|IN RE: MERLE J. FUGATE||)||DOCKET NO. 861526|
|CLAIM NO. S-142440||)||DECISION AND ORDER|
- Claimant, Merle J. Fugate, by
- David L. Harpold
- Self-insured Employer, King County, by
- Perkins Coie, per
- Michael L. Hall
This is an appeal filed by the self-insured employer, King County, on May 7, 1986 from an order of the Department of Labor and Industries dated March 10, 1986 which reaffirmed the Order Granting Request to Readjust Claim entered on July 29, 1985, in which the Director of the Department of Labor and Industries reopened the claim under the discretionary authority vested in him by RCW 51.32.160. Reversed and Remanded.
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 May 14, 1987 in which the order of the Department dated March 10, 1986 was reversed, and the claim remanded to the Department to issue a further order denying Mr. Fugate's application to reopen his claim. 
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 is two-fold: (1) whether the decision of the Director of the Department of Labor and Industries to waive the seven year statute of limitations pursuant to RCW 51.32.160 is appealable; and (2) if it is, whether Mr. Fugate's low back disability caused by his industrial injury of July 19, 1974 worsened and became more disabling between June 28, 1976 and March 10, 1986.
Mr. Fugate asserts that the Director's discretion to reopen an industrial insurance claim on his own motion is absolute and not appealable, and therefore this Board is without jurisdiction to hear this appeal. The provisions of RCW 51.32.160 set forth the circumstances under which an industrial insurance claim can be reopened. In essence, the statute provides that if an aggravation of an industrially related disability takes place, the Director, upon application of the beneficiary made within seven years after the establishment or termination of compensation, or upon his own motion, may reopen the claim and provide further benefits.
In this case, the last order terminating compensation was issued by the Department on June 28, 1976. On November 13, 1984, more than eight years after the effective date of the last determinative order, Mr. Fugate asked the Director of the Department of Labor and Industries to exercise his discretion under RCW 51.32.160 to reopen his claim. By letter dated July 29, 1985, the Director granted the request to reopen Mr. Fugate's claim. This letter was not initially sent to the self-insured employer, which learned of the reopening through  claimant's counsel. Following several protests and requests for reconsideration from the employer, the Department eventually issued an order on March 10, 1986, reaffirming the July 29, 1985 determination, and directing that the claim be reopened pursuant to the discretionary authority of the Director as set forth in RCW 51.32.160. The self- insured employer appealed from this order, contending that Mr. Fugate's "condition resulting from the accepted industrial injury did not become aggravated and that the Department acted improperly in reopening the claim."
In support of his position that the Board has no jurisdiction to hear this appeal, Mr. Fugate cites Smith v. Department of Labor and Industries, 8 Wn. 2d 587, 113 P. 2d 57 (1941). The issue in Smith was whether the Director had the authority, upon his own motion, to reopen a claim for aggravation after the statutory period for a claimant's application for such reopening had run. The court held that under the statute the Department had the discretion to reopen a claim for aggravation upon the motion of the Director, without limitation as to time. Smith did not hold, nor does it stand for the proposition, that the Director's discretionary action is not reviewable or that the requirements of showing aggravation can be ignored by the Department.
The plain wording of RCW 51.32.160 dictates that whether the reopening occurs based on an application made by the beneficiary or by the Director's own motion, it must first and foremost be based on a determination that aggravation has occurred. If the Director waives the seven-year time limitation of the statute, the requirement of establishing aggravation of disability still applies. It would indeed be anomalous to hold a claimant who sought reopening after the  statutory seven-year period had elapsed to a lower standard of proof than a claimant who filed an application to reopen within the seven year period. Thus the Director cannot reopen without evidence of aggravation due to the industrial injury. The decision to waive the seven-year statute of limitations is discretionary, the determination that there is a factual basis for reopening is not.
We find support for this interpretation in Perry v. Department of Labor and Industries, 48 Wn. 2d 205, 292 P. 2d 366 (1956). In Perry, the Department sought, on its own motion, to reopen a claim more than sixty days after an order was issued closing the claim and from which no appeal was taken. The Department reopened to pay additional permanent partial disability and again closed the claim. The court held "the Department had no right, on its own motion, to reopen the claim in the absence of a showing of aggravation, diminution, or termination within the purview of RCW 51.32.160." Perry at 209-210. See also, Smith v. Department of Labor and Industries, 8 Wn. 2d 587, 589, 113 P. 2d 57 (1941).
In addition, this Board has previously held that a claimant is entitled to appeal any decision of the Department subsequent to the date of the Director's order using his discretionary authority under RCW 51.32.160 to reopen a claim. In re Bernard James, BIIA Dec., 4394 (1955). In James we discussed the fact that the Director was not required to reopen the claim but, once he had done so on his own motion, the Department was bound to award the claimant whatever compensation the facts and the law showed he was entitled to, and the claimant had the right to appeal any such decision on the merits. 
Furthermore, RCW 51.52.050 specifically provides that any action taken or decision made by the Department relating to any phase of the administration of the Industrial Insurance Act is appealable to the Board by either the worker, beneficiary, employer, or other person aggrieved thereby. To interpret RCW 51.32.160 to give absolute discretion to the Director to reopen claims after the seven year statutory period has run without appellate review of the question of whether aggravation has actually occurred would contravene the provisions of RCW 51.52.050. We therefore conclude that we have jurisdiction to resolve the issue raised by this appeal, i.e., whether Mr. Fugate's condition, due to his industrial injury of June 19, 1974, worsened and became more disabling between June 28, 1976 and March 10, 1986.
Mr. Fugate sustained his industrial injury on June 19, 1974, when he was struck in the back by a road grader. He then rolled about on the ground, trying to avoid being run over. He was initially treated by Dr. Kenneth Kay for a spraining injury to his back. Mr. Fugate continued to see Dr. Kay up until his claim was closed in 1977. He later returned to see Dr. Kay in 1984, complaining of back difficulties which Dr. Kay characterized as being related to spinal stenosis.
In the opinion of Dr. Kay, an orthopedic surgeon, the physical traumas that Mr. Fugate had experienced throughout his life caused a thickening of the tissues surrounding the spinal cord, thereby affecting the function of the nerves. Dr. Kay testified that the spinal stenosis was aggravated by the industrial injury in the past, and that Mr. Fugate's current aggravation was "at least somehow in part" related to his industrial accident. However, Dr. Kay also stated  that Mr. Fugate's condition would have been about the same in 1984, even if he had not had the industrial injury in 1974. Dr. Kay's testimony does not support a conclusion that Mr. Fugate's spinal stenosis was, more probably than not, the result of his industrial injury, as opposed to a natural progression of the preexisting condition.
In addition to the question of causal relationship between the alleged worsening of Mr. Fugate's spinal stenosis and his 1974 industrial injury, Mr. Fugate's case fails in another important regard. There is no objective evidence of a worsening of Mr. Fugate's low back disability. Whether an aggravation or worsening of an industrial injury has occurred, and the extent thereof, must be established by comparative testimony. Phillips v. Department of Labor and Industries, 49 Wn. 2d 195, 298 P. 2d, 1117 (1956). Whether there is aggravation or whether the aggravation is due to the industrial injury must be established by medical testimony. Nagel v. Department of Labor and Industries, 189 Wn. 631, 66 P. 2d 318 (1937). Dr. Kay makes no comparison of actual objective findings which reveal any change in Mr. Fugate's low back condition in the period between 1976 and 1986. Both Dr. John Aberle and Dr. Kenneth Sawyer concluded that Mr. Fugate had no organic change or worsening in his low back resulting from his industrial injury during this period of time, based on their examinations and review of medical records. Although special consideration must be given to the opinion of the treating physician, Groff v. Department of Labor and Industries, 65 Wn.2d 35, 395 P.2d (1964), the testimony of Dr. Kay is insufficient to establish either a causal relationship between Mr. Fugate's spinal stenosis and his  industrial injury or a worsening of his industrially related condition.
After consideration of the entire record, it is our conclusion that Mr. Fugate's low back condition of spinal stenosis is not causally related to his industrial injury in 1974, and his low back condition which was causally related to his injury in 1974 did not worsen and become more disabling during the aggravation period. Accordingly, the Department order of March 10, 1986, reopening Mr. Fugate's claim for further authorized treatment and action as indicated, is hereby reversed and this claim remanded to the Department of Labor and Industries to deny reopening of his claim.
FINDINGS OF FACT
1. On July 17, 1974 claimant, Merle J. Fugate, filed a report of accident with the Department of Labor and Industries, alleging the occurrence of an industrial injury on June 19, 1974 while in the course of his employment with King County. On June 28, 1976, the Department issued an order closing the claim with a permanent disability of 10% of the maximum allowed for unspecified disability as compared to total bodily impairment. On August 3, 1976, the claimant filed a notice of appeal with the Board of Industrial Insurance Appeals. On July 1, 1977, the Board issued an order on agreement of parties reversing the Department order of June 28, 1976 and remanding it to the self-insured employer, King County, with direction to pay the claimant an additional permanent disability award of 5% of the maximum allowable for unspecified disabilities as compared to total bodily impairment and thereupon to close the claim. On July 21, 1977, pursuant to the order of the Board of Industrial Insurance Appeals, the Department issued an order modifying its former order from a final to an interlocutory order and closed the claim with a permanent disability award of 15% of the maximum allowable for the unspecified disabilities, as compared to total bodily impairment. 
On November 13, 1984, the Department received a petition from the claimant for the Director to exercise his discretion pursuant to RCW 51.32.160 to reopen the claim for aggravation more than seven years after the date of closure. On July 29, 1985, the Director of the Department of Labor and Industries reopened the claim under the authority of RCW 51.32.160 but issued the order in the form of a letter, without notifying the employer. On October 25, 1985 the employer filed a protest and request for reconsideration. On November 4, 1985, the Department issued a formal order reopening the claim effective September 14, 1984 for authorized treatment and action as authorized by law. On December 26, 1985 the employer filed a protest and request for reconsideration. On March 10, 1986 the Department issued an order reaffirming the July 29, 1985 determination. On May 7, 1986, the self- insured employer filed a notice of appeal with the Board of Industrial Insurance Appeals. On June 18, 1986, the Board issued an order granting the employer's appeal, assigning it Docket No. 86 1526, and ordering that hearings be held on the issues raised.
2. On June 19, 1974, while in the course of employment with King County, Mr. Fugate was struck in the back by a road grader. As a result, he suffered a spraining injury to his back.
3. Prior to his industrial injury, Mr. Fugate suffered from a congenital condition of spinal stenosis, a narrowing of the neural canal of the spine. In 1984, Mr. Fugate began to have increased symptomatology from his spinal stenosis, but there were no additional objective findings. The increase in symptoms was not the result of the 1974 industrial injury. Any change in Mr. Fugate's spinal stenosis resulted from the natural progression of this preexisting condition and was unaffected by the industrial injury of June 19, 1974.
4. Between June 28, 1976 and March 10, 1986 Mr. Fugate had no objective evidence of a worsening of his low back sprain condition, causally related to his industrial injury of June 19, 1974.
CONSLUSIONS OF LAW
- This Board has jurisdiction over the parties and subject matter of this appeal. 
- For the Director of the Department of Labor and Industries to reopen a claim on his own motion following expiration of the seven year period set forth in RCW 51.32.160, there must be a showing that the disability due to the industrial injury for which the claim is reopened has become aggravated between the time compensation was last established or terminated and the time of the Director's order reopening the claim.
- Mr. Fugate's disability, causally related to his industrial injury of June 19, 1974, did not become aggravated within the meaning of RCW 51.32.160 between June 28, 1976 and March 10, 1986.
- The Department order of March 10, 1986 which reaffirmed the Order Granting Request to Readjust Claim entered on July 29, 1985, in which the Director of the Department of Labor and Industries reopened the claim under the discretionary authority vested in him by RCW 51.32.160 is incorrect and is reversed and the claim is remanded to the Department to issue an order denying claimant's request to reopen for the reason that there is no objective evidence of any worsening of disability due to the industrial injury of June 19, 1974.
It is so ORDERED.
Dated this 17th day of December, 1987.
BOARD OF INDUSTRIAL INSURANCE APPEALS
SARA T. HARMONChairperson
PHILLIP T. BORKMember
I disagree with the Board majority decision. The statute, RCW 51.32.160, permits the Director of the Department of Labor and Industries to reopen a claim, upon his own motion, beyond the seven year period in which a beneficiary may make application. This is a  discretionary function vested with the Director and as such it is not reviewable by this Board nor is it appealable by the employer.
Even accepting the decision of the majority that the Director's discretion applies only to the waiver of the time limit and not to the requirement of establishing aggravation, I believe the claimant has established a worsening of his industrially related condition. Dr. Kay, Mr. Fugate's attending physician, is of the opinion that the current aggravation of Mr. Fugate's spinal stenosis is related, at least in part, to the industrial injury. Dr. John Aberle, who examined Mr. Fugate in 1977 and again in 1986, testified that Mr. Fugate's low back condition was generally worse in 1984 than it was when he saw him in 1977.
Generally, the testimony of the treating physician is to be given special consideration because of the number of times a physician has seen the patient, the long period of time over which the patient has been seen, and the physician's intent to treat the patient rather than merely to examine him. Groff v. Department of Labor and Industries, 65 Wn. 2d 35, 45, 395 P. 2d 33 (1964); Spalding v. Department of Labor and Industries, 29 Wn. 2d 115, 128-129, 186 P. 2d 76 (1947). I find the testimony of Dr. Kay, an orthopedic surgeon certified in his field, to be persuasive and sufficient to establish Mr. Fugate's right to further benefits.
The guiding principle in construing provisions of the Industrial Insurance Act is that the Act is remedial in nature and is to be liberally construed to achieve its purpose of providing compensation to all covered employees injured in their employment, with doubts resolved in favor of the worker. RCW 51.12.010; Sacred Heart Medical Center v.  Carrado, 92 Wn.2d 631, 635, 600 P.2d 1015 (1979). The evidence presented establishes Mr. Fugate's industrial injury aggravated his preexisting spinal stenosis. In the period from 1976 to 1986 Mr. Fugate's spinal stenosis was aggravated, resulting in greater disability requiring further medical care. I would therefore reverse the Proposed Decision and Order and affirm the Department order of March 10, 1986, which reopened Mr. Fugate's claim, effective September 14, 1984 for authorized treatment and other actions as authorized by law.
Dated this 17th day of December, 1987.
FRANK E. FENNERTY, JR.Member