| IN RE: BRETT S. KEMP | ) | DOCKET NO. 02 13145 |
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| CLAIM NO. X-000228 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Brett S. Kemp, by
- Robinson & Kole, P.S., Inc., per
- Dennis A. Kole
- Employer, Huizenga Brothers Construction, Inc.,
- None
- Department of Labor and Industries, by
- The Office of the Attorney General, per
- Odin Maxwell, Assistant
This is an appeal filed by the claimant, Brett S. Kemp, on March 21, 2002, from an order of the Department of Labor and Industries dated February 15, 2002, that paid time loss compensation through January 8, 1998, and then closed the claim without further treatment or award. The Department order is REVERSED AND REMANDED.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the claimant to a Proposed Decision and Order issued on February 11, 2003, in which the order of the Department dated February 15, 2002, was reversed and remanded.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed. The rulings are affirmed.
The issue presented by this appeal and the evidence presented by the parties are adequately set forth in the Proposed Decision and Order.
After consideration of the Proposed Decision and Order and the Petition for Review filed thereto, and a careful review of the entire record before us, we are persuaded that the Proposed Decision and Order is supported by the preponderance of the evidence and is correct. However, we have granted review in this matter because we agree with Mr. Kemp that Conclusion of Law No. 3 in the Proposed Decision and Order does not adequately address the totality of the permanent partial disability award to which he is entitled. [2]
Part of this confusion derives, we believe, from the pattern of Department orders issued in this matter. We summarize these orders:
8/21/01 The Department issues an order awarding the claimant a Category 2 permanent partial disability award for skin impairment and closed the claim.
8/27/01 The claimant files a Notice of Appeal from the August 21 order.
9/14/01 The Department reconsiders the August 21, 2001 order and states that it will issue a new order after further review.
9/17/01 The Board issues an order returning the case to the Department for further action.
12/16/01 The Department changed the August 21, 2001 order from a final to a temporary order and allowed the claim to remain open.
2/15/02 The Department issues an order closing the claim effective February 15, 2002, and stating, "there is no additional permanent partial disability."
3/21/02 Claimant appeals the February 15, 2002 order.
While the Department specifies in its February 15, 2002 order that there is, "no additional permanent partial disability," it does not specify what that permanent partial disability is. The Department clearly changed the status of its original order awarding permanent partial disability from final to temporary. We do not believe that an order simply closing the claim with, "no additional permanent partial disability" adequately addresses the content of any outstanding temporary order. We do not know, by the content of the February 15, 2002 order, whether the Department intended to confirm the previous Category 2 for permanent skin impairments awarded by the August 21, 2001 order, or some lesser amount.
Again, we have seen the Department use similar language in recent orders. For example, we recently held in the matter of In re Julian R. Green, Dckt. No. 01 25707 (January 15, 2003), that the Department's language closing the claim without "further award for permanent partial disability" is inherently ambiguous when the Department had reconsidered a previous order paying an award for permanent partial disability. Citing King v. Department of Labor & Indus., 12 Wn. App. 1 (1974), we also stated that fundamental fairness requires that a Department order be unambiguous in order to give it res judicata effect.
Gratefully, in Mr. Kemp's case, we need not speculate as to the Department's intent because the testimony of Frederick Braun, M.D., provides sufficient basis to address the totality of Mr. Kemp's permanent partial disability. We conclude that Mr. Kemp is entitled to a Category 2 [3] award for the categories of permanent skin impairments, and a further permanent partial disability award of 11 percent when compared to total bodily impairment for balance and memory. We will amend the Findings of Fact and Conclusions of Law accordingly.
FINDINGS OF FACT
1. On December 16, 1997, Mr. Kemp filed an application for benefits with the Department of Labor and Industries, alleging that he had sustained an industrial injury on December 16, 1997, during the course of his employment with Huizenga Brothers Construction, Inc. On January 12, 1998, the Department allowed the claim and paid time loss compensation. On May 5, 1998, the Department ended time loss compensation and closed the claim without further award.
On July 2, 1998, Mr. Kemp filed a Protest and Request for Reconsideration from the May 5, 1998 Department order. On August 14, 1998, the Department held the May 5, 1998 order in abeyance. On December 7, 1998, Mr. Kemp filed a general protest to any adverse orders issued by the Department.
On January 13, 1999, the Department set aside and held for naught the May 5, 1998 order, held the claim open for treatment until January 13, 1999, and then closed the claim without further award. On January 25, 1999, Mr. Kemp filed a Protest and Request for Reconsideration from the January 13, 1999 Department order. On January 19, 2001, the Department reversed the January 13, 1999 order, and held the claim open.
On August 21, 2001, the Department closed the claim with a permanent partial disability award of Category 2 for permanent skin impairments. On August 27, 2001, Mr. Kemp filed a Notice of Appeal with the Board of Industrial Insurance Appeals from the August 21, 2001 order. On September 14, 2001, the Department issued an order reconsidering the August 21, 2001 order, and noted that an additional order would issue after further review. On September 17, 2001, the Board of Industrial Insurance Appeals issued an Order Returning Case to Department for Further Action. On December 16, 2001, the Department issued an order changing the August 21, 2001 order from a final to a temporary order, and kept the claim open.
On February 15, 2002, the Department ended time loss compensation and closed the claim without further award. On March 21, 2002, Mr. Kemp filed a Notice of Appeal with the Board of Industrial Insurance Appeals from the February 15, 2002 order. On April 19, 2002, the Board issued an order granting the appeal, assigned it Docket No. 02 13145, and directed that proceedings be held on the issues raised by the Notice of Appeal. [4]
2. On December 16, 1997, Mr. Kemp sustained an industrial injury to his head and face while in the course of his duties with employer Huizenga Brothers Construction, Inc.
3. The industrial injury of December 16, 1997, proximately caused Mr. Kemp to suffer a contusion to his left face with fractures, a closed head injury, and a minimal to mild concussion.
4. The industrial injury of December 16, 1997, proximately caused Mr. Kemp to suffer a head injury, with continued memory and balance difficulties.
5. All of Mr. Kemp's medical conditions, proximately caused by his December 16, 1997 industrial injury, had reached medical maximum improvement as of February 15, 2002.
6. As of February 15, 2002, Mr. Kemp's memory and balance conditions proximately caused by the effect of the industrial injury were medically fixed and stable and not in need of further proper and necessary medical treatment. Mr. Kemp sustained a permanent impairment as a result of these conditions equal to 11 percent as compared to total bodily impairment.
7. As of February 15, 2002, Mr. Kemp's skin conditions to the structures of his face were medically fixed and stable and not in need of further proper and necessary medical treatment. Mr. Kemp sustained a permanent impairment as a result of these conditions, which is most accurately described by Category 2 of WAC 296-20-470 for permanent skin impairment.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter of this timely filed appeal.
- As of February 15, 2002, Mr. Kemp sustained a permanent partial disability within the meaning of RCW 51.32.080, equal to Category 2 of WAC 296-20-470 Categories for skin impairments.
- As of February 15, 2002, Mr. Kemp was permanently partially disabled within the meaning of RCW 51.32.080, as described as 11 percent when compared to total bodily impairment for memory and balance.
- The Department order of February 15, 2002, is incorrect and is reversed. This matter is remanded to the Department of Labor and Industries with instructions to award Mr. Kemp a Category 2 award for [5] the categories of permanent skin impairment and a permanent partial disability award of 11 percent as compared to total bodily impairment, less prior awards, and to thereupon close the claim.
It is so ORDERED.
Dated this 19th day of March, 2003.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
FRANK E. FENNERTY, JR.Member
/s/
JUDITH E. SCHURKEMember