59 Wn.2d 467, JOSEPH PICICH, Respondent, v. THE DEPARTMENT OF LABOR AND INDUSTRIES et al., Appellants

[No. 35808. Department One.      Supreme Court      January 18, 1962.]

JOSEPH PICICH, Respondent, v. THE DEPARTMENT OF LABOR
                     AND INDUSTRIES et al., Appellants.*

[1] WORKMEN'S COMPENSATION - PROCEEDINGS TO SECURE - REOPENING OF CLAIM - EFFECT. By reopening a claim for disability and increasing the award, the Department of Labor and Industries has, itself, decided that the claimant's condition has changed in the interval; hence, the only issue upon appeal to the superior court is the extent of the disability resulting from the injury.

Appeal from a judgment of the Superior Court for Grays Harbor County, No. 50340, Warner Poyhonen, J., entered October 7, 1960. Affirmed.

Appeal to superior court from order of Department of Labor and Industries. Department appeals from modification of order.

The Attorney General and Robert O. Wells, Jr., Assistant, Holman, Mickelwait, Marion, Black & Perkins, and Fred S. Merritt, for appellants.

F. W. Loomis and Walthew, Warner & Keene, for respondent.

FOSTER, J. -

[1] The Department of Labor and Industries and Rayonier, Inc., appeal from a judgment increasing an award for permanent partial disability. After the last closing of the claim, the department reopened it and, on November 13, 1957, made an additional permanent partial disability award, from which order the respondent appealed to the superior court. By reopening the claim and making the increased award, the department itself decided that respondent's condition had changed in the interval. The only issue upon the appeal to the superior court was the extent of the disability resulting from the injury. Upon conflicting evidence, the court increased the award.

Appellants frankly concede that the judgment must be

* Reported in 368 P. (2d) 176.

[1] See Ann. 72 A. L. R. 1125, 105 A. L. R. 971, 122 A. L. R. 555,      165 A. L. R. 9; Am. Jur., Workmen's Compensation 501.

 468    MARTIN v. MARTIN.     [59 Wn. (2d)

affirmed unless Collins v. Department of Labor & Industries, 50 Wn. (2d) 194, 310 P. (2d) 232, is overruled. This we decline to do and adhere to that decision in which we said:

"When the supervisor of industrial insurance reopened respondent's claim and made an increased award from which the respondent appealed, the only issue was the extent of the disability . . ." (Italics ours.)

The judgment is affirmed.

FINLEY, C. J., HILL, WEAVER, and ROSELLINI, JJ., concur.

April 4, 1962. Petition for rehearing denied.