| IN RE: CATHERINE SCHMIDT | ) | DOCKET NO. 57,001 |
| ) | ||
| Claim No. G-857652 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Catherine Schmidt, by
- Critchlow and Williams, per
- Kim Williams, David Williams and George A. Critchlow
- Employer, Trader Pats, Inc.,
- None
- Department of Labor and Industries, by
- The Attorney General, per
- Robert C. Milhem and Stephen D. Phillabaum, Assistants
This is an appeal filed by the claimant on June 9, 1980, from an order of the Department of Labor and Industries dated April 10, 1980, which closed the claim with no permanent partial disability award. 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 claimant to a Proposed Decision and Order issued by a hearings examiner for this Board on January 15, 1981, in which the order of the Department dated April 10, 1980 was sustained.
The Board has reviewed the evidentiary rulings of the hearings examiner and finds that no prejudicial error was committed and said rulings are hereby affirmed.
The issue before us is the extent of the claimant's disability causally related to her industrial injury of February 20, 1976, as such disability existed on April 10, 1980. The evidence presented by the parties has been quite well summarized by the hearings examiner and need not be repeated in detail.
From our review of the record, we are satisfied the claimant sustained some organic brain damage as the result of the automobile accident. The claimant sustained other injuries which healed leaving no residual disability. Dr. Andrew G. Webster, a general surgeon, [2] attended the claimant on the day of her accident. A diagnosis was made of a cerebral contusion, a bruise of the brain more severe than a concussion. Dr. Webster followed the claimant for a considerable period of time but referred her to Dr. William T. Sherman, a psychiatrist, in November of 1976 because of her continuing mental problems. Based upon his own association and examinations of the claimant, together with a report from a psychologist, Dr. Sherman diagnosed a post-traumatic organic brain syndrome and a reactive depression (emotional instability) which were related to the industrial injury. Dr. Sherman testified the claimant had cognitive (intellectual or mental) difficulty, particularly in manipulation of numbers. It was his opinion that her ability to return to work which required manipulation of numbers would be significantly impaired and that her emotional instability would negatively affect her employment capabilities. He further felt that Ms. Schmidt would have difficulty in being responsive quickly and alertly involving nearly any type of sophisticated abstraction.
The claimant does not complain of symptoms from the lacerations and pelvic fracture which she sustained, but does complain of other factors which resulted from her brain damage. She testified she "flipped-out" easily, got over-wrought and angry, got nervous and lost perspective of where she was and would stare off into space as if she were hypnotized and could not pull herself back. Additionally, she testified her memory for handling numbers was short and that when she tried to attend a bookkeeping school she was unable to mentally retain formulas necessary for successful completion.
Nowhere in the record did either Dr. Webster nor Dr. Sherman attempt to give a percentage rating reflecting the extent of the claimant's permanent impairment of mental health. Neither did any physician attempt to describe the claimant's psychiatric limitations within the categories for evaluating permanent impairment, WAC 296-206-20-330 [3] and WAC 296-20-340. It does appear from the record that no further treatment would likely improve the claimant's occupational potential and her condition must be considered fixed.
If we were to accept and rely upon the opinions of Dr. Issac Lawless who was called to testify to the results of a single examination conducted March 25, 1980, it would be clear the claimant should not be entitled to any compensation for disability for her injury. Yet we are aware that having seen the claimant on a more extensive basis, Dr. Sherman and Dr. Webster are in preferred positions to evaluate the impact of the claimant's industrial injury upon her permanent metal health. Groff v. Department of Labor and Industries, 65 Wn. 2d 35 (1964). The claimant was able to function quite consistently in employment in her private life prior to the industrial injury. It would not appear that she had any pre-existing permanent impairment which could be equated to a psychiatric partial disability prior to her industrial injury. There being no prior disability, it is not important that neither Dr. Webster nor Dr. Sherman attempted to segregate the claimant's pre-injury psychiatric status from that of her post-injury psychiatric status causally related to the injury. cf. Orr v. Department of Labor and Industries, 10 Wn. App. 697 (1974).
We must now turn our attention to whether the opinions of Dr. Sherman together with the observations of Dr. Webster provide a sufficient basis for us to conclude that the claimant suffers from a permanent partial disability for impairment in her mental health. Prior to October 1, 1974 when the current system for evaluating unspecified partial disabilities was adopted, it was common to see permanent partial disability ratings expressed in terms of a percentage of the maximum allowed for unspecified disabilities or simply a percentage as compared to total bodily impairment. See, for example e.g., Page v. Department of Labor and Industries, 52 Wn. 2d 706 (1958), and Johnson v. Department of Labor and Industries, 88 Wn. 2d 844 (1977). [4]
However, with the inception of the category system for rating permanent impairments, percentage ratings became less material. See WAC 296-20-220(1)(e), Rule 5 and WAC 296-20-670(1)(a), Rule 1.
We believe that the system for evaluating unspecified disabilities as compared to total bodily impairment for injuries occurring on or after October 1, 1974 does not encourage, much less require, physicians who testify before this Board in such cases to state their opinions regarding disability in terms of a percentage of total bodily impairment. It is entirely appropriate, and we commonly observe, medical witnesses' testimony to be couched in terms of the category of permanent impairment which they feel is appropriate. Yet we cannot see that the failure of an expert witness to testify in the language of the statute or administrative rule is fatal to establishing a prima facie case. See Anthis v. Department of Labor and Industries, 16 Wn. App. 335 (1976) and Coleman v. Prosser Packers, 19 Wn. App. 616 (1978).
The critical question is whether this Board has authority to evaluate and weigh testimonial evidence devoid of both the percentage and category rating and determine if an award for permanent partial disability should be made. We note that in Dowell v. Department of Labor and Industries, 51 Wn. 2d 428, the court found that the question of the extent of partial disability is ultimately for the trier of fact. In addition, we discern it to be the law of this state to be that the trier of fact must award compensation for permanent partial disability on the basis of medical testimony regarding bodily function loss, whether physical or psychological, and that such awards must be within the "range" of expert testimony. Ellis v. Department of Labor and Industries, 88 Wn. 2d 844 (1977).
Still, given the current scheme for rating permanent impairments for injuries occurring on or after October 1, 1974, we do not believe the law requires that such "range" be stated in terms of percentage of disability or replaced by a physician within any single category [5] or continuum of categories as reflected in the Administrative Code. We believe it is sufficient for the trier of fact to rely upon a description of impairments and restrictions in its deliberations and align those restrictions with the framework of the existing categories for evaluating permanent impairment. In short, we believe this Board may compare the category descriptions with the record evidence, descriptive of physical or mental restrictions, and choose the category which those restrictions most closely resemble. In so doing, we believe the permanent partial disability award which would follow would fall within the range of expert testimony which case law requires.
With respect to the claimant in this appeal, we turn to WAC 296-20-340 and observe that the evidence in the record before us reveals the claimant to be subject to more than just "nervousness, irritability, worry or lack of motivation" which is described by Category I. Category II in total describes an impairment of mental health that would be represented by:
"Any and all permanent worsenings of preexisting personality traits or character disorders where aggravation of preexisting personality trait or character disorder is the major diagnosis; mild loss of insight, mildly deficient judgment, or rare difficulty in controlling behavior, anxiety with feeling of tension that occasionally limit activity; lack of energy or mild apathy with malaise; brief phobic reactions under usually avoidable conditions; mildly unusual and overly rigid responses that cause mild disturbance in personal or social adjustment; rare and usually self-limiting psycho-physiological reactions; episodic hysterical or conversion reactions with occasional self-limiting losses of physical functions; a history of misinterpreted conversations or events, which is not a preoccupation; is aware of being absentminded, forgetful, thinking slowly occasionally or recognizes some unusual thoughts; mild behavior deviations not particularly disturbing to others; shows mild over-activity or depression; personal appearance is mildly unkept. Despite such features, productive activity is possible most of the time. If organicity is present, some difficulty may exist with orientation; language skills, comprehension, memory; judgment; capacity to make decisions; insight; or unusual social behavior; but the patient is able to carry out usual work day activities unassisted."
The majority concludes that the preponderance of evidence in [6] the record before us reflects the claimant's permanent impairment related to the injury to fall within the description of above quoted, especially with respect to the claimant being aware of being absent-minded, forgetful, thinking slowly occasionally and recognizing some unusual thoughts. Given this state of affairs, we believe the claimant is entitled to an aware for permanent partial disability reflective of that condition.
FINDINGS OF FACT
After a thorough review of the entire record, the Board finds as follows:
1. On March 8, 1976, an accident report was received by the Department of Labor and Industries alleging the claimant had sustained an injury while employed by Trader Pats, Inc., on February 20, 1976. The claim was accepted, medical treatment provided, time-loss compensation paid, and on April 10, 1980 the Department closed the claim with no award for a permanent partial disability. On June 6, 1980, the claimant filed a notice of appeal with the Board of Industrial Insurance Appeals who issued an order on June 23, 1980, granting the appeal and directing that proceedings be had on the issues raised by the appeal.
2. On February 20, 1976, while driving a vehicle for her employer, the claimant was involved in a collision which resulted in multiple abrasions, cuts and a cerebral contusion together with a fractured pubic rami.
3. As of April 10, 1980, the claimant was suffering from a post-traumatic organic brain syndrome with reactive depression (emotional instability), more particularly manifested by cognitive difficulty particularly in the manipulation of numbers.
4. As of April 10, 1980, the claimant's condition was fixed and her permanent partial disability resulting from the industrial injury was then consistent with Category II of WAC 296-20-340, Categories for Evaluation of Permanent Impairments of Mental Health.
5. As of April 10, 1980, the claimant was not precluded from gainful employment on a reasonably continuous basis by the residuals of the industrial injury of February 20, 1976.
CONCLUSIONS OF LAW
The Board having made the foregoing findings of fact, now concludes as follows: [7]
- The Board of Industrial Insurance Appeals has jurisdiction of the parties and the subject matter of this appeal.
- The order of the Department of Labor and Industries dated April 10, 1980, closing the claim with no permanent partial disability award is incorrect and should be reversed, and this claim remanded to the Department of Labor and Industries with direction to pay the claimant a permanent partial disability award reflective of Category II of WAC 296-20-340 (10% as compared to total bodily impairment) and thereupon close the claim.
It is so ORDERED.
Dated this 21st day of April, 1981.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
MICHAEL L. HALL Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
AUGUST P. MARDESICH Member