|IN RE: JANA J. ROENING||)||DOCKET NO. 04 22220|
|CLAIM NO. W-045386||)||DECISION AND ORDER|
Casey & Casey, P.S., per
Gerald L. Casey
Self-Insured Employer, Safeway, Inc., by
Thomas G. Hall & Associates, per
Thomas G. Hall and Joseph A. Albo
This is an appeal filed by the claimant, Jana J. Roening, on
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, Jana J.
Roening, to a Proposed Decision and Order issued on
In her Petition for Review, the
claimant contends that she is entitled to loss of earning power benefits for
the period of September 22, 2003 to September 22, 2004, and that she has a
permanent impairment as a result of her right shoulder girdle strain. We agree with the industrial appeals judge's
determination that Ms. Roening was not entitled to loss of earning power
The evidence presented by the
parties is adequately set forth in the Proposed Decision and Order and will be
reviewed here only to the extent necessary to an understanding of our
decision. Ms. Roening has been
employed by Safeway for over 18 years. She is right-handed and strained her right shoulder girdle working as a
checker. The claim was allowed based on
After the injury, Ms. Roening was
released to return to work at light duty and worked in that capacity until
sometime in 2000, at which point she was taken off work again for 16 months. She was paid time-loss compensation for that
Dr. Becker's recommendation was
consistent with a long history of various medical providers recommending that
Roening's work station be modified. For example, a
Eventually, Safeway offered Ms.
She returned to work in that capacity on
In the meantime, on
The claim remained open until
Ms. Roening appealed, seeking
additional loss of earning power benefits and a permanent partial disability
award. The self-insured employer
That appeal was dismissed on
Loss of earning power benefits: The industrial appeals judge determined that
Ms. Roening was entitled to loss of earning power benefits for the period
a worker cannot
automatically extend the period of entitlement to loss of earning power
compensation by protesting an initial closing order which determined the extent
of permanent partial disability. The
period of entitlement 
is not extended absent proof that the worker's condition was not fixed on the date of the closing order.
Coolidge, at 4.
In her Petition for Review, the
claimant seeks loss of earning power benefits "until her full return to
Ms. Roening testified that after the
Permanent partial disability: With respect to the question of whether Ms. Roening has a permanent impairment, WAC 296-20-2015 "provides guidance regarding the rating systems generally used ." For specified disabilities, physicians are directed to use the AMA Guides to the Evaluation of Permanent Impairment and to determine the percentage of loss of function, as compared to the amputation value listed in RCW 51.32.080.
Only two doctors testified, Dr.
Earle on the claimant's behalf and Dr. Wray on behalf of the employer. Neither was a treating doctor; each examined
Ms. Roening on only one occasion. The
industrial appeals judge found Dr. Wray more persuasive, in part because she
saw the claimant six months prior to claim closure, while Dr. Earle "did
not see Ms. Roening until almost ten months after claim
closure." Proposed Decision and
Order, at 9. Since Ms. Roening's
condition has been fixed and stable for years, this is not a meaningful
distinction. Furthermore, the basis for
Dr. Earle and Dr. Wray agreed that Ms. Roening's right shoulder range of motion was entirely normal. They agreed that the AMA Guides do not provide an impairment rating under those circumstances. In fact, that is what Dr. Earle wrote in his initial report. However, when the claimant's attorney asked him to reconsider, he gave an impairment rating of 6 percent of the amputation value at the shoulder, by using a "best fit" analysis.
As Dr. Earle testified, impairment equates to loss of function. There is no question that Ms. Roening has an objective loss of function in the right scapular area, which Dr. Earle described as follows:
there was visible swelling in the right trapezius muscle and she carried her right shoulder in a down and forward position. What this did was to pull the right shoulder blade, or scapula, around the side of the chest wall and cause it to stick out away from the chest wall in back.
Earle Dep. at 17.
Dr. Earle performed "a focused examination on the scapula or shoulder blades and found movement abnormalities of the scapula. In examining her from the back, I noticed that when she crossed her arms in front, there was diminished movement of the right scapula. And then when she crossed her arms behind herself, again the right scapula did not move as well as the left." Earle Dep. at 19. He described how he stood behind Ms. Roening and asked her to:
slowly raise her arms from her side away from her body and directly over her head. And during this time period, I was watching the movement of the right scapula compared to the left scapula.
What happened on the left side, which is normal, is beyond a certain point, for most people around 90 degrees, in order to get the arms straight away from the body, in order to get the arms higher, the scapula actually has to rotate on the chest wall. And you can actually watch the scapula slowly rotate upwards to get the arms over the head. On the right side, this process did not go smoothly. She was able to get her arm up over her head but the motion of the scapula was very jerky, and through part of that motion, it was sticking out away from the chest wall, which is again a sign that there's a lot of imbalance of the muscles of the scapula.
Earle Dep. at 20.
Indeed, in order to get normal mobility in the right shoulder, Ms. Roening had to "actually sacrifice a  lot as far as the scapular function goes. That abnormal positioning and movement of the scapula is what really allows her to get to the 180 degrees of flexion [and] adduction [in her right shoulder]." Earle Dep. at 28.
Because there is no specific rating in the AMA Guides for a shoulder girdle or scapular loss of function, Dr. Earle rated the impairment by analogy, under the closest fit he could find. The best equivalent in the Guides was occult shoulder instability. Looking at the criteria for that condition, he gave a rating of "6 percent upper extremity impairment with respect to amputation at the shoulder level, using the equivalency approach." Earle Dep. at 24. Thus, the question before us is whether a worker who has an objectively demonstrable loss of function is entitled to a permanent partial disability award under a "best fit" analysis, if that impairment is not specifically described in the AMA Guides.
There is no question that a "best fit" analysis applies to unspecified disabilities. In re Traci Gleason, BIIA Dec., 92 5936 (1994). More recently, we have extended the "best fit" approach to specified disabilities. In re Miguel Barraza, Dckt. No. 02 20933 (January 30, 2004). Our starting point, then, is that Ms. Roening is not precluded from receiving a permanent partial disability award simply because the AMA Guides do not specifically address her condition.
Turning to the medical evidence, we find Dr. Earle's "best fit" approach and his well‑documented clinical findings persuasive. Unlike Dr. Earle, who specializes in occupational medicine, Dr. Wray is a neurologist. Her specialty is not particularly relevant here, since there is no contention that Ms. Roening has any neurological deficits. To the contrary, Dr. Earle agreed that the claimant's neurological examinations have been consistently normal.
In addition, there is no indication that Dr. Wray performed the relevant focused examination of the scapula which Dr. Earle described so vividly, objectively demonstrating loss of function. Furthermore, Dr. Wray's opinion that Ms. Roening had no restrictions and could return to work as a checker, without any accommodation, is not credible, and undermines her opinion on impairment. The self-insured employer's own experts have been saying for years that Ms. Roening has restrictions and needs to be accommodated with a left-handed check stand. The claimant was highly motivated to return to work in the higher paying checker position. There is no question about her sincerity; Dr. Wray herself agreed that Ms. Roening was straightforward and did not exaggerate her symptoms. If Ms. Roening could have returned to the checker position without an accommodation, she likely would have done so. It is apparent that she was unable to do so precisely because of the loss of function described by Dr. Earle. 
We therefore accept Dr. Earle's impairment rating. As a result, the October 21, 2004 Department order must be reversed, and the claim remanded to the Department to calculate the monthly wage rate as set forth in the October 21, 2004 order; direct the self-insured employer to recalculate and pay time-loss compensation based on that wage rate; direct the self-insured employer to pay loss of earning power benefits for the period of September 14, 2002 to September 22, 2003; and close the claim with a permanent partial disability award equal to 6 percent of the amputation value of the arm at or above the deltoid insertion or by disarticulation at the shoulder.
FINDINGS OF FACT
1. On November 15, 1999, an Application for Benefits was received by the Department of Labor and Industries, in which the claimant, Jana J. Roening, alleged that she sustained an industrial injury on October 15, 1998, while in the course of employment with Safeway, Inc. The application for benefits was received by the self-insured employer on October 27, 1998. On November 19, 1999, the Department allowed the claim for an injury or occupational disease.
On September 22, 2003, the Department closed the claim with time-loss compensation as paid to September 14, 2002, and without an award for permanent partial disability.
On November 4, 2003, the claimant protested the September 22, 2003 Department order. On October 21, 2004, the Department corrected its September 22, 2003 order; calculated the claimant's monthly wage as $3,697.78; determined that the claimant was married with two children; directed the self-insured employer to recalculate and repay time-loss compensation based upon the monthly wages set forth in the order; ended time-loss compensation as paid to September 14, 2002; directed the self‑insured employer to pay loss of earning power benefits to legal fixity; and closed the claim without an award for permanent partial disability.
On December 13, 2004, the claimant filed a Notice of Appeal from the October 21, 2004 Department order with the Board of Industrial Insurance Appeals. On January 5, 2005, the Board granted the appeal and assigned it Docket No. 04 22220.
2. On October 15, 1998, the claimant, Jana J. Roening, sustained an industrial injury while in the course of her employment with Safeway, Inc. As a proximate result of that injury, Ms. Roening suffered a right shoulder girdle strain. 
3. At the time of the industrial injury, Ms. Roening was working as a checker, approximately thirty hours per week, earning $14.85 per hour (adjusted for inflation $17.85). After the injury, she was released to return to work at light duty and worked in that capacity until sometime in 2000, at which point she was taken off work again for 16 months. She was paid time-loss compensation for that period. On August 19, 2002, she returned to work with Safeway, with restrictions, as a video clerk/office worker, for approximately twenty hours per week. While working in that position, Ms. Roening earned approximately $12.15 per hour and worked approximately twenty hours per week. Safeway paid loss of earning power benefits until September 14, 2002. Ms. Roening continued working in the lower paid video clerk/office worker position for two years, until September 22, 2004. On that date, she returned to the job-at-injury as a checker, with the aid of a left-handed check stand.
4. The Department issued its first closing order on September 22, 2003. On November 4, 2003, the claimant protested that order and on October 21, 2004, the Department issued the closure order which is the subject of this appeal.
5. As of September 22, 2003 and through October 21, 2004, Ms. Roening's condition, proximately caused by the October 15, 1998 industrial injury, was fixed and stable. No further proper and necessary treatment was warranted between September 22, 2003 and October 21, 2004.
6. During the period of September 14, 2002 to September 22, 2003, Ms. Roening sustained a loss of earning power greater than 5 percent, as a proximate result of the October 15, 1998 industrial injury.
7. As of September 22, 2003 and through October 21, 2004, Ms. Roening's permanent impairment, proximately caused by the October 15, 1998 industrial injury, was equal to 6 percent of the amputation value of the arm at or above the deltoid insertion or by disarticulation at the shoulder.
CONCLUSIONS OF LAW
1. The Board of Industrial Insurance Appeals has jurisdiction over the parties to and the subject matter of this appeal.
2. During the period of September 14, 2002 to September 22, 2003, the claimant was entitled to loss of earning power benefits pursuant to RCW 51.32.090(3). 
3. September 22, 2003, was the date of legal fixity. Ms. Roening was no longer entitled to loss of earning power benefits as of that date, because her condition, proximately caused by the October 15, 1998 industrial injury, was fixed and stable at that point. In re Carl Coolidge, BIIA Dec., 89 4308 (1991).
4. As of September 22, 2003 and through October 21, 2004, Ms. Roening was a permanently partially disabled worker within the meaning of RCW 51.32.080.
5. The October 21, 2004 Department order is incorrect and is reversed. The claim is remanded to the Department to calculate the monthly wage rate as set forth in the October 21, 2004 order; direct the self-insured employer to recalculate and pay time-loss compensation based on that wage rate; direct the self-insured employer to pay loss of earning power benefits for the period of September 14, 2002 to September 22, 2003; and close the claim with a permanent partial disability award equal to 6 percent of the amputation value of the arm at or above the deltoid insertion or by disarticulation at the shoulder.
It is so ORDERED.
BOARD OF INDUSTRIAL INSURANCE APPEALS
THOMAS E. EGAN Chairperson
FRANK E. FENNERTY, JR. Member
CALHOUN DICKINSON Member