(dissenting) — One question is presented by this appeal: Is there medical evidence, based on objective *450findings, sufficient to support the jury’s verdict that claimant’s condition became aggravated and his disability increased between certain dates?
My disagreement with the majority opinion is based upon a different understanding of the record before us. My conclusion that the judgment should be affirmed is supported by the well-considered memorandum opinion of the trial judge, which I adopt as my dissent. He said:
“Defendant, in this action, has moved the Court for a judgment N.O.V. on the basis that there were no objective findings upon which the doctors based any conclusions as to an aggravation arising during the period of 1954 through 1957.
“In reviewing the complete trial record it is apparent to the Court that all of the doctors who testified have based any conclusions they might have reached purely on subjective findings.
“Dr. McKinlay, who was plaintiff’s own physician, stated in his direct testimony:
“ T felt it worsened, as I believe I wrote entirely on the basis of his subjective symptoms. I couldn’t find any further objective signs, but that of course is typical of this type of case.’
“Further in his testimony, in answer to a question as to whether he found any difference in the atrophy of the plaintiff’s arms or legs over the period in question, his answer was, ‘No, I didn’t.’
“The only other possible objective finding in the testimony would be the evidence of an increase in the aggravation of an arthritic condition in plaintiff’s back. This condition was observed by all three doctors from the x-rays but was not attributed in any way to the injury in question.
“Dr. McKinlay, in answer to a statement that all of his objective findings were the same in 1957 as they were in 1954, testified: ‘That is what I felt.’
“And further, in answer to the statement there is no significant difference in the objective symptoms, said,
“ ‘That is correct. I still feel he had a ruptured inter-vertebral disc that never was repaired.’
*451“Dr. McKinlay’s testimony indicated that he recommended surgery in 1957 and recommended a re-opening of plaintiff’s case. In questioning him as to whether he made any note of plaintiff’s requesting surgery, he testified:
“ T didn’t write that down on my card, his answer, but I don’t think I would have written this recommendation if he had not been willing, because I could see no point in reopening on any other basis.’
“It is apparent from a close reading of Dr. McKinlay’s testimony that he recommended a re-opening of plaintiff’s claim for the purpose of performing an operation and not for any aggravation of injury. If there was any aggravation it was not apparent to Dr. McKinlay on the basis of any objective findings.
“This is likewise true of Dr. Lambert, who was one of the examining physicians for the State. He testified, with reference to whether or not the condition of the plaintiff had deteriorated between the dates in question, ‘On pure physical findings his condition was about the same,’ and again, later, in answer to the statement that his physical findings were substantially the same on both examinations, he answered, ‘Yes, sir.’
“Dr. Wallace, who also examined the plaintiff for the State, in answer to a question as to whether or not there was any aggravation of the plaintiff’s condition during the period in question, answered:
“ ‘No. The physical findings were essentially the same. The x-rays revealed nothing abnormal, other than a slight increase of his arthritis, which was compatible with the four-year period that had elapsed.’
“Therefore, applying the rule set out in Phillips v. Department of Labor & Industries, 49 Wn. (2d) 195, 298 P. (2d) 1117 (1956), and Moses v. Department of Labor and Industries, 44 Wn. (2d) 511, 268 P. (2d) 665 (1954), and Kresoya v. Department of Labor and Industries, 40 Wn. (2d) 40, 240 P. (2d) 257 (1952), relating to the necessity of some objective findings as a basis for a medical opinion on aggravation, it is apparent from the testimony in the case that the *452verdict of the jury for the plaintiff cannot stand. Defendant’s motion for a judgment N.O.V. is, therefore, granted.”
I believe that the judgment should be affirmed.
Hill and Donworth, JJ., concur with Weaver, J.