Windust v. Department of Labor & Industries

Donworth, J.

(concurring) — I concur in the majority opinion but wish to state my views on stare decisis in addition to what is said on the subject therein.

The original workmen’s compensation act, adopted in 1911, defined “injury” as follows:

“The words injury or injured, as used in this act, refer only to an injury resulting from some fortuitous event as distinguished from the contraction of disease.” Laws of 1911, chapter 74, § 3, p. 349.

In Frandila v. Department of Labor & Industries, 137 Wash. 530 , 243 Pac. 5 (1926), this court had occasion to construe the above quoted statute. There the workman, while engaged in digging a ditch and chopping a root at the bottom of the ditch, suddenly collapsed and died. The testimony established that the workman was suffering from hardening of the arteries, and that he died from either a rupture of a blood vessel or from embolism. This court, in allowing recovery to the widow, held that the hardened arteries, coupled with overexercise in the course of the employment, caused either the hemorrhage or embolism, and that the chopping of the root was a definite and particular occurrence, which was a contributing, proximate cause of the death. The court then said:

“An accident exists when a man undertaking work is unable to withstand the exertion required to do it, whatever may be the degree of exertion used or the condition of the workman’s health.”

In the next session of the legislature, in 1927, the definition of the word “injury” (which definition still exists at the present time) was materially changed to read as follows:

“The word ‘injury’ as used in this act means a sudden *41 and tangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without, and such physical conditioin as results therefrom.” Laws of 1927, chapter 310, § 2, p. 818; re-enacted by Laws of 1939, chapter 41, § 2, p. 125 [cf. RCW 51.08.100].

In Metcalf v. Department of Labor & Industries, 168 Wash. 305 , 11 P. (2d) 821 (1932), the workman was working rapidly sawing a tree that had fallen across the road in order to get the road reopened for travel with the least possible delay. The task required more than ordinary exertion. When the log was almost sawed through, the workman fell over and died of a cerebral hemorrhage.

The appellant (department of labor and industries) strenuously contended that such a strain was not an injury under the 1927 definition of injury quoted above.

This court quoted, with approval, from Pellerin v. Washington Veneer Co., 163 Wash. 555 , 2 P. (2d) 658 (1931), as follows:

“The manifest intention of the legislature in the enactment of the new definition of injury was to make more certain the definition of injury and make it apply strictly to sudden and tangible happenings occurring from without of a traumatic nature producing an immediate or prompt result.” (Italics ours.)

In upholding the claim for compensation, the court quoted expert testimony that the workman’s death, in the opinion of the doctor, was caused by the overexertion required by the task of quickly removing the log from the road. It then said:

“The fact that his arteries had so hardened that death was likely to result ‘from a sudden and tangible happening of a traumatic nature,’ does not deprive Mr. Metcalf’s widow and minor child of their right to statutory benefits. It was not the legislature’s purpose to limit the provisions of the workmen’s compensation act to only such persons as approximate physical perfection.”

The cases interpreting the 1927 definition of injury are extensively reviewed in McCormick Lbr. Co. v. Department of Labor & Industries, 7 Wn. (2d) 40, 108 P. (2d) 807 *42 (1941), which was heard En Banc, two judges dissenting. In that case, the workman (a logger) collapsed and died while sawing a tree. A post-mortem examination of the body revealed that the deceased had been suffering from chronic conditions of endocarditis, myocarditis, and gastritis. There was expert testimony that the exertion required in sawing the tree was a contributing factor in his death. This court held that the death was the result of an injury, stating that:

“An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of the workman’s health.”

However, Judge Simpson, in his dissenting opinion (in which Judge Robinson concurred), pointed out that the judicial interpretation of the 1927 definition of injury went far beyond the ordinary meaning of the words used by the legislature, saying:

“The mere fact that the man happened to be engaged in performing the functions of his employment at the moment his progressive disease reached its climax, at which point any exertion, any movement, any effort would cause the diseased heart to cease its function, should not be considered as creating a situation in which compensation becomes proper. In such a case, industry is not the cause of the injury, but simply provides the setting for it. To impose upon industry the risk created by progressive diseases, such as heart trouble, apoplexy, embolism, and the like, reaching their climaxes at a time while the workmen are engaged in performing their everyday functions, is to greatly out-distance the legislature’s intention, and throws a far greater burden on industry than the act itself was intended to impose, if its language is to he regarded as expressive of its intent. In effect . . . the interpretation of the majority serves to make of our act an insurance system, rather than a compensation system, and to do so certainly violates the purpose of those who passed the act.

“It may he that every workman injured or suffering in any manner while he is working should receive compensation or insurance therefor. However, such matters are within the province of the legislative hody.” (Italics ours.)

*43 The following cases have adhered to the rule set out in the McCormick case: Sumerlin v. Department of Labor & Industries, 8 Wn. (2d) 43, 111 P. (2d) 603 (1941); Cooper v. Department of Labor & Industries, 11 Wn. (2d) 248, 118 P. (2d) 942 (1941); Northwest Metal Products, Inc. v. Department of Labor & Industries, 12 Wn. (2d) 155, 120 P. (2d) 855 (1942); Guiles v. Department of Labor & Industries, 13 Wn. (2d) 605, 126 P. (2d) 195 (1942); Guy F. Atkinson Co. v. Webber, 15 Wn. (2d) 579, 131 P. (2d) 421 , 137 P. (2d) 814 (1942); Long-Bell Lbr. Co. v. Parry, 22 Wn. (2d) 309, 156 P. (2d) 225 (1945); Olympia Brewing Co. v. Department of Labor & Industries, 34 Wn. (2d) 498, 208 P. (2d) 1181 (1949); Fleischman v. Department of Labor & Industries, 34 Wn. (2d) 631, 209 P. (2d) 363 (1949); and Merritt v. Department of Labor & Industries, 41 Wn. (2d) 633, 251 P. (2d) 158 (1952).

In some of our later cases, which are best exemplified by Mork v. Department of Labor & Industries, 48 Wn. (2d) 74, 291 P. (2d) 650 (1955), we have refused to follow the McCormick rule.

In Mork v. Department of Labor & Industries, supra, we said:

“Even in heart cases, compensability is not predicated upon principles of ordinary life insurance. Death, which is the last stage of a progressive disease, is not within the scope of the industrial insurance act. To be within the act, an industrial injury must have a causal relation to the death of the workman, who otherwise would have lived for an indefinite and unpredictable time. Mere acceleration of the final stage of a disease is not proof of the required causal relationship." (Last italics mine.)

In Higgins v. Department of Labor & Industries, 27 Wn. (2d) 816, 180 P. (2d) 559 (1947), Higgins sought compensation from the department, basing his claim on expert testimony that the work he performed aggravated and contributed to his ailment of chronic pulmonary emphysema (the ballooning or distention of the air cells and loss of elasticity of the lung tissue). In denying the plaintiff’s claim, we said:

“There is no sudden and tangible happening in the pres *44 ent case, no matter of notoriety, nor an event which can be fixed in time, but rather an incapacity due to the relatively slow and insidious inroads of a progressive and apparently incurable disease. It is testified that its progress was accelerated by the character of the work which appellant did for DuPont at Hanford, but that falls far short of establishing an injury within the statutory definition with which we are here concerned.”

In Peterson v. Department of Labor & Industries, 40 Wn. (2d) 635, 245 P. (2d) 1161 (1952), the workman assisted two other employees in rolling a fifty-gallon barrel, weighing about four hundred pounds, up a wooden ramp thirty-one feet long at about ten o’clock a. m. That afternoon, he made complaints of pains in his stomach, and about five minutes later died from a coronary thrombosis. In denying the claim for a widow’s pension, we said:

“We have never held that the dependent of one who dies of heart trouble is entitled to compensation because the onset of an attack occurred while engaged in extrahazardous employment. We have never dispensed with a minimum showing that the employment or an incident occurring during employment must have been, more likely than not, a contributing factor to the death, without which the death would not have occurred when it did.”

In Haerling v. Department of Labor & Industries, 49 Wn. (2d) 403, 301 P. (2d) 1078 (1956), the plaintiff suffered a coronary occlusion. There was expert testimony that the strain and physical exertion that plaintiff was undergoing as a deputy sheriff was a direct predisposing cause of this coronary occlusion. We denied his claim for compensation, stating that:

“The cumulative effect of long continued routine and customary duties upon a workman, regardless of the hours devoted thereto, is not a sudden and tangible happening. The statute contemplates a happening, of a traumatic nature, producing an immediate and prompt result, in order for the injury resulting therefrom to be compensable under the act. A cumulative effect, however injurious, is noncompensable unless it constitutes an industrial disease, not here in issue.”

Thus we have two irreconcilable lines of decisions of this court in which we have reached inconsistent conclusions as *45 to the application of RCW 51.08.100 (enacted in11927 and re-enacted in 1939) to persons suffering heart attacks while in the performance of extrahazardous work.

I am of the opinion that the decision of Department One in Metcalf v. Department of Labor & Industries, supra (the first such case arising under the workmen’s compensation act to reach this court after the legislature changed the definition of the word “injury” in 1927), was wrong in failing to give effect to the fundamental change in the statute.

Later, this error was perpetuated by the court, sitting En Banc, in McCormick Lbr. Co. v. Department of Labor & Industries, supra. In Higgins v. Department of Labor & Industries, supra, and Petersen v. Department of Labor & Industries, supra, the court showed a tendency to recede from the McCormick rule. In Mork v. Department of Labor & Industries, supra, and Haerling v. Department of Labor & Industries, supra, we refused to follow the McCormick rule.

It is not a function of this court to determine the breadth and scope of the coverage afforded by the workmen’s compensation act. That is solely a function of the legislature. In 1927, the legislature narrowed that coverage because of our decision in the Frandila case, supra. We failed to give effect to the legislative change in policy when the matter was strenuously argued by the attorney general in the Met-calf case.

In my opinion, the doctrine of stare decisis does not require us to perpetuate the error of the Metcalf and McCormick cases. As we said in In re Yand’s Estate, 23 Wn. (2d) 831, 162 P. (2d) 434 , quoting with approval from a decision of the New York court of appeals:

“ ‘But the doctrine of stare decisis, like almost every other legal rule, is not without its exceptions. It does not apply to a case where it can be shown that the-law has been misunderstood or misapplied, or where the former determination is evidently contrary to reason. The authorities are abundant to show that in such cases it is the duty of courts to re-examine the question. Chancellor Kent, commenting upon the rule of stare decisis, said that more than a thousand cases could then be pointed out, in the English and *46 American reports, which had been overruled, doubted or limited in their application. He added that “it is probable that the records of many of the courts of this country are replete with hasty and crude decisions; and in such cases ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.” ’ Rumsey v. New York & N. E. R. Co., 133 N. Y. 79 , 30 N. E. 654 , 28 Am. St. 600.”

See, also, Hutton v. Martin, 41 Wn. (2d) 780, 252 P. (2d) 581 .

It is argued that the legislature, in re-enacting portions of the industrial insurance act in 1939, including the definition of injury originally enacted in 1927, must be deemed to have thereby adopted this court’s interpretation of that definition, as stated in Metcalf v. Department of Labor & Industries, supra, and subsequent cases. The answer to this contention is that, if the legislature desired to change the basic plan from a workmen’s compensation act to a health and accident plan effective during working hours, it should not do so obliquely or indirectly, but should be required to expressly declare its intention to do so.

Such a change in policy is too catastrophic to be inferred from the legislature’s failure to correct the effect of our erroneous decision in the Metcalf case, which should be expressly overruled.

I think that, in determining whether or not there has been an injury compensable under the workmen’s compensation act, we are limited by the statutory definition of the word injury. In my opinion, the legislature, in enacting the 1927 amendment, only intended to provide compensation for accidental injuries occurring in extrahazardous employment, and not to compensate workmen or their families for every heart attack which might come on during working hours.

I have signed the majority opinion affirming the judgment of the trial court.

Ott, J., concurs with Donworth, J.