| IN RE: EARL L. BLAKE | ) | DOCKET NO. 51,928 and 51,929 |
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| Claim Nos. F-977951 and F-414497 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Earl L. Blake, by
- Springer, Norman and Workman, per
- Richard L. Norman
- Employer, Corrosion Controllers, Inc.,
- None
- Employer, The Boeing Company, by
- Perkins, Coie, Stone, Olsen and Williams, per
- Calhoun Dickinson
- Department of Labor and Industries, by
- The Attorney General, per
- John R. Dick, Assistant
- The Board had jurisdiction of the parties and the subject matter of these two appeals.
- The claimant, Earl L. Blake, is permanently and totally disabled within the meaning of the Indus- trial Insurance Act.
- The order of the Department of Labor and Industries dated March 17, 1978, in Claim No. F-414497 (Docket No. 51,929) denying the claimant's [4] application to reopen the claim for aggravation is correct and should be sustained.
- The order of the Department of Labor and Industries dated March 17, 1978, in Claim No. F-977951 (Docket No. 51,928) denying the claimant's application to reopen the claim for aggravation is incorrect and should be reversed, and the claim remand to the Department with instructions to reopen the claim and place the claimant on the pension rolls as a permanently and totally disabled worker.
Two appeals filed by the claimant on may 17, 1978, from two orders of the Department of Labor and Industries dated March 17, 1978, which denied the claimant's applications for aggravation in two separate injury claims on the ground that there was no adequate objective evidence that the injury had become aggravated. Sustained, as to claim No. F-414497, Docket No. 51,929. Reversed and remanded, as to Claim No. F-977951, Docket No. 51,928.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on timely Petitions for Review filed by the employer, The Boeing Company, and the Department of Labor and Industries to a Proposed Decision and Order issued by a hearing examiner for this Board on October 8, 1979, in which the orders of the Department dated March 17, 1978 were reversed, and the claim remanded to the Department of Labor and Industries with direction to enter the claimant upon the pension rolls of this state as a totally disabled worker.
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. [2]
The general nature and background of this appeal are as set forth in the hearing examiner's Proposed Decision and Order and shall not be reiterated herein.
We concur in the hearing examiner's finding that the claimant's low back condition worsened between the terminal dates of January 22, 1974 and March 17, 1978, to the extent that the claimant has been rendered unable to engage in any form of gainful employment. We further concur in the hearing examiner's determination that such worsening was occasioned by the claimant's industrial injury of August 19, 1970, which he sustained during the course of his employment for Corrosion Controllers, Inc.
Of the three medical witnesses who testified herein, Dr. Winfred H. Clark, an orthopedic surgeon, was the most familiar with the claim- ant's condition. Moreover, he was the only physician testifying who personally examined the claimant reasonably near the aforestated terminal dates. The doctor's testimony discloses a steady deterioration in the claimant's low back condition following the injury of August 19, 1970, with Corrosion Controllers, Inc.
Although the hearing examiner found that the worsening or aggravation in the claimant's low back condition was caused by the Corrosion Controllers, Inc., injury of August 19, 1970, and concluded therefrom that the Department's order denying aggravation of that injury should be reversed, he further concluded that the Department's order denying aggravation of the claimant's Boeing injury of March 28, 1966, should also be reversed.
The proposed reversal of the Department's order denying aggravation in the Boeing injury claim finds no support as we read the record. While we would agree with the hearing examiner's statement in conclusion No. 3 to the effect that the claimant's Boeing injury was "aggravated" by his injury with Corrosion Controllers, Inc., this fact does not establish "aggravation" of the Boeing injury within the purview [3] of RCW 51.32.160, the statute governing adjustment of compensation for aggravation. To establish aggravation of the Boeing injury, there must be a showing that the worsening in the claimant's low back condition resulted from that injury. As previously noted, the showing in this case is that such worsening resulted from the claimant's injury with Corrosion Controller, Inc., an injury which constitutes an independent, intervening cause.
Before concluding, we deem it necessary to disavow the hearing examiner's discussion concerning the new rules of evidence adopted April 2, 1979, wherein he reaches the conclusion that Rule 703, in legal effect, "repeals" the long-established case law requirement that a claim for aggravation be supported in part by objective medical findings. The genesis of this conclusion stems from the hearing examiner's determination that the case law requirement of objective medical findings is itself a "rule of evidence." Manifestly, we think this is a fallacious premise. The case law decrees the standard of proof necessary to establish, prima facie, a case of aggravation. As such, it is a substantive rule of law. To subscribe to the hearing examiner's theory would, in effect, hold that a rule of adjective law has overruled a substantive rule of law. We can find no support in law for that proposition.
FINDINGS
Findings 1 through 10 of the Proposed Decision and Order entered herein are hereby adopted by the Board and incorporated herein by this reference.
CONCLUSIONS
It is so ORDERED.
Dated this 19th day of May, 1980.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
MICHAEL L. HALLChairperson
/s/
SAM KINVILLEMember
/s/
AUGUST P. MARDESICHMember