See SANCTIONS Civil Rule 11
DONALD ANDERSON ) DOCKET NO. 87 3724
CLAIM NO. S-318263 ) DECISION AND ORDER
APPEARANCES:
This is an appeal filed by the claimant, Donald Anderson, on November 12, 1987 from an order of the Department of Labor and Industries dated October 2, 1987 which adhered to the provisions of a July 24, 1987 order which closed the claim with time loss compensation as paid through June 6, 1986, and without an additional award for permanent partial disability, and assessed a time loss compensation overpayment for the period September 19, 1986 through October 16, 1986, in the amount of $1,090.60 which was to be considered as an advance on any future benefits. 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 timely Petitions for Review filed by the claimant and the self-insured employer to a Proposed Decision [2] and Order issued on October 17, 1988 in which the order of the Department dated October 2, 1987 was affirmed.
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 and evidence presented by the parties are very adequately set forth in the Proposed Decision and Order and will not be reiterated at length here.
Donald Anderson, the claimant, asserts that he is entitled to a pension based on the combined effects of the July 20, 1979 industrial injury, a subsequent industrial injury to his right hand on December 7, 1982, and hearing loss. He must first prove that his condition, causally related to the July 20, 1979 injury, objectively worsened on a permanent basis between February 17, 1984 and October 2, 1987. Dinnis v. Department of Labor and Industries, 67 Wn.2d 654, 409 P.2d 477 (1965).
The claim was initially closed on February 17, 1984 with a permanent partial disability award equal to 35% of the amputation value of the left arm at or above the deltoid insertion or by disarticulation at the shoulder, taking into consideration the pre-existing amputation of the left thumb, less prior awards. On July 6, 1984 the Department reopened the claim effective June 7, 1984 and on October 2, 1987 the Department reclosed the claim with no additional permanent partial disability award. The latter order is the subject of this appeal.
Mr. Anderson is a 59 year old man with a high school education. He worked in the woods for 37 years as a faller, bucker, choker-setter and marker. For almost 25 of those years he worked for Weyerhaeuser. [3] During his time in the woods Mr. Anderson sustained a variety of injuries to his left hand. He cut his left index finger in 1954, he chopped off his left thumb at home in 1954 and he injured his left middle and ring fingers in 1958. The on-the-job injuries to his left index, middle and ring fingers resulted in permanent disability awards.
The injury which is the subject matter of this claim occurred on July 20, 1979, while Mr. Anderson was employed by Weyerhaeuser. He was using a chainsaw when it struck a stump, Kicked back and cut his left arm and leg. His leg healed but the arm continued to cause him problems resulting in, approximately, one dozen surgeries to his left forearm between October, 1979 and December, 1984. The majority of these surgeries were bone grafts performed by Dr. James P. Mowry, an orthopedic surgeon who first saw Mr. Anderson in September, 1979. Mr. Anderson continued to work for Weyerhaeuser between surgeries. He testified that, since the last surgery, in 1984, he has been unable to use his left arm.
Mr. Anderson also sustained an industrial injury on December 7, 1982, while employed by Weyerhaeuser, which resulted in the loss of use of his right thumb. Surgery was performed on the right thumb in January, 1983 and it appears that that claim was closed shortly thereafter with a 50% permanent partial disability award, although the record is not entirely clear. Claimant continued to work after the 1982 injury and finally took a disability retirement from Weyerhaeuser in the summer of 1984.
Dr. Mowry, the claimant's treating physician, testified that he treated Mr. Anderson from September, 1979 until June, 1986. He [4] believed Mr. Anderson's left arm condition, causally related to the July 20, 1979 industrial injury, worsened between February 17, 1984 and October 2, 1987. Dr. Mowry found a greater amount of scar tissue formation as a result of multiple additional surgeries. He testified that the scarring of the forearm led, in itself, to decreased strength of the musculature of the forearm and increased sensitivity of the entire ulnar border of the forearm. He also testified to a shortening of the ulna due to the surgeries, which resulted in increased pain. Dr. Mowry was of the opinion that Mr. Anderson's disability increased 5% during this period of time.
Because he is the treating physician, Dr. Mowry's opinions must be given special consideration, particularly in comparison with the testimony of doctors who saw Mr. Anderson on only one occasion. Hamilton v. Department of Labor and Industries, 111 Wn.2d 569, 761 P.2d 618 (1988). Dr. Mowry treated Mr. Anderson over a long period of time and performed numerous operations on his left arm. The doctors presented by the self-insured employer only saw Mr. Anderson on one occasion. Furthermore, Dr. Stephen Fuhs refused to testify as to the question of aggravation. Drs. Richard M. Ulery and Robert M. Chambers believed Mr. Anderson's condition was better on the date of their examination, February 18, 1986, than at any time previously after the onset of osteomyelitis. Dr. Mowry agreed that the left arm was more stable in the area of the previous fracture nonunion, but he believed the function of the arm was somewhat worse. Because of Dr. Mowry's long history with the patient, wa find his opinions more persuasive and conclude that Mr. Anderson's left arm condition, [5] causally related to the industrial injury, did objectively worsen on a permanent basis between the terminal dates.
Under Allen v. Department of Labor and Industries, 30 Wn. App. 693, 701, 638 P.2d 104 (1981), a worker can establish permanent total disability by showing "that such disability resulted from an aggravation of his initial injury superimposed upon the second injury." Mr. Anderson has proved just that.
Mr. Anderson injured his right hand in 1982 during the course of his employment with Weyerhaeuser. Dr. Mowry testified that he saw Mr. Anderson for that injury and Mr. Anderson was unable to move his thumb. Surgery was performed and Dr. Mowry referred Mr. Anderson to a specialist for a second opinion. Mr. Anderson testified that the claim for that 1982 industrial injury was closed with a permanent partial disability award equal to 50% of the loss of function in his right thumb. Mr. Anderson underwent numerous surgeries on his left arm after the 1982 industrial injury occurred and after the right thumb condition resulting from the 1982 injury reached stability. As a result of those subsequent surgeries, Mr. Anderson's left arm condition causally related to the industrial injury of 1979 worsened. That permanent worsening of the 1979 industrial injury, superimposed upon the impairment from the 1982 right hand industrial injury, (as well as on the substantial left hand disabilities pre-existing the 1979 injury) rendered Mr. Anderson permanently totally disabled as of October 2, 1987.
Dr. Mowry testified that because Mr. Anderson was left-hand dominant, the combination of injuries to both upper extremities would make it difficult for him to compete in the workforce. He testified [6] that Mr. Anderson was not capable of returning to any of his old jobs, but could do sedentary work, as long as he only used his left arm to assist his right. Dr. Mowry stated that Mr. Anderson would have been unable to compete with a normal person, and that he had to have a job under very specific circumstances, with the employer required to make concessions.
Susan Bertino, a vocational counselor, saw Mr. Anderson on at least five occasions -- September 3, 1981, September 17, 1981, October 7, 1982, November 8, 1982 and June 18, 1986. Based on testing performed by Employment Security in 1981 at her request, Ms. Bertino concluded that Mr. Anderson's manual dexterity was very poor. She determined that Mr. Anderson was incapable of gainful employment on a reasonably continuous basis, taking into account both the left and right upper extremity disabilities, as well as the hearing loss which Mr. Anderson testified to without objection, but which was not supported by medical testimony in the record.
The experts called by the self-insured employer all testified that their belief that Mr. Anderson could work was based on the proposition that there was no disability in his right hand. However, when Mr. Anderson's right hand disability is taken into account, those jobs suggested by the self-insured employer's vocational experts are no longer feasible as alternative employment for Mr. Anderson. When Mr. Anderson's age, education, work experience, training, and physical limitations related to both the 1979 and 1982 industrial injuries are taken into consideration, the conclusion is inescapable; this man who has worked in the woods for 37 years is not capable of gainful employment on a reasonably continuous basis. [7]
One other issue arose during the course of these proceedings which must be addressed here. The Industrial Appeals Judge entered an interlocutory order awarding attorney's fees and costs to witness Susan Bertino to be paid by the self-insured employer. This order was incorporated into the Proposed Decision and Order and attached thereto as an appendix. The order was entered pursuant to CR 11 which allows the imposition of sanctions if a party or an attorney signs a pleading, a motion or a memorandum which is not "well grounded in fact", or "warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law," or which is "interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation."
WAC 263-12-125 and RCW 51.52.140 provide that the practice in civil cases shall apply to appeals before this Board. The Board is, therefore, empowered to impose terms under CR 11, if the facts warrant such a sanction.
In this case, the employee's attorney filed a motion requesting leave to recall Susan Bertino, the claimant's vocational expert witness, to impeach some of her prior testimony. Weyerhaeuser wanted to use a Department order of June 15, 1984, which purported to deregister Ms. Bertino. This order was stamped "VOID" in large red letters on its face. The Department file contained another order, dated January 29, 1987, stating that this "VOID" order was not to be used to impeach Ms. Bertino's credibility or professional qualifications. The order also purported to permit Ms. Bertino to testify under oath that no deregistration had occurred. [8]
Under Miller v. Badgley, 51 Wn. App. 285, 753 P.2d 530 (1988) there is no longer a good faith defense under CR 11. The standard to be used is one of a reasonable inquiry. A reasonable inquiry would have placed Weyerhaeuser's attorney on notice that the "VOID" documents were inadmissible in any proceeding and that the January 29, 1987 Department order prevented their use by any party by making all documents void from inception, thus rendering Ms. Bertino's answers to questions posed to her under cross examination correct and not subject to attack for credibility. Weyerhaeuser must therefore pay Ms. Bertino's attorney's fees and costs in the amount of $1,242.05.
After a review of the entire record, we conclude that the Department order of October 2, 1987 adhering to the provisions of the Department order dated July 24, 1987, closing the claim with time loss compensation as paid through June 6, 1986 and without additional permanent partial disability award is incorrect and reversed and the claim is remanded to the Department of Labor and Industries with direction to place the claimant on the pension rolls and find a time loss compensation overpayment for the period of September 19, 1986 through October 16, 1986 in the amount of $ 1,090.60 which will be considered an advance on future benefits.
FINDINGS OF FACT
1. On August 2, 1979, the claimant, Donald Anderson, filed an accident report with the Department of Labor and Industries alleging the occurrence of an industrial injury on July 20, 1979 while in the course of his employment with the Weyerhaeuser Company. On March 24, 1980, the Department issued an order allowing the claim.
On February 17, 1984, the Department issued an order closing the claim with a permanent partial disability award equal to 35% of the amputation value of the left arm at or above the deltoid [9] insertion or by disarticulation at the shoulder, taking into consideration the preexisting amputation of the left thumb, less prior awards.
On June 29, 1984, the claimant filed an application to reopen his claim. On July 6, 1984, the Department issued an order reopening the claim effective June 7, 1984. On July 24, 1987, the Department issued an order closing the claim with time loss compensation as paid through June 6, 1986 with a time loss compensation overpayment for the period of September 19, 1986 through October 16, 1986, in the amount of $ 1,090.60 which will be considered an advance on future benefits and without an additional partial disability award.
On September 18, 1987, the claimant filed a protect and request for reconsideration with the Department. On October 2, 1987, the Department issued an order adhering to the provisions of the July 24, 1987 Department order. On November 12, 1987, the claimant filed a notice of appeal to the Board of Industrial Insurance Appeals. On November 24, 1987, this Board issued an order granting the claimant's appeal, assigning it Docket No. 87 3724 and directing that further proceedings be held.
2. Prior to July 20, 1979, the claimant had sustained injuries to his left hand which resulted in some permanent disability to his left index, middle and ring fingers as well as in the complete amputation of his left thumb and associated permanent partial disability equal to 100% of the amputation value of the left thumb at the metacarpophalangeal joint.
3. On July 20, 1979, while in the course of his employment as a bucker and faller with the Weyerhaeuser Company, the claimant cut his left forearm and left leg with a chainsaw, sustaining a left forearm laceration, osteomyelitis, fracture and non-union of the ulna. As a result of this industrial injury, Mr. Anderson underwent numerous surgeries from October, 1979 through December, 1984.
4. On December 7, 1982, claimant was in the course of his employment with Weyerhaeuser Company when the starter on a chainsaw he was using kicked backwards causing a right thumb injury which required surgical treatment in January, 1983 and resulted in a 50% permanent disability. [10]
5. As of February 17, 1984, claimant's permanent partial disability causally related to the July 20, 1979 industrial injury was equal to 35% of the amputation value of the left arm at or above the deltoid insertion or by disarticulation at the shoulder. This award was over and above all preexisting permanent partial disability related to the amputation value of his left thumb.
6. Between February 17, 1984 and October 2, 1987, the claimant's left arm condition, causally related to the July 20, 1979 industrial injury, became unstable and required further surgical treatment.
7. As of October 2, 1987, the claimant's left arm condition, causally related to the July 20, 1979 industrial injury was fixed and stable with no further medical treatment indicated.
8. Between February 17, 1984 and October 2, 1987, the claimant's left arm condition, causally related to the July 20, 1979 industrial injury, permanently worsened in that the claimant had reduced function of the left arm due to increased scar tissue and increased shortening of the ulna as a result of numerous surgeries necessitated by the industrial injury.
9. The claimant is a fifty-nine year old man with a high school education who worked in the woods for approximately thirty-seven years as a logger, faller, bucker, choker-setter and marker.
10. The worsening of claimant's left arm condition causally related to the industrial injury of July 20, 1979, superimposed upon the disability caused by the Department 7, 1982 industrial injury and claimant's other pre-existing disabilities, rendered Mr. Anderson unable to perform any form of gainful employment on a reasonably continuous basis in light of his age, education, work experience and training as of October 2, 1987.
CONCLUSIONS OF LAW
It is so ORDERED.
Dated this 18th day of May, 1989.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/_____________________________________
SARA T. HARMON Chairperson
/s/_____________________________________
FRANK E. FENNERTY, JR. Member [12]
DISSENT
I disagree with the majority's determination that Mr. Anderson became permanently totally disabled as a proximate result of an increase in left arm disability during the 1984-1987 aggravation period due to the 1979 injury. Crucial to the majority's decision, even under the rationale of Allen, is the finding that there was in fact a permanent worsening of his left arm functional impairment during the aggravation period. The majority relies solely upon its interpretations of Dr. Mowry's opinions, in making this determination.
I am not nearly as persuaded by Dr. Mowry's testimony, which is vacillating and even self-contradictory on this critical issue of additional permanent left arm disability. Viewing all the medical evidence herein, I believe the great preponderance thereof is that claimant's left arm disability was no greater in October, 1987 than it had been in February, 1984. Indeed, if there was any change over that period of time, it was one of some permanent improvement rather than worsening. Our Industrial Appeals Judge analyzed this aggravation issue accurately and thoroughly from page 10 through page 15 of his Proposed Decision and Order and I incorporate that discussion here.
Based on the foregoing comments, I would affirm the Department's closing order of July 24, 1987, as adhered to on reconsideration on October 2, 1987, in its entirety.
As to the unfortunate circumstance of witness Susan Bertino finding it necessary to incur attorney's fees and costs to defend against employer's counsel's motion and related actions attempting to [13] impeach the credibility of Ms. Bertino as an expert witness, I can find no persuasive reason to disagree with the majority's assessment of those costs and fees against the employer pursuant to CR 11.
Dated this 18th day of May, 1989.
/s/_____________________________________
PHILLIP T. BORK Member