| IN RE: HAROLD J. McCORMACK | ) | DOCKET NO. 90 3178 |
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| Claim No. S-349908 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Harold J. McCormack, by
- Webster, Mrak & Blumberg, per
- Kathy Beck, Secretary, and Richard P. Blumberg
- Self-insured Employer, Tradewell Group, Inc., by
- Williams, Kastner & Gibbs, per
- Rebekah R. Ross, Susan Gulrajani and Richard M. Slagle
- Department of Labor and Industries, by
- The Attorney General, per
- Anne M. Skalley, Assistant
This is an appeal filed by the self-insured employer, Tradewell Group, Inc., on June 15, 1990, from an order of the Department of Labor and Industries dated May 25, 1990, which placed the claimant on the pension rolls as of June 22, 1990 and which also charged the balance of the pension reserve against the second injury fund account on the basis that claimant's permanent total disability resulted from a permanent partial disability caused by the injury herein combined with and superimposed upon prior disabling conditions. Reversed and remanded.
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 of a Proposed Decision and Order issued on May 30, 1991 in which the Department order dated May 25, 1990 was reversed and the claim remanded to the Department with direction to place the claimant on the pension rolls as of February 11, 1983 and to thereupon charge the balance of the pension reserve against the second injury fund account. [2]
On December 11, 1990, the self-insured employer filed a motion for partial summary judgment on the legal issue of whether the self-insured employer would be entitled to receive second injury fund relief effective the actual date on which the claimant was proved to be permanently and totally disabled in the event that occurred at a time earlier than the June 22, 1990 date established in the order under appeal. On January 7, 1991, the Industrial Appeals Judge issued an order ostensibly denying the motion for summary judgment, but calling for the presentation of medical testimony on the issue of the date of medical fixity of the claimant's condition. The Proposed Decision and Order awards second injury fund relief as of the date of onset of permanent total disability established in the record. While we disagree with our industrial appeals judge as to the exact date of onset of permanent total disability, we do not disagree with the direction that second injury fund relief should begin with that date. The order of January 7, 1991 is reversed and the motion for partial summary judgment is hereby granted.
On June 4, 1991, the Department of Labor and Industries submitted Exhibit No. 8 to the Board by mail and moved for its admission. The exhibit was received after the issuance of the Proposed Decision and Order in this matter. The self-insured employer objects to its admission on the grounds that it is cumulative and contains hearsay. Exhibit No. 8 is rejected.
The Board has reviewed the remaining evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed. [3]
DECISION
The Proposed Decision and Order contains an accurate summary of the testimony presented and we will address the specifics of this case only as necessary to explain our decision. At issue is the date on which the residual disability from Harold J. McCormack's March 4, 1980 industrial injury, in combination with pre-existing degenerative changes and right carpal tunnel surgery, rendered him permanently totally disabled. The Department, in its closing order of May 25, 1990 designated June 22, 1990 as the date on which Mr. McCormack became eligible for pension. The self-insured employer argued, and our industrial appeals judge agreed, that Mr. McCormack was actually permanently totally disabled as of February 11, 1983. For the reasons set forth below, we find that the record establishes the Mr. McCormack was permanently and totally disabled as of November 21, 1984.
The Department's Petition for Review properly challenges the industrial appeals judge's assertion that the parties agreed that Mr. McCormack was temporarily totally disabled from March 4, 1980 through the date of medical fixity of his industrially related condition. If the evidence supported that conclusion, then we would only need to affirm the Proposed Decision and Order, because the medical testimony clearly shows that the claimant's industrially related condition was medically fixed as of February 11, 1983.
While the claimant's medical condition was fixed as of February 11, 1983, there remained a dispute as to whether he was employable on that date. In December 1982, his then attending physician, Dr. Daniel M. Spengler, released him to work as a security guard in a position offered [4] by the self-insured employer. Although the record is unclear, it appears that Mr. McCormack only attempted to return to work for a couple of half days. It appears the self-insured employer, relying on the attending physician's release, paid only loss of earning power benefits rather than full time-loss compensation from December 1982 through at least June 1983.
The self-insured employer presented no evidence that Mr. McCormack was unemployable between December 1982 and November 21, 1984. Exhibit No. 7, a 1983 vocational report concluding that Mr. McCormack was then unemployable, was admitted for the limited purpose of establishing that the Department was on notice that the claimant sought a pension, not for the truth of the matter asserted. It cannot be used to establish that Mr. McCormack was unemployable at that time.
The Department presented the testimony of vocational expert Stephen Weinhouse, who evaluated the claimant at the employer's request in 1982. He concluded that although Mr. McCormack could not return to his former employment as a truck driver, he could perform several other jobs, including security guard. Mr. Weinhouse's testimony, in combination with the attending physician's approval of the security guard position actually offered by the employer, leads us to conclude that Mr. McCormack was employable in February 1983.
We are left with the question of whether Mr. McCormack became totally permanently disabled at some point after February 11, 1983 but before June 22, 1990. We accept on that question the testimony of Dr. Frank G. Gleeson. Dr. Gleeson was Mr. McCormack's attending physician from November 21, 1984 through December 1990. He determined that Mr. [5] McCormack was totally permanently disabled on November 21, 1984. Dr. Gleeson did sign a job analysis for a modified security guard position in January 1985; however, he also sent the employer a letter stating he did not believe the claimant could perform the job. Dr. Gleeson's opinion was bolstered by the medical records of the late Dr. Charles G. Hutter who saw the claimant multiple times in 1983 and 1984.
The Department presented only one medical witness who saw the claimant after 1983, Dr. Phillip J. Suver. Based on one examination each year in 1986, 1988 and 1989, Dr. Suver concluded that Mr. McCormack was able to work with restrictions on lifting, bending, repetitive movement and gripping and so long as he avoided head and neck movements and eye fixation which aggravated his degenerative neck condition. Considering the multiplicity of limitations Dr. Suver would impose on a claimant who was born in 1923, had an eighth grade education, and a work history consisting entirely of strenuous labor as a truck driver, we have no difficulty accepting the conclusions of Mr. McCormack's attending physician over that of the forensic examiner. We conclude that the record establishes Mr. McCormack was permanently and totally disabled as of November 21, 1984. He should be placed on the pension rolls effective that date and the balance of the pension reserve should thereupon be charged against the second injury fund. Thus, the employer should receive second injury fund relief effective that date.
Proposed Findings of Fact Nos. 1, 2, and 3, and proposed Conclusions of Law Nos. 1 and 2, are hereby adopted as this Board's final findings and conclusions. In addition, the following findings and conclusions are entered: [6]
FINDINGS OF FACT
4. Mr. McCormack's condition causally related to the industrial injury of March 4, 1980 was best described as the residuals of an anterior discectomy and cervical fusion at C5-6 and C6-7, superimposed on pre-existing degenerative changes and also carpal tunnel surgery for the right wrist.
5. As of February 11, 1983, Mr. McCormack's physical condition causally related to the industrial injury of March 4, 1980 was medically fixed and stable and his permanent partial disability was best described as Category 4 of cervical and cervico-dorsal impairments, WAC 296-20-240 and 5% of the amputation value of the right arm at the wrist. [7]
6. As of November 21, 1984, the combined effects of his March 4, 1980 industrial injury and his pre-existing disabling conditions left Mr. McCormack with the following physical restrictions: lift no more than 5 pounds occasionally; carry 0 pounds; no sitting, standing or walking for any great length of time; no repetitive head or neck movements.
7. As of November 21, 1984 to and including June 22, 1990, Mr. McCormack was permanently unable to perform any reasonably continuous gainful employment as a result of his industrial injury of March 4, 1980 together with his pre-existing physical conditions, and his age, education and work experience.
CONCLUSIONS OF LAW
3. As of November 21, 1984, to and including June 22, 1990, Harold J. McCormack was totally permanently disabled within the provisions of RCW 51.32.060 as a result of the combined effects of his industrial injury of March 4, 1980 and his pre-existing disabling condition.
4. Effective November 21, 1984, the Tradewell Group, Inc. was entitled to distribution of further accident costs under the provisions of RCW 51.16.120 with respect to the industrial injury of Harold J. McCormack on March 4, 1980.
5. The Department order of May 25, 1990 which placed the claimant on the pension rolls as of June 22, 1990 with the balance of the pension reserve charged against the second injury account, is incorrect and should be reversed and the claim remanded to the Department with direction to place the claimant on the pension rolls effective November 21, 1984 and to thereupon charge the balance of the pension reserve against the second injury account.
It is so ORDERED.
Dated this 9th day of January, 1992.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
S. FREDERICK FELLER Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
PHILLIP T. BORK Member