| IN RE: LARRY WASHINGTON | ) | DOCKET NO. 65,450 |
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| Claim No. S-515165 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Larry Washington, by
- Cohoe, Counsell, Murphy & Bottiger, per
- John P. Murphy
- Self-insured employer, Associated Grocers, by
- Schwabe, Williamson, Wyatt, Moore & Roberts, per
- Gary D. Keehn and Janet Smith
This is an appeal filed by the self-insured employer on July 27, 1983, from an order of the Department of Labor and Industries dated June 8, 1983, adhering to the provisions of a prior order which set aside a closing order dated March 15, 1983 and allowed the claim to remain open. 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 12, 1983, in which the order of the Department dated June 8, 1983 was reversed, and the claim remanded to the Department with instruction to direct the self-insured employer to close the claim in accord with the Department's order of March 15, 1983, with time-loss compensation as paid to February 28, 1983, inclusive, and with no permanent partial disability award.
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.
In our opinion, the Department's determination that this claim was not yet ready for closure as of June 8, 1983, is correct and should be affirmed. The industrial condition from which Mr. Washington suffers [2] is variously described in the record as either a strain or sprain of the lower back, lumbar area. The modality of treatment since the date of the injury, September 16, 1982, has been exclusively chiropractic. This treatment has improved Mr. Washington's condition, both from a pain and range of motion standpoint. Mr. Washington's attending chiropractor, Dr. Jeffrey W. Lewis, expressed the view that further chiropractic treatment, augmented by treatment at the hands of a physical therapist, will further improve Mr. Washington's condition. In the past, the doctor has requested of the employer that Mr. Washington receive physical therapy, but to no avail. Parenthetically, in this regard, we have noted that there are two references to a medical report from a Dr. McCollum wherein it is recommended that Mr. Washington undergo a program of physical therapy before his claim is closed.
It is the employer's position that the medical opinions and the lack of medical physical findings of a truly objective nature, as testified to by Drs. Donald L. Stainsby and Irving Tobin, both medical practitioners who examined Mr. Washington independently of each other on single occasions and felt the claimant's condition was fixed and without need of further treatment, should outweigh the opinions of Dr. Lewis, a chiropractor.
Given the circumstances of this particular case, we do not agree. As previously noted, the only modality of treatment which the claimant has received to date has been chiropractic. His condition, which appears to be limited to an injury of the muscles and soft tissue of the low back, has in fact responded to that form of treatment. If, in the opinion of the practitioner who has brought about this improvement, a limited continuance of treatment of this nature would be of curative benefit, we do not choose to deny the claimant that opportunity. Whereas the existence of objective medical findings is critical to a permanent partial disability rating, it is not a legal condition precedent to the continuance of treatment. [3]
There remains the question of the claimant's employability. In this regard, it is clear to us that the work-modified job offered the claimant by the employer as a "dock returns" clerk was beyond the claimant's physical limitations. Not only did it require him to stand and walk about on concrete, which Dr. Lewis testified was particularly aggravating to the claimant's back condition, but it entailed the handling and separation of heavy case goods which were beyond the claimant's physical restrictions. Dr. Lewis retracted his original work release upon learning of the true dimensions of the job.
Much is made of the claimant's work experience, some untold years ago for an untold period of time, as a loan officer for a finance company, and of his educational level (one and one-half years of college). The employer contends that this establishes that the claimant was capable of performing any number of light-duty jobs in the labor market, which in turn disentitles him from time-loss compensation. We would take no quarrel with the proposition that there are probably a number of light duty-type jobs which are within the claimant's performance capacity. However, no job of this nature was ever offered or made available to the claimant by this or any other employer. It must be borne in mind that the claimant was a regular and relatively long-time (five and one-half years) employee of the employer herein. In other words, he was a permanent, not a transient, employee. He was looking to returning to his regular job for the employer as soon as he was physically able; the record establishes that his job was in fact still open and awaiting his return. Under these circumstances, where the worker is still undergoing treatment and recuperating from his injury, we do not believe it is either the intent or the requirement of the Workers' Compensation Act, that the worker, upon peril of losing his time-loss compensation, go out and scare up some type of interim work or job within his capacities to tide him over until such time as he is physically able to return to his regular employment for his [4] long-time employer. In short, we hold that the claimant continued to be entitled to time-loss compensation for the period of time here in issue.
FINDINGS OF FACT
Finding No. 1 of the Proposed Decision and Order entered herein on December 12, 1983, is hereby adopted by the Board and incorporated herein by this reference. In addition, the Board finds:
2.On September 16, 1982, the claimant sustained a sprain and/or strain of the low back as a result of lifting boxes in the course of his employment as a warehouseman for Associated Grocers.
3.On June 8, 1983, the claimant's low back condition resulting from his industrial injury of September 16, 1982, was not fixed, and he was in need of further treatment therefor.
4.The work-modified job of dock returns clerk offered to the claimant by the employer entailed functions and duties beyond the claimant's physical limitations as prescribed by his attending chiropractor, Dr. Jeffrey Lewis. At no time herein was the claimant offered a light-duty job by any employer within his abilities and physical limitations.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction of the parties and subject matter of this appeal.
- From February 28, 1983 to June 8, 1983, inclusive, the claimant was temporarily totally disabled within the meaning of the Workers' Compensation Act.
- The order of the Department of Labor and Industries dated June 8, 1983, adhering to the provisions of a prior order dated April 12, 1983, which set aside a prior order dated March 15, 1983, and directed this claim to remain open for authorized treatment and such other and further action as may be indicated or authorized, is correct, and should be affirmed
It is so ORDERED.
Dated this 18th day of April, 1984.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
MICHAEL L. HALL Chairperson
/s/
FRANK E. FENNERTY, JR. Member
[5]
DISSENTING OPINION
My evaluation of the testimony of the expert witnesses herein leads me to conclude that his claimant had a simple low back sprain which has resolved; that he has no remaining objective findings; and that he is able to work without restrictions.
Regardless of the precise nature and demands of the "work-modified" job as a "dock returns" clerk -- a job which the claimant refused without even attempting it -- I believe the more persuasive medical evidence is that this man can go back to his regular warehouse job, and that he has no residual impairment.
The disposition of this appeal as made by the Proposed Decision and Order was to remand the claim for closure in accord with the Department's order of March 15, 1983, i.e., with time-loss compensation as paid to February 23, 1983, and with no permanent partial disability award. I concur with that result; and therefore dissent from the Board's majority's decision.
Dated this 18th day of April, 1984.
/s/
PHILLIP T. BORK Member