| IN RE: JUAN M. MUñOZ | ) | DOCKET NOS. 05 11698 & 05 16392 |
| ) | ||
| CLAIM NO. W-449124 | ) | decision and order
|
| ) |
APPEARANCES:
Law Office of David L.
Harpold, per
David L. Harpold
Self-Insured Employer,
Hoffman Structures, Inc., by
Slagle Morgan, LLP, per
Richard M. Slagle
Self-Insured Employer,
Atkinson Construction, by
Thomas G. Hall &
Associates, per
Thomas G. Hall
Self-Insured Employer,
PCL Construction Services, by
AMS Law, per
Aaron K. Owada
In Docket No. 05
11698, the claimant, Juan M. Muñoz, filed an appeal with the Board of
Industrial Insurance Appeals on
In
Docket No. 05 16392, the
claimant, Juan M. Muñoz, filed an appeal with the Board of Industrial Insurance
Appeals on
PRELIMINARY AND PROCEDURAL MATTERS
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,
Hoffman Structures, Inc., to a Proposed Decision and Order issued on
Did Mr. Muñoz's
left knee osteoarthritis arise naturally and proximately out of his years of
work as a carpenter in employment covered by the Washington Industrial
Insurance Act?
If so, which
employer/insurer is liable under the last injurious exposure rule?
Three self-insured employers
participated in these proceedings: Hoffman Structures, Inc., (Hoffman) for the
period of employment from
The
Board has reviewed the evidentiary rulings in the record of proceedings. As explained below, the industrial appeals
judge erroneously admitted the testimony of the physical therapist Theodore J.
Becker, Ph.D., regarding the causation of Mr. Muñoz's left knee osteoarthritis. That testimony, as well as the responsive testimony of John F. Dickson,
M.D., and Richard G. McCollum, M.D., is stricken.
During the
DECISION
We have granted review to remand this
occupational disease claim to the Department to perform a complete
investigation. In his Proposed Decision
and Order, the industrial appeals judge thoroughly and accurately reviewed the
evidence. The following facts and
chronology are critical to our decision.
Mr. Muñoz was born on
Mr. Muñoz probably began having knee
problems sometime in 1998 or 1999, but the first documented medical visit in
this record occurred on
In January 2002, Mr. Muñoz began to
focus more on his left knee as the critical issue. Dr. Russo referred him for an MRI, which
was obtained on January 11, 2002, and revealed advanced degenerative changes of
the knee, with osteophyte formation; medial compartment narrowing; advanced
medial compartment chondromalacia; a complex tear of the posterior horn of the
medial meniscus; a partial tear of the anterior cruciate ligament; a probable
tear of the posterior [4] cruciate ligament; mild to moderate joint effusion;
advanced denudement of the articular surface medially; and a bipartite patella,
probably congenital. Mr. Muñoz was
diagnosed as having full blown, grade 4 (on a scale of 0 to 4) left knee
osteoarthritis. According to Dr. Russo,
Mr. Muñoz would probably have had a ratable impairment under the AMA Guides at that time and he would have advised against kneeling, squatting, and deep
knee bends. Russo Dep. at 22-23;
28-32.
On
Mr. Muñoz apparently sought no further
treatment for his left knee until
However, the claimant did not undergo
surgery at that time. He continued
working for Hoffman through
Mr. Muñoz began working for
Atkinson on
The claimant presented the testimony
of Dr. Huang, an orthopedic surgeon, and Dr. Becker, a physical therapist. Hoffman presented the testimony of Richard G.
McCollum, M.D., an orthopedic surgeon who examined Mr. Muñoz on
Dr. Huang concluded that
Mr. Muñoz's occupational duties had a direct relationship to the
development of his left knee osteoarthritis. He noted that: "From the description of the duties you [6] just gave, I think it's clear he
was doing very strenuous work, repetitively. And we know that with degenerative joint disease, there is a factor of
accumulation of, basically, trauma. And
I think your description indicates that he probably subjected his knees to
trauma on a daily basis when he was at work." Huang Dep. at 11. When asked if Mr. Muñoz's employment with
Hoffman, Atkinson and PCL after January 2002 had caused the conditions
documented in the
Mr.
Muñoz's other witness regarding causation was the physical therapist, Dr.
Becker. He testified that one cause of
arthritis, aside from rheumatism and genetics, "has to do with the loading
in biomechanical forces and joint mechanisms." Becker Dep. at 16. His theories were disputed by both
Dr. Dickson (
Dr. McCollum examined Mr. Muñoz on
end‑stage arthritis, two and a half months prior to
Dr. Dickson performed a record review
at Hoffman's request. Like the other
doctors, he noted that Mr. Muñoz had advanced arthritis in his left knee as of
That is a very
thorny question that has not been completely answered at this point. Those people who view osteoarthritis as a
wear-and-tear phenomenon, which it is not, oftentimes look to occupational or
use exposures as potential causes for wear and tear. When occupation activity, physical activity,
is examined, it shows either one of two things: no association with osteoarthritis in weight-bearing joints; or a very
small association that can be totally overridden by the other factors that I
previously mentioned as risk factors [i.e., genetics, weight, gender, and age].
He
pointed out that "people have repeatedly looked at runners and compared
them with non‑runners to determine if they are at risk for osteoarthritis
or degenerative joint disease of weight‑bearing joints, and the studies
show that there is no difference. People
who jog 20 to 40 miles a week for 40 years have no increased
osteoarthritis compared with non-runners."
Q. (by Mr. Hall) Doctor, you -- in
response to Mr. Slagle's question, towards
the end he asked
you whether the distinctive conditions of Mr. Muñoz's occupation as a industrial carpenter between March of '02 and January‑‑end
of January '04 had any impact at all on his osteoarthritis. You said it was extraordinarily unlikely that
it did. Did I --
A. Let me -- let me hasten to expand on that.
Q. All right.
A. As far as the underlying process of osteoarthritis, I think it would be extraordinarily unlikely. It just has not been shown by scientific evidence to be the case. [8]
His occupation as a carpenter would definitely affect the symptoms in his joint. As I say, osteoarthritis is a disease where activity aggravates the symptoms without necessarily aggravating the underlying disease. That's the crucial thing that people don't understand: Because something causes a symptom doesn't mean it was the cause of a problem.
Dr.
Dickson also stressed the significance of symptoms, saying that it is the
combination of the MRI findings, the symptoms, and joint dysfunction that
lead to total knee replacement surgery. One would never perform the surgery based solely on an MRI.
The industrial appeals judge requested
that Dr. Russo's testimony be taken by deposition. As he noted, the purpose of that testimony
was not to address causation, but rather the question of when Mr. Muñoz's
condition became disabling or was in need of treatment, for purposes of establishing
the date of manifestation. Nonetheless,
Dr. Russo was questioned regarding causation, without objection. He agreed that the
In the current case, Dr. Russo did not
file a claim for Mr. Muñoz because he did not believe his condition was
work-related. He noted that degenerative
arthritis is a progressive disorder, although the rate of decline varies. He had no opinion regarding whether Mr.
Muñoz's employment after
ANALYSIS
In its Petition for Review, Hoffman
renews its objection to the admissibility of a physical therapist's testimony
regarding medical causation. The
employer argues that, in the absence of that testimony, there is no medical
evidence that Mr. Muñoz's employment at Hoffman affected his already
symptomatic osteoarthritis, which was described as full blown prior to his
employment with Hoffman. In tandem with
that argument, Hoffman contends that
Admissibility of a physical
therapist's testimony regarding medical causation.
We
begin with the question of whether the worker has proved that
his left knee osteoarthritis arose out of his employment. Medical testimony is required to prove that
employment caused the condition complained of. Dobbins v. Commonwealth Aluminum Corp., 54 Wn.App. 788 (1989);
and
The Board has previously addressed Dr.
Becker's expert qualifications as a physical therapist, with a specialty in
biomechanics. We have approved the use
of his findings based on a physical capacities evaluation (PCE) as the basis
for an impairment rating. In re Bertha Ramirez, BIIA
Dec., 03 14933 (2004). Likewise, we have held that an occupational therapist is competent to
testify to her PCE findings and the limitations she would impose on the worker. In re
Peter Kunst, BIIA Dec. 04 14164 (
Performing a PCE and determining a patient's limitations are well within the scope of
practice for a physical therapist. Indeed, under WAC 296-20-01002, the Department requires that a PCE be
conducted by a licensed occupational or physical therapist. In the current case, however, Dr. Becker's
testimony was offered solely on the question of medical causation. He
conducted a [10] forensic evaluation
on
We have not previously resolved the
question of whether a physical therapist is competent to offer an opinion
regarding medical causation. The issue
was raised, but not addressed, with respect to Dr. Becker's testimony in In re William Hood, Jr., Dckt. No. 02
16117 (June 15, 2003). At that time, we
suggested that the testimony of a physical therapist was insufficient to
establish medical causation. We noted:
Because it is not
material to our decision, we decline to address whether this testimony, which
appears to be medical opinion, should have been allowed. We note, however, that discussion of
biomechanics or human behavior as it relates to whether Mr. Hood's left
shoulder condition arose from work or from a fall, does not seem to have
anything other than medical significance. The witness conceded that this was not the kind of thing he was usually
asked about.
Hood,
at 2.
RCW 18.74.010 defines physical therapy
as follows:
(3) "Physical therapy" means the care and services provided by or under the direction and supervision of a physical therapist licensed by the state. The use of Roentgen rays and radium for diagnostic and therapeutic purposes, the use of electricity for surgical purposes, including cauterization, and the use of spinal manipulation, or manipulative mobilization of the spine and its immediate articulations, are not included under the term "physical therapy" as used in this chapter.
This
statutory language does not authorize physical therapists to diagnose medical
conditions or to determine causation, an integral part of the diagnostic
process. The language of RCW 18.74.010
stands in marked contrast to RCW 18.225.010, which defines social work as
follows:
(6) "Independent clinical social
work" means the diagnosis and treatment of emotional and mental disorders
based on knowledge of human development, the causation and treatment of
psychopathology, psychotherapeutic treatment practices, and social work
practice as defined in advanced social work. Treatment modalities include but are not limited to diagnosis and
treatment of individuals, couples, families, groups, or organizations. [11]
Based
on that provision, we have permitted social workers to testify regarding the
causation of mental health conditions. In re Kathleen Bojano, Dckt. No. 02
23177 (
In
determining whether physical therapists are qualified to offer opinions
regarding medical causation, we note that the Department has not included
physical therapists within the group of practitioners who are permitted to sign
accident forms or certify time-loss compensation. WAC 296‑20-01002. Two of the key questions in the filing of a
claim are the diagnosis of the worker's condition and a determination of
causation. Thus, the Department has
excluded physical therapists from the list of providers who may make those
determinations.
In
addition, Dr. Becker candidly admitted that he cannot read MRIs, nor did he
review the medical records. There is no
suggestion in this record that the diagnosis of osteoarthritis is within the
expertise of a physical therapist. Indeed,
the problem with a physical therapist making such a diagnosis is well
illustrated here, where Mr. Muñoz was referred to a rheumatologist, who
diagnosed an inflammatory arthritic condition, which is separate from the
osteoarthritic left knee condition. A
physical therapist would clearly not be qualified to make such a differential
diagnosis. Dr. Becker appeared to
concede as much. He was asked: "Is
the result of that dysfunction or that excessive force represented in traumatic
arthritis?" He responded:
"Well, it can ultimately be presented in a number of clinical
presentations and, of course, that could be one that a physician would diagnose
ultimately . . .." Becker Dep. at
17. We hold that it was not within the
scope of Dr. Becker's practice as a physical therapist to determine the
cause of Mr. Muñoz's left knee osteoarthritis. Dr. Becker's testimony is therefore stricken, as is the responsive
testimony of Drs. Dickson and McCollum.
The claimant's burden of proof
with respect to causation.
We turn then to the question of
whether Mr. Muñoz was required to prove that his employment at Hoffman
contributed in some way to his osteoarthritis, or only that his condition arose
out of years of employment as a carpenter. The answer depends on the nature of the last [12] injurious exposure rule, adopted by the Supreme Court in Weyerhaeuser Co. v. Tri, 117 Wn.2d 128
(1991). Under Tri, the insurer on
the risk during the most recent exposure that bears a causal relationship to
the disability is solely liable for the entire claim. Tri,
117 Wn.2d at 136. The last injurious
exposure rule has two parts, the rule of proof (i.e., proof of causation) and
the rule of assignment of responsibility. Tri, 117 Wn.2d at
134-135. Hoffman argues that the Supreme
Court only adopted the rule of assignment in Tri, citing Safeway, Inc. v. Martin,
76 Wn. App. 329, 333 (1994). In Martin, the Court of Appeals noted
that the Supreme Court had not explicitly adopted the rule of proof. According to Hoffman, Mr. Muñoz was therefore
required to prove that his left knee osteoarthritis arose out of his employment
with Hoffman from
In Tri, causation was conceded,
so only the rule of assignment was at issue. The Supreme Court stated: "Today we adopt the rule only for purposes of determining liability among
successive insurers in occupational disease cases." Tri,
117 Wn.2d at 140 n.1 (1991). However, the
Supreme Court also referred approvingly to our decision in In re Lester
Renfro, BIIA Dec. 86 2392 (1988), noting that: "The rule also provides
the benefit of not requiring
the disabled worker to meet the often impossible burden of proving how a given
exposure contributed to his or her disease." Tri, 117 Wn.2d at 137. Furthermore, in its subsequent opinion in Fankhauser v. Department of Labor &
Indus., 121 Wn.2d 304, 311 (1993), the Supreme Court relied on Tri and reiterated that: "The last injurious exposure rule is
actually two rules: a rule of proof and a rule for assignment of
responsibility." Fankhauser, 121 Wn.2d at 311. As in Tri,
only the rule of assignment was at issue in Fankhauser,
because causation was conceded.
Nonetheless, the Supreme Court has twice stated that the last injurious exposure rule includes the rule of proof. We therefore agree with our industrial appeals judge. The Supreme Court has adopted the last injurious exposure rule in its entirety, not just one aspect, as Hoffman argues. We hold that, in an occupational disease case involving alleged exposures with multiple employers, the worker is only required to prove that the medical condition arose naturally and proximately out of the aggregate occupational exposure. If the worker satisfies that burden, then the insurer on the risk during the most recent exposure that bears a causal relationship to the disability is solely liable for the entire claim under Tri and Fankhauser. That employer/insurer may [13] < avoid liability by showing there was no causal injurious exposure during its period of employment. In re Charles Jones, BIIA Dec., 70,660 (1987); In re Frank Johannes, BIIA Dec., 67,323 (1985); and In re David Swendt, BIIA Dec., 61,790 (1983).
The role of the Department in
multiple employer occupational disease cases.
Finally, we turn to the critical role
played by the Department in multiple employer occupational disease cases. When the Department receives an occupational
disease claim involving multiple employers, it should first determine whether
the worker suffers from an occupational disease arising naturally and
proximately out of the distinctive conditions of employment with all
potentially responsible employers covered under the Washington Industrial
Insurance Act. If so, the Department
should then determine the responsible employer/insurer.
In the current appeal, the Department
failed to follow this two-step process. It did not first determine whether Mr. Muñoz's left knee osteoarthritis
was an occupational disease and then determine the responsible insurer. Instead, it apparently looked only at the
limited question of whether Mr. Muñoz's left knee condition arose out of
his employment with Hoffman for the period of
The
problem with this narrow approach is that the Department appears not to have
considered the impact of Mr. Muñoz's employment up through
On
appeal, Hoffman filed a motion to join Atkinson and PCL with respect to those
periods of employment, and the industrial appeals judge granted that
motion. In its first appearance, as well
as its Post Hearing Brief, Atkinson argued that there was no authority for
joining subsequent employers. Instead,
according to Atkinson, the Department was required to make the allowance
determination based on whatever exposure had occurred up to the date the claim
was filed, which was prior to Mr. Muñoz's employment with either Atkinson or
PCL. Atkinson has renewed that argument
in its Reply to Petition for Review, with which PCL has joined. They contend that the rights of the parties
are fixed as of the date the claim is filed, citing Ashenbrenner v. Department of Labor & Indus., 62 Wn.2d 22
(1963); Lynch v. Department of Labor
& Indus., 19 Wn.2d 802 (1944); and Department
of Labor & Indus. v. Landon, 117 Wn.2d 122 (1991). None of those cases stands for that
proposition. Ashenbrenner and Landon involve the applicable schedule of benefits, as determined by the date of
injury or the date of manifestation. Lynch simply holds that the law in
effect at the time of injury applies to the claim.
Hoffman
counters by citing Metropolitan Stevedore Co. v.
With
respect to the joinder question, CR 19(a)(1) provides
for the "joinder of
persons needed for just adjudication" as follows: "A person who is
subject to service of process and whose joinder will not deprive the court of
jurisdiction over the subject matter of the action shall be joined as a party
in the action if (1) in his absence complete relief cannot be accorded among
those already parties." We have
consistently held that, in occupational disease cases involving multiple
employers, the issue of claim allowance cannot be fully decided unless all
potentially responsible [15] insurers
participate. In re Richard L. Eades, Dckt. No. 01
17639 (
However,
the worker is not required to determine the correct employer/insurer. The sole requirement is to file the
claim. It is then incumbent on the
Department to determine whether the worker has an occupational disease arising
out of all relevant employments and, if so, which employer/insurer is
responsible. Here, the Department issued the ultimate order in
which it rejected Mr. Muñoz's claim on
That failure is of particular concern in
light of the January 11, 2002 MRI and the medical evidence presented by
Hoffman, which raises a significant question concerning whether
Mr. Muñoz's employment after January 11, 2002, with Hoffman, Atkinson, and
PCL, was injurious. The record contains
two exhibits listing Mr. Muñoz's employers over the years, Exhibit Nos. 10 and
13. Prior to his employment with the
three employers who participated in this appeal, Mr. Muñoz worked for Landel
Corporation, Bellevue Masters, and PCL in 2001, and for PCL and Howard S. Wright
Company in early 2002, apparently before he began working for Hoffman on
The
absence of the Department and any employers for periods prior to
FINDINGS OF FACT
1. On
On
On
On
2. Mr. Muñoz was born on
3. On
4. From
5. On
6. From
7. From
8. On
9. As of
10. On
11. The
12. Mr. Muñoz appealed the
13. On
14. On
15. On
16. By his appeal Mr. Muñoz is contending that
his left knee osteoarthritis arose naturally and proximately out of his years
of work as a carpenter in employment covered by the Washington Industrial
Insurance Act.
17. Atkinson Construction and PCL Construction
Services, Inc., were joined as parties in these proceedings with respect to the
periods of employment from
18. Mr. Muñoz was employed by Landel
Corporation, Bellevue Masters, and PCL Construction Services, Inc., in 2001,
and by PCL Construction Services, Inc., and Howard S. Wright Company in early
2002, prior to his employment with Hoffman. Details regarding these employments cannot be discerned from this
record, nor is it known whether these employers were self-insured or insured by
the State Fund during those periods of employment. None of these employers are parties to this
appeal.
19. The Department of Labor and
Industries did not participate in this appeal.
CONCLUSIONS OF LAW
1. The Board of Industrial Insurance Appeals
has jurisdiction over the parties to and the subject matter of this appeal.[19]
2. When the Department issued its
3. The
It
is ORDERED.
Dated:
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
THOMAS E. EGANChairperson
/s/
FRANK E. FENNERTY, JR.Member
/s/
CALHOUN DICKINSONMember