permanent total disability of such workman, his
compensation for such permanent partial disability shall
be adjudged with regard to the previous disability of
the injured member or part and the degree or extent
of the aggravation or increase of disability thereof."

In Elliott v. Department of Labor & Industries,
187 Wash. 656, 61 P.2d 291, modified and clarified in
188 Wash. 703, 62 P.2d 1343, we seem to have given
that section a construction which would authorize
the department to determine, in the exercise of its
judgment or discretion, to what extent the disability
was due to a prior congenital weakness of the
workman's back and to what extent it was due to the
injury.

We have reconsidered the holding in the Elliott
case and are now of the opinion that its interpretation
of Rem. Rev. Stat., SS 7679 (g), respecting the authority
of the department, was incorrect. We are of the view
that Rem. Rev. Stat., SS 7679 (g), is applicable only
to cases in which the workman already is, *in fact*,
permanently partially disabled within the meaning
of the workmen's compensation act, but that it does not
apply when the preexisting weakened or congenital
condition, independent of the subsequent injury, has
not, in any way, incapacitated the workman or has
not, of itself, constituted a disability. For the reasons
given upon the question under consideration, we
conclude that the department should have awarded
appellant compensation for his entire disability, to the
extent that it was found to exist, without regard to
the congenital defect.

[3] In its brief, the department takes the position
that appellant is virtually seeking a pension; and that,
since he refused to submit to the operation, he should
not be permitted to recover. Reliance is placed on

          MILLER v. DEPT. OF LABOR & INDUSTRIES.      685
 Oct. 1939          Opinion Per STEINERT, J.

Rem. Rev. Stat., SS 7688 [P. C. SS 3481], which provides,
in part, as follows:

". . . if any injured workman shall persist in
unsanitary or injurious practices, which tend to imperil
or retard his recovery, or shall refuse to submit to such
medical or surgical treatment as is reasonably essential
to his recovery, the commission may reduce or
suspend the compensation of such workman. . . ."

That provision of the statute has reference only to
a reduction or suspension of monthly payments which
are being made to an injured workman during the
period of recuperation from an injury. It does not
apply to a lump sum settlement for a permanent
partial disability which has been determined by the
department after the condition of the workman has
become fixed. For these reasons, it becomes
unnecessary to discuss further the question suggested by the
department.

Having now passed on all the questions presented
upon the appeal, we approach the matter of a proper
disposition of the case.

Upon the record before us, we are unable to find or
declare the extent, or degree, of appellant's permanent
partial disability, for neither the evidence nor the
findings of the board afford any certainty upon the
subject. The evidence merely indicates that the
specialists composing the commission were of the opinion
that, in attributing fifty per cent of the disability to
the injury, a liberal allowance to appellant was made.
The findings of the department were to the effect that
the disability due to the injury did not exceed forty
degrees; and that, if there were any disability in
excess of that degree, it was due to congenital defect.
But neither the evidence nor the findings established
or determined the extent of the entire disability
regardless of the congenital defect. To fix the amount

 686    IN RE WELCH'S ESTATE.
                Statement of Case.                200 Wash.

of the allowance to be made to appellant, it is
necessary, first, to determine the extent or degree of his
entire permanent partial disability.

The judgment is reversed, and the cause remanded
with direction to the trial court to refer the matter
to the joint board for further hearing, consideration,
and final determination, in accordance with the views
herein expressed.

ALL CONCUR.