See TIMELINESS OF APPLICATION TO REOPEN CLAIM Notification by physician
RADFORD M. ANGELL ) DOCKET NO. 21,334 and 21,477
Claim No. 7007325 ) DECISION AND ORDER
APPEARANCES:
Appeal ( Docket No. 21,334 ) filed by the claimant on December 20, 1963, and cross-appeal (Docket No. 21,477) filed by the employer on January 17, 1964, from an order of the supervisor of industrial insurance dated December 5, 1963, rejecting this claim for the reason that it was not filed within one year of the date the claimant was first advised by a medical doctor that he had an occupational disease. Reversed and remanded, as to the appeal; dismissed, as to the cross-appeal.
The Board has reviewed the record in the light of a Proposed Decision and Order issued in this matter on December 18, 1964, and a statement of exceptions duly filed thereto by the claimant on January 7, 1965. As a result thereof, we conclude that the exceptions are well taken and that this matter should be remanded to the department of labor and industries for consideration of the claim on its merits.
The department's order from which the appeal and cross-appeal [2] were prosecuted made no determination as to whether or not the claimant was in fact suffering from an occupational disease. The rejection order is based upon the administrative finding that the claimant was advised by his attending physician on March 27, 1962, that his condition was occupational, and since the accident report was not received by the department until August 7, 1963, the claim was not timely.
Thus, as correctly noted by the hearing examiner, the only issue invoking the Board's jurisdiction is whether or not the claim was timely filed with the department. The employer's cross-appeal as to the claim on its merits is decidedly premature and its counsel conceded at the first hearing that the only issue to be determined at this time was the timeliness of the appeal. Although more a matter of procedure than substance, the employer's cross-appeal should have been formally dismissed in the Proposed Decision and Order. This oversight will be corrected herein.
Under the evidence, the department's determination that the claimant was advised by his attending physician on March 27, 1962, that his condition was occupational is patently erroneous. The department offered no evidence to support its determination and the claimant testified that his attending doctor did not so advise him until August 13, 1962. This was corroborated by the testimony of the attending physician, Dr. Hubbard. The claimant further testified that the occasion of August 13, 1962, marked the first time that he had ever been informed by a doctor that he had a disease which resulted from his occupation.
The hearing examiner found, on the basis of the claimant's testimony, that he knew by December, 1961, as a result of advice by a medical doctor, that he had a disabling lung condition arising out of his work with asbestos in his employment at Hanford, Washington. [3]
The claimant's testimony in this respect was to the effect that he was given periodic physical examinations by his employer at Hanford every two or three years. He stated that "they always passed me," but on his last examination, which took place in 1960 or 1961, the doctors advised him to change his trade as working with asbestos was bad for his health - more specifically, for his lungs. It is clear that the claimant was himself aware that he was having pulmonary difficulties as of that time, but there is no evidence that the doctors attempted to isolate or identify the particular disease process that was responsible for such difficulties. The claimant continued to work until December, 1961, when he decided he had better quit his work at Hanford if, as he put it, "I wanted to live any longer." He expressly denied that the doctors at Hanford had ever told him that his breathing difficulties or lung condition had resulted from his work with asbestos.
Manifestly, that which is or may be harmful to a pathological condition or disease is not, ipso facto, its cause. Thus, to say to a workman that his work is bad for his condition is not to say that the condition itself arose out of such work. The claimant's direct denial that the employer's doctors at Hanford ever advised him with respect to the etiology of his condition stands unrefuted in the record. Under the law, the one-year-limitation period does not commence to run against a workman until such time as a medical doctor advises him that his work or occupation is the cause of his disabling disease. Williams v. Department of Labor & Industries, 45 Wn. 2d 574; Nygaard v. Department of Labor & Industries, 51 Wn. 2d 659.
Under the record, the statute did not commence to run against the claimant until August 13, 1962. His claim, filed with the department on August 7, 1963, was within the statutory period. [4]
Based upon the record, the Board makes the following findings:
Based upon the foregoing findings, the Board makes the following conclusions:
It is so ORDERED.
Dated this 15th day of December, 1965.
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