Significant Decisions

See PERMANENT TOTAL DISABILITY  Combined effects of preexisting and subsequent disabilities
A worker may establish permanent total disability by combining the effects of the industrial injury with conditions preexisting the injury and causing a significant physical impairment. Even though the conditions were not discovered or diagnosed until after the injury, they should not be viewed as subsequently occurring events. ....Reuben Pister, 61,785 (1983)


IN RE: REUBEN A. PISTER ) DOCKET NO. 61,785
  )  
Claim No. H-704188 ) DECISION AND ORDER
  )  
APPEARANCES
Claimant, Reuben A. Pister, by
Nashem, Prediletto, Schussler and Halpin, per
L. E. Prediletto and Gomer L. Cannon
Employer, City of Walla Walla,
None
Department of Labor and Industries, by
The Attorney General, per
Carol J. Molchior, Gregory M. Kane,
and Maureen A. Mannix, Assistants

This is an appeal filed by the claimant on March 24, 1982, from an order of the Department of Labor and Industries dated March 11, 1982, which adhered to the provisions of an order dated December 2, 1981, closing the claim with a permanent partial disability award of 10% as compared to total bodily impairment for unspecified disabilities, paid at 75% of the monetary value thereof pursuant to the provisions of RCW 51.32.080(2). 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 claimant to a Proposed Decision and Order issued on May 17, 1983, in which the order of the Department dated March 11, 1982, was affirmed.

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 issue presented by this appeal and the evidence adduced by the parties are adequately set forth in the Proposed Decision and Order. However, we cannot agree with the conclusion reached, and we feel that further discussion of the evidence is essential.

The transcript of proceedings containing all proffered evidence shows the claimant had a number of conditions unrelated to the May 1980 [2] industrial injury. Such conditions include:

(1) lymphangioma (or hemangioma) removal from the right hip in 1943 while claimant was serving in the U.S. Army, for which claimant has been receiving a 10% pension.

(2) histal hernia of the diaphragm (which divides the chest cavity from the abdominal cavity) with partial displacement of the stomach into the chest cavity; and a chronic heavy gastric hyperacidity. The transcript contains no date relative to original diagnosis;

(3) abdominal aortic aneurysm, diagnosed in September of 1980, for which the claimant underwent surgery, excision and replacement of the weakened segment on October 3, 1980;

(4) arteriosclerotic vascular changes which were pre-existing and advanced but were first noted on October 27, 1980;

(5) diabetes mellitis, initially diagnosed in August or September of 1980, and subsequently controlled by insulin; and

(6) peripheral vascular disease, causing poor circulation of blood, especially in the lower extremities.

It is well established in the law of this state that if a person is impaired by a physical or mental condition which pre-existed the occurrence of an industrial injury, and later is prevented from returning to gainful employment because of the added or combined effects of a later occurring industrial injury, the worker is then entitled to compensation as a permanently totally disabled worker. Wendt v. Department of Labor and Industries, 18 Wn. App. 674 (1977). The prior injury or disability is viewed not as the cause of the total disability, but merely a condition upon which the subsequent injury combined to cause permanent total disability. See Erickson v. Department of Labor and Industries, 48 Wn. 2d 458 (1956) and Miller v. Department of Labor and Industries, 200 Wash. 674 (1939).

Certainly, if the effects of the industrial injury, although later occurring, are an insignificant contributor to physical or mental impairment and consequent disability, and a pre-existing condition progresses independently to the point that it alone prevents the [3] claimant from returning to gainful employment, then it would be inappropriate for the claimant to receive compensation under our Act. See Shea v. Department of Labor and Industries, 12 Wn. App. 410 (1974). It follows that if a worker who has been injured in his employment and suffers a permanent partial disability therefrom is later prevented from returning to work because of a subsequently occurring independent injury or disease, it would be also inappropriate to accord the claimant the benefits of the Act. This would hold true unless perhaps the effects of the earlier injury worsened and became a significant contributing cause of the later occurring total disability and thereby should be superimposed upon the effects of intervening events. See Allen v. Department of Labor and Industries, 30 Wn. App. 693 (1981).

In the record before us it is clear that the claimant had a number of pre-existing conditions which undoubtedly contributed greatly to his disability scheme. Many of these conditions were not discovered until after the industrial injury. It does not follow that these conditions should be viewed as subsequently occurring events merely because their discovery or diagnosis was made after the industrial injury at issue. To the contrary, it is clear that the nature of these conditions were such that they had to pre-exist the May, 1980 industrial injury for them to have developed and progressed to a state where their discovery was made, and in the case of the aneurysm, where surgery was required because of imminent danger.

Neither physician whose testimony appears in the record gave an opinion regarding the extent of the claimant's pre-existing impairment which would be attributable to any of the previously listed six unrelated conditions. However, the record clearly shows that both physicians regarded the claimant's pre-existing problems to constitute a substantial limitation upon Mr. Pister's daily life and physical capacity for work.

Truly, the nature of the limitations described in the record from [4] the pre-existing problems describes a situation setting the stage for an industrial injury, albeit minor, to act as "the straw that breaks the camel's back". In fact, we view the claimant's injury of May 30, 1980, and its sequalae to have done precisely that. When the impairment caused by the claimant's industrial injury is superimposed upon the effects of his pre-existing conditions and considered with the claimant's age of 61 years, his educational background and work experience, it is clear that the preponderance of evidence shows that Mr. Pister cannot return to gainful employment. Pacific Car and Foundry Company v. Coby, 5 Wn. App. 547 (1971). It is also clear from the evidence that the industrial injury of May 30, 1980, is a significant contributor to this development and should be viewed as a proximate cause of the claimant's ultimate permanent total disability. Wendt v. Department of Labor and Industries, 18 Wn. App. 674 (1977).

FINDINGS OF FACT

  1. On June 4, 1980, an application for benefits was filed with the Department of Labor and Industries alleging that the claimant, Reuben A. Pister, had sustained an industrial injury on May 30, 1980, while in the course of his employment with the City of Walla Walla. On August 14, 1980, the Department issued an order allowing the claim and closing it with no benefits other than medical treatment provided.
  2. On November 4, 1980, the claimant filed with the Department an application to reopen the claim for aggravation of condition. On November 25, 1980, the Department issued an order reopening the claim effective October 27, 1980. In a series of subsequent orders the Department paid to the claimant time-loss compensation for the period from October 27, 1980 through May 1, 1981. On December 2, 1981, the Department issued an order closing the claim with a permanent partial disability award equal to 10% as compared to total bodily impairment, paid at 75% of the monetary value thereof pursuant to RCW 51.32.080(2). On December 16, 1981, the claimant filed a letter of protest from the foregoing order. On January 8, 1982, the Department issued an order holding in abeyance its previous order dated December 2, 1981, pending further consideration. On March 11, 1982, the Department issued an order adhering to the provisions of its prior order dated December 2, 1981. On March 24, 1982, the claimant filed a notice of appeal with the Board of Industrial Insurance Appeals. On April 9, 1982, [5] this Board issued its order granting the appeal, assigning it Docket No. 61,785, and ordering that proceedings be held on the issues raised therein.
  3. On May 30, 1980, the claimant sustained an injury to his low back while in the course of his employment with the City of Walla Walla. While the claimant was ascending a ladder, his left foot slipped on paint thinner, causing a severely twisted back by the sudden loss of support.
  4. Reuben A. Pister is 61 years of age, has a high school education, and has a lifetime history of employment, including saleswork, stockman, carpenter, gardener, maintenance work and the cleaning and editing of film.
  5. On and before May 30, 1980, the claimant had a number of causally unrelated pre-existing conditions, as follows: the excision by radiation therapy of a lymphangioma (or hemangioma) from the right hip in 1943 while the claimant was serving in the U.S. Army, for which the claimant receives a 10% pension; a chronic hiatal hernia of the diaphragm with partial displacement of the stomach into the chest cavity and a continuing heavy gastric hyperacididy; an abdominal aortic aneurysm diagnosed in September of 1980, which required surgery on October 3, 1980; pre-existing long term progressive advanced arteriosclerotic vascular changes; initially noted on October 27, 1980; diabetes mellitis; diagnosed in August or September, 1980, since controlled by insulin; and peripheral vascular disease, causing poor circulation of blood, especially in the lower extremities. On and immediately prior to May 30, 1980, the foregoing pre-existing conditions caused a significant physical impairment to the claimant in his employment and non-employment life.
  6. On March 11, 1982, as a result of his industrial injury of May 30, 1980, the claimant had conditions diagnosed as lumbosacral sprain and low back pain syndrome which were fixed, further treatment not being indicated.
  7. On March 11, 1982, the claimant exhibited impairment in his dorso-lumbar and lumbosacral spine most closely resembling that degree of impairment described by Category 3 of WAC 296-20-280. None of the clinical objective findings relative to these conditions rose to the level of "marked", on a scale "mild", "moderate" and "marked".
  8. As of March 11, 1982, the claimant's impairment attributable to his industrial injury of May 30, 1980, considered alone, did not prevent him from performing a gainful occupation on a reasonably continuous basis.
  9. As of March 11, 1982, when the claimant's impairment from his industrial injury of May 30, 1980, was combined with and superimposed upon the effects of his pre-existing conditions unrelated to the industrial injury, together with the factors of his age, education and history of [6] employment, the claimant was permanently prevented from performing a regular gainful occupation on a reasonably continuous basis.

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, the following conclusions are entered:

  1. The Board of Industrial Insurance Appeals has jurisdiction of the parties and the subject matter of this appeal.
  2. As of March 11, 1982, as a proximate result of his industrial injury of May 30, 1980, the claimant was permanently totally disabled as defined and contemplated under the Industrial Insurance Act of this state.
  3. The order of the Department of Labor and Industries issued March 11, 1982, adhering to provisions of a previous order dated December 2, 1981, which closed the claim with a permanent partial disability award equal to 10% as compared to total bodily impairment, paid at 75% of the monetary value thereof pursuant to the provisions of RCW 51.32.080(2) is incorrect, should be reversed, and the claim remanded to the Department with direction to acknowledge the claimant as a permanently totally disabled worker effective March 11, 1982, and grant him all benefits consistent with that status.

It is so ORDERED.

Dated this 22nd day of August, 1983.

BOARD OF INDUSTRIAL INSURANCE APPEALS

/s/

MICHAEL L. HALL Chairperson

/s/

FRANK E. FENNERTY, JR. Member

/s/

PHILLIP T. BORK Member

 


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