| IN RE: JOSE RIOS | ) | DOCKET NO. 07 15155 |
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| CLAIM NO. Y-236773 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Jose Rios, by
- Smart, Connell & Childers, P.S., per
- Darrell K. Smart
- Employer, Washington Fruit & Produce Company, by
- Washington State Farm Bureau,
- None
- Department of Labor and Industries, by
- The Office of the Attorney General, per
- Steve Vinyard, Assistant
The claimant, Jose Rios, filed an appeal with the Board of Industrial Insurance Appeals on May 1, 2007, from an order of the Department of Labor and Industries dated April 11, 2007. In the order dated April 11, 2007, the Department determined that the order was issued to comply with the order issued by the Board of Industrial Insurance Appeals on April 6, 2007, in Docket No. 06 21844; terminated time-loss compensation benefits effective October 25, 2006; denied time‑loss benefits for the period of October 26, 2006, through November 7, 2006; declared the worker totally and permanently disabled, placed him on pension effective November 8, 2006; and determined that medical treatment will not be covered after the effective pension date. In its April 11, 2007 order, the Department also declared that the $7,455.81 previously paid to the worker for permanent partial disability would be deducted from the pension reserve, resulting in a permanent reduction of the monthly pension benefit. 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 claimant to a Proposed Decision and Order issued on November 8, 2007, in which the industrial appeals judge affirmed the order of the Department dated April 11, 2007.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed. The rulings are affirmed. We have amended the Jurisdictional History to include the April 6, 2007 Order on Agreement of Parties, a copy of which was submitted by each party with their respective Motion for Summary Judgment. The Department order that is the subject of this appeal was based in part on that order.
The claimant filed a Motion for Summary Judgment and the Department filed a Cross‑Motion for Summary Judgment. We have reviewed the motions, the memoranda in support of the motions, and the attached exhibits. The facts are not in dispute and the parties are entitled to judgment as a matter of law.
This decision is based on these undisputed facts. The Department allowed the claim filed by Mr. Rios for an industrial injury that occurred on July 25, 2002. On May 27, 2004, the Department issued an order that closed the claim with a permanent partial disability rating equal to Category 2, permanent dorso-lumbar and/or lumbosacral impairments, and issued a warrant in the amount of $7,455.81, as the award for that impairment. On August 11, 2004, following the claimant's timely appeal, the Department modified its May 27, 2004 order from final to temporary, allowed the claim to remain open for authorized treatment and benefits, and declared that the award for permanent partial disability would be considered an advance against any future benefits payable from the accident fund. It appears that the Department resumed payment of time-loss compensation to the claimant. On November 8, 2006, the Department again issued an order that closed the claim with the same rating for permanent partial disability that was set out in the May 27, 2004 order. No warrant was issued with that order. The claimant's appeal from that order was resolved with a Board Order on Agreement of Parties, which found as of November 8, 2006, Mr. Rios was totally and permanently disabled, and entitled to pension. The Department issued an order that complied with the Order on Agreement of Parties and deducted $7,455.81 from the pension reserve, which represents the entire impairment award the claimant received on May 27, 2004.
The issue in this appeal is whether the deduction was proper. We find that a deduction of $7,455.81 is improper. We remand to the Department to calculate any deduction pursuant to RCW 51.32.080(4), using May 27, 2004, as the date of first instance, without regard to interest or temporary disability benefits paid to Mr. Rios between May 27, 2004, and November 8, 2006.
The statutory authority to reduce the pension reserve when an injured worker's status is changed from permanent partial disability to permanent total disability is found in RCW 51.32.080(4), which at the time relevant to this appeal read:
If permanent partial disability compensation is followed by permanent total disability, any portion of the permanent partial disability, which exceeds the amount that would have been paid the injured worker if permanent total disability compensation had been paid in the first instance, shall be deducted from the pension reserve of such injured worker and his or her monthly compensation payments shall be reduced accordingly. (Emphasis added.)
There is no statutory definition of the term "first instance." The definition of first instance as the date of the first order issued by the Department that establishes permanent partial disability, whether that order becomes final or not and without regard to subsequent orders that may close and then reopen the claim, comes from case law. Stuckey v. Department of Labor & Indus., 129 Wn.2d 289 (1996); In re Michael Woodley, BIIA Dec., 01 16625 (2002); In re Eddie Maupin, BIIA Dec. 04 14768 (2005); and Jacobsen v. Department of Labor & Indus., 127 Wn.App. 384 (2005).
The first Department order that established a permanent partial disability for Mr. Rios was issued on May 27, 2004. After Mr. Rios appealed the May 27, 2004 order, the Department reassumed jurisdiction and issued an order on August 11, 2004, which changed the order of May 27, 2004, from final to temporary, allowed the claim to remain open for medical treatment and other appropriate benefits, and noted that the permanent partial disability award would be considered an advance against any future benefits payable from the accident fund.
The industrial appeals judge relied on Woodley to hold that the order issued on May 27, 2004, does not constitute the date of first instance pursuant to RCW 51.32.080(4) because in Woodley, we held that mere advances on permanent partial disability should not be construed as the date of first instance. The action the Department took with regard to Mr. Woodley is different from the action they took with regard to Mr. Rios. Mr. Woodley received advance payments for permanent partial disability on April 12, 1985, April 26, 1985, and November 13, 1986, before the Department issued the first order that determined the extent of disability. That order was issued on February 5, 1987, and that then was the date of first instance in the Woodley case. That is true even though the February 5, 1987 order was protested, the claim was closed with an increased award for permanent partial disability, the claim was reopened, and finally closed with a pension effective December 16, 2000.
The point of our holding in Woodley is that "first instance" within the meaning of the statute is the date of the first Department determination of impairment. The significant event is the determination of permanent partial disability. The Department's subsequent decision to treat an award paid to an injured worker as an advance against future benefits has no impact on that determination.
The Department order dated April 11, 2007, is reversed and the matter remanded to the Department with direction to determine if any portion of the permanent partial disability compensation exceeds the amount that would have been paid if permanent total disability had been paid on May 27, 2004, to deduct any excess from the pension reserve, and reduce the monthly compensation accordingly. Pursuant to Jacobsen, the time-loss compensation paid to the claimant after issuance of the May 27, 2004 order cannot be factored into the calculation.
FINDINGS OF FACT
1. On August 5, 2002, the claimant, Jose Rios, filed an Application for Benefits, in which he alleged an injury to his back and left leg on July 25, 2002, during the course of his employment with Washington Fruit & Produce Company. The claim was allowed and benefits provided.On May 27, 2004, the Department issued an order in which it closed the claim with an award for permanent partial disability as described by Category 2, permanent dorso-lumbar and lumbo-sacral impairments.
On June 30, 2004, following the claimant's June 9, 2004 appeal of the May 27, 2004 order, the Department held the May 27, 2004 order in abeyance.
On August 11, 2004, the Department issued an order in which it changed its order dated May 27, 2004, from final to temporary and allowed the claim to remain open for authorized treatment and benefits. The award for permanent partial disability paid in the amount of $7,455.81 was considered an advance against any future benefits payable from the accident fund.
On November 8, 2006, the Department issued an order in which it closed the claim with an award for permanent partial disability as described by Category 2, permanent dorso-lumbar and/or lumbo-sacral impairments. No warrant was issued.
On November 27, 2006, the claimant appealed the Department order dated November 8, 2006, to the Board of Industrial Insurance Appeals.
On April 6, 2007, the Board issued an Order on Agreement of Parties in which it directed the Department to award the claimant permanent total disability benefits effective November 8, 2006.
On April 11, 2007, the Department issued an order in which it placed the claimant on pension effective November 8, 2006, and deducted from the pension reserve the sum of $7,455.81 previously paid to the claimant as an award for permanent partial disability.
On May 1, 2007, the claimant filed an appeal from the Department order dated April 11, 2007, with the Board of Industrial Insurance Appeals.
On May 31, 2007, and on June 11, 2007, the Board issued Orders Extending Time to Act on Appeal.
On June 13, 2007, the Board issued an Order Granting Appeal and assigned the appeal Docket No. 07 15155.
2. The claimant, Jose Rios, has an allowed claim for an injury sustained on July 25, 2002, during the course of his employment with Washington Fruit & Produce Company.
3. The affidavits and exhibits submitted by the parties demonstrate that there are no genuine issues as to any material facts.
CONCLUSIONS OF LAW
1. The Board of Industrial Insurance Appeals has jurisdiction over the parties to and the subject matter of this appeal.
2. The claimant is entitled to a decision as a matter of law as contemplated by CR 56.
3. The Department order issued on May 27, 2004, was the first order issued by the Department in which it established permanent partial disability, and is the date of first instance as contemplated by RCW 51.32.080(4).
4. The Department order dated April 11, 2007, is incorrect insofar as it deducted $7,455.81, previously paid to the worker for permanent partial disability. The claim is remanded to the Department to recalculate the pension reserve based on May 27, 2004, as the date of first instance, without regard to interest or time-loss compensation benefits paid to the claimant between May 27, 2004, and April 11, 2007, and, pursuant to the Board Order on Agreement of Parties dated April 6, 2007, terminate time-loss compensation as paid through October 25, 2006, and place the claimant on pension effective November 8, 2006.
It is ORDERED.
Dated: January 23, 2008.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
THOMAS E. EGAN Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
CALHOUN DICKINSON Member