| IN RE: ROY T. SULGROVE | ) | DOCKET NO. 88 0869 |
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| CLAIM NO. J-719185 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Roy T. Sulgrove, by
- Crumb & Casey, P.S., per
- C. Mark Casey
- Employer, Various, by
- None
- Department of Labor and Industries, by
- The Attorney General, per
- Dennis J. Beemer, Assistant
This is an appeal filed by the claimant, Roy T. Sulgrove, on March 4, 1988 from an order of the Department of Labor and Industries dated January 4, 1988. The order recited that the claimant was classified as permanently and totally disabled and placed on the pension rolls of the Department by order dated September 4, 1987 under Claim No. H-731884; recited further that the claimant is no longer entitled to awards for temporary partial, temporary total or permanent partial disability under Claim No. J-719185 as a result of having been placed on the pension rolls; and adhered to the provisions of the Department order dated November 2, 1987, which closed this claim with allowance for medical treatment only. The Department order is reversed and remanded. [2]
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 September 15, 1988, in which the order of the Department dated January 4, 1988 was affirmed.
The issue in this appeal cannot be accurately understood without a brief recitation of the facts as stipulated by the parties. On July 18, 1980 Mr. Sulgrove sustained an industrial injury. He filed a claim which was assigned Claim No. H-731884 and allowed. On September 4, 1987, the Department issued an order placing Mr. Sulgrove on the pension rolls in Claim No. H-731884 as a result of that industrial injury.
Seventeen months earlier, on March 31, 1986, Mr. Sulgrove had submitted an application for benefits based on an asbestos-related occupational disease. This claim was assigned Claim No. J-719185. It was not until September 15, 1987, eleven days after Mr. Sulgrove had been placed on a pension in Claim No. H-731884, and more than 17 months after he had filed his claim in Claim No. J-719185, that the Department issued its first order in this latter claim. Within six days of receiving the September 15, 1987 order allowing the claim for asbestosis, Mr. Sulgrove's attorney requested closure of this claim with a permanent partial disability award. However, on November 2, 1987, the Department issued an order closing the claim with allowance for medical treatment only.
Following a timely protest from claimant's counsel of the November 2, 1987 order, the Department issued the order which is the subject of [3] this appeal, again closing the claim with medical treatment only. It is the Department's position that, because Mr. Sulgrove was placed on a pension in Claim No. H-731884 on September 4, 1987, he cannot legally receive any award for "temporary partial, temporary total or permanent partial disability under Claim No. J-719185."
The parties have explicitly limited the issue on appeal to the legal determination of whether Mr. Sulgrove may receive a permanent partial disability award under Claim No. J-719185 in addition to his pension under Claim No. H-731884. If we conclude that he is not legally precluded from receiving both, then the parties have agreed that the claim should be remanded to the Department to consider and determine whether Mr. Sulgrove in fact sustained a permanent partial disability as a result of his asbestosis.
The Proposed Decision and Order relies on Sorenson v. Department of Labor and Industries, 19 Wn. 2d 571 (1943) and Harrington v. Department of Labor and Industries, 9 Wn. 2d 1 (1941) to affirm the Department order. The Proposed Decision and Order accurately describes those decisions, but incorrectly states that "[t]he situation presented here is no different. . . ."
Both Harrington and Sorenson involved workers who were placed on the pension rolls and thereafter returned to gainful employment. Both sustained further industrial injuries subsequent to being declared permanently and totally disabled. Both sought additional time-loss compensation or pension payments as a result of the subsequent injuries.
As noted in the Proposed Decision and Order, the Supreme Court concluded that neither Mr. Sorenson nor Mr. Harrington could receive [4] further compensation in the form of time-loss compensation or pension payments as a result of the subsequent industrial injuries which they sustained after they were classified as permanently totally disabled. The Supreme Court reached this result to avoid "an overlapping of classifications" and "the allowance of double payment." Harrington, at 8. Neither Harrington nor Sorenson involved a request for a permanent partial disability award for the subsequent injury. However, contrary to the assertions of claimant's counsel, that distinction standing alone would not be dispositive. Sorenson, at 578.
Mr. Sulgrove became permanently totally disabled as a result of the industrial injury of July 18, 1980 covered by Claim No. H-731884, as of September 4, 1987. Obviously, from and after that date he cannot receive temporary or permanent total disability compensation under Claim No. J-719185. Furthermore, if his asbestosis condition under Claim No. J-719185 was not fixed and stable and productive of a permanent partial disability until after September 4, 1987, then, under the reasoning of Harrington and Sorenson, he would also be precluded from receiving a permanent partial disability award. If, on the other hand, his condition under Claim No. J-719185 was fixed and stable and productive of a permanent partial disability prior to September 4, 1987, there appears to be no reason in the law why he should not be entitled to a permanent partial disability award therefor. Harrington and Sorenson do not dictate otherwise. There would be no "double payment" or "overlapping of classifications" if Mr. Sulgrove in fact had sustained a permanent partial disability as a result of his asbestos-related condition prior to September 4, 1987. The fact that he might not be [5] actually paid for that pre-existing permanent partial disability until after he was placed on a pension in a different claim seems to us to be irrelevant.
Furthermore, RCW 51.32.210 requires the Department to act "promptly" on claims. From the record before us, it does not appear that the Department took any action on this claim until more than 17 months after it was filed. The mere passage of time and administrative delay should not operate to deprive Mr. Sulgrove of his potential entitlement to a permanent partial disability award for his asbestosis, if he was in fact permanently partially disabled prior to September 4, 1987. That is, if Mr. Sulgrove was entitled to a permanent partial disability under Claim No. J-719185 prior to September 4, 1987, which the Department failed to promptly pay, the Department cannot be relieved of that obligation solely because Mr. Sulgrove is now on the pension rolls under Claim No. H-731884.
Furthermore, since the Department closed the J claim on November 2, 1987, it obviously concluded that Mr. Sulgrove's asbestosis condition was fixed as of that date. Otherwise, under Harrington, the claim would have been kept open for the provision of further appropriate medical treatment. It would seem likely that Mr. Sulgrove's asbestosis condition was also fixed two months earlier, before he was placed on a pension in Claim No. H-731884. At any rate, the Department will have to resolve that question on remand.
The Department order on appeal is incorrect insofar as it determines as a matter of law that Mr. Sulgrove is not entitled to a permanent partial disability award in Claim No. J-719185 regardless of when his condition under this claim became fixed. The claim is [6] remanded to the Department with direction to determine when Mr. Sulgrove's occupational disease condition became fixed and stable. If such condition was in fact fixed prior to September 4, 1987, the Department is to determine the extent of permanent partial disability attributable to that condition, if any, and pay claimant that award.
FINDINGS OF FACT
1. On March 31, 1986, the Department of Labor and Industries received an accident report from the claimant, Roy T. Sulgrove, alleging the contraction of an occupational disease during the course of his employment with various employers subject to the Industrial Insurance Act. On September 15, 1987, the Department issued an order allowing the claim for asbestosis, and denying responsibility for conditions described as emphysema and obstructive lung disease.
On November 2, 1987 the Department issued an order closing the claim with allowance for medical treatment only. On December 21, 1987, the Department received a protest and request for reconsideration from the claimant of its order of November 2, 1987, specifically requesting consideration of a permanent partial disability award. On January 4, 1988, the Department issued an order adhering to the provisions of its order dated November 2, 1987, and ordering that the claimant is no longer entitled to award for temporary partial, temporary total or permanent partial disability under this claim as a result of having been placed on the pension rolls on September 4, 1987 under Claim No. H-731884.
On March 4, 1988 the Board of Industrial Insurance Appeals received a notice of appeal from the claimant of the Department order of January 4, 1988; Docket No. 88 0869 was assigned. On April 1, 1988 the Board issued an order granting the appeal and directing that proceedings be held on the issues raised in the notice of appeal.
2. On July 18, 1980, Roy T. Sulgrove sustained an industrial injury, which was allowed by the Department of Labor and Industries and assigned Claim No. H-731884. On September 4, 1987, the Department issued an order classifying Mr. Sulgrove as totally and permanently disabled within the meaning of the Industrial Insurance Act under Claim [7] No. H-731884, due to the conditions proximately caused by his industrial injury of July 18, 1980.
3. Mr. Sulgrove filed the claim for benefits in Claim No. J-719185 on March 31, 1986, approximately 17 months before the Department classified him as totally and permanently disabled under Claim No. H- 731884. The Department determined that his asbestosis condition under Claim No. J-719185 was fixed and stable at least as of November 2, 1987 when the claim was first closed with allowance for medical treatment only. The Department has not yet determined whether Mr. Sulgrove's asbestosis condition was fixed prior to September 4, 1987 or whether it was then productive of any permanent partial disability.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter to this appeal.
- The claimant is entitled to an award for permanent partial disability under Claim No. J-719185 if his asbestosis condition was fixed and stable before September 4, 1987 and if that condition was productive of a permanent partial disability prior to September 4, 1987.
- The order of the Department of Labor and Industries dated January 4, 1988 that adhered to the provisions of an order dated November 2, 1987, which closed this claim with allowance for medical treatment only, and determined that the claimant is no longer entitled to awards for temporary partial, temporary total or permanent partial disability under this claim as a result of having been placed on the pension rolls under Claim No. H-731884, is incorrect and is reversed and this matter is remanded to the Department with direction to determine when claimant's asbestosis condition became fixed and whether any permanent partial disability resulted therefrom prior to September 4, 1987, and if so, to pay the claimant the appropriate award for permanent partial disability and to thereupon close the claim. [8]
It is so ORDERED.
Dated this 1st day of May, 1989.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
THOMAS E. EGAN Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
PHILLIP T. BORK Member