| IN RE: WILLIAM R. DOWD | ) | DOCKET NO. 61,310 |
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| Claim No. H-271019 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, William R. Dowd, by
- Chapman, Forbes and Pack, per
- James D. Pack
- Employer, Cemco Products, Inc.,
- None
- Department of Labor and Industries, by
- The Attorney General, per
- J. Dianne Garcia, Nadine Scott and
- Meredith Lehr, Assistants
- The Board of Industrial Insurance Appeals has jurisdiction of the parties and the subject matter of this appeal.
- The claimant's worsened low back condition is the result of a new and independent injury sustained by the claimant on November 11, 1980.
- The order of the Department of Labor and Industries dated January 11, 1982, denying the claimant's application to reopen this claim for alleged aggravation of condition on the ground that the claimant's condition resulted from a new traumatic incident occurring in November 1980, is correct and is affirmed.[5]
This is an appeal filed by the claimant on January 19, 1982, from an order of the Department of Labor and Industries dated January 11, 1982, which denied the claimant's application to reopen the claim for aggravation of condition and alleged the claimant's condition to be the result of a new traumatic incident. Affirmed.
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 on December 28, 1982, in which the order of the Department dated January 11, 1982 was sustained.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed.
The general nature and background of this appeal are as set forth in the Proposed Decision and Order, and shall not be reiterated herein.
We have granted review of this matter so as to make clear our view that the rejection of this claim should be based upon an "injury" basis, and not an "aggravation" basis. It is clear that the claimant's low back condition resulting originally from his industrial injury of January 12, 1978, was worsened by an off-the-job tree-cutting [2] incident of November 11, 1980, when the claimant became pinned between two trees. The claimant described this incident in his testimony as follows:
"Q And, when you say the tree rolled and picked you up; what do you mean 'picked you up'?
A Well, it was about six inches off the ground and out in the woods and there's brush all around and really I don't know how far off the ground it was. It just caught me under the knees and started pushing me backwards. And as it did my feet got caught in the brush and all of a sudden I found myself trying to untangle my feet and deal with this log. and, the next thing I knew there was nothing to deal with because I was pinned up and there was -- other than trying to -- starting to pin me, I tried to push myself away and I couldn't get away from it fast enough. and, it pushed me into the other tree and pinned me there.
Q What part of your body was pinned?
A My lower leg.
Q Left leg?
A Yeah.
Q What did you do then?
A Well, it's hard to explain. The whole thing is just --
Q Well, what I mean, physically what did you do after you were pinned. I presume that the tree stopped at that point, the rolling tree stopped once it pinned you up against the upright tree.
A Right.
And, when it did, I gave myself a mighty jerk and snapped my leg out of there and nothin' moved.
Q So, how did you get out?
A Well, Rod waited for the end of the tree to finish its arch and when it started back he gave a jerk and then I jerked my leg and it popped out of the hole. And, the tree just rested against the tree that I had been pinned into.
Q What did you feel in your body at that time?
A Lots of pain.
Q Where? [3]
A In my leg. My back.
Q Left leg?
A Yes.
Q The one that was pinned?
A Um-hum.
Q What part of your back?
A Lower.
Q Was this a different part of your back than the prior pain that you'd had?
A No, same place."
The claimant was taken immediately to the hospital. As to his hospital stay, the claimant testified in significant and relevant part as follows:
"Q During that period of time in the hospital what parts of your body were bothering you?
A My leg and my lower left back.
Q Left leg?
A Um-hum.
Q Same or different part of your back that had bothered you before?
A Same
Q How did you [sic] back feel at this time compared to the way it had been before this, say for the several months before?
A Traumatically worse.
Q In what way?
A Well, --
Q Are you talking about discomfort or excruciating pain?
A Excruciating pain. Unbearable. Incredible."
In short, the claimant's worsened low back condition resulted from a new and independent injury sustained by the claimant on November 11, 1980. The injury of January 12, 1978 to the claimant's low back in no way contributed to the development of symptoms which [4] Mr. Dowd experienced on November 11, 1980. the "reasonableness" test of McDougle v. Department of Labor and Industries, 64 Wn. 2d (1964), used to determine compensability in aggravation cases, has no application where the accepted industrial injury was not a contributory element, i.e., proximate cause of later-occurring symptoms. In this case, a new traumatic event was wholly and independently responsible for the production of symptoms.
FINDINGS OF FACT
Finding No. 1 of the Proposed Decision and Order entered herein on December 28, 1982, is hereby adopted by the Board and incorporated herein by this reference. In addition, the Board finds:
2. On November 11, 1980, while cutting firewood for his house with a friend, the claimant was tossed about by a rolling log which ultimate came to rest and pinned his left leg against a tree, fracturing the tibia bone. Attempting to extricate his left leg, the claimant gave a mighty jerk and felt immediate and excruciating pain in his low back.
3. The claimant's worsened low back condition resulted directly from the log-pinning incident of November 11, 1980, and was not due to a natural progression or worsening of his industrial injury to his low back of January 12, 1978..
CONCLUSIONS OF LAW
It is so ORDERED.
Dated this 25th day of April, 1983.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
MICHAEL L. HALLChairperson
/s/
FRANK E. FENNERTY, JR.Member
/s/
PHILLIP T. BORKMember