| IN RE: JIMMY R. STORER | ) | DOCKET NO. 86 4436 |
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| CLAIM NO. S-258132 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Jimmy R. Storer, by
- James T. Solan, Attorney at Law
- Self-Insured Employer, Wallula Container, by
- Powell & Morris, per
- Larry J. Kuznetz
This is an appeal filed by the claimant, Jimmy R. Storer, on December 8, 1986 from an order of the Department of Labor and Industries dated November 14, 1986. The order adhered to the provisions of an order dated September 26, 1985 (sic - September 30, 1985) denying claimant's application to reopen this claim on the grounds of aggravation of condition and providing that the claim would remain closed pursuant to the provisions of a prior order dated February 19, 1982. 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 self-insured employer to a Proposed Decision and Order issued on May 31, 1988 in which the order of the Department dated November 14, 1986 was reversed and the claim was remanded to the Department to [2] reopen the claim with direction to the self-insured employer to provide treatment and such other and further benefits as indicated, authorized or required by law.
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 evidence presented by the parties is adequately set forth in the Proposed Decision and Order. Based upon the chronological history of this claim, the issue in this appeal is whether or not Mr. Storer's condition, causally related to his April 3, 1978 industrial injury, worsened and became more disabling between July 2, 1981 (not February 19, 1982, as stated in the Proposed Decision and Order) and November 14, 1986, the date on which the Department entered its last order, here on appeal. While we agree with the Industrial Appeals Judge that Mr. Storer established that his disability proximately caused by his industrial injury worsened, we have granted review to clarify the proper aggravation period.
Prior to issuance of the November 14, 1986 order and the order to which it adheres, the Department order last considering the merits of Mr. Storer's claim was issued on July 2, 1981. That order was appealed to this Board, and was reversed by a Board Order on Agreement of Parties dated February 8, 1982, remanding the claim to the Department with direction to require the self-insured employer to pay intermittent time-loss compensation for a period of 42 1/2 days between December 12, 1979 and July 2, 1981 and to thereupon close the claim with permanent partial disability as previously paid. Thereafter, on [3] February 19, 1982, pursuant to the Board's Order on Agreement of Parties, the Department entered an order exclusively ministerial in purpose, fulfilling the directive of the Board's order dated February 8, 1982. The February 19, 1982 Department order did not adjudicate the merits of the claim beyond July 2, 1981. All matters related to the claim were thus conclusively determined up to July 2, 1981 and no further. Thus July 2, 1981 is the first terminal date for the aggravation period at issue in the instant appeal. Karniss v. Department of Labor and Industries, 39 Wn.2d 898 (1952).
Having determined the proper terminal dates, we return to the question of whether Mr. Storer has established, by objective medical findings, that the disability related to his 1978 industrial injury became aggravated between July 2, 1981 and November 14, 1986. The Proposed Decision and Order correctly summarizes and weighs the evidence presented. Based on the reasoning and evidentiary analysis set forth in the Proposed Decision and Order, we find that Mr. Storer has presented sufficient evidence to establish worsening of his condition causally related to his 1978 industrial injury between July 2, 1981 and November 14, 1986. Since the medical evidence establishes that Mr. Storer's condition worsened specifically on or about March 4, 1985, at a time after both July 2, 1981 and February 19, 1982, the substitution of the correct first terminal date does not affect the determination on the ultimate issue in this case. Consequently, the Department order dated November 14, 1986, which affirmed a prior order denying Mr. Storer's application to reopen this claim on the grounds of aggravation, is incorrect and should be reversed. This claim should be [4] remanded to the Department with direction to reopen the claim and direct the self-insurer to provide medical treatment and such other and further benefits as indicated, authorized or required by law.
FINDING OF FACT
1. On April 18, 1978, an accident report was filed with the Department of Labor and Industries alleging that Jimmy R. Storer sustained an industrial injury on April 3, 1978 while in the course of his employment with Wallula Container, a self-insured employer under the Industrial Insurance Act. On October 2, 1978, the Department issued an order allowing the claim. On January 4, 1979, the Department issued an order providing an award for permanent partial disability equal to 10% of the maximum allowed for unspecified disabilities as compared to total bodily impairment, time-loss compensation as paid through August 28, 1978, and closing the claim. On February 1, 1979, the Department received a medical update, which was considered a protest and request for reconsideration. On August 7, 1979, the claimant further protested and requested reconsideration of the Department's January 4, 1979 order. On October 26, 1979, the Department issued an order modifying from final to interlocutory its January 4, 1979 order and providing that the claim remain open for treatment and action as indicated and determining that the award for permanent partial disability be considered an advance on any disability award.
On November 29, 1979, an application to reopen on grounds of aggravation of condition was filed with the Department.
On December 12, 1979, the Department issued an order closing the claim with time-loss compensation as paid and with no additional award for permanent partial disability. On December 17, 1979, the claimant filed a protest and request for reconsideration of the December 12, 1979 order.
On January 29, 1980, the Department issued an order denying the claimant's application to reopen on grounds of aggravation and held that the claim remained closed pursuant to the provisions of its December 12, 1979 order.
On February 7, 1980, the Department issued an order holding its December 12, 1979 and January 29, 1980 orders in abeyance. [5]
On July 2, 1981, the Department issued an order adhering to the order dated December 12, 1979. On August 7, 1981, the claimant filed his notice of appeal with the Board of Industrial Insurance Appeals from the Department's July 2, 1981 order. On August 26, 1981, the Board issued an order granting the appeal. On February 8, 1982, the Board issued an Order on Agreement of Parties reversing the Department's July 2, 1981 order and remanding the claim to the Department with directions to reopen the claim, enter an order requiring the self-insured employer to pay intermittent time-loss compensation for a 42 1/2 day period between December 12, 1979 and July 2, 1981, and, thereupon, to close the claim with the award for permanent partial disability previously granted. On February 19, 1982, the Department issued an order pursuant to the Board order dated February 8, 1982.
On June 21, 1985, claimant filed an application to reopen on grounds of aggravation of condition with the Department. On September 30, 1985, the Department issued an order denying the aggravation application and holding that the claim remained closed pursuant to the provisions of the Department's February 19, 1982 order.
On October 2, 1985, claimant's attorney mailed the Department a letter stating that the claimant's March 1985 injury was an aggravation of the claimant's old injury and that the claim should be reopened. On October 4, 1985, the September 30, 1985 Department order was received at the Department upon return from the U.S. Post Office. On November 27, 1985, the Department remailed its September 30, 1985 to a corrected claimant's address. On December 23, 1985, the Department received a letter from the claimant's attorney requesting that the October 2, 1985 letter be considered a protect and request for reconsideration of the September 30, 1985 order, which was received at the attorney's office on December 5, 1985, and requesting an abeyance order.
On January 17, 1986, the Department issued an order holding its September 30, 1985 order in abeyance.
On January 22, 1986, the Department received an application to reopen on grounds of aggravation of condition. [6]
On November 14, 1986, the Department issued an order adhering to the provisions of its September 26, 1985 (sic--September 30, 1985) order. On December 8, 1986, the claimant filed his notice of appeal with the Board of Industrial Insurance Appeals from the Department's November 14, 1986 order. On December 19, 1986, the Board issued an order granting the appeal, assigning it Docket No. 86 4436, and directing that further proceedings be held in the matter.
2. On April 3, 1978, while in the course of employment with Wallula Container, Jimmy R. Storer sustained an injury to his low back while pulling boards on a dry chain.
3. As a proximate result of the industrial injury occurring on April 3, 1978, claimant required medical treatment to his low back until July 2, 1981, when claimant's dorso-lumbar and lumbosacral condition proximately caused by his industrial injury of April 3, 1978 was fixed and stable and produced a permanent impairment most consistent with the degree of impairment represented by Category 3 of WAC 296-20-280 for dorso-lumbar and lumbosacral impairments. The claimant's condition was evidenced by slight spasm upon full flexion, a slight narrowing of the L5/S1 disc, and limited straight leg raising.
4. Between July 2, 1981 and November 14, 1986 the claimant's disability attributable to his dorso- lumbar and lumbosacral condition objectively worsened with increased objective findings of disability, including protruding or herniated disc at the L5/S1 level, increased spasm, severe restrictions of range of motion and straight leg raising, and increased narrowing of the L5/S1 disc space.
5. Between July 2, 1981 and November 14, 1986 the claimant's back condition proximately caused by his 1978 industrial injury worsened to the extent that it was no longer fixed and stationary, but required curative medical treatment.
6. The worsening of claimant's low back condition occurred when he, while at home, bent from the waist to pick up a shovel on or about March 4, 1985. This activity was within the activities which claimant could be reasonably expected to undertake within the restrictions produced by the 1978 industrial injury. [7]
7. Subsequent to March 4, 1985, an L5/S1 disc herniation developed, which would not have resulted but for claimant's April 3, 1978 industrial injury and its sequelae.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter of this appeal.
- Claimant's condition proximately caused by his industrial injury of April 3, 1978 became aggravated within the meaning of RCW 51.32.160 between July 2, 1981 and November 14, 1986.
- The order of the Department dated November 14, 1986 which adhered to the provisions of an order dated September 26, 1985 (sic--September 30, 1985), denying claimant's application to reopen his claim on the grounds of aggravation of condition and providing that the claim would remain closed pursuant to the provisions of a February 19, 1982 order, is incorrect and should be reversed. This claim is remanded to the Department with direction to reopen the claim and direct the self-insured employer to provide treatment and such other and further benefits as indicated, authorized or required by law.
It is so ORDERED.
Dated this 26th day of October, 1988.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
SARA T. HARMONChairperson
/s/
FRANK E. FENNERTY, JR.Member