Blue Chelan, Inc. v. Department of Labor & Industries

Dore, J.

(dissenting) — This is a tragic case. On March 3, 1980, the Board of Industrial Insurance Appeals found that workman Edward L. Sisson was not able to obtain and perform gainful employment, and that he was totally and permanently prevented from engaging in any full-time occupation on a reasonably continuous basis, and he was awarded a pension. The employer appealed to the superior court and, after the jury answered interrogatories in his favor, the trial judge rendered judgment upholding the Board. Somehow the superior court judgment was appealed through the free services of the Attorney General, although the employer was never seen at any time during the appellate process, and apparently underwrote none of the *517expenses of the appeal.

Today, 4 years later, the majority of our Supreme Court tells workman Sisson that his judgment is worthless and he has to go back to start over again in superior court. This is another flagrant example of why people are exploring other avenues to resolve their legal difficulties. I predict that such a retrial is a waste of judicial and workman time and, in all probability, will result in the same verdict originally awarded in the superior court.

Board's Findings

The majority has adequately covered the facts, but I would like to emphasize the Board's findings and decision.

Pertinent findings of the Board substantiate its decision that Sisson was permanently and totally disabled:

4. On and prior to June 14, 1978, claimant suffered a condition of acute allergic bronchitis, mild chronic obstructive pulmonary disease, and residual dyspnea on exertion. The allergic bronchitis was caused by the dust encountered in the course of his work at Blue Chelan, Inc. His industrial exposure aggravated and caused a permanent worsening of his pre-existing chronic obstructive pulmonary disease. His condition is fixed. He should avoid heavy physical labor, dust and fumes.
5. Claimant is 64 years old and has an 8th grade education. He has worked at jobs requiring heavy labor including construction, logging, farming and orchard work.
6. On June 14, 1978, claimant's disability attributable to his industrial disease, combined with his age and prior training, totally and permanently prevented him from engaging in any full time occupation on a reasonably continuous basis.

Clerk's Papers, at 19.

As the employer is the appealing party in this matter, RCW 51.52.115 makes the finding and decision of the Board of Industrial Insurance Appeals prima facie correct, and the burden is on the appealing party from a Board decision to show that such findings and decision are not correct and, if the trier of the fact finds the evidence

*518equally balanced, then the findings of the Board must stand.

Allison v. Department of Labor & Indus., 66 Wn.2d 263, 401 P.2d 982 (1965) states at page 268:

In this context, "prima facie" means that there is a presumption on appeal that the findings and decision of the board, based upon the facts presented to it, are correct until the trier of fact finds from a fair preponderance of the evidence that such findings and decision of the board are incorrect. It must be a preponderance of the credible evidence. If the trier of fact finds the evidence to be equally balanced then the findings of the board must stand. Groff v. Department of Labor & Indus., 65 Wn.2d 35, 395 P.2d 633; Sumerlin v. Department of Labor & Indus., 8 Wn.2d 43, 111 P.2d 603; McLaren v. Department of Labor & Indus., 6 Wn.2d 164, 107 P.2d 230; Alfredson v. Department of Labor & Indus., 5 Wn.2d 648, 105 P.2d 37.

La Vera v. Department of Labor & Indus., 45 Wn.2d 413, 275 P.2d 426 (1954) states at page 415:

The sole fact-finding function in a court review of a board order is to examine the evidence and determine whether or not it clearly preponderates against the board's findings. If not, the appellant has failed to sustain his statutory burden of proof, and the prima facie correctness of the board's order has been confirmed.

In view of the statutory guidelines set forth in RCW 51.52.115 and interpretative case law, let us analyze interrogatory 2.

Interrogatory No. 2:
On or about June 14, 1978 and as a proximate result of his January 28, 1976 industrial injury, was Mr. Sisson capable of obtaining and performing gainful employment on a reasonably continuous basis?
Answer: No (Yes or No)
If your answer to Interrogatory No. 2 is "No," you will not answer Interrogatory No. 3. If your answer to Interrogatory No. 2 is "Yes," you will answer Interrogatory No. 3.

Clerk's Papers, at 35; instruction 17.

*519Statute Defining Permanent Disability

RCW 51.08.160 defines "permanent total disability" as:
"Permanent total disability" means loss of both legs, or arms, or one leg and one arm, total loss of eyesight, paralysis or other condition permanently incapacitating the worker from performing any work at any gainful occupation.

(Italics mine.)

The Board, in finding of fact 6, found Sisson to be totally and permanently prevented from engaging in any full-time occupation on a reasonably continuous basis. Clerk's Papers, at 19.

The jury supported and corroborated the Board's finding and decision by answering interrogatory 2 — finding that Sisson was not capable of obtaining and performing gainful employment on a reasonably continuous basis. It makes little difference whether we designate interrogatory 2 as a special or general verdict. By its answer of such interrogatory, the jury completely disposed of all issues in the case, for its answer completely upheld the Board's decision and there was no need for any further interrogatories and/or proceedings.

The majority's sole basis for a remand for a new trial is the answer to interrogatory 3. However, as interrogatory 2 had disposed of the entire case, there was no need to answer interrogatory 3, and it is surplusage. In addition, interrogatory 2 specifically prohibits the jury from answering interrogatory 3, saying, "If your answer to Interrogatory No. 2 is 'No,' you will not answer Interrogatory No. 3."

The interrogatories in question here were contained in jury instruction 17. Instruction 17 was not objected to, nor was there any claim such instruction was erroneous on a motion for a judgment n.o.v. or a new trial. On appeal, instruction 17 became the law of the case and cannot be challenged.

Conclusion

The jury's finding that Sisson was incapable of obtaining *520and performing gainful employment on a reasonably continuous basis affirms the Board's finding and decision that Sisson sustained a total and permanent disability. The Department and employer failed to meet their burden of proof in overturning the presumption of the correctness of the Board's order. The trial court correctly affirmed the Board's findings that Sisson was totally and permanently disabled.

I would have affirmed the judgment of the trial court.

Rosellini, Dolliver, and Dimmick, JJ., concur with Dore, J.

Reconsideration denied August 8, 1984.