(dissenting) — The claimant suffered an industrial injury on December 5,1949. The accident was reported to the department of labor and industries, thereafter, an award was made by the department on August 31, 1950. Claimant’s application of October 19, 1951, to reopen the case was denied by an order of the department on December 20, 1951. There was no appeal from this order. Claimant’s second application of April 1, 1952, to reopen on the ground that his condition had become aggravated was denied on June 2,1952. Claimant appealed on June 12,1952, to the board of industrial insurance appeals. The board held hearings on March 18,1953, and July 13,1954, and took additional evidence; but on October 18, 1954, it affirmed the department’s denial of the claim of aggravation.
Claimant then appealed to the superior court on November 9, 1954. A jury found aggravation, and increased'the award to the claimant. Judgment was entered on the jury’s verdict on June 8,1955. The department appealed on July 1, 1955, and is contending here that there was no evidence that claimant’s condition became aggravated within the terminal dates (December 20, 1951, through June 2, 1952); and it is urged that, under the rule of Karniss v. Department of Labor & Industries, 39 Wn. (2d) 898, 239 P. (2d) 555, the trial court erred in denying a motion for a directed verdict and for judgment, n.o.v.
On January 17, 1956, the appeal was argued before a department of the supreme court. On March 19,1956, it was ordered that the case be set for rehearing before the entire court. The appeal was reheard on May 8,1956.
With no intention of blaming anyone, and without *547attempting to pass the buck for the delay in a final determination of the rights of the claimant in the instant case, it is obvious that the procedure has been a long, drawn-out one, contrary to the purpose of the workmen’s compensation act to provide sure and prompt settlement of workmen’s industrial accident claims. It is high time that something be done to correct the situation.
Turning now to a discussion of the issues in the instant case as I see them, the record shows that Dr. Richard H. Humphreys operated on the claimant to repair an inguinal hernia, allegedly caused by an industrial injury. He-examined the claimant on March 21, 1950, September 17, 1951, and July 12, 1954. His testimony before the industrial appeals board, based upon his examination of claimant on July 12, 1954, standing alone, indicates that the extent of claimant’s disability at that time was greater than that previously recognized by the department. However, the majority (citing Karniss, supra) say that it is not a question of comparing claimant’s condition as of July 12, 1954 (the date Dr. Humphreys last examined the claimant), with (a) his condition on July 2, 1952 (the date the department denied claimant’s second application to reopen); or (b) his condition on August 31, 1950 (the date of the department’s award); that the only question is whether the claimant’s condition became aggravated between the terminal dates (December 20, 1951, through June 2, 1952).
The majority emphasize an instruction (a) given to the jury by the trial court and (b) not excepted to by the claimant. The instruction limited the jury to a determination of whether aggravation had occurred between the terminal dates. Analyzing the testimony of Dr. Humphreys, the majority state (a) that it does not concern and is not material to the 'question of aggravation between the terminal dates; and, in any event, (b) that the significant portion of the testimony has no probative value, either because it was retracted by the doctor, or because a hypothetical question put to the doctor assumed facts, which were not supported by the evidence. I cannot disagree altogether with the reasoning of the majority, but I think, for the reasons indi*548cated hereinafter, that much of it is beside the point and is inappropriate; that it leads to an unnecessary and wrong result in the instant case.
RCW 51.52.100 provides that the hearing before the board shall be de novo; and, furthermore, RCW 51.52.102, in part,, provides as follows:
“That the board may continue hearings on its own motion to secure in an impartial manner such evidence, in addition to that presented by the parties as the board, in its opinion, deems necessary to decide the appeal fairly and equitably, but such additional evidence shall be received subject to any objection as to its admissibility, and, if admitted in evidence all parties shall be given full opportunity for cross-examination and to present rebuttal evidence.” (Italics mine.)
The above-quoted statute unquestionably authorized the board to admit and to consider additional evidence relative to any aggravation between the terminal dates. I think it also clearly authorized the board to admit and to consider evidence as to any aggravation occurring after the date of the department’s last closing order, June 2, 1952, and up to and including the date of the hearing before the board, in order to decide the appeal “fairly and equitably.” It is well known that when evidence outside the pleadings is properly admitted by a trial judge the pleadings may be amended to conform to the proof. I see no reason why the board could not do likewise, since, under the above statute, the hearing is de novo, and the board may secure such additional evidence as it deems necessary to decide the appeal fairly and equitably. In other words, the function of the board at and after the de novo hearing was not that of technical appellate review. The board was not and should not have been limited to the issue technically raised in the notice of the appeal which was taken from the order of the department of labor and industries.
As mentioned heretofore, the testimony of Dr. Humph-reys, standing alone, and as evaluated in the majority opinion, appears to show a worsening of the claimant’s Condition between June 2,1952, and the termination of the hearing before the board on July 13, 1954.
*549The majority opinion reverses the judgment of the trial court with the instruction that the appeal from the order of the board be dismissed. However, within the period permitted by the statute of limitations, the claimant can again apply to the department to reopen his case, and he can attempt to show aggravation subsequent to June 2, 1952. Once again, I emphasize that such a procedure is circuitous, long drawn out, and not in keeping with the spirit and intent of the state workmen’s compensation act to provide sure and quick settlement of the claims of injured workmen.
I would remand the case to the trial court with instructions that the judgment be vacated and that the case be returned to the board for a determination as to whether the entire record shows a worsening or aggravation of the claimant’s condition between December 20, 1951, and July 13, 1954, or, for that matter, up to the date of the rehearing before the board. Certainly, there should be no argument that such a result makes good sense in terms of administrative procedure and should expedite the handling of aggravation claims.
Mallery and Rosellini, JJ., concur with Finley, J.
January 17, 1957. Petition for rehearing denied.