| IN RE: MARY BURBANK | ) | DOCKET NO. 30,673 |
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| Claim No. C-864385 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Mary Burbank, by
- Walthew, Warner & Keefe, per
- Stephen M. Reilly, Robert H. Thompson and
- Eugene Arron
- Employer, Castle Industries, Inc.,
- None
- Department of Labor and Industries, by
- The Attorney General, per
- Michael Moynihan and Gerald L. Casey, Assistants
This is an appeal filed by the claimant on April 29, 1968, from an order of the Department of Labor and Industries dated April 8, 1968, which denied the claimant's application to reopen her claim for aggravation of condition. Sustained.
DECISION
This matter is before the Board for review and decision on a timely Statement of Exceptions filed by the claimant to a Proposed Decision and Order issued by a hearing examiner for this Board on March 14, 1969, in which the order of the Department dated April 8, 1968, was sustained.
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 industrial exposure to ammonia fumes from a wet process copying machine which is at the root of this appeal, occurred in approximately October of 1961. On June 25, 1962, the claim was allowed for medical treatment only and closed without an award of permanent disability. A year and a half later, on January [2] 21, 1964, the claimant filed an application to reopen her claim for aggravation. On June 26, 1964, this application was denied. The claimant appealed that denial to this Board which, on April 28, 1967, adopted a Proposed Decision and Order which sustained the Department's order of June 26, 1964. At the same time, this order which was adopted by the Board included certain findings of fact which will be discussed later. The claimant then filed an appeal to the Superior Court from the Board order. On August 28, 1967, the Superior Court appeal was dismissed with prejudice and the Board order of April 28, 1967, was affirmed. All of these appellate proceedings were concerned with facts existing on the date of the Department order appealed from, June 26, 1964. Hyde v. Department of Labor and Industries, 46 Wn. 2d 31 (1955).
On May 29, 1967, the claimant filed an application to reopen her claim for aggravation of condition. On April 8, 1968, the Department issued an order which denied this application. This Department order of April 8, 1968, is now before us on appeal.
The question before the Board on this appeal is: did the claimant suffer an increase of permanent disability between June 26, 1964 and April 8, 1968, as a result of her exposure to ammonia fumes in October of 1961? In the case such an increase did occur, the question before the Board becomes: to what extent was the claimant permanently disabled on April 8, 1968, as a result of her exposure of October 1961?
At the outset, we note that the claimant has presented no medical testimony whatever indicating that she has any permanent organic disability as a result of her industrial exposure. The only medical witness she presented was Dr. Richard B. Jarvis, a psychiatrist, who saw her on only one occasion and did not perform a physical examination upon her. Dr. Daniel R. Kohli, who testified on behalf of the Department, is a specialist in [3] psychosomatic medicine. He performed a physical examination on the claimant but found no organic disorder. Thus, we are concerned here purely with psychological difficulties, difficulties of the mind, not the body.
The claimant contends on her appeal and in her exceptions to the Proposed Decision and Order previously issued herein, that from a psychiatric standpoint she was permanently and totally disabled on June 26, 1964, as a result of her October 1961 exposure to ammonia fumes. In the course of her testimony, she described in minute detail a great number of conditions from which she suffers subsequent to her exposure in 1961. These include aches and pains in various portions of her anatomy, as well as reactions to a variety of odors with the emphasis on ammonia, and reaction to foods, various household chemical compounds, and many different and varied chemicals normally encountered in her daily life. These included but were not limited to hair preparations, cosmetics, cigarette smoke. She conceived that poisons were going to her thyroid. She felt she had lost stamina, and in the spring of 1962 conceived that her hair was falling out in very drastic amounts. She says she has a very bad reaction from any kind of drug. She has turned to herbs for relief. She has received chiropractic treatment and has placed herself on a strict dietary regimen. Although the foregoing statement does not exhaust the symptomatology the claimant attributes to her industrial exposure, it does provide a rough picture of the diversity of her complaints.
During the course of her examination before this Board, she stated that her problems existed in some measure in 1962 and 1964, only they have been growing progressively worse.
Dr. Richard B. Jarvis examined the claimant on only one occasion. He stated that he was not able to determine positively [4] whether the claimant should be diagnosed as being in a paranoid state or as having true paranoia. He thought the claimant's problem lay somewhere between a paranoid state and true paranoia. She is delusional, but the rest of her personality appears to be remarkably intact. Dr. Jarvis stated that in his opinion the mental illness creates an impairment which does not permit the claimant to seek, gain, and hold substantial gainful employment. This he considered a permanent condition.
In the matter of causal relation between the industrial exposure and the claimant's medical condition, Dr. Jarvis stated: "It is my opinion that the industrial exposure played a part only in the sense that it provided the topical material for the delusional system which I detected." He further stated, when asked if people such as the claimant were able to function adequately if they were not exposed to some focusing event, that "if these people have a diagnosable paranoid state or true paranoia regardless of whether one can detect a topical event, they are impaired in their function." The effect of the focusing event (in this case the industrial exposure) is that "it allows for closer organization of the delusional system, a more voluble and vociferous protestation of the case."
It is interesting to note that in the matter of causal relationship, Dr. Jarvis stated that he "didn't see causal connection in the sense that I usually understand it in industrial injury cases, I'm speaking here of the medical definition of causal connection, there may be a different -- it may be different in the law, the law is not my business." We have been unable to find any legal authority for the proposition that causal relationship in the medical sense is any different from causal relationship in the legal sense in matters of this kind.
The only medical evidence in the record before this Board [5] of organic changes that may have come about as a result of the claimant's emotional state is that of Dr. Daniel R. Kohli. He observed none of the physical symptoms claimed by the claimant. All of his tests, including laboratory tests, were normal. He found no evidence whatever of organic disease process. He testified that if the claimant were motivated, she could certainly perform gainful employment. He stated that if she had not had this exposure at work, she would have attributed her problems to something else. He thought that between 1964 and 1968, the claimant's emotional component had worsened in that on the latter date she believed it more that she was suffering the residuals of her exposure of October, 1961. Dr. Kohli had seen the claimant on May 21, 1964, and also on March 12, 1968, within a few months of both terminal dates herein.
The foremost question before the Board on this appeal concerns the effect of the order of this Board dated April 28, 1967, which adopted a Proposed Decision and Order issued by a hearing examiner for this Board on December 12, 1966 (later appealed to and dismissed by the Superior Court on September 28, 1967). The order adopted by the Board made the following relevant findings of fact:
"3. The medical evidence in the record does not show that the claimant's condition, attributable to her exposure to ammonia fumes prior to June, 1962, worsened between June 25, 1962, and June 26, 1964
4. When her application to reopen her claim was denied on June 26, 1964, the claimant's condition was fixed, in that no treatment therefor was indicated, and she had no permanent disability as a result of her exposure." (Emphasis added)
Our Supreme Court stated in LeBire v. Department of Labor and Industries, 14 Wn. 2d 407 (1942):
"It is now the settled rule in this state [6] that an order or judgment of the department resting upon a finding, or findings, of fact becomes a complete and final adjudication, binding upon both the department and the claimant unless such action of the department is set aside upon appeal or is vacated for fraud or something of like nature. [Citing cases]"
That the claimant had an emotional problem in 1964, of the same nature as that she had in 1968, is clear from the testimony of both Dr. Jarvis and Dr. Kohli. That whatever disabling effects she suffered by reason of her emotional condition in 1964 is not causally related to her industrial injury of 1961, when she breathed the ammonia fumes from the wet process copying machine, is established as a matter of law by the judicial procedures undertaken subsequent to the Department order of February 13, 1964. The time for establishing a causal connection between the claimant's emotional difficulties of 1964 and her industrial exposure in 1961 was at the judicial proceedings following the Department order of February 13, 1964. That issue cannot be relitigated here at this time.
An attempt was made at the hearings in this matter to rejuvenate the question of causal relation between the claimant's emotional condition of 1964 and her exposure to ammonia fumes in 1961 by the use of questions designed to bring this case within the rule of the Jessie White case (White v. Department of Labor and Industries, 48 Wn. 2d 413 [1956]). The rule is that where there has been no appeal taken from a Department order closing a claim it becomes res judicata as to the extent of injury at the time of closing order, but not res judicata as to subsequent aggravation.
Having discovered from Dr. Jarvis that he did not think there was a causal relation between the claimant's condition in 1968 and her industrial exposure of 1961 in the medical sense, [7] the claimant's attorney asked Dr. Jarvis:
"Q [By Mr. Arron] Doctor, if you were to assume that she had no disability in June of 1964, at least upon your observations and diagnosis of this woman, in your opinion was there any aggravation of her condition between June of '64 and April of '68?
A [By Dr. Jarvis] Assuming no disability in 1964, I would be of the opinion that her condition had become almost immeasurably worse in the four and a half ensuing years." (Emphasis added)
Actually, Dr. Jarvis was asked to assume a state of facts for which this record provides no foundation whatever and the rule of the Jessie White case does not create it. That the claimant had her "condition" in 1964 (and before her injury, for that matter) is clear from all of the medical testimony, includ- ing that of Dr. Jarvis. That she had no disability in 1964 is not established, only that she had no disability attributable to the exposure of 1961. The rule of the Jessie White case functions when causal relation is not in issue. Under the facts obtaining in the present case, if the condition the claimant had in 1964 worsened between 1964 and 1968, this is a worsening of a condition causally unrelated to her industrial injury of 1961. Stated another way, in 1964, there was no condition attributable to the industrial injury subject to aggravation.
It is not to be inferred from the above that this Board believes the claimant's emotional condition, whether or not attributable to her industrial injury, has been aggravated. We do not. The essence of the medical testimony on this issue has been set forth above. The only element of worsening appears to be that in the interim period between 1964 and 1968 the claimant has become more "focused" upon hr emotional problems (there being no medical evidence she suffers any psychosomatic organic [8] problem) and that she was more convinced that she was suffering from disabling conditions attributable to her exposure in 1968 than she had been in 1964. Even if we were to reject the mandate of the Supreme Court that a claim for aggravation cannot be sustained where it is based upon subjective symptoms alone (Moses v. Department of Labor and Industries, 44 Wn. 2d 511 [1954], Karlson v. Department of Labor and Industries, 26 Wn. 2d 310, 329, and cases cited therein [1946]), we are unable to accept that "focusing" is a worsening of the claimant's emotional problems. That the claimant suffered from a disabling emotional problem prior to her industrial injury has been testified to by Dr. Jarvis. The terms "focusing" and "she believed it more" imply a reorientation of this pre-existing problem, not an increase in the problem.
Conspicuously absent is opinion testimony by Dr. Jarvis or Dr. Kohli concerning the claimant's capacity to perform full- time gainful work in 1964. Some doubt naturally arises that she was capable of work at that time in view of her severe emotional problems of 1964. Thus, a real question of proximate cause of whatever disability the claimant had in 1968 arises. Due to the premises upon which this decision is founded, however, we need not explore that matter further.
For the reasons above set forth, we conclude that the claimant has failed to establish the incorrectness of the Department order of April 8, 1968, and we must sustain that order.
FINDINGS
Based on the record made at the hearings held in this matter, this Board finds:
1. The claimant sustained an occupational exposure to chemical fumes from a wet process copying machine in October of 1961 while in the course of employment with Castle Industries, Inc. Her claim [9] was at first rejected, but thereafter allowed on June 25, 1962, and closed at that time with no permanent partial disability award. On January 21, 1964, the claimant filed an application to reopen her claim on the ground of aggravation of her condition. On June 26, 1964, the Department entered an order adhering to its prior order of February 13, 1964, which denied her application to reopen her claim. On September 23, 1964, the claimant appealed to this Board. After a hearing before the Board, the examiner, on December 12, 1966, entered a proposed order sustaining the Department. On April 28, 1967, the Board adopted the examiner's order. (See Finding No. 2, infra.) The claimant appealed to the Superior Court, but this was dismissed with prejudice by an order dated August 28, 1967 (Snohomish County Superior Court, Cause No. 90510).
2. The Decision and Order of the Board of Industrial Insurance Appeals dated April 28, 1967, adopting the findings and conclusions of the Proposed Decision and Order dated December 12, 1966 (see Finding No. 1, supra, for the subsequent judicial proceedings), found:
" . . . . .
3. The medical evidence in the record does not show that the claimant's condition, attributable to her exposure to ammonia fumes prior to June, 1962, worsened between June 25, 1962, and June 26, 1964.
4. When her application to reopen her claim was denied on June 26,1964, the claimant's condition therefor was indicated and she had no permanent disability as a result of her exposure."
3. On May 29, 1967, the claimant filed an application to reopen her claim for aggravation of condition. On January 4, 1968, the Department issued an order denying the application. On January 26, 1968, the claimant appealed to this Board. On February 14, 1968, there was a Department order holding the Department order of January 4, 1968, in abeyance. On April 8, 1968, the Department entered an order adhering to the order of January 4, 1968. On April 28, 1968, the claimant appealed to this Board and on [10] May 10, 1968, the Board granted the appeal and assigned it Docket No. 30,673.
4. Appellate proceedings were conducted before the Board of Industrial Insurance Appeals and on March 14, 1969, a hearing examiner for this Board entered a Proposed Decision and Order in connection with this appeal. Thereafter, within the period of time provided by law, exceptions were filed and the case referred to the Board for review as provided by RCW 51.52.106.
5. On and before June 26, 1964, the claimant herein suffered from a manifest and disabling emotional and psychiatric condition manifested by symptomatology of, but not limited to, a fixated idea that she was suffering from the effects of exposure to various ordinary farm, household, and cosmetic products including facial cosmetics, sprays used in farming , hair preparations, and cleansing compounds. Furthermore, she was fixated on the idea that certain foods were causing her internal problems, that her hair was falling out, that her skin was changing color, that she had epilepsy, that she suffered from liver dysfunction, and various and sundry other physical problems. Furthermore, she was fixated upon the idea that all of these problems were in some way connected to her exposure to fumes from an office copying machine in October of 1961.
6. On June 26, 1964, the claimant did not suffer from any physical condition of an organic nature attributable to her industrial exposure of October, 1961.
7. On April 8, 1968, the claimant herein was not suffering from any physical condition of an organic nature attributable to her industrial exposure of October, 1961.
8. Any disabling psychiatric conditions suffered by the claimant on April 8, 1968, were not related to her industrial exposure to fumes of October, 1961. Between June 26, 1964 and April 8, 1968, said unrelated disabling psychiatric conditions were not influenced in any regard by her having suffered exposure to ammonia fumes in October, 1961.
9. The claimant's psychiatric condition which was manifest and disabling on June 26, 1964, as set forth in part in finding No. 5, supra, did not worsen or become more disabling between June 26, 1964 and April 8, 1968.
CONCLUSIONS
Based on the foregoing findings of fact, this Board [11] concludes:
- This Board has jurisdiction of the parties and subject matter of this appeal.
- It is res judicata that when the claimant's application to reopen her claim was denied on June 26, 1964, the claimant's condition was fixed, in that no treatment therefor was indicated, and she had no permanent disability as a result of her exposure.
- It is res judicata that psychiatric conditions suffered by the claimant on June 26, 1964, were causally unrelated to her industrial exposure of October, 1961, since under the rule of res judicata, all issues were determined at that time which were litigated or which should have been litigated.
- Between June 26, 1964, and April 8, 1968, the claimant's condition due to her industrial exposure in October, 1961, was not aggravated within the meaning of the Washington Industrial Insurance Act.
- The order of the Department of Labor and Industries issued herein on April 8, 1968, is correct and should be sustained.
It is so ORDERED.
Dated this 15th day of August, 1969.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
ROBERT C. WETHERHOLT Chairperson
/s/
R. M. GILMORE Member