| IN RE: CHARLES DEERING | ) | DOCKET NO. 25,904 |
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| Claim No. C-766118 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Charles Deering, by
- James J. Solan
- Employer, W. G. Clark Construction Company,
- None
- Department of Labor and Industries, by
- The Attorney General, per
- Joe Gordon, Jr., Thomas O'Malley and
- Gosta E. Dagg, Assistants
Appeal filed by the claimant, Charles Deering, on January 18, 1966, from an order issued by the Department of Labor and Industries on December 2, 1965, closing this claim with a loss of earning power award for the period from September 23, 1964 to October 22, 1964, but with no award for permanent partial disability in addition to the award of 15 per cent of the maximum allowable for unspecified disabilities previously paid. Sustained as to permanent partial disability award and reversed and remanded as to termination of loss of earning power compensation.
DECISION
This matter is before the Board for review on the basis of the Statement of Exceptions filed by the Department of Labor and Industries to a Proposed Decision and Order issued by a hearing examiner for this Board on March 24, 1967, reversing the order appealed from and remanding the claim to the Department with direction to pay the claimant an additional loss of earning power award for the period from October 22, 1964 to December 2, 1965, and to pay him an additional permanent partial disability award of 20 per cent of the maximum allowable for unspecified disabilities. [2]
The Board has given careful consideration to the hearing examiner's Proposed Decision and Order, to the Department's Statement of Exceptions thereto, and to the evidence presented by the parties to this appeal. From our review of the record, we have concluded that the Department's exceptions on the extent of claimant's permanent partial disability are well taken and that the claimant has failed to sustain the burden of proving that he is entitled to an additional award for permanent partial disability. However, we believe the Proposed Decision and Order properly considered and determined the loss of earning power issue and we adopt that part of the Proposed Decision and Order, which is as follows:
"It is noted that the claimant in the case of Hunter v. Department of Labor and Industries, 43 Wn. 2d 696, was required as a result of his injury to change jobs from an outside service linesman to that of a meter journey- man with the same employer, and he was paid a loss of earning power compensation for several years until he was paid a permanent partial disability award. Although the specific question decided by the Court in that case was that he was not entitled to a continuation of such compensation after his condition became fixed, the case indicates that the claimant was entitled to compensation for loss of earning power until such time as a final order was issued by the Department.
The Hunter case, supra, seems very much to the point in this case, and it would seem that the ruling in that case indicates that under the statute in question, a workman who suffers a temporary partial disability, with a consequent loss of earning power as a result of an injury, is entitled to a loss of earning power compensation until his earning power is completely restored (or the loss is less than 5%), or his condition became fixed, and the extent of his permanent partial disability, if any, is established.
It seems apparent that in this case the claimant's condition could not be considered fixed, or his permanent partial disability, if any, established, until the December 2, 1965, order of the Supervisor was entered.
After the department had held the December 14, 1964, order in abeyance, they were at liberty [3] to find the permanent partial disability the same, increase it, remand the claim for further treatment, or allow compensation for loss of earning power, which they did, in part.
The claimant was in no position to take any action until after the Supervisor's order of October 13, 1965, which appeared to allow loss of earning power for an additional year, but by reading the order, it is obvious the dates were not what the Department intended, and it had the right to issue the order correcting the dates. Nevertheless, it was the order of December 2, 1965, that established the permanent disability and allowed one month loss of earning power.
In view of the above discussion, this examiner is persuaded that the claimant was entitled to an award for loss of earning power from September 23, 1964, to December 2, 1965. On just what basis the Department found the loss of earning power to equal 41.7% is not found in the record, nor is the record complete enough to determine this rate during the period involved, but once the right to the award for loss of earning power is established, it is within the Department's authority to further investigate this matter, and take such other action as is set forth in this order." (emphasis supplied by examiner)
The Department's medical witness, Dr. Stevens Dimant, a specialist in neurology and neurosurgery, who had been the claimant's attending physician for a period of time following his injury and had last seen him on October 23, 1964, testified that his condition had then reached a fixed stage leaving him with a permanent partial disability of 15 per cent of the maximum allowable for unspecified disabilities. He further expressed the opinion that his condition and resulting disability had remained unchanged thereafter during the period now in issue. As stated in the examiner's Proposed Decision and Order, the claimant is entitled to loss of earning power compensation until an order fixing the extent of his permanent partial disability award was issued on December 2, 1965. Hunter v. Department of Labor and 43 Wn. 2d 696.
The claimant's medical witness, Dr. Peter Fisher, a specialist [4] in internal medicine, who had examined him on one occasion only, on January 13, 1966, testified that his condition was then fixed and that his permanent disability resulting therefrom was equal to 50 per cent of the maximum allowable for unspecified disabilities.
With respect to the claimant's contention that he is entitled to an additional award for permanent disability, it may be noted, as the Department has pointed out in its Statement of Exceptions, that in order to sustain the burden of proof on this issue, it was incumbent upon the claimant to establish by medical testimony, some of it based upon objective findings, that his disability was greater on the date his claim was closed than the Department had found it to be. Hyde v. Department of Labor and Industries, 46 Wn. 2d 31. As the Department has further noted, Dr. Fisher testified that his diagnosis of the claimant's condition and his evaluation of his permanent disability residual thereto was based not upon abnormal physical or neurological findings but upon his evaluation of the history he had been given of the claimant's subjective symptomatology.
In view of the foregoing considerations, we have concluded that the order issued by the Department of labor and Industries on December 2, 1965, should be sustained as to the extent of the permanent partial disability, but reversed and remanded with direction to determine and pay loss of earning power compensation for the period October 23, 1964 to December 2, 1965.
In the course of our review of this record, we have considered the hearing examiner's evidentiary rulings and, finding no prejudicial error therein, hereby affirm said rulings.
FINDINGS
Based upon the record, the Board finds:
1. On March 2, 1961, the claimant, Charles Deering, sustained an injury to his head and neck while in the course of his employment [5] with W. G. Clark Construction Company. On March 8, 1961, a report of accident was filed with the Department of Labor and Industries. The claim based thereon was allowed and thereafter, on June 13, 1961, the Department issued an order closing the claim with no time-loss compensation or permanent partial disability award.
2. On February 13, 1962, the claimant filed an application to reopen his claim for aggravation of condition. On May 8, 1962, the Department issued an order denying the application.
3. On May 22, 1963, the claimant again filed an application to reopen his claim for aggravation of condition. On October 16, 1963, the claim was reopened effective as of May 6, 1963. On January 9, 1964, the Department entered an order paying time-loss compensation from which order the employer, on February 13, 1964, filed a notice of appeal. The employer's appeal was granted by an order of this Board dated February 28, 1964. Thereafter, on May 18, 1964, the Board entered an order sustaining the Department's order of January 9, 1964. On December 14, 1964, the Department entered an order closing the claim with a permanent partial disability award of 15% of the maximum allowable for unspecified dis- abilities, from which order the claimant, on February 9, 1965, filed a notice of appeal with this Board. On February 24, 1965, the Department entered an order holding its prior order of December 14, 1964 in abeyance, pending further investigation. Since the Department had reassumed jurisdiction of the case, the Board entered an order on February 26, 1965, denying the appeal.
4. On October 13, 1965, the Department entered an order closing the claim with no additional award for permanent partial disability but with a one-month payment for loss of earning power in the sum of $77.15, or a 41.7% loss of earning power. The period covered by this order was shown on the order to be from September 23, 1964 to October 22, 1965, but on December 2, 1965, the Department entered an order correcting the date to October 22, 1964. On January 18, 1966, the claimant filed a notice of appeal from this order, and on January 28, 1966, this Board granted the appeal.
5. On March 24, 1967, a hearing examiner for this Board entered a Proposed Decision and Order in connection with this appeal. There- after, within the period of time provided by law, exceptions were filed and the case referred [6] to the Board for review as provided by RCW 51.52.106.
6. As a result of his injury of March 2, 1961, the claimant has had to have various types of treatment because of head and neck involvement, which caused severe headaches, dizziness, unsteadiness, lack of concentration and loss of memory, which eventually prevented him from continuing on as a carpenter, as he was unable to climb ladders and engage in work that involved scaffolds, heights above the ground, looking up, and doing such work as involved handling materials with others. He was able to obtain employment as a janitor where the hazards were not so great and the pressure was much less, but the rate of pay was less than what he received as a carpenter.
7. The claimant is able to engage in a gainful occupation on a reasonably continuous basis, but physically unable to engage in the same type of carpentry work he performed before the injury.
8. As a result of his head and neck injury, the claimant suffered a substantial loss of earning power from September 23, 1964 to December 2, 1965, and has only been compensated for one month of this, i.e., from September 23, 1964 to October 22, 1964, at the rate of 41.7% loss, and is entitled to the balance, the amount of which should be determined by the Department after an investigation of the salary he would have earned as a carpenter and the salary he was making as a janitor.
9. The claimant's condition attributable to his industrial injury of March 2, 1961, consisting of the residuals of head and neck injury, medically became fixed on or about October 22, 1964, and thereafter remained fixed throughout the period at issue in this appeal and was judicially fixed on December 2, 1965, when his claim was closed. On or about December 2, 1965, claimant's permanent disability resulting from his condition attributable to his industrial injury of March 2, 1961, was equal to 15% of the maximum allowable for unspecified disabilities
CONCLUSIONS
Based upon the foregoing findings of fact, the Board concludes:
- This Board has jurisdiction of the parties and subject matter of this appeal.
- The order issued by the Department of Labor [7] and Industries on December 2, 1965, is correct and should be sustained as to the extent of the permanent partial disability award, but it is incorrect on the payment of compensation for loss of earning power and must be reversed and remanded to the Department with direction to determine and pay the claimant loss of earning power compensation for the period October 23, 1964 to December 2, 1965, and thereupon close the claim.
It is so ORDERED.
Dated this 20th day of March, 1968.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
ROBERT C. WETHERHOLT Chairperson
/s/
R. H. POWELL Member
/s/
R. M. GILMORE Member