The claimant, Ethel M. Stansbury, was injured in the course of her employment, being struck on the head by a heavy jig. Her claim was closed on October 24, 1944, with time loss and an award of permanent partial disability of five per cent of the maximum for unspecified disability. There was no appeal from this order of the department. She thereafter applied for the reopening of her claim on the ground of aggravation; and on October 31, 1946, the supervisor of industrial insurance awarded her an additional ten per cent of the maximum for unspecified disability.
"That said order of the Supervisor of Industrial Insurance was in error in not adequately rating the permanent partial disability of the claimant as aforesaid."
Although the prayer of the application for rehearing asked for compensation and treatment, or, in the alternative, the maximum for unspecified disability, a reading of the record satisfies us that all the parties proceeded before the joint board on the theory that the claimant was seeking an award based on the extent of her disability, which she claims is total. A few questions by the claimant's attorneys on the cross-examination of the department's witnesses indicate quite clearly their theory of the case at that time:
"Q. If the facts reveal to you, the history of the case and the facts reveal to you that the patient has these numerous complaints and the results of the complaints is a total disability if it is related to the injury, you don't mean to say that the allowance to be made is only 15% do you doctor?"
"Q. And if, however, the facts were to be shown that the claimant cannot do any work would you continue in your assertion that the amount of disability is 15% of the unspecified?"
"Q. And if it were to develop that a patient turns out to have such a disability that she cannot do any gainful work at all then your opinion, doctor, would be different would it not, as to the degree of disability?"
"Q. In other words if it were to develop she had — she wasn't able to perform a gainful occupation then your opinion would be a — she was totally disabled."
It is equally clear that the joint board proceeded in its determination of the matter on the theory that the extent of the disability was the issue before it.
In the superior court, the parties proceeded on the same theory; the reading of the claimant's proposed instructions makes that undeniably clear. It was not until the trial court granted the respondents' motion to dismiss the case at the conclusion of the reading of the claimant's evidence, so far as the action related to any permanent total disability
We have had occasion to say that a party may not present his case on one theory to the trial court, then adopt a different theory on appeal. Smith v. King County, 28 Wn.2d 917, 184 P.2d 562; Markall v. Smithway Machinery Co., 34 Wn.2d 749, 209 P.2d 449. There is every reason for invoking such a rule in the case of an appeal from
The superior court's judgment of dismissal is affirmed.
SIMPSON, C.J., ROBINSON, MALLERY, and HAMLEY, JJ., concur.