Vaupell Industrial Plastics, Inc. v. Department of Labor & Industries
Vaupell Industrial Plastics, Inc. v. Department of Labor & Industries
Opinion of the Court
Claimant, Nelga P. Cowardin, filed a claim for industrial injury with the Department of Labor and Industries of the State of Washington. The department rejected her claim. She appealed to the Board of Industrial Insurance Appeals, which after hearing, reversed the department and entered findings and conclusions and decision in claimant’s favor. Claimant’s employer, Vaupell Industrial Plastics, Inc., appealed to the superior court. The court heard the matter de novo on the board record, affirmed the board’s decision, and entered findings, conclusions and judgment in favor of claimant. The employer appeals.
The evidence supporting the findings shows the following: Claimant on April 26, 1966, while on her employer’s premises, sustained an injury to her back while pulling a basket of plastic parts, weighing 'approximately 6 pounds, out of a so-called “cooker” with a pulley device. Claimant testified that normally, she pulled the basket frontwards, but this time she pulled the basket over on the side and when she did, she felt a twinge or a pulled muscle. Com
Claimant on July 27, 1966, made a claim under the Industrial Insurance Act, reporting that she was injured in April 1966 in the course of employment and that the injury caused the above mentioned protruding lumbar disc. The department rejected her claim on the ground that there was no proof of the specific injury at a definite time and place, and that claimant’s condition was not the result of the alleged injury.
Prior to April 1966, claimant had experienced back problems requiring chiropractic treatment. In the interval of 1960 to April, 1966 she received repeated treatment for symptoms in her upper back and also received treatment in the low back related to menopause. In June, 1965 she fell injuring her face, legs and arms and right lumbar region and thereafter received a chiropractic treatment to her entire back. However, there was no evidence — only suspicion at best — that the disabilities caused by the April 26, 1966 injury had been caused by claimant’s prior back problems or that she had sustained any injury at the place on her back where she had felt what she first thought was a muscle pull. The sole evidence showing a causal connection between the so-called muscle pull incident and the disabilities of which claimant complained was the testimony of Dr. St. Elmo Newton, her medical expert, in response to a hypothetical question admitted in evidence over the objection of employer and the department. The court found inter alia:
On April 26, 1966, the claimant sustained an injury to her low back which she thought was a muscle pull, but which was ultimately diagnosed as protruding lumbar disc at the Lumbar 4 or Lumbar 5 level, when the claimant pulled a basket of plastic parts weighing approximately six (6) pounds out of a cooker with a pulley device and, while bent forward, pushed the basket over to one side
The court concluded:
The appellant has not carried the burden of proof in that they have not established that the Findings and decision of the Board are incorrect by preponderance of the evidence.
Appellant challenges the quoted finding and conclusion on the ground that the challenged finding lacks evidentiary support.
Appellant first contends that there was not sufficient evidence to establish “a sudden and tangible happening, of a traumatic nature” within the meaning of RCW 51.08.100. That statute provides:
“Injury” means a sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without, and such physical conditions as result therefrom.
We disagree. In Boeing Co. v. Fine, 65 Wn.2d 169, 173, 396 P.2d 145 (1964), it was held that the plaintiff is only required to show prima facie that “some unusual or awkward angle, required by the condition or demands of the job, caused injury to the mechanical structure.” It is undisputed that claimant felt what at that time she thought to be a pulled muscle when she was raising the basket out of the cooker while in an awkward position. This evidence is sufficient to make a prima facie showing of the required traumatic happening.
Appellant, however, primarily contends that the only evidence which establishes the muscle pull incident as a proximate cause of her protruding disc was the testimony of Dr. Newton, which appellant claims was inadmissible because made in response to an improperly drawn hypothetical question.
The trial judge should be given discretion to determine how far the counsel can and must properly limit his ques
2 J. Wigmore, Evidence § 682, at 810 (3d ed. 1940).
The employer, aided by the department, advances several reasons to support the objection to the hypothetical question. It is claimed that the question assumes, without evidentiary support in the record, that claimant felt a twinge of pain in the lumbar area of the back rather than in her mid-back, and that she felt a twinge of pain in her back and right hip and leg at the time of the injury. The record shows, however, that there is evidentiary support for the facts assumed.
The evidence as to the precise location of the injury is somewhat confusing. Claimant on one occasion, in describing the area in her back where the injury occurred, testified “I don’t know what part you would call it.” Claimant, at other times, described the injury as occurring in her mid-back. In still other testimony she did not use the term mid-back to define anything higher than her beltline, i.e., her low back. Claimant, however, while testifying in the presence of counsel for the parties, physically pointed out to the trial examiner the area of her back where the assumed muscle pull occurred. The record does not show the precise area that she physically designated. However, the board adopted the examiner’s finding that “[T]he claimant sustained an injury to her low back which was ultimately •diagnosed as a protruding lumbar disc at the [lumbar four or lumbar five] level . . .” The evidence is sufficient, in our opinion, to support the assumption in the hypothetical question that the injury occurred in her low back.
The assumption that the claimant felt a twinge of pain in her low back and right hip and leg at substantially the same time also finds support in the record. The precise date of the injury is not clear. At one point, however, claimant testified that she started her work described as “cooking” about mid-April and that she sustained her injury “about a couple of weeks” thereafter. The board found that
Appellant employer also contends that the hypothetical question is confusing and conjectural because the word “job” referred to in assumption 12 was made without reference to any specific job conduct of the claimant. However, the word “job” in assumption 12 is explained in assumptions 10 and 11. The employer on cross-examination was entitled to inquire of the doctor what he understood by the reference to “job” in assumption 12 so that if the doctor was confused by the reference, the confusion could have been dispelled. Spinelli v. Economy Stations, Inc., supra; Wharton v. Department of Labor & Indus., supra. The hypothetical question being proper, the answer had evidentiary value to show that claimant sustained 'an injury within the meaning of RCW 51.08.100.
It is further contended that the hypothetical question omits material facts relating to claimant’s prior back troubles. It is claimed that assumption 6 in the hypothetical
Claimant in relating the history of her injury to the doctor, told him, according to his notes, that “pain began in right hip and right leg while out lifting boxes at work.” In reaching our conclusions here, we have not relied upon this testimony as evidence of the facts recited. Floyd v. Department of Labor & Indus., 68 Wn.2d 938, 416 P.2d 355 (1966); Smith v. Ernst Hardware Co., 61 Wn.2d 75, 377 P.2d 258 (1962).
The judgment is affirmed.
Utter and Williams, JJ., concur.
“Doctor, [1] assuming a 50-year old. woman who assume she comes to you with a [2] complaint of pain in the right hip and leg who [3] related the history of this problem for approximately six weeks prior to her initial visit to you [on June 14, 1966] and [4] assuming that your
“Assuming further that [10] she has an additional job which is known as ‘cooking’, which consists of raising a basket of plastic items; the whole around amount which weighs probably no more than seven to eight pounds and it is, in fact, considered light work.
“Assuming further [11] that these plastic parts are then dumped on an absorbent blotter to dry and then placed in boxes which are approximately twenty-six inches by about twenty-six inches and again, the total weight is probably no more than seven to ten pounds.
“And assuming further that she relates that [12] at the time of the incident where she felt the twinge of pain in her back she stated that she was doing the job a little differently, in that she was pulling and twisting at the same time because she did not want the water to go into another part of the tank. And assuming further that while [13] the job was essentially one of light work that it does involve bending and reaching and on occasions, awkward positions.” (Bracketed material added.)
Before the doctor was called upon to answer the foregoing question, it was modified in certain respects not here material.
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