Page v. Department of Labor & Industries

Foster, J.

(dissenting) — It is a matter of regret to be unable to agree with the court’s decision: However, the matter is so fundamental that a complete statement of the reasons for my dissent is appropriate.

The court decides that a physician witness must testify as to the precise percentage of disability, even though all of the facts respecting the disability are in evidence.

The evidence is amply sufficient to sustain the verdict. The accident was catastrophic. Respondent was on the roof of a revetment which collapsed, burying him under six hundred tons of sand and debris. Hospitalization ensued promptly, but he has not recovered his ability to work. He has constant pain in the back. The movements of the leg are limited, and the appellant’s physician witness said he could not lift more than fifty pounds, and that could not be more often than once in an hour. The undisputed proofs are that respondent is stiff and sore, and even the appellant’s medical witness admitted respondent walked with a limp which is the result of the accident. Appellant’s medical witness testified the X rays of the respondent’s spine showed a compression fracture of the lumbar vertebra, and the arthritic spurs on the spine were becoming progressively larger. Respondent alone knows whether he has pain or not, and the jury was entitled to believe his positive testimony in that respect.

It is undisputed that respondent never went beyond the seventh grade, has always been obliged to resort to heavy manual labor for a living, and is without training for anything else. Prior to the accident he was a strong able-bodied man without physical impairment. He worked constantly at heavy manual labor. His former employer testified his work was above the average.

Since his claim was closed, respondent has unsuccessfully attempted to obtain work although in that effort he was assisted by his former employer as well as representatives of the labor union of which he is a member. The undis*714puted testimony of the respondent and other lay witnesses as to his inability to engage in manual labor is amply sufficient to justify an award for even permanent total disability under Kuhnle v. Department of Labor & Industries, 12 Wn. (2d) 191, 120 P. (2d) 1003, and, as the whole is the sum of the parts, it necessarily follows that the evidence is sufficient to sustain a lesser award.

All facts touching respondent’s disability were in evidence, from which the jury was as able to form a judgment respecting its extent as it is in any action, and the legislature has enacted that the jury’s verdict shall have the same force and effect as in an action at law. While opinion testimony as to the percentage of disability is admissible, the actual decision must be made by the jury.

. The court’s decision requires examination of the legal philosophy upon which expert or opinion testimony, is admitted. To the basic rule of evidence applied by common-law judges that a witness must give facts.and not conclusions, an exception developed that experts might express conclusions or opinions based upon the proved or known facts in matters outside the ordinary field of human experience which required special skill, study or learning., McCormick on Evidence, 21, § 11.

This court and the supreme court of the United States have different rules respecting the admissibility of an expert’s opinion or conclusion upon the ultimate issue to be decided by a jury. This court held (Metsker v. Mutual Life Ins. Co., 12 Wn. (2d) 618, 123 P. (2d) 347) that a physician witness might express such an opinion, but the United States supreme court held (United States v. Spaulding, 293 U. S. 498, 79 L. Ed. 617, 55 S. Ct. 273) such testimony inadmissible because it usurped the function of the jury. It is but fair to say that the two groups of the most eminent legal scholars in the field of evidence sanction admissibility.2 The cases are in irreconcilable conflict:

*715“An opinion or conclusion of a witness, including skilled or. expert witnesses, ordinarily is excluded from evidence where such opinion or conclusion is determinative of vital issues or of the ultimate fact in issue.” 32. C. J. S. 74,. § 446; see, also, McCormick on Evidence, 24, § 12 (1954 ed.).

All agree, however, that the jury is the final arbiter and may accept or reject such opinion testimony in whole or in part. 20 Am. Jur. 1056, Evidence, §§ 1206, 1208; Riblet v. Spokane-Portland Cement Co., 45 Wn. (2d) 346, 349, 350, 274 P. (2d) 574; Richey & Gilbert Co. v. Northwestern Natural Gas Corp., 16 Wn. (2d) 631, 649, 134 P. (2d) 444, quoting text of American Jurisprudence; Winsor v. Bour-cier, 21 Wn. (2d) 313, 150 P. (2d) 717; Gordon v. Bartell, 182 Wash. 268, 46 P. (2d) 1063.

'■ Certain it is, nevertheless, that in the trial of personal injury actions, this court has disapproved instructions singling out medical testimony for special credence. Murgatroyd v. Dudley, 184 Wash. 222, 50 P. (2d) 1025.

Laws of 1911, chapter 74, § 20, p. 368 [cf. Rem. Rev. Stat., § 7697], provides:

“In other respects the practice in civil cases shall apply.”3 This court sustained a verdict for permanent injuries upon the testimony of lay witnesses in Payne v. Whatcom County R. & Light Co., 47 Wash. 342, 346, 91 Pac. 1084. We held:

“It is also claimed that the court erred in submitting to the jury the question of permanent injuries and in giving instructions in regard thereto, for the reason that there was *716no. testimony tending to show permanent injuries. The weakness of this contention lies in the fact that there was some testimony tending to prove permanent injury. It is true that the testimony of the physicians called as expert witnesses probably did not sustain this contention, but the testimony of the plaintiff Millie Payne and her co-respondent, her husband, Thomas Payne, and the testimony of other of the plaintiffs’ witnesses does sustain it. The testimony of expert witnesses is not exclusive, and does' not necessarily destroy the force or credibility of other testimony. The jury has a right to weigh the testimony of all the witnesses, experts and otherwise, and the same rule applies as to the weight and credibility of such testimony.”

That passage was quoted with approval in Olson v. Weitz, 37 Wn. (2d) 70, 76, 221 P. (2d) 537 (1950).

It is well to briefly trace the history of judicial review of permanent partial disability awards. That question was limited in the original appeal section (Laws of 1911, chapter 74, § 20), to ascertaining whether the industrial insurance commission acted arbitrarily or not; that is to say, whether there was evidence to sustain the administrative finding even though the court might think an erroneous conclusion had been reached. Sweitzer v. Industrial Ins. Comm., 116 Wash. 398, 199 Pac. 724. By the recast of that section (Laws of 1927, chapter 310, § 8, p. 850), the superior court was authorized to determine the amount of the permanent partial disability award. Johnston v. Department of Labor & Industries, 163 Wash. 549, 2 P. (2d) 67. The metamorphosis was complete.

By a series of decisions in 1938 (Hodgen v. Department of Labor & Industries, 194 Wash. 541, 78 P. (2d) 949; Dev-lin v. Department of Labor & Industries, 194 Wash. 549, 78 P. (2d) 952; Russell v. Department of Labor & Industries, 194 Wash. 565, 78 P. (2d) 960), a jury’s verdict was held to be advisory only, and this court itself determined the weight, credibility and preponderance of the evidence, to which the legislative reaction was almost instantaneous because it granted the unqualified right to trial by jury and accorded such verdicts the same sanctity as in actions at law.4

*717Before the jury act of 1939, it was held (Matson v. Department of Labor & Industries, 198 Wash. 507, 88 P. (2d) 825; Kavaja v. Department of Labor & Industries, 126 Wash. 284, 218 Pac. 196) that the actual facts must be. determined from the testimony of medical witnesses, but after the jury act of 1939 (Laws of 1939, chapter 184, p. 579), the court significantly held (Otter v. Department of Labor & Industries, 11 Wn. (2d) 51, 56, 118 P. (2d) 413), the rule announced in the earlier cases had no application in trials by jury because the statute provided the jury’s verdict had the same force and effect as in actions at law.

In other jurisdictions verdicts are not dependent upon the testimony in figures by a physician witness of the percentage of permanent partial disability. Traders & General Ins. Co. v. Snow (Tex. Civ. App.), 114 S. W. (2d) 682, 688; Hampton Roads Stevedoring Corp. v. O’Hearne (C. C. A. 4th, 1950), 184 F. (2d) 76; Montgomery Ward & Co. v. Industrial Comm., 105 Colo. 22, 94 P. (2d) 689; Texas General Indemnity Co. v. Mannhalter (Tex. Civ. App.), 290 S. W. (2d) 360; Blackstock Oil Co. v. Murtishaw, 184 Okla. 312, 87 P. (2d) 308; Wade v. Calcasieu Paper Co., 229 La. 702, 86 So. (2d) 540, 542. The legislature made the court or jury the trier of the facts, not physician witnesses.

Nor does Wissink v. Department of Labor & Industries, 40 Wn. (2d) 672, 245 P. (2d) 1006, compel a different conclusion. The requirement that a physician testify as to his conclusion as to the percentage of disability to sustain an increased permanent partial disability award, could not have been a question in that case. The point at issue was the admissibility of such testimony. Therefore, the following sentence is only dictum and is not controlling:

“Medical men are the only ones considered qualified to give an opinion on the amount of disability in terms of percentage.”

*718The significance of such an expression is governed by the following quotation from Chief Justice Marshall’s opinion in Cohens v. Virginia, 19 U. S. 264, 398, 5 L. Ed. 257:

“It is a; maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”

Moreover, this court approved that rule in Ingham v. Wm. P. Harper & Son, 71 Wash. 286, 128 Pac. 675, in sanctioning the following statement from Wells, Res Adjudicata and Stare Decisis, § 581, p. 527:

“ ‘Not whatever a court may happen to say, in a perhaps discursive argument of a cause, or even several causes, but has regard only to points and adjudications actually involved, as essential elements, in the questions in actual controversy.’ ”

Accord (1) State ex rel. Lemon v. Langlie, 45 Wn. (2d) 82, 273 P. (2d) 464; (2) In re Levas’ Estate, 33 Wn. (2d) 530, 206 P. (2d) 482; (3) Gilmour v. Longmire, 10 Wn. (2d) 511, 117 P. (2d) 187; and (4) State ex rel. Todd v. Yelle, 7 Wn. (2d) 443, 110 P. (2d) 162.

We are told that Kirkpatrick v. Department of Labor & Industries, 48 Wn. (2d) 51, 290 P. (2d) 979; Dotson v. Department of Labor & Industries, 48 Wn. (2d) 855, 296 P. (2d) 1006; Clayton v. Department of Labor & Industries, 48 Wn. (2d) 754, 296 P. (2d) 676; Prince v. Department of Labor & Industries, 47 Wn. (2d) 98, 286 P. (2d) 707; and Moses v. Department of Labor & Industries, 44 Wn. (2d) 511, 268 P. (2d) 665, compel reversal. It is claimed from those cases that a judgment may not stand unless' a physician witness testifies as to the ultimate fact to be determined *719by the trier of the fact, which here is the percentage of disability.

', Those cases are based upon Karniss v. Department of Labor & Industries, 39 Wn. (2d) 898, 239 P. (2d) 555, which was an appeal from an order refusing to reopen an industrial insurance claim based upon an increase in the disability occurring after the claim was closed which is authorized by Laws of 1911, chapter 74, § 5 (h), p. 356, 360, presently codified as RCW 51.32.160, and, so. far as material, isas.foilows:

, “If. aggravation, ■ diminution, or termination of . disability takes place or be discovered after the rate ..of compensation shall have been established or compensation terminated in áby case the department may, upon the application of the beneficiary or upon its:own motion, readjust for future application the rate; of .compensation in accordance with the rules in this section provided for the same, or in a proper case terminate the payments.”

The purpose of this statutory provision, which is common to most industrial insurance and workmen’s compensation acts, was graphically explained by the United States supreme court in Gange Lbr. Co. v. Rowley, 326 U. S. 295, 306, n. 15, 90 L. Ed. 85, 66 S. Ct. 125, as follows:

“It was exactly to prevent such rigid finality that the statute preserved both the Department’s unlimited power to reopen the case and the employee’s power to have it reopened as a matter of right during the limited period. From the beginning the Act seems to have been drawn to avoid the crystallizing effects of the doctrine of res judicata in relation to awards, whether as against the employer or the employee. The idea apparently was that the initial award for an injury would afford compensation for harms then apparent and proved. But it was recognized, on the one hand, that all harmful consequences might not have become apparent at that time and, on the other, that harms then shown to exist might later be terminated or minimized. Cf. Choctaw Portland Cement Co. v. Lamb, 79 Okla. 109, 110, 189 P. 750. The purpose of the provisions for reopening, whether at the instance of the employer, the employee,, or the Department, cf. notes 5 and 14, obviously was to prevent the initial award from finally cutting off power to take account of these later frequent developments. It was to-*720maintain'a mobile system, capable of adapting the amount of compensation from time to time in accordance with the facts relating to the injurious consequences for disability as they actually develop, not to cut off rigidly the power either to increase or to decrease the compensation once an award had become ‘final’ for purposes of appeal.”

The Karniss case decided that an order closing a claim is res judicata as to any issue before the department at the time of entry, but is not res judicata as to an increase in the disability occurring subsequently. The physician who testified in that case had not examined Karniss at the time the claim was closed, and, consequently, did not have testimonial knowledge of a change in the workman’s condition, and, therefore, Karniss failed to sustain the statutory burden of proof. But there is no justification for holding that there must be testimony from a physician witness as to the percentage of the disability in a direct appeal from an order adjudicating the disability.

Such, then, are the reasons for my dissent.

Finley, J., concurs with Foster, J.

“(1) In testifying to what he has perceived, a witness, whether.or not an expert, may give his testimony in terms which include inferences and may státe all relevant inferences, whether or not embracing ultimate *715issues to be decided by the trier of fact, ...” American Law Institute Model Code of Evidence, 199, chapter 5.

“ (4) Testimony in the form of opinions or inferences otherwise admissible under these rules is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.” Uniform Rules of Evidence 56 (4), 193, as set out in Handbook of the National Conference of Commissioners on Uniform State Laws (1953).

The present statute, Laws of 1957, chapter 70, § 64, p. 304, is:

“(RCW 51.52.140) Except as otherwise provided in this chapter, the practice in civil cases shall apply to appeals prescribed in this chapter. Appeal shall lie from the judgment of the superior court as in other civil cases. The attorney general shall be the legal advisor of the department and the board.”
But the law in force at the time of the accident controls. Thorpe v. Department of Labor & Industries, 145 Wash. 498, 261 Pac. 85.

“In all appeals to the superior court from any order, decision or award of the joint board of the Department of Labor and Industries, either party shall be entitled to a trial by jury upon demand. The jury’s verdict in every such appeal shall have the same .force and effect as in actions at law. . . . ” Laws of 1939, chapter 184, p. 579.