| IN RE: PABLO GARCIA | ) | DOCKET NO. 05 15329 |
| ) | ||
| CLAIM NO. P-638858 | ) | DECISION AND ORDER |
| ) |
APPEARANCES:
Calbom
& Schwab, P.S.C., per
Randy
Fair
Employer,
Shannon McKay Farms, by
None
Department
of Labor and Industries, by
The
Office of the Attorney General, per
David
W. Coe, Assistant
The
claimant, Pablo Garcia, filed an appeal with the Board of Industrial Insurance
Appeals on
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 to a Proposed
Decision and Order issued on
The sole issue on appeal is whether
the supervisor of industrial insurance abused his discretion under RCW
51.36.010 by denying authorization for medications after Mr. Garcia was placed
on a pension. We conclude that he did,
because his denial was based on an erroneous interpretation of the law. He misinterpreted RCW 51.36.010 to preclude
the authorization of any medications which are palliative rather than
curative. [2]
The Board has reviewed the evidentiary
rulings in the record of proceedings and they are affirmed, with one
exception. The industrial appeals judge
erroneously prevented Mr. Garcia from asking Laura Farley, a Department pension
adjudicator, why his request for medications had been denied. This error was ultimately rendered harmless
by the parties' stipulation regarding the rationale for that decision. However, some discussion is warranted because
of the importance of this issue.
During the
discovery process, the claimant attempted to take Ms. Farley's deposition. In response, the Department filed a Motion to
Exclude Witnesses. The Department argued
that Mr. Garcia should be precluded from calling either Ms. Farley or
Robert J. Malooly, the supervisor of industrial insurance, as witnesses. According to the Department, their testimony
would be irrelevant hearsay, which would confuse the issues, result in unfair
prejudice, and waste time. The
Department also contended that it would be inappropriate for the claimant's
attorney to question Department employees about their mental processes. Ledgering
v. State of
The claimant agreed that the
Department’s decision-making process is irrelevant in cases where the standard
of review is de novo. Indeed, McDonald stands for that
proposition. However, Mr. Garcia argued
that a different standard applies to the review of discretionary
decisions. When the issue is whether the
Department has abused its discretion, both the decision-making process and the
reasons for the decision become relevant. Because McDonald involved a de
novo standard of review, it does not speak to this issue.
In response to the parties' motions
and arguments, the industrial appeals judge ruled that:
The claimant can call and present the testimony of Laura
Farley, the pension adjudicator, who issued the decision on appeal, but her
testimony is limited to what she reviewed and considered, and when she
considered it, but shall not include her mental processes in making the
decision or the grounds and reasons for that decision.
Under Ledgering, it would probably have
been inappropriate for the claimant to question Ms. Farley about her
mental processes. However, neither McDonald nor Ledgering precludes an appellant from exploring the "grounds
and reasons" for a decision, when the standard of review is [3] abuse of discretion. As the Court
said in State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26 (1971):
Where
the decision or order . . . is a matter of discretion, it will not be disturbed
on review except on a clear showing of abuse of discretion, that is, discretion
manifestly unreasonable, or exercised on untenable grounds, or for untenable
reasons.
An
appellant cannot show that a decision is based on untenable grounds or untenable
reasons unless those grounds and reasons are delved into. The Department cannot shield a discretionary
decision from meaningful review under Junker by preventing an appellant from exploring the basis for that decision.
It was therefore incorrect for the
industrial appeals judge to preclude the claimant from inquiring into the
reasons why the supervisor denied Mr. Garcia's request for medications. However, the error was rendered harmless by
the parties' stipulation that Ms. Farley's
We turn, then, to the merits of Mr.
Garcia's appeal. The claimant was placed
on a pension effective
Limited post-pension treatment may
be authorized pursuant to RCW 51.36.010, which provides that:
[T]he supervisor of
industrial insurance, solely in his or her discretion, may authorize continued
medical and surgical treatment for conditions previously accepted by the
department when such medical and surgical treatment is deemed necessary by the
supervisor of industrial insurance to protect such worker's life or provide for
the administration of medical and therapeutic measures including payment of prescription
medications, . . . which are necessary to alleviate continuing pain which
results from the industrial injury.
Mr. Garcia
is not contending that he requires treatment to protect his life. Instead, he has asked the supervisor to
exercise his discretion and "provide for the administration of medical and
therapeutic measures including payment of prescription medications, . . . ,
which are necessary to alleviate continuing pain which results from the
industrial injury." RCW
51.36.010. The parties stipulated that
the supervisor denied that request for the following reasons:
Concerning "the administration of medical and
therapeutic measures, including payment of prescription medications",
Merriam-Webster dictionary defines therapeutic as, "Providing or assisting in a cure." [4] Mr. Garcia’s
medication regime is palliative at best. There is no medical evidence of it "providing or assisting in a cure."
Board Exhibit No. 1,
Exhibit A. (Emphasis theirs.)
Thus, the supervisor's decision was
based on his understanding that RCW 51.36.010 precluded him from authorizing
palliative medications. However, the
statutory language is unambiguous and clearly permits the supervisor to
authorize post-pension medications which are "necessary to alleviate
continuing pain." RCW
51.36.010. By definition, such
medications would be palliative, not curative. By basing his denial on an erroneous view of the law, the supervisor
abused his discretion.
FINDINGS OF FACT
1. The
claimant, Pablo Garcia, filed an Application for Benefits with the Department
of Labor and Industries on
On
On April 18, 2005, the Department modified the August
16, 2004 and October 21, 2004 orders; terminated time loss compensation as paid
through October 15, 2004; found the claimant totally and permanently disabled;
placed him on the pension rolls effective October 16, 2004; deducted $8,902.82
from the pension reserve based on previously paid permanent partial disability;
denied responsibility for allergic rhinitis as not caused or aggravated by the
industrial injury; and denied medical treatment after the effective date for
the pension. On [5]
2. On
3. Effective
4. Mr.
Garcia requested that the supervisor of industrial insurance authorize the
following medications after the effective date of his pension: Lexapro (for pain and
depression), Nexium (for the epigastric distress related to taking
medications), and Neurontin (for pain).
5. In considering Mr. Garcia's request, the supervisor of industrial insurance interpreted RCW 51.36.010 to preclude the
authorization of any post-pension medications which are palliative rather than
curative.
6. The supervisor of
industrial insurance denied authorization for Lexapro, Nexium, and
Neurontin because "Mr. Garcia’s medication regime is palliative at
best. There is no medical evidence of it
'providing or assisting in a cure.'"
7. The following medications are necessary to alleviate Mr.
Garcia's continuing pain which resulted from the industrial injury: Lexapro (for pain and depression),
Nexium (for the epigastric distress related to taking medications), and
Neurontin (for pain).
CONCLUSIONS OF LAW
1. The
Board of Industrial Insurance Appeals has jurisdiction over the parties to and
the subject matter of this appeal.
2. RCW
51.36.010 permits the supervisor of industrial insurance to authorize post-pension
medications which are "necessary to alleviate continuing pain." The supervisor's denial of Mr. Garcia's request
for medications was based on an erroneous view of the law, i.e., that RCW 51.36.010 prohibits the authorization of
palliative post-pension medications. The supervisor therefore abused his discretion in
denying Mr. Garcia's request.
3. The
April 18, 2005 Department order is incorrect and is reversed. The claim is remanded to the Department with directions to terminate time
loss compensation as paid through October 15, 2004; find the claimant totally
and permanently disabled; place him on the pension rolls effective October 16,
2004; deduct $8,902.82 from the pension reserve based on previously paid
permanent partial disability; deny responsibility for allergic rhinitis as not
caused or aggravated by the industrial injury; [6] and reconsider Mr. Garcia's request for authorization of
medications with the understanding that RCW 51.36.010 permits the supervisor of
industrial insurance to authorize palliative post-pension medications.
It is so ORDERED.
Dated this 28th day of March, 2006.
BOARD
OF INDUSTRIAL INSURANCE APPEALS
/s/_____________________________________
THOMAS
E. EGAN Chairperson
/s/_____________________________________
FRANK
E. FENNERTY, JR. Member
/s/_____________________________________
CALHOUN