PERMANENT PARTIAL DISABILITY (RCW 51.32.080)
Ambiguous orders
The Department's language closing a claim "without further award for permanent partial disability" is inherently ambiguous when the order is issued after reconsideration of a previous order paying an award for permanent partial disability. In such circumstance, it is impossible to determine if the Department intended that the award be paid and the doctrine of res judicata likely does not apply to the ambiguous determination. ....Brett Kemp, 02 13145 (2003)
Amputation value
Award after pension determinationRCW 51.32.080 contemplates that the amputation of all fingers and the thumb is equivalent to the amputation of the hand at the wrist. An award for amputation value of two fingers therefore takes into account the relationship to loss of function of the hand and no additional award for "general loss of function" of the hand can be made. ....Ellis Blankenship, 30,210 (1970)
When a worker's exposure to noise at work occurred before he was declared permanently and totally disabled and he files a claim for hearing loss after he is declared permanently and totally disabled, the worker may be entitled to a permanent partial disability award for his occupational hearing loss. There is then no legal reason why the filing of an unrelated pension claim should prevent workers from recovering for their hearing loss. Citing McIndoe v. Department of Labor & Indus., 100 Wn. App. 64, (2000) which reversed In re Robert McIndoe, BIIA Dec., 97 4146 (1998)….Melvin Moore, 99 17061 (2000)[Editor's Note: The Board's decision was appealed to superior court under Lewis County Cause No. 00-2-00647-9.]
The Department is not required to pay an award of permanent partial disability benefits for a claim that was not pending at the time of the award of benefits for permanent total disability. Explaining Clauson v. Department of Labor & Indus., 130 Wn.2d 580 (1996). ….Robert McIndoe, 97 4146 (1998) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Adams County Cause No. 98-2-00092-2.] [Reversed, McIndoe v. Department of Labor & Indus., 144 Wn. 2d 252 (2001).]
Although on the pension rolls under one claim, a worker is not precluded by law from receiving an award for permanent partial disability under another claim if the condition covered under that claim was fixed and stable prior to the date the worker was placed on a pension. ....Roy Sulgrove, 88 0869 (1989)
Beneficiaries
A beneficiary may be entitled to benefits under RCW 51.32.050 and RCW 51.32.067 if it is established that the disability would have been permanent even if the worker had not died from unrelated causes before treatment was complete. ....James McShane, Dec'd., 05 16629 (2006)
Category rating
Because the category system requires the finder of fact to evaluate impairment by comparing the category descriptions with the objective findings and physical restrictions, it is erroneous to make a rating based solely on the presence of surgical procedures. ....Michael A. Hansen, 95 4568 (1996)[dissent] [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 96-2-20447-1SEA.]
Cervical conditions
The system of permanent impairment ratings contemplates a best fit analysis, thus a finding of neck rigidity is necessary to support a rating equal to category 2, cervical impairments, in the absence of the other physical findings listed in WAC 296-20-240(2). ....Traci Gleason 92 5936 (1994)
Chiropractors
A chiropractor is not qualified to testify on the question of permanent partial disability since WAC 296-20-200 and WAC 296-20-01002 provide for evaluation of bodily impairment to be made by a "physician." Citing Brannan v. Department of Labor & Indus., 104 Wn.2d 55 (1985). ....Michael McGoff, 90 1897 (1991) [dissent] [Editor's Note: Overruled, in part, In re Bertha Ramirez, BIIA, 03 14933 (2004)
Converting premature permanent partial disability award to time loss compensation
Where the Department closed the claim with a permanent partial disability award but subsequently held the claim open and reinstated time loss compensation, it was proper for the Department to "convert" a portion of the premature permanent partial disability award to time loss compensation. ....Eino Antilla, 21,097 (1963)
Cosmetic defect
Because the worker's burn injury caused a loss of bodily function and not just a cosmetic defect, he was entitled to a permanent partial disability award to compensate him for that loss of function. ....W. Tom Edwards, 26,382 (1967)
Fixity of all conditions required
When the worker suffers from a psychiatric condition which is not fixed and stable and requires further treatment, the worker is not entitled to an award for permanent partial disability for a low back condition even though it is medically fixed. Awards for permanent disability are made at the time the claim is closed and a claim cannot be both open and closed at the same time. Citing Franks v. Department of Labor & Indus., 35 Wn. 2d 763 (1950). ....Bette Pike, 88 3366 (1990)
Hearing loss - See OCCUPATIONAL DISEASE
Interest (RCW 51.32.080(6))
During the period of time a worker was incarcerated interest does not accrue on the unpaid portion of an award for permanent partial disability benefits. Under RCW 51.32.040(3)(a) payments of benefits are "cancelled" during incarceration. Because there are no benefits owing to the worker during incarceration, it follows that no interest is owed. ….Joseph Barden, 98 13526 (1999) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Kitsap County Cause No. 99-01076-2]
Interest rate (RCW 51.32.080(4))
The interest rate in effect on the date of injury, not the rate in effect on the date of the award, applies to monthly installments of a permanent partial disability award. ....Teenamarie Callahan, 70,745 (1987) [Editor's Note: The Board's decision was appealed to superior court under Kitsap County Cause No. 94-2-00202-5.]
Migraine headaches
Chronic migraine headaches related to an industrial injury may result in a permanent functional impairment for which a worker is entitled to receive a permanent partial disability award. Where there was no way to measure the impact of the migraine headaches on the worker's functioning except by subjective complaint, a better analogy than cervical spine impairment is found in the mental health condition ratings. ....Candi Truhn, 91 3993 (1993)
Multiple levels of the spine
WAC 296-20-250(1)(e) requires that any thoracic impairment that involves the cervical or lumbosacral area be evaluated under the rules for evaluating lumbosacral or cervical impairment. However, the rule is only used when the medical evidence does not permit a distinction when evaluating the conditions. Two separate and distinct areas of impairment allow for separate ratings of the impairment of thoracic and lumbosacral spine. ….David Delozier, 96 4488 (1997) [Editor's Note: The Board's decision was appealed to superior court under Spokane County Cause No. 97-2-06714-1][Reversed, Department of Labor & Indus. v. Delozier, No.18417-0-III 100 Wn. App. 73 (2000)]
Option 2 benefits under RCW 51.32.099
Selection of Option 2 vocational benefits under RCW 51.32.099 does not preclude a worker from appealing the closing order and proving entitlement to permanent total disability benefits. Selection of Option 2 vocational benefits does not constitute a compromise and release of other benefits. ….Bill Ackley, 09 11392 (2010) [dissent]
[Editor's Note: The Board's decision was appealed to superior court under Kitsap County Cause No. 11-2-00103-4.]
Pension does not preclude payment of award under another claim - See also Award after pension determination
Pension due to combined effects may preclude payment of award under another claim
Sulgrove does not permit payment of a permanent partial disability award in one claim where a worker was on pension rolls under another claim due to the combined effects of the disability associated with both claims. ....Joanne Lusk, 89 2984 (1991)
Permanent partial disability award paid in lieu of pension benefits
Even though worker requested permanent partial disability benefits instead of total permanent disability benefits, the receipt of pension benefits is mandatory if a worker is permanently and totally disabled. ....Esther Rodriguez, 91 5594 (1993) (Principle upheld in Stuckey v. Department of Labor & Indus., 129 Wn. 2d 289 (1996))
Permanent partial disability award should not be converted to time loss compensation where permanent total disability follows
RCW 51.32.080(2) directs the Department, where permanent total disability follows permanent partial disability, to deduct a permanent partial disability award from the pension reserve and reduce the worker's monthly payments accordingly, to the extent the award exceeds the amount that would have been paid the worker if permanent total disability compensation had been paid in the first instance. The Department should not deduct the permanent partial disability award from retroactive time loss compensation. Citing In re Eino Antilla, BIIA Dec., 21,097 (1963). ....Marshall Stuckey, 89 5977 (1991) [Editor's Note: The Board's decision was appealed to superior court under Grant County Cause No. 91-2-00642-0](Overruled, In re Esther Rodriguez, BIIA Dec., 91 5594 (1993))
Prior permanent total disability determination - See Award after pension
Rating
When the AMA guides on disability do not specify a rating for a particular condition or loss of function, a medical expert may rate by analogy to the "best fit" under the guideline that reflects the worker's particular condition. ....Jana Roening, 04 22220 (2006)
Rating by Board
The Board can rate a permanent partial disability based on findings of a non-physician expert qualified to make disability-related findings when the record also contains medical evidence establishing the existence of a permanent partial disability. ....Bertha Ramirez, 03 14933 (2004) [dissent] [Editor's Note: The Board's decision was appealed to superior court under King County Cause No.04-2-25966-S SEA.]
The Board will not evaluate evidence and determine extent of permanent partial disability beyond that given by the Department where the only testimony regarding findings which may support the award is provided by a chiropractor. In re Donald R. Woody, BIIA Dec., 85 1995 (1987). ....Michael McGoff, 90 1897 (1991) [dissent]
The Board may determine that a worker's permanent partial disability is greater than any category testified to by the medical experts, provided the Board's rating is supported by the objective findings in evidence. ....Donald Woody, 85 1995 (1987)
The Board itself may select a category of impairment based on the medical findings and restrictions even in the absence of medical opinion of a specific category rating. ....Linda Crumpton Donnelly, 54,669 (1981)
The Board may determine the appropriate category of permanent impairment despite the absence in the record of any medical testimony rating the worker's permanent partial disability in category or percentage terms. The determination requires a comparison of the category descriptions with the medical evidence of the worker's physical or mental restrictions. ....Catherine Schmidt, 57,001 (1981)
In a non-category case, the Board may rate the worker's permanent partial disability greater than any percentage testified to by the medical witnesses.....James House, 17,857 (1965)
Schedule of benefits - See also OCCUPATIONAL DISEASE Schedule of benefits applicable
When there are successive injuries to the same region of the body and different schedules of benefits are involved, the worker is entitled to the percentage of total bodily impairment due to the second injury, less the percentage of total bodily impairment from to the first injury, based on the schedule of benefits in effect on the date of the later injury. Citing Corak v. Department of Labor & Indus., 2 Wn. App. 792 (1970). ....Michael Midkiff, 95 4715 (1997)
Segregation
When the compensable disability did not arise before filing the claim regarding the current employer and there is no indication the worker received prior physician notification as required by RCW 51.28.055, segregation of any pre-existing disability is not available to the employer as a successive employer/insurer under Auckland rationale. ....Robert Nelson, 89 3376 (1991) [Editor's Note: The Board's decision was appealed to superior court under Spokane County Cause No. 91-2-02863-4.]
In applying RCW 51.32.080(3) to segregate preexisting disability, the percentage or category of the entire disability is reduced by the percentage or category of the prior disability. In cases involving disability to the back, it is not appropriate to reduce the prior disability by 25 percent when determining the disability attributable to the injury. The 25 percent reduction in awards required by former RCW 51.32.080 applies only to the monetary amount of the compensation for disability, not the extent of the disability. ....Clarence Allen, 88 4656 (1990)
An insurer cannot obtain apportionment of financial responsibility for an occupational disease claim (hearing loss) under the guise of segregating preexisting disability under RCW 51.32.080(3). The insurer on the risk on the date of compensable disability is responsible for the full cost of the occupational disease claim. To obtain segregation under RCW 51.32.080(3) it must be established that the worker's preexisting hearing loss was either not industrially related or that the date of compensable disability of the preexisting loss occurred when another insurer/employer was on the risk. ....Ronald Auckland, 88 4099 (1990) [dissent] [Affirmed sub nom, Weyerhaeuser Co. v. Auckland, 65 Wn. App. 1005 (1992)]
Temporomandibular joint
Temporomandibular jaw [TMJ] injury may result in permanent impairment which warrants payment of a permanent partial disability award. Where the worker's TMJ injury negatively impacted both jaw and cervical spine function, an appropriate disability rating must include consideration of the joint itself as well as related areas -- including cervical spine, speech, dental health, digestion and headache -- where function is diminished. ....Twila Calhoon 92 5813 (1994)
Tinnitus
Because tinnitus is an impairment manifested by different functional responses than hearing loss and is neither a scheduled impairment nor addressed in the categories contained in WAC 296-20, it must be evaluated in terms of a percentage of total bodily impairment. It is appropriate to analogize to categories of mental health impairment in light of the similarity in the disruption of daily living caused by the worker's tinnitus and that described in the categories of mental health impairment. ....Robert Lenk, Sr., 91 6525 (1993) [concurrence]
Twenty-five percent reduction (RCW 51.32.080(2))
In applying RCW 51.32.080(3) to segregate preexisting disability, the percentage or category of the entire disability is reduced by the percentage or category of the prior disability. In cases involving disability to the back, it is not appropriate to reduce the prior disability by 25 percent when determining the disability attributable to the injury. The 25 percent reduction in awards required by former RCW 51.32.080 applies only to the monetary amount of the compensation for disability, not the extent of the disability. ....Clarence Allen, 88 4656 (1990)
The "neck" is not part of the "back" within the meaning of RCW 51.32.080(2), which requires a 25 percent reduction in awards for injuries to the "back" which are not substantiated by "marked objective clinical findings." Cervical awards must therefore be paid at 100 percent of monetary value. ....Kenneth Cox, 86 4543 (1988) [special concurrence] [Note: The 25 percent reduction authorized by RCW 51.32.080(2) probably only applies to injuries which occurred on or after March 23, 1979 but before July 1, 1988. See Laws of 1988, ch. 161 ( 6, p. 691.]