| IN RE: EUGENE A. BRIXEN | ) | DOCKET NO. 63,381 |
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| Claim No. H-273575 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Eugene A. Brixen, by
- David B. Vail
- Employer, John R. Barnett,
- None
- Department of Labor and Industries, by
- The Attorney General, per
- Frank Rekasis and Larry C. Watters, Assistants
This is an appeal filed by the claimant on November 10, 1982, from an order of the Department of Labor and Industries dated November 5, 1982, which adhered to the provisions of a prior order closing the claim with permanent partial disability awards for his cervical spine, dorsolumbar spine, both legs, left arm and psychiatric impairment. 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 on October 7, 1982 in which the order of the Department dated November 5, 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 sole issue presented by this appeal is whether the claimant is a permanently totally disabled worker as a result of his industrial injury of January 30, 1978. Some of the evidence is summarized in the Proposed Decision and Order; however, we expand upon the evidentiary discussion and reach a conclusion opposite to that contained therein.
On January 30, 1978, Mr. Brixen was hit by a falling snag (or dead tree) during his course of employment. His injuries included the following: A compression fracture of the twelfth dorsal vertebra; [2] a transverse process fracture of the third lumbar vertebra; the aggravation of a previously asymptomatic spondylosis into a first degree spondylolisthesis at the spinal interspace between the fifth lumbar and first sacral vertebra; multiple fractures of the ribs in the left chest; fracture of the left scapula; compound spiral fracture of the left tibia and fibula; traumatic injury to both knees (including the aggravation of a pre-existing asymptomatic left knee condition; an internal right hand injury; and ulnar neuropathy in the left arm and hand. By the time the claim was ultimately closed on November 5, 1982, Mr. Brixen had undergone six surgeries and exhibited residuals of several conditions including lumbar disc degeneration with hypertrophic changes in the lumbar spine, the aggravation of pre-existing asymptomatic cervical disc degeneration, chronic cervical and lumbar strains, chondromalacia in the knees, the closure of a large hole in the left leg by a skin graft, and a psychiatric condition.
On November 5, 1982, the Department issued its order closing the claim with awards for permanent partial disability for conditions in his neck, low back, both legs, left arm, and for impairment of mental health.
Many years before his January 30, 1978 injury, Mr. Brixen had injured his left knee. That injury required him to undergo surgery on ligaments performed by a Dr. Brown in Spokane. Mr. Brixen testified that he was off work for some eleven months following that injury and that for two years thereafter, he had performed physically less demanding jobs such as truck driving rather than his customary logging work.
In 1975, the claimant cut his left hand with a chain saw. This injury required the claimant to lose two months from work and the claim was ultimately closed with a permanent partial disability award.
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 [3] 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).
The claimant is also entitled, when the issue of his capacity for employment is being determined, to a consideration of certain socio- economic factors: age, level of education, history of prior employment, and the feasibility of vocational retraining. Pacific Car and Foundry Co. v. Coby, 5 Wn. App. 547 (1971).
The court in Kuhnle v. Department of Labor and Industries, 12 Wn. 2d 191, 196 (1942), had occasion to interpret the predecessor of RCW 51.08.160, defining permanent total disability. That definition now reads materially the same as it did then. The Kuhnle court pointed out that permanent total disability, as defined by the statute, does not require a workman to be absolutely helpless. Furthermore, Kuhnle pioneered the rule that if an accident leaves the workman in such a condition that he can no longer follow his previous occupation, or any other similar occupation, and is fitted only to perform "odd jobs" or special work, not generally available, the burden shifts to the Department to show that there is such special work that he can in fact obtain.
Primarily through the testimony of Dr. Wayne W. Zimmerman and Frank C. Swinehart, Mr. Brixen has presented convincing evidence which establishes that, on the closing date, the only type of work he was capable of obtaining and performing squarely fits the category of [4] "odd lot" employment.
Franklin M. Dare, a vocational rehabilitation counselor employed by the Department, testified that part-time or half-time work, within the claimant's physical capabilities, was available to Mr. Brixen.
In our opinion, the phrase "or other condition permanently incapacitating the worker from performing any work at any gainful occupation", found in RCW 51.08.160, does not necessarily preclude an injured worker from permanent total disability status when he is capable only of obtaining and performing part-time or half-time work.
We conclude that the Department has failed to carry its required burden of showing that "odd lot" or special employment, suitable to this claimant's very substantial residual disability, is in fact available to him. Allen v. Department of Labor and Industries, 16 Wn. App. 692, 693 (1977).
The proposed findings, conclusions and order are hereby stricken and replaced by those that follow.
FINDINGS OF FACT
1. On February 6, 1978, the Department of Labor and Industries received an accident report in which it was alleged that Eugene A. Brixen, the claimant herein, had sustained an industrial injury on January 30, 1978 while in the course of his employment with John R. Barnett. The claim was accepted, medical treatment provided, and time-loss compensation was paid. On August 4, 1982, the department issued an order closing the claim with permanent partial disability awards of 25% as compared to total bodily impairment for cervical and dorsolumbar impairment (10% for cervical and 15% for dorsolumbar), 10% as compared to total bodily impairment for psychiatric impairment, 15% of the amputation value of the left leg at or above the knee with functional stump, 18% of the amputation value of the right leg at or above the knee with functional stump, 5% of the amputation value of the left arm at or above the deltoid insertion or by disarticulation at the shoulder. On September 17, 1982, the claimant filed a notice of appeal with the Board of Industrial Insurance Appeals. On September 27, 1982, the Department issued an order holding in abeyance its previous order dated August 4, 1982, pending further investigation. On September 28, 1982, this Board issued its order returning the case [5] to the Department for further action. On November 5, 1982, the Department issued an order adhering to the provisions of its previous order dated August 4, 1982. On November 10, 1982, the claimant filed a notice of appeal with this Board. On November 30, 1982, the Board issued its order granting the appeal, assigning it Docket No. 63,381, and directing that proceedings be held on the issue contained therein.
2. On January 30, 1978, the claimant was injured during the course of employment when he was hit by a falling dead snag. As a result he sustained the following injuries: a compression fracture of the twelfth dorsal vertebra; a fracture of the transverse process of the third lumbar vertebra; the aggravation of a previously asymptomatic spondylosis into a first degree spondylolisthesis at the interspace between the fifth lumbar and first sacral vertebrae; multiple fractures of the ribs in the left chest; fracture of the left scapula; compound spiral fracture of the left tibia and fibula; internal injuries to both knees, including the aggravation of the pre-existing asymptomatic left knee condition; internal injuries to the right hand, requiring exploratory surgery; ulnar neuropathy to the left arm and hand; lumbar disc degeneration with hypertrophic changes in the lumbar spine, the aggravation of a pre-existing, asymptomatic cervical disc degeneration; a condition diagnosed as chondromalacia in the knees; the closure of a large hole in the left leg by a skin graft; a psychiatric condition; and some six surgeries in treatment of the foregoing.
3. In the early 1960's, the claimant had sustained an injury to his left knee which required surgical repair. The injury kept the claimant off work for some eleven months, and required the claimant to seek lighter employment for the ensuing two years. The left knee had returned to an asymptomatic condition and remained as such until aggravated by the claimant's industrial injury of January 30, 1978.
4. In 1975, the claimant sustained an industrial injury involving a cut in his left hand with a chain saw which prevented the claimant from working for approximately two months. This claim was ultimately closed with a permanent partial disability award equal to 20% of the amputation value of the arm at the wrist.
5. The claimant is fifty-three years of age, has a high school education, and has a lifetime history of employment primarily limited to manual labor. On November 5, 1982, the claimant was not a suitable candidate for vocational rehabilitation.
6. On November 5, 1982, as a result of his industrial injury of January 30, 1978, the claimant had among others the following residual conditions: [6] healed compression of the twelfth dorsal and of the transverse process of the third lumbar vertebra; the aggravation of a pre-existing asymptomatic spondylosis into a first degree spondylolisthesis at the interspace between the fifth lumbar and the first sacral vertebra; healed multiple fractures of the ribs in the left chest; healed fracture of the left scapula; healed compound spiral fractures of the left tibia and fibula, which had required surgical corrections; internal injury to both knees, including the aggravation of a pre-existing asymptomatic left knee condition, requiring three surgeries including a tibia transplant; internal injury to the right hand requiring exploratory surgery; ulnar neuropathy to the left arm and hand; lumbar disc degeneration with hypertrophic changes in the lumbar spine, the aggravation of pre-existing, minor asymptomatic cervical disc degeneration; early chondromalacia in the knees; the closure of a large hole in the left leg by a skin graft; chronic cervical and lumbar strains; and a psychiatric condition. All of these conditions were fixed and further treatment was not indicated. On November 5, 1982, the claimant's residual permanent partial disability, attributable to each of these conditions standing alone, was as follows: 25% as compared to total bodily impairment for the cervical and dorsolumbar conditions, consisting of 10% for cervical and 15% for dorsolumbar; 15% of the amputation value of the left leg at or above the knee with functional stump; 18% of the amputation value of the right leg at or above the knee with functional stump; 5% of the amputation value of the left arm at or above the deltoid insertion or by disarticulation at the shoulder; and 10% as compared to total bodily impairment for the psychiatric condition. Standing alone, the foregoing conditions did not permanently prevent the claimant from performing a full-time gainful occupation on a reasonably continuous basis.
7. As of November 5, 1982, when the claimant's above-described permanent impairments attributable to his injury of January 30, 1978, were superimposed upon and combined with his permanent impairment resulting from his left knee injury in the early 1960's, and the chain saw injury to his left hand in 1975, and when considered with the factors of the claimant's age, education, history of employment, and poor retraining prognosis, the claimant was permanently prevented from obtaining and performing any gainful occupation on a reasonably continuous basis other than that of an "odd lot" classification.
8. As of November 5, 1982, gainful employment commensurate with the claimant's qualifications and abilities, and in keeping with his numerous injury-caused impairment, was not available to him. [7]
CONCLUSIONS OF LAW
- This Board has jurisdiction of the subject matter and the parties to this appeal
- As of November 5, 1982, as a proximate result of his industrial injury of January 30, 1978, the claimant was a permanently totally disabled worker within the definition and contemplation of RCW 51.08.160.
- The order of the Department of Labor and Industries issued November 5, 1982, which adhered to the provisions of a previous order dated August 4, 1982, closing the claim with permanent partial disability awards equal to 25% for cervical and dorsolumbar impairment, 15% of the amputation value of the left leg at or above the knee with functional stump, 18% of the amputation value of the right leg at or above the knee with functional stump, 5% of the amputation value of the left arm at or above the deltoid insertion or by disarticulation at the shoulder, and 10% for psychiatric impairment, is incorrect, should be reversed, and the claim remanded to the Department with direction to accord the claimant the status of a permanently totally disabled worker, effective November 5, 1982, with all of the benefits incident with that status.
It is so ORDERED.
Dated this 3rd day of January, 1984.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
MICHAEL L. HALL Chairperson
/s/
FRANK E. FENNERTY, JR. Member