|IN RE: LYLE A. RILLING||)||DOCKET NO. 88 4865|
|CLAIM NO. G-190478||)||DECISION AND ORDER|
- Claimant, Lyle A. Rilling, by
- Tom G. Cordell
- Employer, E.M. Gostovich Masonry Construction Company, by
- Department of Labor and Industries, by
- The Attorney General, per
- Kent Mumma, Stephanie Farrell and Dennis J. Beemer, Assistants
This is an appeal filed by the claimant, Lyle A. Rilling, on December 29, 1988 from an order of the Department of Labor and Industries dated November 23, 1988 which set aside an order dated March 9, 1988 and which made an award for permanent partial disability for unspecified disabilities of 25% as compared to total bodily impairment for "cervical residuals", less prior awards, and closed the claim. The order dated March 9, 1988, which was set aside, would have closed the claim without additional award for permanent partial disability. Affirmed.
PROCEDURAL AND EVIDENTIARY MATTERS
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 Department of Labor and Industries to a Proposed Decision and Order issued on April 26, 1990 in which the order of the Department dated November 23, 1988 was reversed and the claim remanded to the Department  with instructions to "provide further treatment and to take any other action which may be appropriate."
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 whether claimant Lyle A. Rilling's claim should remain open indefinitely for further physical therapy. The Department contends the contemplated physical therapy will not improve Mr. Rilling's underlying condition and that the claim should, therefore, be closed. Mr. Rilling argues that, since his condition would deteriorate without physical therapy, his claim should remain open indefinitely for the provision of such treatment. We find that the essential character of Mr. Rilling's condition is best described as "fixed", and that his claim was properly closed.
Lyle A. Rilling sustained an industrial injury to his cervical spine on July 6, 1971 while assisting other workers in setting a large pipe. He experienced pain between his shoulder blades and pain and weakness in his right arm. Prescribed treatment has consisted of physical therapy, which Mr. Rilling described as including the use of ultrasound, massage, and application of electrodes to his back. His claim was open for approximately ten months following his industrial injury and closed in May 1972. The claim was then reopened in December 1973 and closed again in May 1976, with an award for permanent partial disability. The claim was reopened again in July 1977 and closed again  in March 1978. The claim remained closed for nearly seven years until it was last reopened in May 1985. Mr. Rilling is now 67 years old.
Three physicians testified in this matter: Dr. David Miller, a certified specialist in internal medicine who saw Mr. Rilling twice with respect to his industrial condition, in March 1988 and in October 1988; Dr. E. Michael Graham, who is likewise a certified specialist in internal medicine who examined Mr. Rilling one time in November 1989; and Dr. George R. Monkman, a certified specialist in orthopedic surgery, who examined Mr. Rilling in July 1988. These physicians all agree that Mr. Rilling has cervical radiculopathy at the C6-7 level related to his 1971 industrial injury, probably caused by disc herniation and bony encroachment into the foramen. Both Dr. Graham and Dr. Monkman agree that the treatment of choice probably would have been surgery, including laminectomy, although at this late date the surgery would likely have an uncertain outcome. Mr. Rilling has not been interested in pursuing surgery.
Based upon Mr. Rilling's history, the doctors agree that physical therapy tends to relieve his discomfort, improving his functioning. For instance, Dr. Miller told the Department in October 1988 "that the physical therapy that Mr. Rilling was receiving was predominantly stabilizing his functioning of his arm." 1/12/90 Tr. at 13. Dr. Miller continues to believe "that physical therapy was needed and would likely be needed indefinitely to maintain functioning of his right upper extremity." 1/12/90 Tr. at 13-14. Neither Dr. Miller, nor Dr. Graham, nor Dr. Monkman suggested what form of physical therapy might be useful.  Our Industrial Appeals Judge reasoned that Mr. Rilling's condition was not fixed and stable because his disability is reduced with physical therapy and increases without physical therapy. This reasoning is inadequate to resolve the difficult question of whether the claim should remain open for treatment.
Our courts have imposed the requirement that a condition must be "fixed" before a claim can be closed. The term "fixed" does not mean "static":
It is clear that where a claimant's condition is deteriorating or further medical treatment is contemplated, the condition is not "fixed" and the claim remains open so that treatment can be provided. However, if a claimant's condition has stabilized to the point where no further medical treatment is required, the condition is "fixed" for purposes of closing the claim and determining the disability award. This interpretation aids the purpose of the act to provide prompt and certain relief for the injured workman.
Pybus Steel v. Dep't of Labor & Indus., 12 Wn. App. 436, 439, 530 P.2d 350 (1975). Likewise: " 'Fixed' has been discussed in terms of permanence, signifying that the disability or physical condition is "unchangeable" ... "lasting," or "stable" ...". Du Pont v. Dep't of Labor & Indus., 46 Wn.App. 471, 477, 730 P.2d 1345 (1986). In Du Pont the court found the medical evidence sufficient to support the trial court finding that the condition was not "fixed." The physician wished to follow the claimant after surgery for a period of months to see how the claimant's knee condition responded to the stress of work, to alleviate pain, and to conduct a later re-evaluation. 
In Hiatt v. Dep't of Labor & Indus., 48 Wn.2d 843, 297 P.2d 244 (1956), our Supreme Court discussed the concept of "permanence" of a claimant's condition in the context of a widow's claim for pension benefits. The court considered the ordinary dictionary definition of "permanent": "Continuing or enduring in the same state, status, place, or the like, without fundamental or marked change; not subject to fluctuation or alteration; fixed or intended to be fixed; lasting; abiding; stable; not temporary or transient."Hiatt, at 846. The court then explained:
The use of the word "permanent" together with "disability" indicates the character of the disability. It signifies that the disability has expectedly an unchangeable existence; that the physical condition arising from the injury is fixed, lasting, and stable. A person whose condition is remediable is not permanently disabled.
Hiatt, 48 Wn.2d at 846 (Emphasis supplied).
The claimant's attending physician in Du Pont recognized "the incompatibility of medical and legal analyses". 46 Wn.App. at 478. It is our job to synthesize the two. Our goal, as indicated by the court in Hiatt, is to determine the "character" of a claimant's disability, that is, whether it is permanent, fixed, and stable, for legal purposes under the Industrial Insurance Act.(1) A finding concerning the "character" of a claimant's disability with regard to whether it is permanent, fixed, and stable, necessarily involves a relative  determination which takes into account the purpose of our Act. Pybus, supra, 12 Wn.App. at 439.(2)
The medical testimony concerning the potential effects of physical therapy upon Mr. Rilling's condition went beyond what was described in the Proposed Decision and Order. In March 1988, Dr. Miller noted decreased range of motion in Mr. Rilling's shoulder, with decreased abduction and adduction, and pain with movement. He also noted some mild muscle weakness. Dr. Miller theorized that a decrease in function of any muscle could lead to atrophy and deterioration due to non-use. He did not mention any atrophy in his examination notes. However, he could not remember whether this omission was because he did not examine for atrophy or because he found none.
In addition, Dr. Miller did not know whether Mr. Rilling was right or left-handed. He also relied upon the erroneous belief that Mr. Rilling had been prescribed, and had received, physical therapy from 1971 to the time he first examined Mr. Rilling in 1988. In fact, it appears from claimant's testimony that he only received physical therapy during the periods when his claim was open. 1/31/90 Tr. at 40. In addition, Dr. Miller did not know whether or not Mr. Rilling had received physical  therapy between his first examination in March 1988 and his second in October 1988; he had not.
Dr. Miller distinguished between relief of symptoms (palliative care) and stabilization of function. The latter "has to do with motor use and motor function which is a separate part of the nervous system anatomy than the sensory system which deals with pain and symptomatology". 1/12/90 Tr. at 27. He conceded that physical therapy would not cure Mr. Rilling's radiculopathy. He also acknowledged that his recommendation of physical therapy was primarily based on Mr. Rilling's statements of how he felt when physical therapy was discontinued. He testified:
At the time I saw the patient and he was requesting physical therapy be continued, his history to me was that when he discontinued that, his condition worsened. The objective evidence that I had confirming that was that he had told other physicians that previously, and that was the only objective evidence that I had.
1/12/90 Tr. at 26.
Dr. Graham saw the claimant a year after the closing date. He theorized that, with injuries involving disc herniation, there is most likely inflammation surrounding the disc and the nerve. Physicial therapy reduces the inflammation and swelling of disc and nerve tissues. If, on the other hand, pressure from swelling is allowed to increase, then the nerve may become more ischemic and loss of nerve fibers may occur. There is a risk or possibility of progression of the actual neurologic loss. Thus, Dr. Graham believed that physical therapy would help to prevent further deterioration of Mr. Rilling's underlying physical condition.  However, he based this opinion on Mr. Rilling's report that his physical function improved with physical therapy. At the same time, Dr. Graham noted that Mr. Rilling's objective findings had not changed during the year prior to his examination, that is, between his examination and Dr. Miller's last examination. This was true even though, by claimant's own testimony, he did not receive any physical therapy during that period.
Dr. Monkman expressed the opinion that physical therapy would not prevent sensory and functional loss. Like Dr. Graham, Dr. Monkman did theorize that inflammation can contribute to osteophytic formation (bony lipping) which can contribute, along with disc herniation and swelling of the nerve itself, to nerve impingement. Nevertheless, when he examined Mr. Rilling in July 1988, Dr. Monkman did not find muscle atrophy. Based upon the information which he reviewed, Dr. Monkman did not believe Mr. Rilling's condition had changed very much since 1971. Although physical therapy might provide intermittent symptomatic improvement, the therapy would not stop degenerative changes in Mr. Rilling's condition. According to Dr. Monkman, there would be a continued natural progression of Mr. Rilling's degenerative changes. Thus, even though physical therapy might be of some benefit in improving symptoms, Dr. Monkman did not believe physical therapy would change Mr. Rilling's actual level of impairment.
Mr. Rilling testified that physical therapy reduces his pain and improves his function so long as the physical therapy continues on a regular basis. Neither the medical testimony nor Mr. Rilling's testimony convinces us that any measurable or describable progressive decline in  his condition has occurred over periods of time when he was without physical therapy; nor, are we persuaded that any progressive improvement in his condition occurred over periods of time when he had the benefit of physical therapy. Indeed, it is clear that Mr. Rilling's condition did not in fact deteriorate between March 1988 and November 1989 when he was not receiving physical therapy. Rather, each time physical therapy has been instituted, it has provided Mr. Rilling with the same type of relief, to the same extent.
Mr. Rilling's experience remains simply that the relief of pain makes him feel better, which allows him to function better, particularly in right arm pushing capacity. In the past, ultrasound has been of no benefit. Application of electrodes caused Mr. Rilling to "really . . . feel good." 1/31/90 Tr. at 32. He now uses his own spa at home every day and "then it would be alright again." 1/31/90 Tr. at 38. Mr. Rilling further implied that the relief he experienced when he received a massage from a lay person was similar to the relief he experienced from prescribed physical therapy. Mr. Rilling's own experience, then, is most consistent with the view of Dr. Monkman, that his level of impairment has not perceptibly changed with or without medically prescribed physical therapy. Although Dr. Miller's and Dr. Graham's testimony focused upon change which medical science might expect, their general recommendation for physical therapy over an indefinite period of time suggests that physical therapy would actually do no more than relieve the claimant's symptoms on a temporary basis. 
After careful consideration of the entire record, we find that Mr. Rilling's condition and disability causally related to his industrial injury are best characterized as essentially permanent, fixed, and stable. With or without physical therapy, Mr. Rilling's condition is enduring and not temporary or transient. No fundamental or marked change can be expected. We, therefore, hold that Mr. Rilling's claim was properly closed on November 23, 1988 with an award for permanent partial disability.
In so holding, we adopt from the Proposed Decision and Order Finding of Fact No. 1 and Conclusion of Law No. 1. In addition, the Board enters the following findings and conclusions:
FINDINGS OF FACT
2. The claimant, Lyle A. Rilling, injured his neck July 6, 1971 in the course of employment with E.M. Gostovich Masonry Construction Co. Treatment of the condition causally related to this industrial injury has included medication and prescribed physical therapy since 1971 including massage, ultrasound, exercises and the placement of electrodes on Mr. Rilling's back.
3. As of November 23, 1988, Mr. Rilling's condition causally related to his industrial injury was best described as cervical radiculopathy at C6-7 probably caused by disc herniation and bony encroachment into the foramen. This causes Mr. Rilling to experience pain in his right arm and shoulder and decreases the functional ability in his right arm, particularly in his capacity to utilize pushing strength.
4. As of November 23, 1988, physical therapy in the nature of massage or the placement of electrodes on Mr. Rilling's back is sufficient to reduce Mr. Rilling's sensation of pain and improve functioning of his right arm. Either  of these physical therapy modalities has the same result and provides only temporary relief which continues only so long as the massage or placement of electrodes occurs at regular intervals. No form of physical therapy provides any lasting relief from symptoms nor does it improve Mr. Rilling's underlying condition. Mr. Rilling receives equivalent relief from the use of a home spa as well as from lay massage.
5. Generally, physical therapy provided for a condition such as Mr. Rilling's over an indefinite period of time may have the benefit of reducing irritation and inflammation. It may reduce swelling of nerve and disc tissue as well as lessen development of bony growth in the spine, all of which can be contributing factors to cervical radiculopathy. In Mr. Rilling's particular case the provision of physical therapy will not produce these benefits within some reasonably definable period of time. The only benefits received from physical therapy by Mr. Rilling during a definable period are limited to symptomatic, temporary relief.
6. As of November 23, 1988, the essential character of Mr. Rilling's disability causally related to his industrial injury of July 28, 1971 was best described as fixed and stable. His condition was not in need of further medical treatment which could reasonably be expected to reduce his impairment. His industrially related condition, described as C6-7 cervical radiculopathy, was relatively permanent, unchangeable, lasting and stable. No fundamental or marked change in this condition would be gained by provision of physical therapy, which is the only treatment which has been recommended to Mr. Rilling and is acceptable to him.
7. As of November 23, 1988, Mr. Rilling's physical impairment causally related to his industrial injury is best described as equal to 25% as compared to total bodily impairment due to cervical residuals. 
CONCLUSIONS OF LAW
2. As of November 23, 1988, Mr. Rilling's condition causally related to his industrial injury of July 28, 1971 was no longer in need of treatment within the meaning of RCW 51.36.010.
3. Mr. Rilling's permanent partial disability related to his industrial injury within the meaning of RCW 51.08.150 and 51.32.080 is best described as 25% as compared to total bodily impairment for cervical residuals.
3. The order of the Department of Labor and Industries dated November 23, 1988 which made an award for permanent partial disability equal to 25% as compared to total bodily impairment for cervical residuals, less a previous award under the claim, and which closed the claim with time loss compensation as paid, is correct and is affirmed.
It is so ORDERED.
Dated this 30th day of November, 1990.
BOARD OF INDUSTRIAL INSURANCE APPEALS
SARA T. HARMON Chairperson
PHILLIP T. BORK Member
The majority chooses to characterize Mr. Rilling's condition "fixed" and his claim ready for closure even though all physicians who testified were in agreement that physical therapy has the beneficial effect of reducing Mr. Rilling's pain and, thereby, improving the functioning in his right arm. I dissent. 
In addition to identifying the temporary benefits of physical therapy while such therapy is provided, both Dr. Miller and Dr. Graham expressed serious concern that Mr. Rilling's underlying condition also would deteriorate unless physical therapy continued. Dr. Monkman at least allowed for the possibility. Neither RCW 51.04.010, nor the interpretation given by our courts, direct that such a risk should be taken:
Considering the act in its entirety, it is implicit that a workman who sustained an industrial injury is entitled to receive medical care and attention as may be reasonably required. The act should therefore be construed, in the light of its declared purpose and intent, by providing that a workman may not be rated for permanent total disability until his condition becomes static or fixed, thereby affording him beneficial care and treatment from the time of his injury.
Pend Oreille Mines etc. v. Dep't of Labor & Indus., 64 Wn.2d 270, 272, 391 P.2d 210 (1964). Likewise, in the language which the majority cited from Pybus, "[i]t is clear that where a claimant's condition is deteriorating or further medical treatment is contemplated, the condition is not "fixed" and the claim remains open so that treatment can be provided." (Emphasis supplied) Pybus Steel v. Dep't of Labor & Indus., 12 Wn.App. 436, 439, 530 P.2d 350 (1975).
When all is said and done, Mr. Rilling has shown that two good and sufficient reasons exist for holding his claim open for treatment: (1) to reduce his pain and maintain the functioning in his right arm; and, (2) to guard against the risk of further deterioration of his underlying condition. It is, therefore, improper to characterize Mr.  Rilling's condition as "fixed". His claim should remain open until these reasons for further treatment no longer exist.
Dated this 30th day of November, 1990.
FRANK E. FENNERTY, JR. Member
(1)We have previously recognized the distinction between "factual fixity" of condition and "legal fixity" of condition in a different context. See, In re Douglas G. Weston, BIIA Dec., 86 1645 (1987) and In re Charles Deering, BIIA Dec., 25,904 (1968).
(2)See also: WAC 296-20-01002, "Termination of Treatment: When treatment is no longer required and/or the industrial condition is stabilized, a report indicating the date of stabilization should be submitted . . . . This is necessary to initiate closure of the industrial claim . . . . Medically Necessary: Those health services are medically necessary which, in the opinion of the director or his or her designee, are: (a) Proper and necessary for the diagnosis and curative or rehabilitative treatment of an accepted condition; . . . ."