| IN RE: ROBERT McILRATH, DEC'D. | ) | DOCKET NO. 65,592 |
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| Claim No. H-530434 | ) | DECISION AND ORDER |
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- APPEARANCES
- Widow-petitioner, Betty McIlrath, by
- Patrick R. McMullen
- Employer, Gordon H. Dills and Sons,
- None
- Department of Labor and Industries, by
- The Attorney General, per
- Paula Selis, Assistant
This is an appeal filed by the widow-petitioner on August 17, 1983 from an order of the Department of Labor and Industries dated July 26, 1983 which corrected and superseded Department order of April 4, 1983 and adhered to the provisions of a Department order dated May 26, 1982 which denied the widow-petitioner's claim for benefits under RCW 51.32.040 and 51.32.050(6) for the reasons that the cause of death was unrelated to the industrial injury of June 20, 1979, that at the time of death the decedent's condition was not fixed nor ratable, and he was not permanently and totally disabled as a result of the industrial injury of June 20, 1979. 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 June 11, 1984 in which the order of the Department dated July 26, 1983 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 issues presented by this appeal and the evidence presented by the parties are adequately set forth in the Proposed Decision and Order. However, this Board reached an ultimate conclusion opposite to that arrived at in the proposed order. In support of this conclusion, [2] we feel further discussion of the facts and the legal analysis is necessary:
In order for the widow-petitioner to prevail, she must by a preponderance of the evidence prove either of the following:
(1) That the death of her husband, Robert McIlrath, on May 6, 1982, was caused by his industrial injury of June 20, 1979, within the meaning of RCW 51.32.050(2); or
(2) That at the time of his death, the deceased worker was permanently totally disabled as a result of the industrial injury, within the meaning and contemplation of RCW 51.32.050(6).
The evidence contained in the transcript indisputably shows that the cause of death on May 6, 1982 of Robert McIlrath was systemic leukemia (a form of cancer). The widow-petitioner cannot recover under the provisions of RCW 51.32.050(2). However, after a careful study of all of the evidence, this Board concludes that Mrs. McIlrath has proven her entitlement to recovery under the provisions of RCW 51.32.050(6).
All of the physicians who testified were agreed that prior to his industrial injury of June 20, 1979, Mr. McIlrath had significant pre-existing abnormalities in his lumbar spine. Dr. Donald Stainsby, the neurosurgeon who testified for the Department, referred to a condition of lumbar spinal stenosis (narrowing of the spinal canal). Dr. Kenneth R. Lang, an orthopedic surgeon who testified for the widow-petitioner, interpreted x-ray films and identified diffuse lumbar arthrosis with osteophytic bridging, narrowing of the L-3/L-4 disc space, and the development of vacuum signs. Expanding on these observations, Dr. Land described Mr. McIlrath's conditions as lumbar arthrosis, degenerative disc disease, herniated nucleus pulposis at the L-4/L-5 interspace, and degenerative disc disease at the same level.
Dr. Dean Dietrich, a general practitioner who also testified on behalf of the appellant, had served as Mr. McIlrath's attending [3] physician since 1976. He testified his office records showed Mr. McIlrath had not complained prior to his industrial injury of June 20, 1979 of any problems in his low back or neck. His chart did show some complaints indicative of gout and joint pains in the right elbow and right foot. Dr. Stainsby defined gout as a metabolic disease, the deposit of uric acid crystals, very commonly in the great toe. He stated it may also develop in the earlobe, but only occasionally in the spine. It was Dr. Stainsby's opinion that Mr. McIlrath's industrial injury had not aggravated the pre-existing spinal stenosis. Dr. Dietrich provided an opposite view relative to the aggravation of the pre-existing degenerative disc disease and osteoarthritis in the lumbar spine, which was shared and corroborated by Dr. Lang.
We conclude that the weight of the evidence shows that conditions in the low back pre-existing the industrial injury were indeed exacerbated, lighted up, or made active by the industrial injury. This view of the evidence is supported by our understanding that Mr. McIlrath received no treatment for any low back condition prior to the occurrence of the industrial injury. Bennett v. Department of Labor and Industries, 95 Wn. 2d 531, 532 (1981). Therefore, mr. McIlrath's pre-existing lumbar spine condition should be deemed a condition upon which the industrial injury operated, and any impairment and consequent disability attributable to the lighting up of such conditions should be considered as a disability caused by the industrial injury.
It is undisputed that the claimant's systemic leukemia had been diagnosed, and chemotherapy (leukeran) treatment initiated therefor, over one year prior to the occurrence of the industrial injury. Dr. Dietrich testified that the claimant's leukemia condition began advancing in the summer and fall of 1980. All of the physicians who testified were agreed that the leukemia condition was causally unrelated to the industrial injury. [4]
On December 8, 1980, following three physical examinations that were exhaustive in scope, Dr. Lang recommended that Mr. McIlrath undergo a posterior laminectomy to remove disc fragments which were compressing the spinal canal. He found that there was little or no evidence to indicate that the leukemia had infiltrated the lumbar spine. Dr. Lang testified that Mr. McIlrath initially did not want surgery but agreed to think about it. Dr. Lang was certain that Mr. McIlrath needed further treatment in the form of the recommended surgery during 1980, and that his condition was not therefore medically stable, but remained unchanged between November 1980 and October 1981. He further testified that Mr. McIlrath's permanent impairment attributable to the causally related condition, if surgery was not done, would be classified in Category 5 or 6 of WAC 296-20-280. The record also supports that Dr. Lang felt that Mr. McIlrath was totally disabled during this time-frame solely from causes related to the industrial injury.
Dr. Dietrich testified that Dr. Lang on December 8, 1980 had recommended low back surgery to Mr. McIlrath. On October 12, 1981, Dr. Dietrich made a note in the hospital chart that Mr. McIlrath had been advised to have low back surgery, but was hesitant to accept, stating that he might consider it in the future. Dr. Dietrich had obtained a second opinion as to the feasibility of the surgery from a Dr. Clancey, whose report was dated September 28, 1981. Dr. Clancey's report indicated that surgery might have a very slim chance of relieving the claimant's pain from nerve root involvement. In his report, Dr. Clancey recommended further diagnostic studies including a CAT scan and a myelogram. The widow-petitioner testified that Mr. McIlrath had been considering low back surgery, in conformity with Dr. Lang's advice, but that he had not undergone the recommended surgery because he became bedridden from the systemic leukemia in September of 1981. [5]
Based entirely upon Hiatt v. Department of Labor and Industries, 48 Wn. 2d 843, 847 (1956), the Proposed Decision and Order found that at Mr. McIlrath's death, his causally related condition was not fixed, his permanent impairment was not ratable, and therefore he was not permanently totally disable. We believe further fundamental questions, however, must be addressed. It is the answers we find to those questions which lead us to a different conclusion.
Initially, we must examine the record to determine what the prospects were for Mr. McIlrath to return to employment had he under- gone the recommended low back surgery. Dr. Dietrich testified that at the time of Mr. McIlrath's death on May 6, 1982, medical attention of a symptomatic nature was indicated. Dr. Stainsby testified that in May of 1982, Mr. McIlrath was in need of some further treatment, if not curative treatment. When questioned as to whether the injured worker's back condition would have kept him from working on May 6, 1982 (disregarding the presence and effect of leukemia), Dr. Stainsby answered that the claimant would work but only at very sedentary employment. At best, it would appear that the recommended surgery might have eliminated some, but certainly not all, of the claimant's pain, and may have physically permitted Mr. McIlrath to perform a highly sedentary occupation. Still, physical ability does not pre- suppose the ability to provide other talents required by specific sedentary occupations. This state has long recognized that even the impairment of an acknowledged "partial" disability may result in permanent total disability when considered in light of socio-economic factors such as an injured worker's age, education, training and experience. Pacific Car and Foundry v. Coby, 5 Wn. App. 547 (1971).
In addition it is an understood, if not commonly acknowledged, fundamental of workers' compensation law that an injured worker may reasonably refuse to undergo a hazardous form of treatment or one that has a limited prospect for success. Such refusal may not be [6] used as a basis to limit or curtail such worker's compensation benefits. See, e.g., Miller v. Department of Labor and Industries, 200 Wn. 674 (1939), RCW 51.32.110, and see generally §13-22 Larsen, Law of Workmen's Compensation.
Like the Miller court, we feel Mr. McIlrath was justified in initially declining the recommended surgery considering its prospect for success may have been "very slim". Additionally, we note the facts that Mr. McIlrath was 63 years of age when he died, had not completed high school, and had a work history limited to hard manual labor as a logger throughout his lifetime. Given those facts, we are persuaded that even had the surgery been performed and succeeded in reducing his symptoms of pain Mr. McIlrath still would not have been able to offer himself to a more limited sedentary work market.
We do not view this case as one falling within the framework of the Hiatt case relied on in the Proposed Decision and Order. In Hiatt the deceased worker was totally disabled, but recovering from his injury, when he died from unrelated causes. There was no suggestion in the trial court's findings that recovery hinged on the success of the administration of any particular mode of treatment. In Hiatt, it appears that with the mere passage of time (46 months) the worker would have "recovered from the effects of his industrial injury to the extent that he could return to a gainful employment". 48 Wn. 2d at 844. This is not the picture in the appeal before us. Clearly Mr. McIlrath's condition was not remediable by the mere passage of time. Nor is it "reasonable to expect" as the trial court found in Hiatt, that the surgery recommended for Mr. McIlrath would have effected an ability to return to a gainful occupation.
The facts of this case to us present a picture most closely resembling that in Wendt v. Department of Labor and Industries, 18 Wn. App. 674 (1977). Preliminary, we note that the fact that Mr. McIlrath became totally disabled toward the end of his life from his leukemia, [7] does not prevent his widow from receiving compensation if the effects of his industrial injury, considered separate and apart from his other bodily conditions, rendered him permanently totally disabled. Shea v. Department of Labor and Industries, 12 Wn. App. 410 (1974). We place the case before us as coming within those parameters. The fact that the claimant's pre-existing conditions were major contributors to this "independent" total disability is immaterial. Mr. McIlrath's injury lighted up pre-existent back abnormalities and so became a proximate cause of his permanent total disability. Under the law of this state, this is sufficient.
The proposed findings, conclusions and order are hereby stricken and replaced by those that follow.
FINDINGS OF FACT
1. On June 26, 1979, the Department of Labor and Industries received an accident report in which it was alleged that the claimant, Robert McIlrath had sustained an industrial injury on June 20, 1979, while in the course of his employment with Gordon H. Dills and Sons. The claim was accepted, treatment provided, and time-loss compensation was paid. On May 13, 1980, the Department issued its order closing the claim with time-loss compensation as paid to September 9, 1979 and with no award for permanent partial disability. On May 29, 1980, the claimant filed with the Department an application to reopen the claim for aggravation of condition. The Department treated this application as a request for reconsideration of its closing order dated May 13, 1980. On June 16, 1980, the Department issued an order which held in abeyance its previous order dated May 13, 1980, pending further consideration.
On September 22, 1980, the Department issued an order which set aside and held for naught its previous order dated May 13, 1980, and ordered the claim to remain open for authorized treatment and action as indicated. On May 17, 1982, the Department issued an order which terminated time-loss compensation as paid to April 30, 1982, inclusive, and closed the claim with no award for permanent partial disability. Also, on May 17, 1982, Betty McIlrath filed with the Department an application for widow's benefits, stating that her husband, Robert McIlrath, had died on May 6, 1982. On May 26, 1982, the Department issued an order which denied the widow-petitioner's claim for benefits on the grounds that the cause of death was unrelated to the injury of June 20, 1979, that at the time of his death the deceased's [8] condition was not fixed nor ratable, and that he was not permanently totally disabled as a result of his injury of June 20, 1979. On July 7, 1982, the widow-petitioner filed a request with the Department for reconsideration of the order dated May 26, 1982. Following further investigating, the Department on July 26, 1983 issued an order which adhered to the provisions of its previous order dated May 26, 1982. On August 17, 1983, the widow-petitioner filed a notice of appeal with the Board of Industrial Insurance Appeals. On September 1, 1983, this Board issued its order granting the appeal, assigning it Docket No. 65,592, and directing that proceedings be held on the issues raised therein.
2. On June 20, 1979, while in the course of his employment with Gordon H. Dills and Sons, Robert McIlrath sustained an industrial injury to his neck, left shoulder, right hand, right leg, and low back when a guy wire snapped and he was thrown from a falling tower to the ground.
3. At all of the times between June 20, 1979 and May 6, 1982, Betty McIlrath was the lawful spouse of, and was cohabiting with, the injured worker, Robert McIlrath.
4. On and prior to June 20, 1979, Robert McIlrath had a low back condition described as follows: lumbar spinal stenosis (narrowing of the spinal canal); diffuse lumbar arthrosis with osteophytic bridging; narrowing of the intervertebral disc space between the third and fourth lumbar vertebrae; the develop- ment of vacuum signs; degenerative joint disease; a herniated nucleus pulposis with degenerative disc disease at the intervertebral interspace of the fourth and fifth lumbar vertebrae. At all times prior to June 20, 1979, the foregoing conditions were asymptomatic and required no medical treatment. With the exception of the spinal stenosis, the foregoing conditions were lighted up and made active and disabling by Mr. McIlrath's industrial injury of June 20, 1979.
5. On and prior to June 20, 1979, Robert McIlrath had a condition diagnosed as systemic leukemia (or chronic lymphocytic leukemia which was diagnosed, and for which chemotherapy treatment was initiated, in the summer of 1978. This condition began advancing in the summer and fall of 1980, causing Mr. McIlrath eventually to become bedridden in September of 1981. On and prior to May 6, 1982, this condition constituted a highly significant disability. This condition was neither caused nor aggravated by Mr. McIlrath's industrial injury of June 20, 1979.
6. The death of Mr. McIlrath on May 6, 1982 was proximately caused by his systemic leukemia condition. [9] His death was causally unrelated to the industrial injury of June 20, 1979.
7. At the time of his death, Mr. McIlrath was 63 years of age, had received an eleventh grade education, and his history of employment was limited to heavy manual labor as a logger throughout his lifetime.
8. On and shortly prior to May 6, 1982, Mr. McIlrath's condition attributable to his industrial injury of June 20, 1976 was diagnosed as a cervical spine disease with radiculopathy into the right upper extremity and lumbar spinal disease with disc degeneration and nerve root impingement. Medical examination included a finding of marked narrowing at the vertebral interspace between the fourth and fifth vertebrae with nerve root cutoff at the interspace between the fifth lumbar and the first sacral vertebrae, and weakness of the foot muscles indicative of a nerve root lesion at the interspace between the fifth lumbar and the first sacral vertebrae. Low back surgery in the form of a posterior laminectomy had been medically recommended to Mr. McIlrath in December of 1980, the success thereof being slim. Mr. McIlrath initially declined the surgery and thereafter agreed to further consider it. In view of the problematical chances of the surgery's success and Mr. McIlrath's reasonable refusal thereof, as of May 6, 1982, the condition causally related to the industrial injury of June 20, 1979 was fixed and ratable.
9. As of May 6, 1982, as a result of his industrial injury of June 20, 1979, Mr. McIlrath had a permanent impairment in his lumbar spine most commensurate with and analagous to Category 5 of WAC 296-20-280, which under WAC 296-20-680(3) equaled a permanent partial disability of 25% as compared to total bodily impairment.
10. As of May 6, 1982, when Mr. McIlrath's permanent disability causally related to his industrial injury of June 20, 1979 is considered with the factors of his age, education, and lifetime history of employment, Mr. McIlrath was permanently prevented thereby from performing a gainful occupation on a reasonably continuous basis.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, the following conclusions are entered:
- This Board has jurisdiction of the parties and the subject matter of this appeal.
- Within the meaning of RCW 51.32.050(2), the death of Mr. McIlrath on May 6, 1982 was not proximately caused by any condition causally related to his [10] industrial injury of June 20, 1979.
- Within the meaning and contemplation of RCW 51.08.160 and 51.32.050(6), on and immediately prior to May 6, 1982, Mr. McIlrath was a permanently totally disabled worker as a result of his industrial injury of June 20, 1979.
- The order of the Department of Labor and Industries dated July 26, 1983, which corrected and superseded a previous order issued April 4, 1983, and adhered to the provisions of a prior order dated May 26, 1982, which had denied the widow-petitioner's claim for benefits under RCW 51.32.040 and 51.32.050(6) for the reasons that the cause of Mr. McIlrath's death was unrelated to the industrial injury of June 20, 1979, that at the time of his death the condition was not fixed nor ratable, and that he was not permanently totally disabled as a result of the industrial injury of June 20, 1979, is incorrect and should be reversed and the claim remanded to the Department with direction to grant a widow's pension to Betty McIlrath as the surviving spouse of the deceased permanently totally disabled worker, Robert McIlrath.
It is so ORDERED.
Dated this 27th day of September, 1984
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
MICHAEL L. HALL Chairperson
/s/
FRANK E. FENNERTY, JR. Member