APPEARANCES:

 

Claimant, Donald L. Plemmons, by

Law Office of Mark C. Wagner, per

Mark C. Wagner

 

Employer, BMC West Corporation,

None

 

Department of Labor and Industries, by

The Office of the Attorney General, per

Lynette Weatherby-Teague, Assistant

 

            The claimant, Donald L. Plemmons, filed an appeal with the Board of Industrial Insurance Appeals on May 4, 2004, from an order of the Department of Labor and Industries dated April 26, 2004.  In this order, the Department affirmed an April 13, 2004 order in which it rejected the claim.  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 Department, to a Proposed Decision and Order issued on November 9, 2004, in which the industrial appeals judge reversed the April 26, 2004 order.  Our industrial appeals judge ordered the Department to allow the claim as an occupational disease.

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

We granted the Petition for Review to correct findings and conclusions in the Proposed Decision and Order.  In the body of the proposed decision, our industrial appeals judge indicated the evidence supported allowing the claim as an aggravation of a pre-existing condition.  Nonetheless, the findings and conclusions in the Proposed Decision and Order simply allow the claim as an occupational disease, without that limitation.  We have granted review primarily to correct this error.

Mr. Plemmons, a boom truck driver, had an injury at work during October 2001.  While unloading his truck in Renton, Washington, a ladder fell out from under him and he caught himself [2] with his right arm.  This injured his right shoulder.  However, he did not obtain any medical treatment for his shoulder until November 2002.  At that point, he filed an application for benefits with the Department for his October 2001 injury.  His claim was rejected as untimely, because it was filed more than a year after his injury.

He obtained treatment from Julian S. Arroyo, M.D., an orthopedic surgeon specializing in shoulder disorders.  He was first seen in Dr. Arroyo's office in December 2002.  An MRI taken that same month disclosed tendonitis in the right rotator cuff, and a rotator cuff tendon tear.  Based on that MRI, a subsequent March 2003 x-ray, and his clinical findings, Dr. Arroyo diagnosed Mr. Plemmons' right shoulder condition as a right rotator cuff tear, with impingement.  He recommended surgical intervention.  This diagnosis, and the resulting need for treatment, has not been disputed.

The Department maintains that Mr. Plemmons' rotator cuff tear was caused by his October 2001 injury.  It maintains there is no objective evidence that his condition has worsened since this injury.  It argues this claim should be rejected.

The Department's fundamental premise, that objective proof of worsening is a prerequisite to allowing the claim as an occupational disease, is incorrect.  It is undisputed that Mr. Plemmons injured his shoulder in the October 2001 accident.  Dr. Arroyo described this fall as the original insult to the right shoulder.  However, he stated that Mr. Plemmons' continued job duties as a boom truck driver, since that incident, aggravated his right shoulder condition.  Mr. Plemmons' work, described in Exhibit No. 1, involves frequently lifting 35 to 50 pounds above the shoulders and frequently using his arms from waist to above shoulder height.  Dr. Arroyo noted that Mr. Plemmons did not seek medical treatment for 13 months after the 2001 incident, and that he continued to work full-time in a strenuous job for two years before filing this claim.  He stated that Mr. Plemmons' work as a truck driver following the 2001 injury aggravated his shoulder condition, resulting in a need for treatment.  Dr. Arroyo testified that Mr. Plemmons' continuous work duties were the proximate cause of his need for surgery.  This is a reasonable conclusion because his work was more strenuous than limitations that the Department's expert witness, Alan G. Brobeck, M.D., thought were appropriate following the October 2001 injury.  Dr. Brobeck thought lifting with the right arm should have been limited to 10 to 15 pounds, and repetitive use of the right arm should have been limited since that accident.  Mr. Plemmons' job as a boom truck driver required him to regularly exceed these limitations.  Our determination that Mr. Plemmons' work duties for two years following his 2001 accident aggravated his shoulder injury is, therefore, quite reasonable. [3]

The medical testimony is legally sufficient to allow this claim as an occupational disease for an aggravation of a pre-existing condition.  Since Mr. Plemmons delayed getting treatment after his 2001 accident, the exact diagnosis for his pre-existing shoulder condition is unclear.  While there are no objective findings indicating his shoulder condition has worsened, such proof is unnecessary.  Objective medical findings of worsening are only required to reopen a claim, or to pay a permanent partial disability award to a worker with a pre-existing impairment.  Based on a long line of appellate decisions, occupational disease claims can be allowed if medical testimony establishes distinctive work conditions aggravated a worker's pre-existing condition.  See Dennis v. Department of Labor & Indus., 109 Wn.2d. 467 (1987).  If medical testimony establishes a worker's job duties accelerated his need for treatment or aggravated his underlying condition, his claim can be allowed.  Simpson Timber Co. v. Wentworth, 96 Wn. App. 731 (1999).  Mr. Plemmons has met this requirement, because he established his work duties after October 2001 aggravated his shoulder condition, resulting in his need for surgery.

We have, therefore, corrected Findings of Fact Nos. 3 through 5, and Conclusions of Law Nos. 2 and 3 in the Proposed Decision and Order, to make them consistent with this decision.

FINDINGS OF FACT

 

1.         On November 21, 2003, the claimant, Donald L. Plemmons, filed an application for benefits with the Department of Labor and Industries, alleging that he sustained an occupational disease on or about November 17, 2003, while in the course of his employment with BMC West Corporation. 

 

On April 13, 2004, the Department issued an order in which it rejected the claim for benefits for the following reasons:  there was no proof of a specific injury at a definite time and place in the course of employment; the claimant's condition was not the result of an industrial injury; and the claimant's condition was not an occupational disease. 

 

On April 22, 2004, the claimant filed a protest to the Department's April 13, 2004 order.  On April 26, 2004, the Department issued an order in which it affirmed its April 13, 2004 order.

 

On May 4, 2004, the claimant filed a Notice of Appeal with the Board of Industrial Appeals from the Department's April 26, 2004 order.  On May 25, 2004, the Board issued an order in which it granted the appeal under Docket No. 04 12018.

 

2.         Between 1985 and April 26, 2004, the claimant worked as a boom truck driver, delivering trusses and other materials to construction sites.  In addition to other heavy work duties, his conditions of employment [4] included repetitive lifting to varying degrees: floor to waist, 35 to 50 pounds frequently; waist to shoulder, 35 to 50 pounds frequently; and shoulder and above, 35 to 50 pounds frequently.  His job duties required frequent reaching while securing loads and throwing straps over trusses.  Those conditions are unique to his employment, and are not merely coincidentally occurring in his workplace.

 

3.         Mr. Plemmons had a work-related right shoulder injury in 1989, but he fully recovered following this accident.  He reinjured his right shoulder again in October 2001, while unloading his truck in Renton.  A ladder fell out from under him, and he caught himself with his right arm.  He did not seek treatment for his right shoulder until November 2002.

 

4.         Mr. Plemmons filed an application for benefits with the Department for his October 2001 injury in November 2002.  This claim was denied on the grounds his application for benefits was filed more than one year after his injury, and was, therefore, untimely.

 

5.         Following the October 2001 right shoulder injury, and despite associated pain, the claimant continued to perform his heavy repetitive job duties, preventing the right shoulder from healing.  In December 2002, an MRI revealed a right rotator cuff tear.  A March 2003 x-ray revealed a right shoulder bone spur.  As of April 26, 2004, Mr. Plemmons' right shoulder condition is best described as a rotator cuff tear with impingement.

 

6.         There is no specific diagnosis for the right shoulder condition proximately caused by Mr. Plemmons' October 2001 injury.  As of April 26, 2004, Mr. Plemmons' right rotator cuff tear with impingement was either the natural and proximate result of distinctive conditions of his employment with BMC West Corporation following his October 2001 injury, or was an aggravation of a condition caused by his October 2001 injury.

 

CONCLUSIONS OF LAW

 

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

 

2.         As of April 26, 2004, the claimant had developed an occupational disease within the meaning of RCW 51.08.140. 

 

3.         The order of the Department of Labor and Industries dated April 26, 2004, is incorrect and is reversed.  This matter is remanded to the Department with instructions to issue an order in which it allowed this [5] claim as an occupational disease for an aggravation of his pre-existing right shoulder condition and to take such further action as required by the law and the facts. 

 

            It is so ORDERED.

Dated this 7th day of February, 2005.

                                                                                 BOARD OF INDUSTRIAL INSURANCE APPEALS

 

 

 

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                                                                                 THOMAS E. EGAN                                 Chairperson

 

 

 

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                                                                                 FRANK E. FENNERTY, JR.                          Member

 

 

 

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                                                                                 CALHOUN DICKINSON                                Member