| IN RE: BETTE PIKE | ) | DOCKET NO. 88 3366 |
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| CLAIM NO. S-400033 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Bette Pike, by
- William C. Decker (Withdrawn);
- Cohen & Keith-Miller, per
- Verlaine Keith-Miller (Withdrawn);
- Law Offices of Norman Cohen, per
- Norman Cohen
- Self-Insured Employer, Lake Washington School District, by
- Graham & Dunn, per
- Clemens H. Barnes
- Department of Labor and Industries, by
- The Attorney General, per
- William A. Garling, Jr., Assistant
This is an appeal filed by the employer on August 26, 1988 from an order of the Department of Labor and Industries dated June 24, 1988 which set aside and held for naught a Department order dated September 21, 1987 and ordered that the Department order dated January 13, 1987 be affirmed. The order of January 13, 1987 ordered the self-insured employer to pay for psychiatric treatment provided to the claimant by Dr. Hondl for the period December 20, 1985 through September 2, 1986 inclusive and also ordered the self-insured employer to pay time loss compensation for the period November 13, 1983 through August 26, 1984, inclusive, November 26, 1984 through March 13, 1985, inclusive, and from October 4, 1985 to the present. The order further ordered that time loss compensation be paid until such time that the claimant is medically stable and found [2] employable in accordance with industrial insurance laws of Washington State. Affirmed.
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 October 13, 1989 in which the order of the Department dated June 24, 1988 was affirmed, in part, and reversed, in part, and the claim was remanded to the Department to issue an order affirming the determination that the claimant is in need of further psychiatric treatment, and to require the self-insured employer to pay the claimant time loss compensation for the period November 3, 1983 through June 24, 1988, less amounts of time loss compensation previously paid. The Proposed Decision and Order also reversed the June 24, 1988 Department order "with respect to the determination that the claimant's back condition was not fixed and stable and no further treatment was indicated for that condition" and remanded with direction to award the claimant a permanent partial disability award equal to Category 1 of WAC 296-20-280 for lumbosacral impairments and to take such further action as indicated 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. In particular, the Industrial Appeals Judge did not err in denying the employer's request to present rebuttal testimony.
We agree with that portion of the Proposed Decision and Order affirming the Department order insofar as it directed the self-insured [3] employer to pay for Ms. Pike's psychiatric treatment and time loss compensation. The Proposed Decision and Order does an adequate job explaining the reasons for this decision and we will not elaborate at length here.
Bette Pike injured her low back on March 2, 1981 when the school bus she was driving went into a ditch. She has been treated for a major depressive disorder, aggravation of a mixed personality disorder and a chronic pain disorder by Dr. Edeltraud Hondl, a psychiatrist, for five years, since September, 1984. Dr. Hondl causally related these psychiatric conditions to the 1981 industrial injury.
The Industrial Appeals Judge relied on Dr. Hondl's opinion as the treating psychiatrist, based on Groff v. Dep't of Labor & Indus. 65 Wn.2d 35, 395 P.2d 633 (1964). We also find Dr. Hondl's opinion persuasive. The testimony of Dr. David Hong, a psychiatrist, and Dr. Santosh Kumar, a specialist in physical medicine and rehabilitation, support Dr. Hondl's opinions. The only opinion contrary to Dr. Hondl's was that of Dr. John Hamm, a psychiatrist. Dr. Hamm only saw Ms. Pike on two occasions, in April, 1989, some ten months after the date of the Department order on appeal. It appears that he discounted or ignored Ms. Pike's previous treatment and evaluations. There are no specific reasons in the record to reject Dr. Hondl's opinion as to the causal relationship of Ms. Pike's psychiatric condition to the industrial injury or that Ms. Pike was unable to work due to her psychiatric condition from November 3, 1983 through June 24, 1988.
We do disagree with the Industrial Appeals Judge's decision finding that Ms. Pike's back condition is fixed and stable and rating her [4] condition within Category 1 of WAC 296-20-280. Arguably, in light of the texts of the June 24, 1988 and January 13, 1987 Department orders, the issue of whether claimant's back condition is fixed and productive of permanent partial disability is not properly within the scope of this appeal. Even if it is, our resolution of this question must be consistent with our determination that the claim should remain open for psychiatric treatment and payment of time loss compensation. A claim cannot be both open and closed; . . ."a claimant cannot at one and the same time be classified as temporarily totally disabled and permanently partially disabled." Franks v. Dep't of Labor & Indus., 35 Wn.2d 763, 767, 215 P.2d 416 (1950). Unfortunately, the Proposed Decision and Order would create this anomalous situation. Since we are affirming that portion of the Department Order which awards the claimant time loss compensation until she is medically stable, it would be premature for us to, at the same time, determine the extent of claimant's permanent partial disability. The Department order must therefore be affirmed in its entirety.
FINDINGS OF FACT
1. On March 18, 1981 an accident report for the claimant was received by the Department of Labor and Industries alleging an industrial injury on March 2, 1981 while in the course of employment with Lake Washington School District No. 414.
On March 27, 1981 the Department issued an order allowing the claim for treatment and other benefits as authorized by law.
On May 3, 1983 the Department issued an order terminating time loss compensation as paid to April 13, 1983 and closed the claim with no permanent partial disability award. [5]
On May 23, 1983 a protest and request for reconsideration from the claimant was received by the Department of Labor and Industries.
On June 20, 1983 the Department issued an order holding the order of May 3, 1983 in abeyance.
On August 11, 1983 the Department issued an order adhering to the provisions of the Department order dated May 3, 1983.
On October 7, 1983 a notice of appeal from the claimant was received by the Board of Industrial Insurance Appeals.
On October 21, 1983 the Department issued an order reassuming jurisdiction in the claim and holding the order dated August 11, 1983 in abeyance.
On October 25, 1983 the Board issued an order returning the case to the Department for further action.
On April 2, 1984 the Department issued an order setting aside and holding for naught Department orders dated May 3, 1983 and August 11, 1983 and ordering the claim remain open for authorized treatment and action as indicated.
On June 1, 1984 a notice of appeal from the employer was received by the Board of Industrial Insurance Appeals.
On June 22, 1984 the Board issued an order granting the appeal.
On September 21, 1984 the Board issued an order on agreement of parties remanding the claim to the Department with direction to enter an order directing that vocational rehabilitation assistance be provided in accord with RCW 51.41, coupled with concurrent support of psychiatric treatment and directing the self-insured employer to pay time loss compensation to the claimant during the period of vocational assistance and concurrent psychiatric treatment commencing August 27, 1984 and such further action as is indicated or required by the law and the facts. [6]
On October 19, 1984 the Department issued an order pursuant to the Board's order of September 21, 1984 which ordered that the claim remain open for the self-insured employer to provide vocational rehabilitation assistance coupled with concurrent support of psychiatric treatment and pay time loss compensation to the claimant during the period of vocational assistance and concurrent psychiatric treatment commencing August 27, 1984 and take such further action as is indicated by the law and the facts.
On September 23, 1986 claimant's counsel requested an order be issued for time loss compensation from November 3, 1983 through August 26, 1984, from November 26, 1984 through March 13, 1985 and from October 4, 1985 through the present in addition to requesting that an order be issued which specifically authorized psychiatric treatment of the claimant from October 4, 1985 through the present.
On January 13, 1987 the Department issued an order which ordered the self-insured employer to pay for psychiatric treatment provided to the claimant by Dr. Hondl for the period December 20, 1985 through September 2, 1986 inclusive and also ordered that the self-insured employer pay time loss compensation for the period of November 3, 1983 to August 26, 1984 inclusive, November 26, 1984 to March 13, 1985 inclusive and from October 4, 1985 to present. The order further ordered time loss compensation be paid until such time that the claimant is medically stable and found employable in accordance with the Industrial Insurance Laws of Washington State.
On March 16, 1987 a protest and request for reconsideration from the employer was received by the Department.
On May 8, 1987 the Department issued an order holding the order dated January 13, 1987 in abeyance. On September 21, 1987 the Department issued an order which set aside and held for naught the Department order dated January 13, 1987 and ordered that the employer pay the claimant time loss compensation for the period November 26, 1984 through March 13, 1985 and ordered that the employer is not responsible and denies responsibility for any supportive psychiatric care after September 2, 1985. [7]
On September 28, 1987 a protest and request for reconsideration from the claimant was received by the Department.
On November 2, 1987 the Department issued an order holding the order dated September 21, 1987 in abeyance.
On June 24, 1988 the Department issued an order setting aside and holding for naught the Department order dated September 21, 1987 and ordered that the Department order dated January 13, 1987 hereby be reaffirmed.
On June 28, 1988 the Department order dated June 24, 1988 was received by the employer. On August 26, 1988 a notice of appeal from the employer was received by the Board of Industrial Insurance Appeals. On September 7, 1988 the Board issued an order granting the appeal subject to proof of timeliness.
2. The claimant is a 51 year old woman with a tenth grade education and work experience as a school bus driver, and a charge nurse in a nursing home.
3. On March 2, 1981 while in the course of employment with Lake Washington School District, the claimant sustained an industrial injury to her back when the school bus she was driving went into a ditch.
4. As a proximate result of the industrial injury of March 2, 1981, the claimant sustained a condition diagnosed as a lumbar strain.
5. As a proximate result of the industrial injury of March 2, 1981, the claimant sustained a psychiatric condition diagnosed as a major depressive disorder, aggravation of a mixed personality disorder and a chronic pain disorder. She has been treated for her psychiatric condition by Dr. Edeltraud Hondl since September, 1984.
6. As of June 24, 1988 the claimant's psychiatric condition causally related to the industrial injury was not fixed and stable and further psychiatric treatment was indicated for that condition. [8]
7. During the periods of November 3, 1983 through August 26, 1984, inclusive; November 26, 1984 through March 13, 1985, inclusive; and October 4, 1985 through June 24, 1988, the claimant was precluded from gainful employment on a reasonably continuous basis as a result of her psychiatric condition causally related to the industrial injury of March 2, 1981.
CONCLUSIONS OF LAW
- The employer's notice of appeal from the Department order dated June 24, 1988 was timely filed within the meaning of RCW 51.52.060.
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter to this appeal.
- During the periods of November 3, 1983 through August 26, 1984, inclusive; November 26, 1984 through March 13, 1985, inclusive; and October 4, 1985 through June 24, 1988, the claimant was a temporarily totally disabled worker within the meaning of RCW 51.32.090.
- The order of the Department of Labor and Industries dated June 24, 1988, which set aside and held for naught a Department order dated September 21, 1987 and reaffirmed a Department order dated January 13, 1987, which ordered the self-insured employer to pay for psychiatric treatment provided to the claimant by Dr. Hondl for the period December 20, 1985 through September 2, 1986 inclusive and also ordered the self-insured employer to pay time loss compensation for the period November 3, 1983 to August 26, 1984, inclusive; November 26, 1984 to March 13, 1985, inclusive; and October 4, 1985 to the present, and ordered that time loss compensation be paid until such time that the claimant is medically stable and found employable in accordance with Industrial Insurance Laws of Washington State, is correct and is affirmed. [9]
It is so ORDERED.
Dated this 18th day of April, 1990.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
SARA T. HRAMON Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
PHILLIP T. BORK Member