On July 11, 1933, Dogue Ferguson, while in the course of his employment at a saw mill as a planer, fell upon a piece of lumber which he was lifting, as a result of which his back and right side were strained. At that time, Ferguson's hand and back were infected by oak poisoning. On July 15, 1933, the injured man called on a doctor for treatment.
Ferguson's claim was filed with the department of labor and industries, July 22, 1933. His claim was recognized by the department and compensation paid August 9, 1933. In addition to the injury, the claimant was suffering, at the time of the accident, from a pre-existing *Page 539 disease, osteo arthritis. After a segregation of the arthritis antedating the injury, the claimant was awarded time loss by the department for twenty-three days with no permanent partial disability, and his claim was closed. The letter of the department to the claimant of this disposition of his claim was given to the claimant, who, when he acknowledged receipt of the same, claimed to be entitled to an additional day's compensation. No appeal was taken from the order closing the claim. On August 17, 1933, Ferguson was examined by Dr. Ned D. Miller, who found him able to carry on a gainful occupation, and reopening of the case was denied August 21, 1933.
July 6, 1936, almost three years after the denial of his application to reopen the claim, Ferguson filed an application to reopen the claim on the ground of aggravation of the injury of July 11, 1933. The supervisor of industrial insurance rejected the application August 6, 1936, by an order which recited that, on July 22, 1936, the claimant was examined by a commission composed of three physicians, whose report was to the effect that the claimant was definitely disabled and was then unable to carry on any gainful occupation, but that the disability was due to preexisting osteo-arthritis and not due to Ferguson's injury of July 11, 1933. That commission further reported that the disease was progressing in the usual manner, as shown by the X-ray, but that it was not an aggravation of his condition due to the injury.
The claimant's application of August 28, 1936, for rehearing before the joint board was granted, and hearings held October 20, 1936, April 8, 1937, May 13, 1937, and the final hearing was June 25, 1937. On September 7, 1937, the joint board of the department of labor and industries entered an order affirming the action of the supervisor of industrial insurance in refusing to *Page 540 reopen the claim. Upon appeal therefrom to the superior court, a judgment of dismissal was entered. The claimant has appealed therefrom to this court.
The only question presented is whether, under the evidence, appellant is suffering from an aggravation by reason of the injury of July 11, 1933, or solely from the progressive course of the disease, arthritis.
[2] The burden of proof is upon the party attacking the decision of the department, which decision, under the statute, Rem. Rev. Stat. § 7697 [P.C. § 3488], shall be prima facie correct. We are clear from our examination of the evidence, which is summarized as follows, that the appellant failed to sustain the burden imposed upon him by the statute:
The reports and testimony of all the medical witnesses are that appellant is now suffering from arthritis in his back, and that he is unable to carry on heavy manual labor. Appellant was afflicted with this disease prior to his injury July 11, 1933. His burden was to prove that the arthritic condition was dormant and was lighted up by the injury in 1933. In answer to a partially hypothetical question, in which he was required to assume that the appellant had not had any trouble of any kind with his back before it was injured on July 11, 1933, one medical witness testified that the arthritic condition was dormant and lighted up by the 1933 injury. He admitted, when shown the X-ray photographs taken at various times since August 7, 1933, when appellant's claim was closed upon a segregation for preexisting arthritis, that, "it is nothing more than the ordinary progress of the disease."
When the physician who testified for appellant saw the appellant only once and that was June 2, 1937, his testimony was also in response to a question which was partially hypothetical and was based on the history as given to him by the appellant, he stated that, *Page 541 from the appellant's history and his examination and general physical findings, that he concluded that the appellant's trouble, at the present time, was due chiefly to arthritis; but that, in view of the fact that appellant said that he was working steady before the accident and the disease did not then bother him, he concluded that the accident caused a stirring or lighting up of the arthritis. He answered on cross-examination:
"Q. But your diagnosis of lighting up of an old arthritis by this injury is dependent entirely on the history, is it not, Doctor? A. Yes, because I wouldn't know whether he had been disabled or not from working even. I just have to take his word for it in the record. I don't know whether there would have been an accident."
His testimony further was to the effect that there were various kinds of arthritis, traumatic, gonorrheal, syphilitic, tuberculous, and infectious, and also another group the cause of which is unknown.
The testimony of those two witnesses was based upon an assumed history of the case. As opposed to this is another story, which was, and should have been, considered by the department. Appellant testified that, prior to July 11, 1933, he was taken to a hospital in Seattle to be treated for an injury to his elbow which occurred July 1, 1933. The hospital records made at, and subsequent to, that time, disclosed that, for three years prior thereto, appellant suffered from pain in his right side. The hospital record clerk testified concerning the report of September 9, 1935, that appellant was treated for "Lymphangitis," and that the previous medical history of appellant showed "pyelitis, syphilis, cholera, influenza, and prostatitis."
In opposition to the conclusions of appellant's two witnesses was the testimony of five physicians who testified for respondent. One of these witnesses was the physician who attended appellant four days after *Page 542 his injury of July 11, 1933. Appellant told the physician then that he had had trouble with his back before, and that taping had relieved it. Appellant later came to the office of this same physician for the purpose of getting the physician "to help him get something out of the department," but no treatment was administered at that time. This physician again examined the appellant in December, 1936. He testified that appellant's case was one of progressive arthritis, but that the accident of 1933 had nothing whatever to do with the present condition of appellant.
Another physician treated appellant for poison oak on his hands, face, and body, July 1, 1933. He gave no treatment for back complaint except to apply a hot-water bottle. This physician examined appellant December 12, 1936. He gave as his opinion that appellant's present condition was not related to the accident of July 11, 1933.
The department named three other physicians as a commission to examine appellant. Two of those physicians treated appellant in 1935 and 1936. The three physicians thoroughly examined appellant in October, 1936. Each testified that, in his opinion, appellant's present condition was not due to the injury, but was simply a part of the progress of the preexisting disease, arthritis.
The evidence clearly preponderates in favor of the decision of the department; therefore, the judgment is affirmed.
STEINERT, BEALS, GERAGHTY, ROBINSON, JEFFERS, and SIMPSON, JJ., concur.