APPEARANCES:

 

Claimant, Amy E. Poe, by

HWZ Injury Law Office, per

Gerry Zmolek

 

Employer, Apogee Enterprises, Inc., by

Comprehensive Risk Management, per

Terry D. Peterson

 

Department of Labor and Industries, by

The Office of the Attorney General, per

Sarah J. Reyes, Assistant

 

 

            The employer, Apogee Enterprises, Inc. (Apogee) filed a Notice of Appeal with the Board of Industrial Insurance Appeals from a January 6, 2003 order of the Department of Labor and Industries.  In this order, the Department allowed the claim for an occupational disease of right lateral epicondylitis, with a date of manifestation of December 29, 2000.  The Department order is AFFIRMED. 

 

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, Amy E. Poe, to a Proposed Decision and Order issued on March 24, 2004, in which the industrial appeals judge reversed the Department's January 6, 2003 order.

            The Board has reviewed the evidentiary rulings in the record of proceedings and finds no prejudicial error was committed.  The rulings are affirmed.

Our industrial appeals judge determined this claim should be rejected, based on the doctrine of res judicata.  On March 16, 2001, the Department rejected a prior occupational disease claim Ms. Poe had filed.  Since the current claim is also for an occupational disease, involving symptoms in some of the same parts of the body (the upper back, right shoulder and wrist), our judge decided it should be rejected, based on this doctrine.  Ms. Poe maintains this doctrine does not preclude the Department from allowing this claim, since it was allowed for a new condition (right tenosynovitis or epicondylitis) that resulted from additional occupational exposure.  We agree.  The Department's [2] prior rejection order did not bar it from allowing this claim.  Furthermore, based on the medical evidence presented, we conclude Ms. Poe developed right epicondylitis as a natural and proximate result of her employment at Apogee.  We affirm the January 6, 2003 order allowing the claim.

            The facts most relevant to our decision are as follows.  Ms. Poe is a young woman (21 years old at the time of the hearing) who went to work for Apogee in June 2000, immediately after graduating from high school.  She worked for this employer until October 2002.  She worked as a sewing assistant in a company that manufactured dog beds and reptilian cages.  This position involved repetitive bending and lifting of bales of cloth weighing around 25 pounds, and bundles of finished products from bins.  She also had to prepare and make zippers and package the products.  She developed soreness in her arms, wrists, neck, and upper back in December 2000.  She sought medical attention from Roger E. Sharf, M.D., a family practice physician, who filed Claim No. N‑968440, in February 2001, for myofascial pain in Ms. Poe's right shoulder, upper back, and right wrist.  This claim was filed as an occupational disease and was rejected on March 16, 2001.  The order rejecting the claim did not list any specific basis for the decision, other than boiler plate language that Ms. Poe had not sustained an industrial injury or developed an occupational disease.  The March 2001 order was never appealed and became final and binding.

            Ms. Poe continued to work for Apogee as a sewing assistant until October 2002.  Her arm, shoulder, and neck problems worsened, and she sought treatment from Kenneth H. Spady, M.D., another family practice physician.  Dr. Spady filed the current claim.  On January 6, 2003, the Department allowed the claim for right lateral epicondylitis.  Dr. Spady also referred Ms. Poe to Amir Jalali, M.D., a physiatrist.  Dr. Jalali examined Ms. Poe in February 2003.  At that time, he found objective findings of impairment, including right scapular asymmetry and dysfunction, right shoulder muscle tightness and weakness, and cervical muscle tightness and weakness.  He also found Ms. Poe had a positive right shoulder impingement finding and decreased range of motion in her right shoulder and cervical spine.  He diagnosed (1) right shoulder mechanical pain with very significant notable biomechanical abnormalities (including shoulder position and scapular asymmetry), (2) myofascial soft tissue upper back and right shoulder pain, and (3) upper extremity bilateral tenosynovitis at the epicondyles (i.e. elbows, wrists, and fingers).  Dr. Jalali and Dr. Spady testified that Ms. Poe's right shoulder and upper extremity problems, as well as her cervical/back pain, were caused by her work as a sewing assistant.

James F. Green, M.D., a forensic witness called by the employer, admitted that Ms. Poe had objective findings of shoulder and cervical problems when Dr. Jalali examined her in 2003.  He also [3] admitted there were no objective findings of impairment in 2001, when Ms. Poe's first claim was rejected.  Dr. Sharf also testified he noted no objective findings of any impairment during his examinations during the winter of 2001.  Hence, the medical testimony clearly establishes that Ms. Poe's right arm, shoulder, and cervical conditions worsened between 2001 and 2003.  During this period, her myofascial pain continued and became aggravated, but she also developed new conditions, namely biomechanical right shoulder abnormalities and right upper extremity tenosynovitis or epicondylitis.  The medical testimony linking these conditions to Ms. Poe's work for Apogee is entirely convincing, given her singular work history.

Our industrial appeals judge rejected this claim on the grounds that res judicata principles precluded the Department from allowing this claim, because it had rejected her original claim.  Res judicata is a legal doctrine designed to curtail relitigation of issues that have already been determined.  For the March 2001 order to preclude allowance of this current claim we must decide it (1) became final and binding, and (2) this appeal concerns the identical subject matter, cause of action (or claims), and parties involved in the Department decision to reject the prior claim.  Somsak v. Criton Technologies/Heath Tecna, Inc., 113 Wn.App. 84, at 92 (2002).  There is no question the March 16, 2001 order became final and binding.  However, as we have recently noted "an unappealed Department order is only res judicata regarding issues that were clearly addressed by the terms of the order.  Somsak at 92, citing Kingery v. Department of Labor & Indus., 132 Wn.2d 162, 169 (1997), and King v. Department of Labor & Indus., 12 Wn. App. 1, 4 (1974).  Fundamental fairness requires that the application of the doctrine 'does not work an injustice on the party against whom it is to be applied.' "  Winchell's Donuts v. Quintana, 65 Wn. App. 525 at 29-30 (1992)."  In re David Flanigan, BIIA Dec., 02 18511 (July 24, 2003).

The Department did not address the same conditions in these two claims.  Ms. Poe developed new conditions, including the right upper extremity epicondylitis or tenosynovitis, by the time this second claim was filed.  This condition had not been diagnosed when her first claim was rejected.  By the time the Department allowed this claim, she had worked an additional 20 months since she filed her first claim.  The majority of the medical witnesses clearly linked Ms. Poe's epicondylitis to her repetitive work conditions.  Accordingly, we are persuaded this condition was the natural and proximate result of Ms. Poe's work as a sewing assistant.  The Department order [4] allowing the claim for Ms. Poe's epicondylitis was, therefore, correct.  Dennis v. Department of Labor & Indus., 109 Wn.2d. 467 (1987). [1]

In summary, the Department's decision to allow this claim is entirely correct because Ms. Poe had further occupational exposure, which resulted in a new condition, epicondylitis, which was allowed in the current claim.  Therefore, based on our careful review of the record, the Petition for Review, and the employer's Reply Brief, we have determined the January 6, 2003 order allowing the claim should be affirmed.

 

FINDINGS OF FACT

 

1.         On April 22, 2002, Ms. Poe filed an application for benefits with the Department of Labor and Industries alleging that she had sustained an industrial injury to multiple parts of her body on December 29, 2000, during the course of her employment with Apogee Enterprises, Inc. (Apogee).  On July 30, 2002, the claim was rejected on the grounds that Ms. Poe's condition was not an occupational disease.  On August 12, 2002, Ms. Poe filed a Protest and Request for Reconsideration with the Department from the July 30, 2002 order.  On August 14, 2002, the Department affirmed its July 30, 2002 order.

 

On August 19, 2002, Ms. Poe filed an appeal with the Board of Industrial Insurance Appeals from the August 14, 2002 order (Docket No. 02 18196).  On September 19, 2002, the Department reassumed jurisdiction of the claim, and held the August 14, 2002 order for naught.  On September 20, 2002, the Department set aside and held for naught the July 30, 2002 order.  On September 23, 2002, the Board issued an order returning the case to the Department for further action (Docket No. 02 18196). 

 

On January 6, 2003, the Department issued an order in which it allowed the claim as an occupational disease for right lateral epicondylitis, with a date of manifestation of December 29, 2000.  In its order, the Department assigned 100 percent of the liability for the claim costs to Apogee.  On January 27, 2003, Apogee filed a Notice of Appeal with the Board from the January 6, 2003 order.  On February 14, 2003, the Board issued an order granting the appeal and assigning it Docket No. 03 11095. [5]

 

2.         Ms. Poe began working for Apogee in June 2000, immediately after graduating from high school.  She worked for Apogee until October 2002, as a sewing assistant.  Apogee manufactures dog beds and reptilian cages.  Her position involved repetitive bending and lifting of bales of cloth, weighing around 25 pounds, and bundles of finished products from bins.  She also had to prepare and make zippers and package the products.

 

3.         In February 2001, approximately eight months after she started working for Apogee, Ms. Poe filed Claim No. N-968440 with the Department.  This claim was filed as an occupational disease.  The Department rejected the claim on March 16, 2001, on the grounds that Ms. Poe had not sustained an industrial injury or developed an occupational disease.  This order was never appealed and became final and binding.

 

4.         Ms. Poe continued to work for Apogee as a sewing assistant.  She filed the current claim in April 2002, alleging she developed hand, arm, shoulder, and neck conditions due to her repetitive work as a sewing assistant.

 

5.         In February 2003, Ms. Poe was diagnosed as having upper extremity bilateral tenosynovitis at the epicondyles (i.e., the elbows, wrists, and fingers).  This condition was not diagnosed when the Department issued its March 2001 order rejecting her prior claim.

 

6.         Ms. Poe developed right lateral epicondylitis, or tenosynovitis, as a natural and proximate result of her employment as a sewing assistant for Apogee.

 

CONCLUSIONS OF LAW

 

1.         The Board of Industrial Insurance Appeals has jurisdiction over the parties to and the subject matter of this timely filed appeal.

 

2.         The doctrine of res judicata does not bar Ms. Poe from having this claim allowed for a newly diagnosed condition of right lateral epicondylitis or tenosynovitis.

 

3.         Ms. Poe's right lateral epicondylitis or tenosynovitis constitutes an occupational disease, within the meaning of RCW 51.08.140. [6]

 

4.         The January 6, 2003 Department order is correct and is affirmed.

 

            It is so ORDERED.

 

            Dated this 13th day of July, 2004.