See RES JUDICATA Surviving beneficiary's claim affected by prior adjudication on the merits in work's claim
JOHN BIERS, DEC'D)DOCKET NO. 17754
Claim No. C-87671)DECISION AND ORDER
Appeal filed by the petitioner on May 1, 1962, from an order of the Supervisor of Industrial Insurance dated March 13, 1962, rejecting this claim for a widow's pension. Sustained.
The Board has reviewed the record in the light of a Proposed Decision and Order issued in this matter on February 26, 1965, and a Statement of Exceptions duly filed thereto by the Department of Labor and Industries on March 16, 1965. As a result thereof, we conclude the exceptions are well taken and that this claim must be rejected.
The medical evidence as a whole leads us to conclude that the decedent was permanently unfit for gainful employment by reason of a worsened back condition at the time of his death. The proximate cause of such worsening is disputed as a matter of medical inquiry, although, as we shall subsequently point out, it is undisputed as a matter of law. Dr. James P. Mooney, a general practitioner and the decedent's attending doctor, attributed the decedent's worsened back condition and his total disability to [2] his industrial injury, whereas two orthopedic specialists presented by the Department placed the blame on the natural progression of aging processes.
The Hearing Examiner resolved this issue by giving greater weight to the testimony of the decedent's attending doctor by virtue of what we deem to be a purely mechanical application of Spalding v. Department of Labor and Industries, 29 Wn. 2d 115. We find ourselves unable to subscribe to this disposition.
The Spalding case does not purport to enunciate some sort of immutable rule or mandate that the opinion of an attending or treating doctor is per se controlling upon disputed medical points. The Court expressly noted it was not laying down any hard and fast rule, and clearly indicated that the qualifications of the attending doctor had to be considered. Moreover, the medical dispute in Spalding revolved around the extent of disability, whereas in the instant matter, it centers upon the cause thereof. This alone logically constitutes a distinction with a difference, although, here again, it is but one of several factors to be considered in weighing conflicting opinions in arriving at a final judgment on the point in issue, and is not in itself, controlling.
The testimony of the petitioner's doctor, Dr. Mooney, is of the weakest sort. He only saw the decedent a few times. Insofar as his testimony discloses, he apparently never conducted a thorough physical examination of the decedent. For the most part, his testimony consisted of reading statements and complaints from various applications to reopen the decedent's claim, and giving answers to highly leading questions. His testimony is devoid of any specific physical findings. The doctor was a general practitioner with no specific knowledge or training in the field of orthopedics. In this respect, his testimony demonstrated no more than a very general and basic knowledge of the pathological [3] conditions involved which fall squarely within the orthopedic field of medical specialty.
In our opinion, the clear weight of the medical evidence, as rendered by two orthopedic specialists presented by the Department, establishes that the decedent's total disability resulted from the natural progression of pre-existing aging processes.
In any event, the cause of the worsening of the decedent's back condition has heretofore been established as a matter of law and is not open for further inquiry herein. On July 12, 1960, the Department, in response to an application by the decedent to re- open his claim for aggravation filed on June 3, 1960, adjudicated that there was no aggravation due to his industrial injury, but that his condition was attributable to a "natural progression of the pre-existing osteoarthritis, osteoporosis, and degenerative changes about the discs." The application to reopen the claim had been submitted on the decedent's behalf by the petitioner's witness herein, Dr. Mooney, who felt the decedent's back condition had worsened due to his injury to the extent that he was permanently and totally disabled as of that time (June, 1960). The Supervisor's order of July 12, 1960, rejected this contention and attributed his existing back condition and disability to the natural progression of aging processes. No appeal was prosecuted from the Supervisor's order of July 12, 1960, and it accordingly became a complete and final adjudication. It is clear that a widow's cause of action under the Act is a new, original right that is independent of the rights of the workman so that his failure to file a claim or to secure a final adjudication as to any aspect thereof, does not foreclose his widow from filing a claim in her own right and litigating any matter that was not prosecuted to a final judgment in the workman's claim. Beels v. Department of Labor and Industries, 178 Wash. 301; McFarland v.[4] Department of Labor and Industries, 188 Wash. 357; Devlin v. Department of Labor and Industries, 194 Wash. 549. However, it is also clear that the widow is bound under the principle of res judicata as to any matter that was prosecuted to a final adjudication in the workman's claim and is essential to a recovery by the widow in her own cause of action. Ek v. Department of Labor and Industries, 181 Wash. 91
In the instant matter, the petitioner's contention of permanent and total disability as of the date of the decedent's death is based upon the same pathological conditions (osteoarthritis, osteoporosis and degenerative disc disease) that were segregated as unrelated to the decent's injury by the Department's order of July 12, 1960. The causal relationship of such pathological conditions to the decedent's industrial injury is essential to the petitioner's right to a recovery, and since no appeal was taken from the Supervisor's order of July 12, 1960, it became a final Adjudication and res judicata upon the point. Ek. v. Department of Labor and Industries, supra.
After reviewing the entire record in light of the exceptions filed, the Board makes the following findings:
Based upon the foregoing findings, the Board makes the following conclusions:
It is so ORDERED.
Dated this 28th day of April, 1966.
BOARD OF INDUSTRIAL INSURANCE APPEALS
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J. HARRIS LYNCH Chairman
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R. H. POWELL Member
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R. M. GILMORE Member