| IN RE: LESTER R. DEZELLEM | ) | DOCKET NO. 23,765 |
| ) | ||
| Claim No. C-795986 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Lester R. Dezellem, by
- John E. Calbom
- Employer, Nor-Pac Incorporated,
- None
- Department of Labor and Industries, by
- The Attorney General, per
- Thomas O'Malley, H. Collyer Church,
- Gerald L. Casey and
- Floyd V. Smith, Assistants
This is an appeal filed by the claimant on February 4, 1965, from an order of the Supervisor of Industrial Insurance dated December 4, 1964, which closed this claim with payment of a permanent partial disability award equal to 40 per cent of the maximum allowable for unspecified disabilities, less a prior award paid. Reversed and remanded.
DECISION
This matter is before the Board for review and decision on timely Statements of exceptions filed by the claimant and the Department of Labor and Industries to a Proposed Decision and Order issued by a hearing examiner for this board on June 16, 1966, in which the order of the Supervisor of Industrial Insurance dated December 4, 1964 was reversed.
The Board has reviewed the evidentiary rulings of the Hearing Examiner and finds that no prejudicial error was committed and said rulings are hereby affirmed.
The issue presented by this appeal is the extent of claimant's [2] disability on December 4, 1964, as a result of the industrial injury he sustained on June 28, 1961, while working for Nor-Pac Incorporated.
After consideration of the Proposed Decision and Order and the Statements of Exceptions filed thereto, and a careful review of the entire record before us, we are persuaded that the exceptions are without merit and that the Proposed Decision and Order is supported by the preponderance of the evidence and is correct as a matter of law.
There is a sharp conflict between the opinion of Dr. A. W. Stevenson, the claimant's medical witness, who testified that x- rays of the claimant's low back revealed an incomplete bony fusion at L-4, L-5 ( pseudoarthrosis) and the opinions of the Department's medical witnesses, Drs. Michael Lewiski and Darrell Leavitt, who testified that the x-rays interpreted by claimant's medical witness were of poor radiograph density and penetration and inadequate to make such a diagnosis and who also interpreted other x-rays especially taken of the back in flexion and extension and, based thereon, testified that the fusion at L-4, L-5 was stable. We accept the opinion of the Department's medical witnesses on this point and conclude that the claimant's medical witness' evaluation of permanent disability was based, in part, on an erroneous impression.
It is also apparent that the opinion of Dr. Leavitt, as to claimant's permanent disability, is based, to some extent, on error. Dr. Leavitt testified that he recommended the closure of this claim with a rating of "40% of the unspecified disability to the spine." He also testified that he felt that the work the claimant could do was "actually within his 60% ability to work." It is apparent from the testimony that he was erroneously equating unspecified disability with permanent total disability and that [3] his rating of 40 per cent unspecified disability to the spine was really a measure of claimant's ability to engage in gainful employment. It is proper to note that 100 per cent unspecified disability is a partial disability which assumes an ability to continue to engage in some gainful employment and is not synonymous with permanent total disability as Dr. Leavitt's testimony would imply.
We are persuaded that the weight of the evidence supports the Hearing Examiner's finding that the claimant is able to engage in light types of work. It appears from the record that some difficulty in finding light work may prevail in the area where the claimant now resides, as he alleges. One of the facets of the issue before this Board is whether he is physically able to engage in gainful employment, not whether such employment is or is not presently available in his community. This is a socio-economic matter. The Act does not intend that the decision, on a question of whether an injured workman is permanently totally disabled or not, should turn on employment opportunities then present in any particular community. If this were the law, we would have a fluctuating and variable standard, dependent not on the injured workman's ability to engage in gainful employment, but rather, dependent on the economic condition in different communities at different times. This is not to say that the "odd job" rule of Kuhnle v. Department of Labor and Industries, 12 Wn. 2d 191 is not valid. There is a clear distinction between the ability to perform only "odd jobs" and the "ability to perform light forms of gainful employment" as the Hearing Examiner has found in this case.
The Hearing Examiner has determined that the evidence warrants an award equal to 55 per cent of the maximum allowable for unspecified disabilities. We concur.
The proposed findings, conclusions and order are hereby [4] adopted as this Board's findings, conclusions and order and incorporated herein by this reference.
It is so ORDERED.
Dated this 28th day of November, 1966.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
R. H. POWELL Chairperson
/s/
R. M. GILMORE Member