Significant Decisions

See SCOPE OF REVIEW Closing order segregating condition
Where the Department closes a claim without an award for permanent disability and at the same time denies responsibility for a condition as unrelated to the industrial injury, the Board may, in addition to determining that the condition is causally related to the industrial injury, reach the question of whether the condition renders the worker permanently totally disabled. In this case the Department was fully apprised of the worker's allegation that the condition rendered him permanently totally disabled, had numerous opportunities to consider that issue, and was not prejudiced by any lack of medical evidence as to the extent of disability. ....Anton Worklan, 26,538 (1967)


IN RE: ANTON E. WORKLAN ) DOCKET NO. 26,538
  )  
Claim No. F-101066 ) DECISION AND ORDER
  )  
APPEARANCES
Claimant, Anton E. Worklan, by
Walthew, Warner & Keefe, per
Robert H. Thompson
Employer, Olympic Hotel,
None
Department of Labor and Industries, by
The Attorney General, per
Norman W. Cohen, Gosta Dagg and
William J. VanNatter, Assistants

Appeal filed by the claimant, Anton E. Worklan, on May 10, 1966, from an order of the Supervisor of Industrial Insurance, dated April 28, 1966, closing this claim with no award for permanent disability, and segregating and denying responsibility for a condition of the right breast, a carcinoma, alleged to be unrelated to the injury for which the claim had been allowed. Reversed and remanded.

DECISION

This claim for benefits under the Workmen's Compensation Act was allowed by the Department of Labor and Industries for an injury the claimant sustained on April 30, 1963, when he fell and struck his right breast on a lettuce crate. The claim was first closed in November of 1963 with no award for permanent disability. On January 27, 1965, the claimant filed an application to reopen his claim for aggravation of condition. On February 5, 1965, the claim was reopened effective December 12, 1964, for treatment only, and effective January 12, 1965, for authorized treatment, [2] including surgery, described as a radical right mastectomy, which had been performed on January 13, 1965, for removal of the cancerous tissue from the claimant's right breast.

On July 6, 1965, the claim was closed by an order of the Supervisor of Industrial Insurance, reading in pertinent part as follows:

"WHEREAS, this claim has been allowed for a contusion of the right breast;

WHEREAS, the contusion requires no further treatment and has left no residual permanent partial disability;

IT IS THEREFORE ORDERED that the claim is hereby closed with time loss compensation as paid to May 11, 1965 Inc. and no permanent partial disability.

Treatment of the unrelated condition involving the right breast is not the Department's responsibility."

(emphasis added)

Following the claimant's appeal from this order, which was received by this Board on August 23, 1965, the Department reassumed jurisdiction of the claim by an order of the Supervisor dated September 17, 1965, holding the prior order closing the claim in abeyance. This order, reassuming jurisdiction of the claim, was entered pursuant to RCW 51.52.060, which provides in part:

"that the department, either within the time limited for appeal, or within thirty days after receiving a notice of appeal, may modify, reverse or change any order, decision, or award, or may hold any such order, decision, or award in abeyance pending further investigation in light of the allegations of the notice of appeal, and the board shall thereupon deny the appeal, without prejudice to the appellant's right to appeal from any subsequent determinative order issued by the department." (emphasis added)

After further consideration of the claim by the department, it was again closed, on April 28, 1966, by an order reading as follows:

"WHEREAS, the Department did by Order of [3] July 6, 1965 deny responsibility for an unrelated condition of the right breast, and did by same order close the above claim, and further consideration has been made, and

WHEREAS, the further consideration consisted of additional medical opinion which discloses that the carcinoma of the right breast is not due to the injury for which this claim was filed;

IT IS THEREFORE ORDERED that the Department does hereby adhere to the aforesaid order, and the claim shall remain closed pursuant thereto."

The claimant again filed a notice of appeal with this Board in which he alleged that the development of his cancerous condition, and the surgery necessarily required therefor, was causally related to his injury and, further, that he had become permanently and totally disabled as a result of disability attributable to this condition. At the hearings that were held to permit the parties to present their evidence on the issues raised by the notice of appeal from the Supervisor's order, the claimant, without objection from the Department, produced evidence in support of both contentions. The Department's evidence, presented through the testimony of a medical expert who had examined the claimant in October of 1965, after the Department had reassumed jurisdiction of the claim, following his first appeal, was directed only to the first issue raised by the claimant's notice of appeal; that is, whether or not his cancerous condition had any causal connection with his injury. On November 29, 1966, a hearing examiner for the Board issued a Proposed Decision and Order in connection with the appeal, reversing the Supervisor's order and remanding the claim to the Department with direction to place the claimant on its pension rolls as a permanently and totally disabled workman. This proposed disposition of the appeal was based upon the finding that the claimant's cancerous condition in his right breast was causally related to his industrial injury, and [4] upon the further finding that he had been thereby rendered permanently and totally disabled. The matter is now before the Board for review on the basis of the Statement of Exceptions the Department of Labor and Industries has filed to the Proposed Decision and Order.

The principal issue raised by the Department's exceptions presents a legal question respecting the Board's jurisdiction. The Department contends that in a case such as this, where it has closed a claim with no award for permanent disability and has, in the same order, segregated and denied responsibility for a pathological condition conceded to be present but asserted to be unrelated to the injury for which the claim was allowed, the Board's jurisdiction is limited to determining whether or not the condition in question is causally related to the industrial injury. It contends that if the Board in this case should find that the claimant's injury is causally related to his cancerous condition, either by way of initiating cause or by way of aggravation with consequent acceleration of the development of the carcinoma, its further jurisdiction would be limited to remanding the claim to the Department with direction to assume responsibility for the condition.

In support of its contention, that "the Board has no original jurisdiction to rate the disability for a condition which had been determined by the Department to be unrelated to the industrial injury for which the claim was allowed," the Department relies principally upon the case of Shufeldt v. Department of Labor and Industries, 57 Wn. 2d 758. It may be noted in this connection that the Department, in its Statement of Exceptions, has erroneously asserted that:

"In the Shufeldt case, the Court said that the Board is an appellant body only and has no original jurisdiction. It was further stated there that the Board can [5] only decide matters which had been previously decided by the administrative tribunal." (emphasis added)

The remarks of the Court in the Shufeldt case, erroneously para- phrased by the Department in its argument, in fact had reference, not to the jurisdiction of the Board of Industrial Insurance Appeals, which it referred to in its opinion as one of the "administrative tribunals," but to the jurisdiction of the Superior Court "on review of a decision of the Board of Industrial Insurance Appeals." This is apparent from what the Court actually said (57 Wn. 2d 758, 760):

"The jurisdiction of the superior court on review of a decision of the Board of Indus- trial Insurance Appeals is appellate only. It has no original jurisdiction. It can decide only matters decided by the administrative tribunals. The only issue before the superior court upon the appeal in this case was the correctness of the department's decision holding that there was no relationship of cause and effect between the injury and any disability attributable to a heart condition. The department did not, nor did the Board of Industrial Insurance Appeals, consider the question of the extent of any disability attributable to the heart condition. Under such circumstances, the only issue in the superior court was the one decided by the Board of Industrial Insurance Appeals." (emphasis added)

The only issue contested before the Board in the Shufeldt case was the question of causal relationship between the workman's injury and his heart condition. It is apparent that he had not had any stage of the proceedings before the Board alleged, or attempted to prove, the extent of his disability resulting from his heart condition; nor had the Department offered any proof as to the extent of his heart disability. Under these circumstances, the court's holding that the jurisdiction of the Superior Court in a workman's compensation case is defined by the scope of the issues contested before the Board of Industrial Insurance Appeals obviously does not support the Department's position in the present [6] case that the Board, itself, upon finding the claimant's cancerous condition to be causally related to his injury, would have no jurisdiction to award him compensation for the disability that he has alleged in his notice of appeal was caused by his injury and that he has proved by competent evidence in proceedings before the Board.

The Board is an appellate body in the sense that it acquires jurisdiction of a case only upon appeal from an order or decision of the Department of Labor and Industries. It is also, however, the trial tribunal before which the evidentiary record in a case is made. Its role thus differs from that of the Department, which has original jurisdiction of the workman's claim, and from that of the Superior Court, which may decide his case only upon the record established before the Board. The scope of the Board's review of an order of the Supervisor of Industrial Insurance closing a workman's claim is defined by the notice of appeal and includes all issues properly raised therein. Brakus v. Department of Labor and Industries, 48 Wn. 2d 218; RCW 51.52.070; RCW 51.52.102. The issue before the Department in July of 1965, when it closed this claim with no award for permanent disability, after having reopened the claim for aggravation of condition, and in April of 1966, when it adhered to its prior closing order, after having held it in abeyance pending further investigation of the claim following the claimant's notice of appeal from the July, 1965 order, was whether or not there had occurred any permanent aggravation of the claimant's disability attributable to his industrial injury. In deciding that the workman's condition attributable to his injury had not become aggravated and that he had no disability attributable to said injury, the Department fully exercised its original jurisdiction on the issue before it, and this issue was therefore properly placed before the Board by the claimant in his [7] notice of appeal. See Noll v. Department of Labor and Industries, 179 Wash. 213.

It should be noted that the cases the Department has cited, apart from the Shufeldt case, in support of its position on this issue, are for the most part cases involving an appeal from an order rejecting a claim rather than an appeal from an order segregating and denying responsibility for a portion of the dis- ability the workman alleges to have been caused by an injury for which a claim has already been allowed. The two situations are not legally analogous. When the Department rejects a claim on the ground that no accident or injury has occurred, or on any other ground, for example, that the claim was not timely filed or that the claimant was not engaged in covered employment, or that he was not in the course of his employment, the Department has never exercised its original jurisdiction to determine the claim on its merits in the sense as to the nature and extent of the relief, including medical treatment, time-loss compensation, or permanent disability award, to which the claimant may have been entitled if the Department had not determined that it was legally barred from doing so. There is, therefore, a clear distinction between "reject" cases and cases such as that here under consideration where the Department has exercised original jurisdiction allowing the claim and in determining the extent of relief to which the claimant is entitled.

It should be further noted that we are not here confronted with any element of surprise or lack of notice to the Department, such as, for example, was present in the case of Stansbury v. Department of Labor and Industries, 36 Wn. 2d 330, in which the Court stated:

"... Unless the department has been advised of the theory on which a claimant is proceeding and the character of the relief [8] desired, it has no opportunity to make the proper investigation and to grant the relief requested, if it determines that the circum- stances warrant it, or to obtain evidence to meet the issues raised by that theory if it is convinced that the relief requested is not warranted, or to raise questions of law which might be a bar to its consideration."

The claimant's notice of appeal from the Supervisor's order of July 6, 1965, is not now before us. In any event, as noted above, the Department deemed it advisable after considering the allegations contained therein, to resume jurisdiction of the claim to make a further investigation thereof, including a medical examination of the claimant directed toward his cancerous condition. When, after its further investigation, the Department again closed the claim in April of 1966, it is clear that it had in fact considered this condition and made a judgment with respect thereto. Furthermore, in his notice of appeal from the Super- visor's order of April 28, 1966, the contents of which are before us, the claimant has requested that he be granted a permanent total disability award for his disability resulting from the condition for which the Department has denied responsibility. At this point, if the Department felt itself unprepared to meet the issue as to the extent of the claimant's disability resulting from this condition, it could again, pursuant to the provisions of RCW 51.52.060, have held it s closing order in abeyance "pending further investigation in the light of the allegations in the notice of appeal." See Brakus v. Department of Labor and Industries, supra.

It is evident that the Department was fully apprised that the claimant was contending that his injury of April 30, 1963, encompassed his carcinoma and that he had permanent disability resulting therefrom, which he alleged to be total in nature. The Department had full opportunity to consider the issue thus raised. [9]

Furthermore, the Department raised no objection to the testimony of the claimant's medical witness as to his evaluation of the claimant's disability resulting from his carcinoma, and when, at the first hearing held in connection with this appeal, claimant's counsel asserted that the issue to be litigated embraced the extent of the claimant's disability resulting from the condition for which the Department had denied responsibility, counsel for the Department neither objected nor offered an alternative to this statement of the issue. It is apparent that the Department was in no way prejudiced by the litigation of such issue on this appeal as its medical witness had thoroughly examined the claimant and was obviously in a position to express an opinion as to the extent of disability attributable thereto, apart from the question of causal relationship, had he been asked. It may be noted finally, in this connection, that the case of Knowles v. Department of Labor and Industries, 28 Wn. 2d 970, is in accord with the result we have reached herein although the issue of jurisdiction was not discussed in that case.

We have considered the other exceptions raised by the Department to the Proposed Decision and Order, but deem them to be without sufficient merit to warrant discussion. The order of the Supervisor of Industrial Insurance dated April 28, 1966, will be reversed and this claim will be remanded to the Department of Labor and Industries with direction to place the claimant on its pension rolls as a permanently and totally disabled workman.

In the course of our review of the record in this appeal, we have considered the evidentiary rulings made by the hearing examiner and, finding no prejudicial error therein, hereby affirm said rulings.

FINDINGS

Based upon the record, the Board finds: [10]

  1. On April 30, 1963, the claimant, Anton E. Worklan, sustained an injury in the course of his employment with the Olympic Hotel, when he slipped and fell, striking his right breast against a lettuce crate. On June 19, 1963, a report of accident was filed with the Department of Labor and Industries. On November 18, 1963, the Supervisor of Industrial Insurance entered an order allowing the claim for medical treatment only, and closing it with no time-loss compensation or permanent partial disability award.
  2. On January 27, 1965, the claimant filed an application to reopen his claim for aggravation of condition. On February 5, 1965, the Supervisor entered an order reopening the claim effective December 12, 1964, for treatment only, and effective January 12, 1965, for authorized treatment and action as indicated. On July 6, 1965, the Supervisor entered an order closing the claim with no award for permanent disability, and segregating and denying responsibility for a condition described as an unrelated condition of the right breast. On August 23, 1965, the claimant filed a notice of appeal with this Board from the Supervisor's order of July 6, 1965. Thereafter, on September 17, 1965, the Supervisor entered an order holding in abeyance his order of July 6, 1965, pending further investigation, whereupon the Board denied the claimant's appeal. On April 28, 1966, the Supervisor entered an order adhering to the provisions of the order of July 6, 1965. On May 10, 1966, the claimant filed a notice of appeal therefrom with this Board, which was granted by an order of this Board dated May 20, 1966.
  3. On November 29, 1966, 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, the Department of Labor and Industries filed a Statement of Exceptions to said Proposed Decision and Order.
  4. As a proximate result of the injury he sustained to his right breast on April 30, 1963, the claimant, Anton E. Worklan, developed or aggravated and accelerated a pre-existing carcinoma condition of the right breast, which was surgically removed on January 13, 1965.
  5. On or about April 28, 1966, claimant's condition, including his carcinoma condition proximately resulting from his industrial injury of April 30 1963, was fixed, and his permanent disability by reason thereof was such that he no longer had any reasonable degree of wage earning capacity. [11]

CONCLUSIONS

Based upon the foregoing findings of fact, the Board concludes:

  1. This Board has jurisdiction of the parties and subject matter of this appeal.
  2. On or about April 28, 1966, the claimant, Anton E. Worklan, was permanently and totally disabled within the meaning of the Workmen's Compensation Act, as a proximate result of his industrial injury of April 30, 1963.
  3. The order of the Supervisor of Industrial Insurance dated April 28, 1966, should be reversed and this claim should be remanded to the Department of Labor and Industries with direction to accept responsibility for the claimant's carcinoma condition, and to place him on the pension rolls of the Department as a permanently and totally disabled workman.

It is so ORDERED.

Dated this 29th day of November, 1967.

BOARD OF INDUSTRIAL INSURANCE APPEALS

/s/

J. HARRIS LYNCH Chairperson

/s/

R. H. POWELL Member

/s/

R. M. GILMORE Member

 


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