| IN RE: VIOLET CANFIELD | ) | DOCKET NO. 60,811 |
| ) | ||
| Claim No. F-897590 | ) | |
| ) |
- APPEARANCES
- Claimant, Violet Canfield, by
- Landerholm, Memovich, Lansverk, Whitesides, Wilkinson,
- Klossner and Perry, per
- Steven A. Memovich and Kevin G. Staples
- Employer, Crown Zellerbach,
- None
- Department of Labor and Industries, by
- The Attorney General, per
- John R. Dick, Assistant
This is an appeal filed by the claimant on October 26, 1981, from an order of the Department of Labor and Industries (Department) dated October 9, 1981. The order appealed from adhered to the provisions of a prior order closing the claim with a permanent partial disability award equal to a 25% loss of function of the left leg above the knee joint with short thigh stump, less previous award, and with time-loss as previously paid. The Department order is affirmed.
PROCEDURAL STATUS AND EVIDENTIARY RULING
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 to a Proposed Decision and Order issued on September 15, 1982, in which the order of the Department dated October 9, 1981 was reversed, and the claim remanded to the Department with instructions to place the claimant on the pension rolls as a permanently totally disable worker, effective October 9, 1981.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed. Said rulings are hereby affirmed.
CONTENTIONS OF THE PARTIES
Mrs. Canfield contends that due to the residuals of her 1969 industrial injury, she was temporarily totally disabled between February 2, 1979 and October 9, 1981. She further contends that as [2] of October 9, 1981, her condition was in need of further curative treatment. Alternatively, in the event her condition is deemed fixed and medically stationary as of October 9, 1981, Mrs. Canfield asserts she is entitled either to a greater permanent partial disability award for her left leg, hip and knee residuals, or to receive benefits as a permanently totally disabled worker.
The Department counters that the claimant's injury-related condition was fixed as of October 9, 1981, and constituted only permanent partial disability which was properly compensated in the Department order closing the claim.
DECISION
We agree that the evidence shows the claimant's injury-related condition is fixed and medically stationary as of October 9, 1981. We must disagree with two other conclusions reached in the Proposed Decision and Order. They are: (1) that the issue of Mrs. Canfield's entitlement to time-loss compensation as a temporarily totally disabled worker between February 2, 1979 and October 9, 1981, is not before this Board for resolution, and (2) that the loss of function and physical impairment resulting from her industrial injury of December 15, 1969, considered with her age, education, training and experience, have rendered Violet Canfield unable on a reasonably continuous basis to maintain gainful employment regularly available in the competitive market.
Considering the evidence in this matter, we find the following facts established. Violet Canfield sustained an industrial injury to her left hip, knee and leg on December 15, 1969 during the course of her employment with Crown Zellerbach Corporation. She was treated surgically, by internal fixation of her fractured hip, within the next few days. Early in 1971, a second surgery was performed to remove the fixation device. The claimant's condition improved, and although her treating physician released her for light duty work, [3] the claimant elected to retire in August 1971 at age 62. When claimant Canfield's hip condition worsened some six years after she retired, the Department reopened her claim effective in October 1977, provided further surgical repair (in the form of a total hip replacement) and then closed the claim with an additional permanent partial disability award. The claimant appealed the Department's closing order, and the notice of appeal alleges that she is entitled to relief as follows: "Time-loss, an additional award for disability and/or placed upon the pension rolls of the State of Washington." During pre-hearing proceedings before this Board, Mrs. Canfield effectively amended her notice of appeal to request, as an additional alternative, further curative treatment.
In cases arising under the Industrial Insurance Act, the jurisdiction of this Board is invoked by filing a written notice of appeal which shall set forth the grounds upon which the appealing party considers the order appealed from to be unjust or unlawful, as well as the relief sought. As noted above, Violet Canfield specifically requested relief in the form of time-loss compensation. The closing order dated October 9, 1981 awards "time-loss as paid". Accordingly, despite the limitations imposed by Lenk v. Department of Labor and Industries, 3 Wn. App. 977 (1970), the issue of entitlement to time-loss compensation between February 2, 1979 and October 9, 1981, is properly before this Board.
The issue of Mrs. Canfield's entitlement to intermittent time- loss compensation after February 2, 1979 is resolved by reference to the testimony of her treating surgeon, Dr. Joseph Sacamano. Dr. Sacamano testified that his hip replacement surgery in 1978 was successful in improving the claimant's leg disability, and that she "would have been able to return to moderate employment on February 2, 1979". He went on to explain that "I felt that she should not be doing heavy laboring jobs but that there were occupations conceivable [4] for her to carry on". The claimant is therefore not entitled to time-loss compensation for any period after February 2, 1979. Bonko v. Department of Labor and Industries, 2 Wn. App. 22 (1970).
Concerning Mrs. Canfield's entitlement to permanent total disability benefits, it is the judgment of this Board that regardless of the partial disability in her leg, the claimant is physically able to perform regular full-time jobs within her capabilities. The claimant is a 73 year old woman of average intelligence, average mathematical and vocabulary skills, better-than-average articulation, with a high school education and an ability (without retraining) to perform "moderate" work on a reasonably continuous basis, provided she can alternate sitting, standing and walking during an 8-hour work day.
While it is true that Mrs. Canfield's age makes it very unlikely she can obtain any of the several jobs in the competitive labor market which are within her qualifications, this fact is not sufficient. One is permanently totally disabled only if his or her injury-caused impairments are of such severity that he or she is unable to perform any substantial gainful work within his/her qualifications which exists in the competitive labor market. Certainly "age" is a factor to be weighed when superimposed upon the effects of the injury. However, here the claimant's age is the predominant feature impairing her ability to be hired. Her physical impairment from injury is not substantial enough to prevent the performance of gainful employment.
Mrs. Canfield, age 73, retired from the active labor market in 1971 after working approximately 32 years. She is receiving Social Security retirement benefits and has for over 11 years. She voluntarily withdrew from the labor market, deservedly and justifiably preferring retirement. She was not, however, forced off the labor market as a result of this industrial injury. She does have significant residual earning capacity insofar as the effect of the injury is concerned. It is simply not the cause of her unemployed status. The overwhelming [5] preponderance of the evidence adduced in this matter demonstrates that the claimant's permanent disability is partial only, and has been properly compensated by the Department.
After consideration of the Proposed Decision and Order, the Petition for Review filed thereto, the claimant's response to the Department's Petition for Review, and a careful review of the entire record before us, we hereby enter the following:
FINDINGS OF FACT
1. On December 15, 1969, while in the course of her employment with Crown Zellerbach Corporation, claimant Violet Canfield injured her left leg, hip and knee when she slipped on some ink and fell. A report of that accident was filed on December 24, 1969. The claim was accepted by the Department, treatment and time-loss compensation were provided, and on September 23, 1971, the Department issued an order closing the claim with a permanent partial disability award equal to 12% loss of function of the left leg at the hip joint.
A timely application to reopen the claim on the ground of aggravation of condition was filed, and on April 24, 1972, the Department issued an order reopening the claim effective January 14, 1972 for treatment to date, and simultaneously closed the claim with no further permanent partial disability award.
2. On October 19, 1977, an application to reopen the claim on the ground of aggravation of condition was filed. On January 18, 1978, the Department issued an order reopening the claim for further treatment effective October 25, 1977. By order issued August 21, 1981, the Department closed the claim with time-loss compensation as paid to February 2, 1979, and with a permanent partial disability award equal to 25% of the loss of function of the left leg above the knee joint with short thigh stump, less the prior award. A timely request for reconsideration to that order caused the Department to hold the August 21, 1981 determination in abeyance. On October 9, 1981, the Department issued an order adhering to its previous order. On October 26, 1981, the claimant filed a notice of appeal with the Board of Industrial Insurance Appeals. On November 4, 1981, the Board issued an order granting the appeal, and directed that proceedings be held on the issues raised by the appeal.
3. Violet Canfield is a 73 year old woman of average intelligence, average mathematical and vocabulary [6] skills, better-than-average articulation, with a high school education and an ability, without retraining, to perform moderate work on a reasonably continuous basis, provided she can continuously alternate sitting, standing and walking during an 8-hour work day. Mrs. Canfield has worked for 16½ years as a bag inspector, a job which requires an individual to walk and stand and sit as well as lift. She also worked for 16 years as a bag tender, a job which involves standing for long periods of time.
4. As a result of her industrial injury on December 15, 1969, claimant Canfield developed a condition diagnosed as aseptic necrosis of femoral head of the left hip.
5. Between February 2, 1979 and October 9, 1981, claimant Canfield was capable of performing gainful employment which is within her qualifications and available in the competitive labor market, on a reasonably continuous basis.
6. As of October 9, 1981, the claimant's condition causally related to her industrial injury was fixed no further curative treatment was indicated or required.
7. As of October 9, 1981, claimant Canfield exhibited partially disabling impairment in her left lower extremity resulting from the December 15, 1969 injury. That permanent loss of physical function did not exceed 25% loss of function of the left leg above the knee joint with short thigh stump.
8. As of October 9, 1981, Violet Canfield was capable of performing gainful employment, which is within her qualifications and available in the competitive labor market, on a reasonably continuous basis.
9. The claimant retired from the labor market in 1971 at age 62, and has remained in such retirement status ever since.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, this Board concludes as follows:
- The Board of Industrial Insurance Appeals has juris- diction of the parties and subject matter of this appeal.
- Between February 2, 1979 and October 9, 1981, the claimant was not temporarily totally disabled within the purview of the Workers' Compensation Act, and therefore, was not entitled to payment of time-loss compensation during that period.
- As of October 9, 1981, claimant Canfield exhibited a permanent partial disability in her left lower extremity resulting from the injury of December 15, 1959, equal to 25% loss of function of the left leg above the knee joint with short thigh stump. [7]
- As of October 9, 1981, claimant Canfield was not a permanently totally disabled worker within the purview of the Workers' Compensation Act.
- The order of the Department of Labor and Industries dated October 9, 1981, which closed Mrs. Canfield's claim with time-loss compensation as paid to February 2, 1979, and with a permanent partial disability award equal to 25% loss of function of the left leg above the knee joint with short thigh stump, less prior award, is correct and should be affirmed.
It is so ORDERED.
Dated this 24th day of January, 1983.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
MICHAEL L. HALL Chairperson
/s/
PHILLIP T. BORK Member
CONCURRING OPINION
If Mrs. Canfield had not voluntarily retired from the active labor market in 1971, it would be my opinion that she would be deserving a pension based upon her age (73). It is important to remember that age is a factor to be considered in the employability of a person.
Is it realistic to assume that employers are going to hire a worker who has reached the age of 73 regardless of whether they had previously been injured on the job? Therefore age does play an important role in determining the employability of a worker forced off a job by an industrial injury. I would concur with the conclusions of law reached by the majority of the Board.
Dated this 24th day of January, 1983.
/s/
FRANK E. FENNERTY, JR. Member