| IN RE: LOSS THOMPSON | ) | DOCKET NO. 13,473 |
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| Claim No. C-184512 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Loss Thompson, by
- Walthew, Warner & Keefe, per
- Eugene Arron, James E. McIver and
- Charles F. Warner
- Employer, Puget Sound Pulp and Timber Co.,
- None
- Department of Labor and Industries, by
- The Attorney General, per
- Robert O. Wells and Franklin K. Thorp, Assistants
Appeal filed by the claimant, Loss Thompson, on March 29, 1960, from an order of the supervisor of industrial insurance dated February 9, 1960, adhering to and reaffirming a prior order dated August 7, 1959, denying an application to reopen this claim on the ground of aggravation of condition. Reversed and remanded.
DECISION
The basic issue presented by this appeal, is the extent of increase, if any, in the claimant's disability attributable to a left hip and low back injury he sustained while working for the Puget Sound Pulp and Timber Co., on October 27, 1954, occurring between March 25, 1955, and February 9, 1960.
It is undisputed in this case that the claimant's left hip and low back condition worsened during the period in issue due to the progression of an osteoarthritic condition and, in our opinion, the record establishes that he was totally permanently disabled by reason thereof, when he last applied to reopen his claim in July, 1959, and when his application was finally denied in February, 1960. [2]
It is the department's contention that (1) The increase in the claimant's disability was due to the natural progression of a pre-existing arthritic condition which was unrelated to his injury of October 27, 1954, and, (2) in any event, it is res judicata by virtue of a department order dated March 23, 1955, (issued two days prior to the order originally closing this claim) that the claimant's arthritic condition was not aggravated or affected by his injury and that said order "precludes any subsequent compensation on the basis of the arthritic condition."
The record establishes that the claimant had no symptoms or complaints referable to his left hip or low back prior to his injury on October 27, 1954, when he was struck by a falling tree and knocked to the ground, and we are persuaded, after a careful review of all the testimony, that said injury aggravated and made symptomatic a pre-existing non-disabling arthritic condition. We are also persuaded that the injury was a materially contributing factor in the subsequent progression of the claimant's arthritic condition and the increase in disability resulting therefrom.
The department relies on the case of LeBire v. Department of Labor and Industries, 14 Wn. (2d) 407, in support of its contention that the claimant is precluded from receiving any further relief on the basis of his arthritic condition because no appeal was taken from the department order of March 23, 1955, denying responsibility for a pre-existing "degenerative arthritis."
The LeBire case, in our opinion, is clearly distinguishable on the facts from the case here under consideration. In that case, the claimant's claim based on a right knee injury was closed by a department order allowing him a permanent partial disability award for a right knee injury, but at the same time, specifically "denying any and all responsibility or liability for treatment [3] and disability caused by the multiple chronic proliferative arthritis." The record in that case affirmatively showed that the department's "segregation" order was based on the report of an examination of the claimant by a medical commission which revealed that the claimant was suffering from a generalized condition described as "multiple chronic proliferative arthritis involving many joints," which was unrelated to the claimant's injury and probably due to an infectious process. Following an appeal by the claimant to the joint board of the department, it was agreed by all parties that the claimant be paid an additional disability award for his right knee injury, but that "the department might segregate and deny liability for pre-existing arthritic and gonorrheal infection." The claim was remanded to the supervisor by an order of the joint board for payment and closure in accordance with the terms of the agreement. Based on this order and the agreement of the parties, the supervisor entered an order closing the claim on the terms prescribed, and again denying "any and all responsibility and liability for treatment of the pre-existing arthritis and gonorrheal infection and any disability necessitated thereby." A subsequent application by the claimant to reopen his claim on the basis of a worsening of his generalized proliferative arthritic condition was denied by the department and thereafter a superior court judgment was entered dismissing an appeal from an order of the joint board sustaining the department's order. On appeal to the supreme court, the court held that the issues raised by the claimant's application to reopen his claim were res judicata by virtue of the prior orders of the joint board and the supervisor, from which no appeal was taken, denying all responsibility and liability for the claimant's arthritic condition. In so holding, the court stated: [4]
"It is also clear from the record that, by those orders, the department adopted the findings and recommendations of the several medical commissions and denied all responsibility and liability for disability and treatment caused by arthritis or infection, and thereupon with the knowledge and consent of the appellant, segregated the traumatic injury from the remaining illness or disease, allowing compensation only for time-loss and for a specified degree of permanent partial disability. In other words, the department determined that at the time of his injury appellant had a pre-existing disease of arthritis, that his arthritic condition was not due or related to the knee injury, and that the department would assume no responsibility whatever for the disability caused by the disease. The basic issue thus determined by the joint board is the same issue now presented on this appeal, namely, whether appellant's arthritic condition is attributable to his knee injury."
In the instant case, the department's order of March 23, 1955, reads as follows:
"WHEREAS, this claim was filed for injury of above date, and
WHEREAS, medical evidence discloses pre-existing conditions described as: "degenerative arthritis" the department hereby denied responsibility for this pre-existing condition as unrelated to the injury for which the claim was filed;
THEREFORE, this claim having been allowed by sole reason of injury of October 27, 1954, will be adjudicated on the above basis."
The above quoted order by its terms simply denies responsibility for a pre-existing "degenerative arthritis" in some un- specified part of the body. The claimant sustained an injury to his low back and left hip and the crux of the issue here presented is whether such order constituted a final determination binding on the claimant that said injury did not aggravate a pre-existing arthritic condition in his low back and left hip and that the department would not be responsible for any subsequent progression of an arthritic condition in his low back and left hip which might [5] be shown to be the result of an aggravation of that condition by his injury.
In the LeBire case, the department specifically denied any responsibility or liability for treatment of, or the disability resulting from, the claimant's generalized arthritic condition. Further, the record affirmatively showed that this arthritic condition, which was due to an infectious process, involved multiple parts of the body, which had not been injured and that the clear intent was to limit the department's responsibility to the injured right knee.
Unlike the LeBire case, there is no medical evidence in this case as to the basis for the above quoted order. Although the findings contained in a report of examination of the claimant conducted by a physician on February 18, 1955 (on the basis of which the claimant's claim presumably was originally closed) were stipulated into the record, there is no reference therein to any arthritic condition and the portion of the report stipulated into evidence does not contain the diagnosis, conclusions or recommendations of the examiner. We would be required to speculate as to what the department intended by the segregation order of March 23, 1955, but certainly, by its terms, the order is not inconsistent with an acceptance of responsibility for low back and left hip disability resulting from an aggravation of an arthritic condition in those areas by the injury. The order itself being ambiguous, indefinite, and uncertain, we are of the opinion that it is not res judicata with respect to the issue raised by the testimony in this case, that is, the relationship between the progression of the arthritic condition and the claimant's low back and left hip and his injury of October 27, 1954.
For the reasons above indicated, we conclude that the supervisor's order of August 7, 1959, denying the claimant's application [6] to reopen this claim on the ground of aggravation of condition, should be reversed and the claim should be remanded to the department with direction to reopen the claim, to re-classify the claimant as totally, permanently disabled and place him on the pension rolls effective July 14, 1959.
FINDINGS
After a careful review of the entire record herein, the board finds as follows:
1. The claimant, Loss Thompson, sustained an injury to his low back and left hip when he was struck by a falling tree and knocked to the ground while in the course of his employment with the Puget Sound Pulp and Timber Company on October 27, 1954. His claim based on this injury, filed with the department of labor and industries, was allowed, medical treatment provided, and time-loss compensation paid. On March 23, 1955, the supervisor of industrial insurance entered an order as follows:
"WHEREAS medical evidence disclosed a pre- existing condition described as 'degenerative arthritis' the department hereby denies responsibility for this pre-existing condition as unrelated to the injury for which the claim was filed;
THEREFORE, this claim having been allowed by sole reason of injury of October 27, 1954, will be adjudicated on the above basis."
On March 25, 1955, the supervisor entered a final order closing the claim with a permanent partial disability award of 5% of the amputation value of the left leg at or so near the hip that an artificial limb cannot be worn.
2. Subsequently on October 7, 1955, and on March 6, 1956, the claimant wrote letters to the department with respect to reopening his claim, but he did not fill out or return the application form sent to him by the department and on November 17, 1955, and March 6, 1956, the supervisor issued orders denying the claimant's requests to reopen his claim because of his failure to submit the completed application forms. [7]
3. On July 14, 1959, the department received a further letter from the claimant requesting that his claim be reopened for aggravation and this was followed by receipt of a completed application form on July 28, 1959. On August 7, the supervisor issued an order denying the application. On August 17, 1959, the claimant appealed the last-mentioned order to the board of industrial insurance appeals, but on September 8, 1959, the supervisor entered an order holding the order of August 7, 1959, in abeyance, pending further investigation, and therefore, on September 11, 1959, this board entered an order denying the appeal. On February 9, 1960, the super- visor entered a final order, reaffirming and adhering to the order of August 7, 1959, and directing that the claim remain closed. On March 29, 1960, claimant appealed the last- mentioned order to this board and on April 14, 1960, the board entered an order granting the appeal.
4. The claimant had no symptoms, complaints or disability referable to his left hip or low back prior to his injury on October 27, 1954, and as a result of said injury, he suffered a symptomatic aggravation of a pre-existing osteo-arthritic condition in his low back and left hip.
5. As a further result of the aggravation of the pre-existing, non-symptomatic osteoarthritic condition in the claimant's low back and left hip due to his injury on October 27, 1954, said arthritic condition progressed and worsened subsequent to March 25, 1955, and his disability by reason thereof increased to the extent that he was no longer able to engage in a gainful occupation when he applied to reopen his claim on July 14, 1959.
6. The claimant's low back and left hip conditions were fixed on or about July 14, 1959, in that no treatment was indicated which would lessen his disability.
CONCLUSIONS
Based on the foregoing findings of fact, the board concludes:
- This board has jurisdiction of the parties and subject matter contained herein.
- It is not res judicata by virtue of the department's order of March 23, 1955, denying responsibility for a pre-existing condition described as "degenerative arthritis" that [8] the claimant suffered no aggration of an osteo- arthritic condition in his low back and left hip as a result of his injury of October 27, 1950, or that the progression of said condition occurring after March 25, 1955, was unrelated to said injury.
- The order of the supervisor of industrial insurance dated February 9, 1960, should be reversed and the above-numbered claim remanded to the department of labor and industries with direction to reopen the claim to re- classify the claimant as a totally, permanently disabled workman and place him on the pension rolls effective July 14, 1959.
ORDER
Now, therefore, it is hereby ORDERED that the order of the supervisor entered herein on February 9, 1960, be, and the same is hereby, reversed and the above-numbered claim is remanded to the department of labor and industries with direction to reopen the claim to reclassify the claimant as a totally, permanently disabled workman and place him on the pension rolls effective July 14, 1959.
Dated this 11th day of September, 1962.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
J. HARRIS LYNCH Chairperson
/s/
R. H. POWELL Member
DISSENTING OPINION
It seems to me that on March 23 and 25, 1955, the department rather clearly informed the claimant, in essence, "we recognize that you had an injury and we will pay you a permanent disability award, but there is no relationship between your condition and the 'degenerative arthritis' which you had before the injury and [9] therefore we deny responsibility for such condition." That matter cannot be relitigated and I would, accordingly, sustain the Supervisor's order of February 9, 1960, on that basis, and in any event, the claimant's present inability to work is due to the natural progression of his pre-existing degenerative arthritic condition. Nagel v. Department of Labor and Industries, 189 Wash. 631; Carlson v. Department of Labor and Industries, 200 Wash. 533; and LeBire v. Department of Labor and Industries, 14 Wn. (2d) 407.
Dated this 11th day of September, 1962.
/s/
HAROLD J. PETRIEMember