Guy F. Atkinson Co. v. Webber

¹ Reported in 131 P.2d 421. Robert Webber, husband of Hazel Webber, died as the result of a coronary thrombosis October 11, 1940, while working for Guy F. Atkinson Company, a corporation. He was forty-two years of age, and was working for the company as a caterpillar tractor (or "bulldozer") driver on the construction known as the Mud Mountain dam. He was on the night shift from twelve midnight to eight a.m. He went to work at midnight, October 10th, and about seven-thirty o'clock on the morning of October 11th, a fellow employee observed him lying on the ground near his tractor, evidently suffering severely. He was assisted to a nearby automobile and taken to the employer's camp hospital, where he died in a few minutes.

December 16, 1940, Hazel Webber, the workman's widow, filed with the department her claim for a pension, and in due time the supervisor allowed the claim, charging against the employer's cost experience the amount of four thousand five hundred dollars. From this award, the company appealed to the joint board, which, October 27, 1941, sustained the order of the supervisor. From this order the company appealed to the superior court, where the action was tried, with the result that findings of fact, conclusions of law, and judgment were entered reversing the order of the joint board, from which judgment the department of labor and industries and Hazel Webber, the widow of the deceased workman, have prosecuted separate appeals to this court.

The department assigns error upon the entry of one finding of fact and several conclusions of law; upon the allowance to respondent (the employer) of an amount as attorney's fee, to be paid out of the administrative fund of the department; and upon the allowance of certain witness fees to respondent.

Appellant Hazel Webber on this appeal finds herself in a rather peculiar position. The department allowed her claim, which is, of course, the matter of primary concern to her. Whether or not the department charges to respondent a certain sum by way of cost experience is to appellant Hazel Webber immaterial. In her brief, Mrs. Webber states that she does not understand that the superior court intended its judgment to go farther than to reverse the decision of the joint board charging a certain amount as cost experience to respondent. The judgment which the superior court entered reversed without qualification

". . . the orders of the supervisor of industrial insurance and of the joint board sustaining the same in connection with the death of Robert Webber, and finding his death to have been the result of an industrial injury,"

while in the employ of respondent. The superior court remanded the cause to the department for the purpose of complying with the court's findings and judgment. By its appeal to the superior court, respondent brought before that court for review the decision of the joint board affirming the supervisor's action upon Mrs. Webber's claim, respondent appealing "from each and every ruling made in connection therewith."

In view of our conclusion upon the merits of the controversy, this matter need not be further noted.

The deceased, Robert Webber, was a thoroughly competent bulldozer operator, and May 7, 1940, entered the employment of MacDonald Building Company, which was placing a fill on the state capitol grounds, at Olympia, preparatory to the erection of the structure now known as the Transportation building. On the date mentioned, Webber's machine, while he was operating the same, was caught in an earth slide and carried about twenty-five feet down an incline. The bulldozer was turned upside down, Webber being caught underneath, none of the weight of the bulldozer, however, resting upon him. He was rescued by fellow workmen and taken in an ambulance to the hospital. While caught under the bulldozer, Webber was in serious danger of suffocation, he having been thrown face downward in loose sand. The doctor who treated Webber made no X-ray examination of his chest or lungs, but advised Webber to remain in the hospital at least overnight. It appears, however, that, notwithstanding this advice, Webber went to his home in Tacoma. At a later date, Webber called at the doctor's office, but the doctor did not see him. The doctor testified that, in the course of his examination of Webber, he observed no heart enlargement or murmurs. His examination of the heart was by stethoscope only, and it appears that bad heart conditions may exist which would not be disclosed by that method of examination.

Dr. W.B. McNerthney, a Tacoma physician of many years' experience, was called to the Webber home either on the night of the accident or the evening of the following day, Webber complaining of soreness of his chest and nervousness, stating that he had been buried in dirt. Another stethoscopic examination of the heart was negative. The doctor ordered the patient to stay in bed to rest, and gave him some medicine for his nervous condition. The next day the doctor found the patient improved, and about ten days later examined Webber at his office, finding no symptoms of heart injury or any other difficulty.

Mrs. Webber testified that, after her husband was injured by the earth slip, he remained home for about a week, and never resumed employment with the MacDonald Building Company; that he complained of pain, sometimes in his chest and sometimes in his stomach. Whether Mr. Webber was employed after the accident referred to and until he entered the employ of respondent, July 27, 1940, is uncertain. He was regularly employed by respondent from the date last mentioned until his death, and worked regularly until the evening of October 9th. On that evening, Webber advised his employer that he would be unable to take his shift that night. Concerning this matter, Mrs. Webber testified that, about one o'clock in the morning of that day, Webber went to the kitchen for a drink of water, and fell face down upon the floor. A doctor was procured three or four hours later, he testifying that in his opinion Webber had suffered a coronary attack, either a spasm or occlusion. The doctor advised Webber not to return to work, and instructed him to consult a physician before attempting to work again. Notwithstanding this, Webber reported for work, and as above stated, died on the morning of October 11th.

Mrs. Webber stated that, during the period he worked for respondent, her husband had often complained of pain in his chest and his stomach, and that, from the time of the accident, while he was working for the MacDonald Company, to his death, sand sometimes appeared in his saliva.

During the night of October 10th-11th, Webber was operating his tractor in keeping dirt in proper quantities in front of a shovel, and in keeping level a dirt road or path which was being used by trucks. It does not appear that the work was particularly heavy, or that management of the very large tractor required any great exertion on Webber's part. Sometimes the tractor would have no particular duty to perform, when Webber would stop by the roadside to await some occasion to start the machine again. The shift would end at eight o'clock a.m., and between seven-fifteen and seven-thirty, Webber was discovered lying on the ground, in great distress, by George Potvin, a fellow employee, the tractor not having been in operation for about fifteen minutes. Webber was in very bad condition, Potvin and another workman summoned to help him anticipating that he might die then and there. Artificial respiration revived him to some extent, after which, a witness stated, he made a remark to the effect that there was "one more grease cup on his cat that we haven't got."

No one observed Webber at the time of his collapse, and he had not advised his employer or anyone else that he had suffered a shock a day or so before, and that his doctor had advised him not to go to work. A post-mortem performed by Dr. Gale E. Wilson disclosed an enlarged heart and "a fresh clot in the descending branch with a fresh hemorrhagic infarct in the posterior left ventricular wall." Dr. Wilson stated his diagnosis as follows:

"Coronary sclerosis "Coronary occlusion "Infarcts left ventricle "Infarcts kidney "Chronic passive congestion, liver, spleen kidneys."

Another doctor, who was taken by Dr. Wilson to the autopsy room and examined the body of the deceased, confirmed Dr. Wilson's report.

It was and is respondent's contention that Webber's death was the result of the condition of his heart, disassociated from any trauma, there being no evidence of any serious external injury. It is argued that Webber's physical condition, without exertion of any sort, was sufficient to cause his death, and that Webber's days were numbered, whether he worked or not.

Some of the medical evidence in the record tends to show that the injury which Webber suffered while in the employ of the MacDonald Building Company had nothing whatever to do with Webber's death; other evidence indicates that that accident probably rendered his preexisting bad heart worse.

[1] This appeal is before this court de novo, and the burden of overcoming the prima facie presumption that the joint board ruled correctly in allowing the claim rests upon respondent. Mecartea v. Department of Labor Industries,176 Wash. 27, 28 P.2d 257; McLaren v. Department of Labor Industries, 6 Wash. 2d 164, 107 P.2d 230.

[2] It clearly appears from the record that, for some time prior to his death, Mr. Webber had suffered from a very bad heart condition, which had probably existed for about two years. How much, if any, the accident of May 7, 1940, aggravated this condition, is uncertain. The record does not preponderate against the opinion of the supervisor and the joint board, to the effect that the death of Mr. Webber cannot be directly attributed to that accident. Doubtless his heart was in a very bad condition at that time, but to what degree, if any, that accident rendered that heart condition worse or hastened his death, cannot be determined. All the medical testimony is to the effect that Mr. Webber might have died from heart disease at any time, and that his death actually resulted from the fresh blood clot, or thrombosis, in the coronary artery, disclosed by the autopsy.

The caterpillar tractor or bulldozer which Mr. Webber was operating was of the largest and heaviest type used on the Mud Mountain dam construction. It was equipped in front with a steel blade for the purpose of pushing earth and debris in front of the tractor. The machine moves on wide steel treads, and is operated by a series of hand levers. Webber was operating the bulldozer over somewhat rough and uneven ground, and in so doing he was sometimes subjected to jolts and jars. All of the doctors who testified, with one exception, stated that a coronary thrombosis such as that which caused the death of Mr. Webber might have been brought about by exertion. One doctor testified that a very slight exertion might precipitate a condition which would cause death. Of course, it is easy, after the event, to say that Mr. Webber was in no condition to work, but he did work, and received his death stroke while on his job.

During the past few years, many similar questions have been considered by this court. McKinnie v. Department of Labor Industries, 179 Wash. 245, 37 P.2d 218; Devlin v. Departmentof Labor Industries, 194 Wash. 549, 78 P.2d 952; Bergagnav. Department of Labor Industries, 199 Wash. 263,91 P.2d 551; Barnes v. Department of Labor Industries, 6 Wash. 2d 155, 106 P.2d 1069. These cases are all considered and discussed in the case of McCormick Lbr. Co. v. Department ofLabor Industries, 7 Wash. 2d 40, 108 P.2d 807, and the rule laid down by the majority of the court in the earlier cases was adopted.

In the recent case of Northwest Metal Products Co. v.Department of Labor Industries, 12 Wash. 2d 155,120 P.2d 855, the matter was again considered, and the rule laid down in the McCormick case unanimously followed. The recent case ofGuiles v. Department of Labor Industries, 13 Wash. 2d 605,126 P.2d 195, cited by respondent, is not here controlling.

The trial court, in reversing the departmental order, was influenced by the opinion of this court in O'Toole v. Departmentof Labor Industries, 182 Wash. 202, 46 P.2d 388. So long as the law remains unchanged, the McCormick and Northwest MetalProducts Co. cases should be followed. In future, the O'Toole case should be considered in the light of the statement just made.

Respondent calls attention to the fact that, when appellant Hazel Webber filed her claim with the department, she stated that her husband died as the result of an industrial injury, describing in her claim, and apparently primarily basing the same upon, an injury which her husband suffered May 7, 1940, while in the employ of the MacDonald Company, this referring to the accident occasioned by the slide above described. Mrs. Webber referred to this accident apparently as the only occasion of which she was advised which resulted in any trauma suffered by her husband while working, although she stated in her claim that, at the time of his death, it was observed that her husband's forehead showed a slight abrasion. There was testimony to the effect that this abrasion was not recently received.

Respondent argues from the record that Mr. Webber's work while in respondent's employ was light, and would result in a minimum of shock or vibration. It is also argued that, in view of the record, it cannot be held that any exertion on Mr. Webber's part caused his death; that he died from a heart condition of long standing, and not from any particular recent injury. Respondent quotes from the testimony of its camp surgeon, who arrived at the camp hospital just as Mr. Webber expired. This physician testified in part as follows:

"The man did not have to go to work to have had the same thing happen. He could have had that thing any time from the time he left his house on the way going to work, to the time that he got to the job without even getting on the `cat'. The same thing could have happened. Q. Then you mean his death was a foregone conclusion, without any kind of exertion, is that what I take it? A. That's what my conclusion is, very definitely."

In view of all the testimony, there can be no doubt that Mr. Webber had a bad heart condition, and that his death might have occurred at any time. However, he did die while working for respondent and engaged in operating a heavy bulldozer, which, however such work might be described, must have involved considerable physical exertion, and which undoubtedly at times resulted in jars and shocks of some degree of violence.

Respondent contends that Mr. Webber did not collapse while seated on the bulldozer. Whether or not this is true, we do not know. He was found on the ground a short distance from the machine. Unless he was thrown from the machine by some violence, it seems probable that he left his seat thereon because of some physical disturbance. In any event, this question is of little importance. It is true that there is no testimony to the effect that Mr. Webber particularly exerted himself for a few minutes prior to the time he was discovered lying on the ground in extremis.

The department determined the question presented in favor of appellant Hazel Webber, and allowed her claim for a pension. Upon the record before us, we hold that this case falls within the principle of the McCormick and Northwest Metal Products Co. cases, supra, and that the trial court erred in reversing the order of the department allowing Mrs. Webber a pension.

Respondent contends that, under the circumstances shown, it should not be charged with any cost experience based upon Mr. Webber's death, arguing that his death was not the result of any accident, as none occurred. In this connection, respondent also argues that Mr. Webber undoubtedly suffered a severe accident while in the employ of the MacDonald Company, which accident was duly reported to the department, and that, as the record contains testimony to the effect that Mr. Webber's physical condition after that accident was worse, and that he complained of pain and spit sand, if it be held that appellant Hazel Webber is entitled to a pension, respondent should not suffer through any charge against its cost experience. In this connection, respondent cites the opinion of the supreme court of Oregon in the case ofChalfant v. Arens, 167 Ore. 649, 120 P.2d 219.

It may well be that the accident of May 7, 1940, resulted in some deterioration of Mr. Webber's physical condition, but that is a matter of speculation only.

The record before us affords no basis for holding that respondent's cost experience may not, under the law, be charged with the amount which the department set against the same.

The conclusion which we have reached on the merits renders it unnecessary to consider other assignments of error argued by appellant department.

The judgment appealed from is reversed, with instructions to the superior court to affirm the order of the department, from which respondent appealed to the superior court.

MILLARD, STEINERT, and JEFFERS, JJ., concur.