STEINERT, C.J., dissents.
ON REHEARING.
BLAKE, C.J., and MAIN, J., dissent. The joint board of the department of labor and industries affirmed the action of the supervisor of industrial insurance in refusing to reopen appellant's claim, and upon appeal to the superior court a judgment of dismissal was entered. This appeal resulted.
July 11, 1933, while appellant, who was at that time about fifty-two years of age, was working at a sawmill as a planer for the Northwest Lumber Company, two pieces of timber fell upon a piece of lumber, 6 x 6, and twenty-two feet long, which appellant was lifting. Thereupon, claimant suffered an acute pain in his back and strained his back on the right side. It also appears that appellant at that time had an infected hand occasioned by abrasions received in the course of his work, and that he had contracted a poison oak infection.
The supervisor concluded that, in addition to the injury, appellant was suffering at the time of the accident from a preexisting disease, osteo-arthritis. After a segregation of the arthritis antedating the injury, claimant was awarded time loss by the department for twenty-three days with no permanent partial disability, and his claim was closed August 9, 1933.
July 8, 1936, appellant made application to reopen the claim on the ground of aggravation of the injury of July 11, 1933. August 6, 1936, the reopening of the claim was denied by order of the supervisor. August 28, 1936, claimant, feeling aggrieved by the entry of the above-mentioned order, filed an application for a rehearing before the joint board of the department, which was granted. The joint board entered an order on September 7, 1937, sustaining the supervisor.
This appeal presents a single question, namely, whether, under the evidence, appellant is suffering *Page 526 from an aggravation by reason of the injury of July 11, 1933, or solely from the progressive course of the disease, arthritis.
As we view it, the question of whether or not claimant's condition, in so far as his injury of 1933 affected the same, became aggravated after his claim was closed on August 9, 1933, and whether the aggravation, if established, and the effects flowing therefrom, continued to be felt at the time he applied for the reopening of his claim in 1935, must be determined primarily from the testimony of medical experts. Claimant testified that he has never been entirely free from pain in his back since August 9, 1933. All of the medical testimony confirms the claimant's testimony to the effect that he is only able to exercise the muscles in his back to a very limited extent for bending and stooping, and that the movement of the muscles in the back causes severe pain.
It is admitted by all of the medical witnesses that claimant is presently suffering from arthritis in his back, and they all concede that he is not able to carry on any type of heavy manual labor which requires prolonged standing, bending, or lifting. Appellant has worked only intermittently since August, 1933, partly because of his physical condition and partly by reason of his inability to obtain employment. The medical experts also agree that a comparison of the X-rays taken in 1933 with those taken in 1936 after the petition was filed to reopen the claim on the ground of aggravation, shows there is on claimant's back an increase of bony deposits which is indicative of the progress of the disease, arthritis.
We believe that claimant had arthritis prior to the 1933 injury. The joint board, however, concluded that the testimony preponderantly proved not only that appellant had arthritis at the time of the 1933 *Page 527 injury, but also that the preexisting disease was active prior to the 1933 injury. We cannot agree with that conclusion. The medical witnesses recognized that a trauma may light up existing arthritis. We are satisfied that the arthritic condition was dormant until the 1933 injury, and that the injury of 1933 lighted up the existing arthritic condition.
The medical witnesses conceded that arthritis is often a progressive disease, and that a person suffering therefrom may have alternative periods when the disease is patent and active and periods during which it is latent and quiescent. The medical testimony also indicated that periods of remission and exacerbation are especially characteristic of arthritis as one advances in years beyond middle age, and at that period in life the recurrence of the active periods of the disease tend to come on more frequently and from slighter causes.
Two physicians testified in favor of claimant, and were of the view that his present condition was a direct sequel of the 1933 injury, which had rendered a quiescent arthritic condition continuously active up to the present time.
One physician examined claimant on October 12, 1936, and, after acquainting himself with the history of the case, concluded that appellant presented a typical picture of arthritis involving the spine, which had been lighted up by his injury in 1933. He found the X-rays showed marked arthritic changes. He testified in part:
"A. I think the wrenching of the back produced a lighting up of the chronic preexisting arthritis, which before the accident was in a quiescent condition. Q. Would you say that the arthritic condition prior to that wrenching was — latent or quiescent, rather than active? A. Yes; I think it was. Q. Since the wrenching occurred has it been latent or quiescent? *Page 528 A. I think it has been active since that time. Q. Will you say continuously active since that time? A. According to the history it has, yes."
Upon cross-examination, he was asked if it was usual for such a lighted up condition of this kind to return to its normal condition in much less than three years. He replied that,
"Some of them do, and some of them persist, — that is the unfortunate thing; we cannot tell what will happen in any particular case. We know some of them recover with or without treatment, and others do not."
Another physician examined claimant on June 2, 1937, and on direct examination was asked how long an injury lighting up arthritis continues, and if such an injury continues on or ordinarily abates. He replied:
"A. There is no general rule, Mr. Davies, because each case varies in itself, but many of them will clear up in a few weeks time, some of them a few months time and some of them might after a year or two; but many of them — but then again a certain percentage never do clear up. Q. Then it is nothing unusual, if I understand you correctly, for a man who has arthritis, although it is not disabling, and he receives an injury and lights up the arthritis, it is not unusual for it to continue the rest of his life; not unusual for it not to abate? A. In a certain percentage of cases, yes, it will continue."
On the other hand there is medical testimony to the effect that claimant's existing condition and disability are not due to an aggravation of the 1933 injury, but rather to a progressive stage and course of the disease, arthritis, which antedated the injury. A commission of three doctors, appointed by the department, so concluded. None of these physicians saw or examined claimant in 1933. One physician *Page 529 examined him in July, 1935, and again on July 22, 1936, and the other two physicians first examined him on July 22, 1936.
One of these three doctors testified that the injury sustained in 1933 would aggravate the arthritis, but such aggravation as was occasioned by the injury would be temporary and not permanent in character.
Another testified the injury did not cause the bony growth, but stated, however, that an irritation would increase the rate of progress of the bony change. He conceded an injury may temporarily aggravate an arthritic condition, and to recover from the immediate effect of the injury sustained would require a minimum of ten days and a maximum of two or three months.
The third doctor on the commission treated appellant in July, 1933, for a poison oak infection only, but at that time appellant did complain to this physician about the aches and pains in his back. This doctor examined claimant on December 12, 1936, and was of the opinion that claimant was not in need of any medical treatment by reason of his injury in July, 1933.
Another doctor treated appellant in July, 1933, for slivers in his fingers and hand, and appellant told this physician at that time that he had been experiencing trouble with his back, and requested him to tape it to relieve the pain. This was done. This doctor admitted he was not qualified to interpret the X-ray pictures so as to determine the progress of the disease, but concluded appellant's present condition did not result from the accident of July, 1933.
It appears that appellant had pneumonia at one time and has been suffering from chronic dysentery for a number of years. One doctor testified that dysentery is a frequent source of arthritic infection, *Page 530 and another testified that dysentery may have a pronounced effect upon arthritis. It is conceded that there are many causes of arthritis, but the question to be determined here is not what caused the arthritis, but whether the lighted up condition, occasioned by the 1933 injury, still continues to exist.
This case presents an extremely difficult factual situation even for medical experts to determine with precision. The mere number of witnesses is, of course, not controlling. The testimony of the medical witnesses, as to whether or not appellant is suffering presently from the progressive course of the disease or from an aggravation occasioned by the 1933 injury is sharply conflicting, and the different conclusions reached by each have much in reason and logic to support them. Hence, we must determine the weight of the testimony in the light of all the attendant circumstances.
[1] We are satisfied, as hereinbefore indicated, that the injury of 1933 lighted up a dormant preexisting arthritic condition. It also appears that claimant has experienced recurring pain in his back since the claim was closed. It is conceded by the medical testimony that a slight injury may have far-reaching effects upon a person of claimant's age and condition. While the bony structure may increase with the progress of the disease, it is also conceded that an irritation might materially accelerate the change in bony structure. The cessation of the aggravation, occasioned by lighting up a dormant arthritic condition, has not been established by any satisfactory objective data, and it appears that the effects of the injury have continued to be felt by appellant since his claim was closed.
Where claimant's arthritic condition is inactive or dormant and then is lighted up and continues in that *Page 531 state, then his condition is due to the accident. 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. The only question here is whether that lighted up condition has continued to exist.
We recognize that the decision of the department is primafacie correct, and that the burden is upon the claimant to overcome it. All of the testimony was taken before examiners, and none of it was taken before the joint board. Rem. Rev. Stat., § 7697 [P.C. § 3488], provides the decision of the department shall be prima facie correct, but it cannot have the same presumptive force and effect when the testimony is taken before examiners, and a transcript thereof is submitted to the joint board, as when it is taken before members of the board. Sweitzer v. Departmentof Labor Industries, 177 Wash. 28, 30 P.2d 980;34 P.2d 350; Dry v. Department of Labor Industries, 180 Wash. 92,39 P.2d 609.
Considering the lighting up of the arthritic condition, the age of claimant, the recurrence of pain intermittently following the closing of the claim, the active and quiescent states of this malady, the nature of the arthritic condition, his general physical condition, and conceding that the disease is progressing, a careful study of the entire record and of all of the attendant circumstances convinces us that the evidence preponderates against the findings of the department, and that the prima facie correctness of the departmental decision has been overcome.
The judgment is therefore reversed, and the cause is remanded to the superior court for the entry of judgment directing the supervisor to reopen the claim for aggravation of the injury of 1933 from the date of *Page 532 the filing of the claim. Hall v. Department of Labor Industries, 183 Wash. 486, 48 P.2d 923.
MAIN, BLAKE, and ROBINSON, JJ., concur.