Significant Decisions

See RES JUDICATA Surviving beneficiary's claim affected by prior adjudication on the merits in work's claim
A widow claiming entitlement to a survivor's pension based on the contention that the worker was permanently totally disabled at the time of his death is bound by a prior final adjudication under the worker's claim that the condition causing his disability was not caused by the industrial injury. ....John Biers, Dec'd., 17,754 (1966)


IN RE: JOHN BIERS, DEC'D ) DOCKET NO. 17754
  )  
Claim No. C-87671 ) DECISION AND ORDER
  )  
APPEARANCES
Petitioner, Anna Biers, by>
Irwin S. Elyn and
Gerald Shucklin (Associate Counsel)
Employer, Northwestern Improvement Company,
None
Department of Labor and Industries, by
The Attorney General, per
Kenneth E. Phillipps, William J. Van Natter and
Wesley G. Hohlbein, Assistants

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.

DECISION

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.

FINDINGS

After reviewing the entire record in light of the exceptions filed, the Board makes the following findings:

  1. On August 4, 1953, the decedent injured his back while lifting a conveyor's shaft during the course of his employment with the Northwestern Improvement Company. His claim was allowed and on July 9, 1954, the Supervisor of Industrial Insurance issued an order closing the claim without an award for permanent partial disability. Following a protest by the decedent, the Supervisor issued an order on October 25, 1954, reopening the claim to award the claimant a permanent partial disability allowance equal to 10% of the maximum allowable for unspecified disabilities, and thereupon closed the claim.
  2. On April 27, 1956, the decedent filed an application to reopen his claim for aggravation, and on June 6, 1956, the supervisor issued an order reopening the claim for treatment and [5] further action. On June 11, 1957, the Supervisor issued an order closing the claim with a permanent partial disability award of 20% of the maximum allowable for unspecified disabilities, less the prior award.
  3. On December 19, 1957, the decedent filed an application to reopen his claim for aggravation, and on March 18, 1958, the Supervisor issued an order reopening the claim for treatment and further action. On March 11, 1959, the Supervisor issued an order closing the claim without further award for permanent partial disability. On May 15, 1959, the decedent file a notice of appeal to the Board. On March 18, 1960, the Board issued an order dismissing the decedent's appeal.
  4. On June 3, 1960, the decedent filed an application to reopen his claim for aggravation, and on July 12, 1960, the Supervisor issued an order denying the application for the reason that: "The condition is attributable to a natural progression of the pre-existing osteoarthritis, osteoporosis, and degenerative changes about the discs." No appeal was taken from this order.
  5. On May 5, 1961, the decedent filed an application to reopen his claim for aggravation, and on July 3, 1961, the Supervisor issued an order denying the application. On August 3, 1961, the decedent filed a notice of appeal and thereafter died on December 23, 1962. Upon notification of the death, this Board issued an order on February 14, 1962, dismissing the decedent's appeal.
  6. On February 27, 1962, the petitioner filed an application for a widow's pension. On March 13, 1962, the Supervisor issued an order denying the application on the following grounds:

  7. "WHEREAS the cause of death, as shown on the official death certificate, was acute coronary artery disease due to chronic coronary disease of 40 years duration, neither of which are related in any manner to the condition result- ing from the injury of August 4, 1953, and
  8. WHEREAS the deceased had been unable to work for many months prior to his death but that inability to work was not due to the injury of August 4, 1953 but was due to the normal pro- gression of pre-existing conditions of osteo- arthritis, osteoporosis, degenerative changes about the spinal discs and his age and he was not therefore totally permanently disabled by reason of the injury of August 4, 1953 at the time of death,....."
    9. [6]
  9. On May 1, 1962, the petitioner filed a notice of appeal, and on May 24, 1962, the Board issued an order granting the appeal. On February 26, 1965, a hearing examiner of the Board issued a Proposed Decision and Order. A Statement of Exceptions thereto was duly filed by the Department of Labor and Industries on March 26, 1965.

  10. The decedent's worsened back condition was due to the normal progression of pre-existing conditions of osteoarthritis, osteoporosis, and degenerative disc disease, and was not the result of his industrial injury of August 4, 1953.

CONCLUSIONS

Based upon the foregoing findings, the Board makes the following conclusions:

  1. The Board has jurisdiction of the parties and subject matter of this appeal.
  2. The Supervisor's order of July 12, 1960, wherein it adjudicated that the decedent's existing back condition and inability to work was attributable to a natural progression of the pre-existing osteoarthritis, osteoporosis, and degenerative changes about the discs, is res judicata and forcloses the petitioner herein from predicating her claim that the decedent was permanently and totally disabled as a result of his industrial injury at the date of his death upon the aforesaid conditions.
  3. The decedent was not permanently and totally disabled as a result of his industrial injury of August 4, 1953, within the meaning of the Workmen's Compensation Act.
  4. The order of the Supervisor of Industrial Insurance dated March 13, 1962, rejecting this claim for a widow's pension is correct and should be sustained.

It is so ORDERED.

Dated this 28th day of April, 1966.

BOARD OF INDUSTRIAL INSURANCE APPEALS

/s/

J. HARRIS LYNCH Chairperson

/s/

R. H. POWELL Member

/s/

R. M. GILMORE Member

 


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