| IN RE: LYNDALL S. BROLLI | ) | DOCKET NO. 49,051 |
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| Claim No. G-858379 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Lyndall S. Brolli, by
- Graham, Cohen, Wampold, Wesley & Munro, per
- Thomas P. Graham
- Employer, Wenatchee Education Forum,
- None
- Department of Labor and Industries, by
- The Attorney General, per
- Gayle Barry, Tracy Madole and Joseph Albo, Assistants
This is an appeal filed by the claimant on October 19, 1976, from an order of the Department of Labor and Industries dated October 7, 1976, which adhered to the provisions of a previous order dated May 12, 1976, rejecting her claim on the grounds: (1) The claimant's condition is not the result of an industrial injury as defined by the Workmen's Compensation Act; (2) That the claimant's condition is not an occupational disease as contemplated by section 51.08.140 R.C.W. Reversed and remanded.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the Department of Labor and Industries to a Proposed Decision and Order issued by a hearing examiner for this Board of July 27, 1977, in which the order of the Department dated October 7, 1976 was reversed, and the claim remanded to the Department with instruction to allow the claim as an occupational disease, and to take such other and further action as indicated and authorized by law.
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 and the evidence presented [2] by the parties are very adequately set forth in our hearing examiner's Proposed Decision and Order. Specifically, the legal issue is whether a mental illness cause by work-induced mental stimuli quali- fies as an occupational disease under our statute, RCW 51.08.140.
On September 14, 1976, we issued a Decision and Order in the case of In re David J. Simmonds, Claim No. G-559623, Docket No. 45,038, wherein the facts and applicable law were closely parallel. In that case, we extensively reviewed the pertinent statutory and judicial authorities, including the authorities cited to us here by Depart-ment's counsel. We there held:
"the claimant's mental illness...arose naturally and proximately out of his employment, in the sense that there was no intervening independent and sufficient cause for the mental illness, and that the claimant would not have suffered such illness when he did but for the conditions of his employment as store manager."
Accordingly, we allowed that claim as an occupational disease, within the meaning of RCW 51.08.140 and the principle expressed in the lead- ing case of Simpson Logging Co. v. Department of Labor and Industries, 32 Wn. 2d 472 (1949)
Similarly, here, we incorporate our hearing examiner's concluding paragraph of his discussion in his Proposed Decision and Order, as follows:
"The evidence establishes that claimant's mental illness, diagnosed as situation depression, arose naturally and proximately out of her employment, in the sense that there were no other intervening in- dependent and sufficient causes for the mental illness, and that the claimant would not have suffered such illness when she did but for the conditions of her employment as a school administrator. The claimant has presented a prima facie case with her own testimony and that of Dr. Hunter which testimony was unrebutted by the Department of Labor and Industries. Accordingly, under the plain terms of RCW 51.08.140 the claimant's mental illness must be held to qualify as an [3] occupational disease. Simpson Logging Co. v. Department of Labor and Industries, supra, and Larson, Workmen's Compensation Law, Volume 1A, section 42.23."
After consideration of the Proposed Decision and Order and the Petition for Review filed thereto, and a careful review of the entire record before us, we are persuaded that the Proposed Decision and Order is supported by the preponderance of the evidence and is correct as a matter of law.
The hearing examiner's proposed findings, conclusions and order are hereby adopted as this Board's findings, conclusions and order and are incorporated herein by this reference.
It is so ORDERED.
Dated this 9th day of December, 1977.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
PHILLIP T. BORK Chairperson
/s/
SAM KINVILLE Member
DISSENTING OPINION
The majority decision cites the Decision and Order issued September 14, 1976, in the appeal of David J. Simmonds and remarks that the facts are applicable and closely parallel. A dissenting opinion was rendered in that case as well. I hold that the conclu- sion of that particular dissent is equally applicable in this case.
Additionally, the Proposed Decision and Order which is adopted by the majority cites Larson, Workmen's Compensation Law, Volume 1A, Section 42.23, as one of the reasons to hold the claimant's mental illness qualifies as an occupational disease. I am more impressed with two citations in the Department's petition for Review found on page 3. Namely: [4]
"An ailment does not become an occupational disease simply because it is contracted on the employer's premises. It must be one which is commonly regarded as natural to, inhering in, and incident and concomitant of the work in question. There must be a recognizable link between the disease and some distinctive feature of the claimant's job, common to all jobs of that sort - - - an occupational disease is one which results from the nature of the employment, and by nature is meant - - - conditions to which all employees of a class are subject, and which produce the disease as a natural incident of a particular occupation, and attach to that occupation a hazard which distinguishes it from the usual run of occupations and is in excess of the hazard attending employment in general".
And
"It seems obvious that, if men in all employments suffer from the same disease as that of the claimant, it does no(t) meet the proximate cause requirement of the statute; nor does the fact that the claimant worried about his work distinguish the case. Persons in all employments and in all activities are exposed to the emotional stress and strain of anxiety and worry, and it cannot be said to have arisen naturally and proximately from the claimant's employment."
It is my view that the Department's order should have been sustained and, accordingly, I dissent from the majority decision.
/s/
WILLIAM C. JACOBS Member