[3] The actual facts in cases of this nature must be determined from the testimony of medical men, though, of course, in some cases the testimony of lay witnesses has a material bearing upon the question involved. Kavaja v. Department of Labor Industries, 126 Wn. 284, 218 P. 196; Knipple v. Department of Labor Industries, 149 Wn. 594, 271 P. 880; Stevich v. Department of Labor Industries, 182 Wn. 401, 47 P.2d 32; Matson v. Department of Labor Industries, 198 Wn. 507, 88 P.2d 825; Eyer v. Department of Labor Industries, 1 Wn.2d 553, 96 P.2d 1115; LaLone v. Department of Labor Industries, 3 Wn.2d 191, 100 P.2d 26; Schafer Bros. Logging Co. v. Department of Labor Industries, 4 Wn.2d 720, 104 P.2d 747; Sumerlin v. Department of Labor Industries, 8 Wn.2d 43, 111 P.2d 603; Radich v. Department of Labor Industries, 10 Wn.2d 107, 115 P.2d 1022; Northwest Metal Products v. Department of Labor Industries, 12 Wn.2d 155, 120 P.2d 855.
Following that, the trial court entered findings of fact to the effect that respondent had suffered a permanent total disability which disabled him from performing any work at any gainful occupation, and thereafter entered a judgment establishing permanent total disability. From this judgment the department has appealed. Disregarding the formal assignments of error, the contention of the department here seems to be twofold: First, that, by the notice to the joint board, respondent did not raise the question of error in classification and that, therefore, any such error was thereby waived and could not thereafter be taken advantage of; and, second, that, with the matter of classification eliminated, the action of the department may be reviewed and set aside only where it is found to be arbitrary or capricious, citing Knipple v. Department of Labor and Industries, 149 Wn. 594, 271 P. 880, and that there is here no evidence of arbitrary or capricious action. The notice of appeal to the joint board, if strictly construed, might warrant the construction which the appellant has placed upon it, but, in view of the conclusion we have reached upon the merits, after considering the entire record, we do not feel called upon at this time to pass upon the first question, the more so, as we hesitate to lay down a strict technical rule which might, in some cases, deprive a worthy claimant with a just cause from having the orders of the department reviewed.
We see no error in these instructions. [2] Whether the rule be as set forth in Knipple v. Department of Labor and Industries, 149 Wn. 594, 271 P. 880, forbidding a review by the courts except for arbitrary action, or whether that rule has been changed by the amendment of 1927, chap. 310, Laws of 1927, p. 813 (Rem. 1927 Sup., ยง 7674), we need not now inquire. There was ample evidence in the case from which the jury could find that the department and the joint board had acted arbitrarily in deducting the seventy per cent disability simply and solely because respondent had been paid for a seventy per cent disability by the British Columbia authorities.
263, 665 P.2d 1386 (1983) (Board decision upheld because claimant failed to meet burden of showing evidence preponderated against Board's finding); Scott Paper, 73 Wn.2d at 843 (burden is on party attacking findings and decision of Board to establish incorrectness by preponderance of the evidence); Chalmers v. Dep't of Lab. Indus., 72 Wn.2d 595, 603, 434 P.2d 720 (1967) (findings and decision of board are correct until trier of fact finds from fair preponderance of evidence that such findings and decision are incorrect) (citing Allison, 66 Wn.2d at 268); La Vera v. Dep't of Lab. Indus., 45 Wn.2d 413, 415, 275 P.2d 426 (1954); Goehring v. Dep't of Lab. Indus., 40 Wn.2d 701, 707, 246 P.2d 462 (1952); Ferguson v. Dep't of Lab. Indus., 197 Wn. 524, 531, 85 P.2d 1072 (1938); Ecklund v. Dep't of Lab. Indus., 187 Wn. 65, 66-67, 59 P.2d 1109 (1936); Grub v. Dep't of Lab. Indus., 175 Wn. 70, 72, 26 P.2d 1039 (1933); McArthur v. Dep't of Lab. Indus., 173 Wn. 701, 702, 23 P.2d 417 (1933); Knipple v. Dep't of Lab. Indus., 149 Wn. 594, 600, 271 P. 880 (1928); McDonald, 104 Wn. App. at 622; Stelter v. Dep't of Lab. Indus., 107 Wn. App. 477, 480, 27 P.3d 650 (2001); Frazier v. Dep't of Lab. Indus., 101 Wn. App. 411, 419, 3 P.3d 221 (2000); Ruse v. Dep't of Lab. Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999);; Jenkins v. Dep't of Lab. Indus., 85 Wn. App. 7, 12, 931 P.2d 907 (1996); Belnap v. Boeing Co., 64 Wn. App. 212, 217, 823 P.2d 528 (1992).