See SECOND INJUDY FUND
(RCW 51.16.120), Bodily disorder
BEFORE THE BOARD OF INDUSTRIAL INSURANCE
APPEALS
STATE OF WASHINGTON
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IN
RE:
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LANCE
BARTRAN
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DOCKET
NOS. 04 21232 & 04 23432 & 04 23522
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CLAIM NO. W-002880
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decision
and order
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APPEARANCES:
Claimant, Lance Bartran, Pro Se
Self-Insured
Employer, The Boeing Company, by
Reinisch, Weier
& MacKenzie, P.C., per
Renee M. Bliss
Department of Labor
and Industries, by
The Office of
the Attorney General, per
William A.
Garling, Jr., Assistant
The self-insured employer, The
Boeing Company, filed three appeals under this claim with the Board of
Industrial Insurance Appeals on August
26, 2004.
Under
Docket No. 04 23522, The Boeing
Company filed an appeal on August 26,
2004, from an order of the Department of Labor and Industries dated
June 30, 2004. In this order, the Department placed the
claimant on a pension effective July 16, 2004; terminated time-loss
compensation benefits as paid through July 15, 2004; authorized treatment of
the claimant's accepted condition of depression with Dexedrine, one psychiatric
visit per month for medication monitoring; stated that treatment shall not
include Schedule 1 through 4 drugs in accordance with RCW 51.36.010; and stated
that the pension will be administered by the Department. The Department order is REVERSED AND REMANDED.
Under
Docket No. 04 21232, The Boeing
Company filed an appeal on August 26,
2004, from an order of the Department of Labor and Industries dated
July 23, 2004. In this order, the Department stated that the
claimant had been placed on a pension effective July 16, 2004; set the monthly
benefit amount; and instructed The Boeing Company to pay the pension reserve
amount in full or make a deposit of three times the monthly benefit, file a
bond to cover the reserve amount, and then to make quarterly deposits to the
Department. The Department order is REVERSED AND REMANDED.
Under
Docket No. 04 23432, The Boeing
Company filed an appeal on August 26,
2004, from an order of the Department of Labor and Industries dated
July 1, 2004. In this order, the [2] Department stated that
Second Injury Fund Relief is not applicable to this case. 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 self-insured
employer to a Proposed Decision and Order issued on July
11, 2005, in which the industrial appeals judge affirmed
the orders of the Department dated June 30, 2004; July 1, 2004; and July 23,
2004.
The Board has reviewed the
evidentiary rulings in the record of proceedings and finds that no prejudicial
error has occurred. The rulings are
affirmed.
We have granted review to correctly
resolve the issues raised by the self-insured employer regarding the effective
date of the pension and second injury fund relief. The self-insured employer presented testimony
from Phillip G. Lindsay, M.D., the treating psychiatrist; Paul B. Brown, M.D.,
Ph.d., an attending physician; and Dr. Jill E. Rosenthal, the vocational
counselor. The Department did not
present evidence.
Dr.
Lindsay testified that he has treated Mr. Bartran since September 23, 1999. Dr. Lindsay has treated the claimant for his
major depressive disorder, single episode, chronic, that was caused by the
industrial injury. In addition, Dr.
Lindsay has diagnosed pre‑existing schizoid personality disorder, a condition
which is not responsive to treatment.
Dr. Lindsay testified that the schizoid personality disorder precludes
Mr. Bartran from many types of available work that he would otherwise have been
able to perform. Dr. Lindsay stated that
the claimant was permanently unable to be gainfully employed on a reasonably
continuous basis as a result of the combination of the pre‑existing
schizoid disorder and the medical and psychiatric conditions that were caused
by the industrial injury. Dr. Lindsay
indicated that the psychiatric conditions were fixed and stable on February 8, 2002. Dr. Brown has treated Mr. Bartarn since May 23, 2001, for the
fibromyalgia resulting from the injury.
Dr. Brown testified that the condition had reached maximum medical
improvement on September 9, 2002. Jill Rosenthal testified that on February 26, 2001, she began an
assessment of Mr. Bartran's vocational abilities for gainful employment. Within the context of her testimony as a
whole, it appears that Dr. Rosenthal did not complete the assessment and report
her conclusions until April 22, 2002.
In
the Proposed Decision and Order, the industrial appeals judge properly states
that the effective date of the pension is the date that Mr. Bartran was
medically fixed and stable, and as a vocational matter it was demonstrated that
he was permanently unable to be gainfully employed on [3] a reasonably continuous
basis. In re Frederic Cuendet, BIIA Dec., 99 21825 (2001). Although Dr. Lindsay concluded that Mr.
Bartran's mental conditions were fixed and stable as of February 8, 2002, and Dr. Rosenthal
concluded the vocational assessment on April
22, 2002, Dr. Brown did not observe that the conditions that
he was treating had reached maximum medical improvement until September 9, 2002. The evidence demonstrates that the effective
date of the pension is September 9,
2002, and not July 16,
2004, as indicated by the Department in its order dated June 30, 2004.
Although the industrial appeals
judge correctly indicates that the language in the second injury fund statute,
RCW 51.16.120, refers to previous bodily disability from any injury or disease,
we find no authority for, nor do we agree with, the implication made by him
that the omission of the term "mental" from the statute operates to
exclude pre-existing mental disabilities from the relief of second injury
fund. The testimony of Dr. Lindsay and
Dr. Brown leave little doubt that Mr. Bartran's pre-existing schizoid
personality disorder constitutes a disease in the form of a mental illness affecting
the entire person. Mr. Bartran's
personality disorder created a previous bodily disability that qualifies for
consideration under RCW 51.16.120.
According to the expert witnesses, Mr. Bartran can no longer
perform his job of injury and he is not capable of gainful employment. In addition, the record of evidence,
especially the vocational testimony of Dr. Rosenthal, demonstrates that Mr.
Bartran requires retraining to be employed and that his schizoid disorder
disables him from such retraining. To qualify
for second injury fund relief, the employer must establish that the disability
resulting from the injury would not have been total but for the pre‑existing
condition. In re Alfred Funk, BIIA Dec., 89 4156 (1991). Although the facts of this case are
distinguishable from the facts considered under Funk, we find that the employer has established that the
pre-existing schizoid personality disorder was an actual cause of the
claimant's permanent total disability.
Second injury fund relief is applicable.
FINDINGS OF FACT
1. On February 7, 1997, Lance Bartran, the claimant, filed an
Application for Benefits with the Department of Labor and Industries in which
he alleged that an injury to his right shoulder occurred during the course of
his employment with The Boeing Company, a self-insured employer. On February
13, 1997, the Department issued an order in which it allowed the
claim. On February 11, 1998, the Department issued an order in
which it closed the claim because the claimant's covered medical condition was
stable, ended time-loss compensation benefits as paid through June 19, 1997, and paid an award for
permanent partial disability consistent with Category 2 permanent cervical and
cervico‑dorsal impairments. [4]
On April 7, 1999, the claimant filed an application to reopen
the claim for aggravation of his accepted condition. On April 15, 1999, the Department issued an order in
which it reopened the claim effective February
7, 1999, for the accepted conditions of right shoulder and cervical
disc conditions, and denied responsibility for a psychiatric condition.
On April 26, 1999, the claimant filed a Protest and Request
for Reconsideration of the Department order dated April 15, 1999. On May 7, 1999, the self-insured
employer filed a Protest and Request for Reconsideration of the Department
order dated April 15, 1999. On August
27, 1999, the Department issued an order in which it held its order
dated April 15, 1999, in
abeyance. On March 16, 2000, the Department affirmed the order dated April 15, 1999.
On March 27, 2000, the claimant filed a Notice of Appeal with
the Board of Industrial Insurance Appeals from the Department order dated March 16, 2000. On April
5, 2000, the Department issued an order in which it held its order
dated March 16, 2000, in
abeyance. On April 6, 2000, the Board issued an order in which
it returned the case to the Department for further consideration. On April
7, 2000, the Department issued an order in which it corrected its
order dated April 15, 1999,
and reopened the claim effective February
7, 1999, for authorized treatment and action.
On June 30, 2004, the Department
issued an order in which it placed the claimant on the pension rolls effective
July 16, 2004; terminated time loss compensation benefits as paid through
July 15, 2004; authorized treatment of the claimant's accepted condition of
depression with Dexedrine, one psychiatric visit per month for medication
monitoring, and determined that treatment shall not include Schedule 1 through
4 drugs in accordance with RCW 51.36.010; and determined that the pension would
be administered by the Department. On August 26, 2004, the
self-insured employer filed a Notice of Appeal with the Board of Industrial
Insurance Appeals from the Department order dated June 30, 2004. On September 27, 2004, and October 5, 2004, the Board issued
orders in which it extended the time to act on the appeal an additional ten
days. On October 12, 2004, the Board issued an order in which it
granted the appeal; assigned the appeal Docket No. 04 23432; and
ordered that further proceedings be held.
On July 1, 2004, the Department issued an order in which it
determined that Second Injury Fund Relief was not applicable in this case. On August 26,
2004, the self-insured employer filed a Notice of Appeal with the
Board of Industrial Insurance Appeals from the Department order dated July 1, 2004. On September
27, 2004, and October 5,
2004, the Board issued orders in which it extended the time to act
on the appeal [5] an additional ten days. On
October 12, 2004, the
Board issued an order in which it granted the appeal; assigned the appeal
Docket No. 04 23522; and ordered that further proceedings be held.
On July 23, 2004, the Department
issued an order in which it placed the claimant on the pension rolls effective
July 16, 2004; set the monthly benefit amount at $2,119.81; and instructed The
Boeing Company to pay the pension reserve amount of $180,448.00 in full, or to
make deposit of three times the monthly benefit, file a bond to cover the
reserve amount, and then make quarterly deposits to the Department. On August
26, 2004, the self-insured employer filed a Notice of Appeal with
the Board of Industrial Insurance Appeals from the Department order dated July 23, 2004. On September
27, 2004, and October 5,
2004, the Board issued orders in which it extended the time to act
on the appeal an additional ten days. On
October 12, 2004, the
Board issued an order in which it granted the appeal; assigned the appeal
Docket No. 04 21232; and ordered that further proceedings be held.
2. The claimant, Lance Bartran, graduated
high school in 1965. He attended trade
school on and off, and performed sheet metal work until 1989, when he was hired
by The Boeing Company as a welder.
3.
On December 5, 1996, while at work with The Boeing Company,
Mr. Bartran injured his right shoulder and neck while struggling with a
460-pound object. The industrial injury
proximately caused conditions of fibromylagia and depression that were
permanently partially disabling.
4. Mr. Bartran suffers from schizoid
personality disorder, a disease that
pre-existed the industrial injury of December 5, 1996.
Prior to the industrial injury of December 5, 1996, the schizoid personality disorder was
symptomatic and disabling. It limited
Mr. Bartran's ability to obtain and perform the full scope of his employment
potential. The personality disorder
precluded him from having transferable job skills and precluded him from
participating in work retraining programs.
Prior to the occurrence of the industrial injury, the disability caused
by the schizoid personality disorder did not preclude Mr. Bartran from
reasonably continuous employment at the job of injury.
5. As of September 9, 2002, the conditions proximately caused by
the industrial injury had reached maximum medical improvement and were fixed
and stable. As of September 9, 2002, it was demonstrated as a
vocational matter that Mr. Bartran was unable to obtain and engage in gainful
employment on a reasonably continuous basis.
6. As of September, 9, 2002, the conditions proximately caused by
the industrial injury limit Mr. Bartran from returning to his job at
injury. The residuals of the injury,
alone, do not limit Mr. Bartran's transferable job skills, or his capacity to
be retrained. The conditions proximately
caused [6] by the industrial injury, did not render Mr. Bartran incapable and unable to obtain reasonably continuous
employment in the competitive labor market, when considered in conjunction with
his age, education, training, work history, transferable skills. The industrial
injury was, in itself, insufficient to cause permanent total disability.
7. As of September 9, 2004, the permanent
residuals caused by the December 9, 1999 industrial injury, combined with and
superimposed upon the pre‑existing disabling condition, precluded Mr.
Bartran from obtaining or performing reasonably continuous gainful employment
in the competitive labor market, when considered with his age, education, training,
work history, transferable skills and ability to be retrained.
8. As of June 30, 2004, the
Department authorized the claimant to
receive Dexedrine treatment for his accepted condition of depression,
one psychiatric visit per month for medication monitoring, and in which the
Department determined that treatment shall not include Schedule 1 through 4
drugs in accordance with RCW 51.36.010.
9. As of July 23, 2004, the Department set forth in an order the
monthly benefit amount as $2,119.81; and instructed that The Boeing Company pay
the pension reserve amount of $180,448.00 in full, or makes deposit of three
times the monthly benefit, file a bond to cover the reserve amount, and then
make quarterly deposits to the Department.
CONCLUSIONS OF LAW
1. The Board of Industrial Insurance
Appeals has jurisdiction over the parties to and the subject matter of these
appeals.
2. Effective September 9, 2002, Mr. Bartran was a permanently totally
disabled worker within the meaning of RCW 51.32.060, due to the combined
effects of the industrial injury of December
5, 1996, superimposed upon the pre-existing condition.
3. Effective September 9, 2002, the self-insured employer was entitled
to distribution of the accident costs under the provisions of
RCW 51.16.120, with respect to the industrial injury of the claimant
occurring on December 5, 1996.
4. The self-insured employer, The Boeing
Company, is entitled to Second Injury Fund Relief as provided by RCW
51.16.120. The order of the Department of
Labor and Industries dated July 1, 2004,
is incorrect and is reversed. The matter
is remanded to the Department with direction to provide the self-insured
employer with distribution of the accident costs under the provisions of
RCW 51.16.120. [7]
5. The order of the Department of Labor
and Industries dated June 30, 2004,
is incorrect and is reversed. The matter
is remanded to the Department to place the claimant on a pension effective
September 9, 2002; terminate time-loss compensation benefits as paid through
September 8, 2002; authorize treatment for the accepted condition of depression
with Dexedrine, one psychiatric visit per month for medication monitoring; and
state that treatment shall not include Schedule 1 through 4 drugs in accordance
with RCW 51.36.010; and determine that the pension will be administered by the
Department.
6. The order of the Department of Labor
and Industries dated July 23, 2004,
is incorrect and is reversed. The matter
is remanded to the Department to issue an order in which the claimant is placed
on a pension effective September 9, 2002; the monthly benefit amount is set;
and The Boeing Company is instructed to take such action as is indicated and in
accordance with this order.
It
is so ORDERED.
Dated this 16th day of November,
2005.
BOARD
OF INDUSTRIAL INSURANCE APPEALS
/s/_____________________________________
THOMAS
E. EGAN Chairperson
/s/_____________________________________
FRANK
E. FENNERTY, JR. Member
/s/_____________________________________
CALHOUN
DICKINSON Member