PERMANENT TOTAL
DISABILITY (RCW 51.08.160)
Age as factor
Where the worker's age (73), and not her physical impairment resulting from the injury, is the predominant factor impairing her ability to be hired, she cannot be considered permanently totally disabled as a result of the industrial injury. ....Violet Canfield, 60,811 (1983) [concurrence]
Availability of work in geographical area
The worker's residence and particular labor market is a relevant factor, among many, in determining whether a worker is permanently and totally disabled. Rationale of Dezellem (BIIA Dec., 23,765 (1966)), that the question of whether an injured worker is permanently totally disabled should not turn on "employment opportunities then present in any particular community," is incorrect as a matter of law. ....Arden Breth, 89 2211 (1990) [dissent]
Where an injured worker has moved from Washington to another state and subsequently becomes an "odd lot" on the labor market due to aggravation of the industrial injury, the employer cannot meet its burden of establishing that some kind of suitable work is regularly and continuously available to the worker by offering him a job at his former jobsite in the state of Washington. ....Daniel Furlong, 65,138 (1985) [dissent]
Whether a worker is permanently totally disabled does not turn on employment opportunities present in the worker's particular community, but on the worker's ability to engage in gainful employment. A different result may obtain in an "odd lot" case. ....Lester Dezellem, 23,765 (1966) [Statement concerning employment opportunities in worker's particular community held "incorrect as a matter of law" by In re Arden Breth, BIIA Dec., 89 2211 (1990)]
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)
RCW 51.32.010 permits payment of permanent total disability benefits to a custodial parent where a minor was in legal custody of a divorced spouse because RCW 51.32.090(2), regarding payment of compensation for temporary total disability to the person actually providing support for a child, does not apply to payments for permanent total disability benefits. ....Dorsey Hursh, 90 6802 (1991)
Combined effects of preexisting and subsequent disabilities
Where a worker was on pension rolls under one claim due to the combined effects of the disability associated with that claim, as well as another, the worker cannot receive a permanent partial disability award under the other claim. ....Joanne Lusk, 89 2984 (1991) [Cf. In re Roy T. Sulgrove, BIIA Dec., 88 0869 (1989)].
Preexisting disability is segregated only when the worker is determined to be permanently partially disabled, not permanently totally disabled. [RCW 51.32.080(3)] ....Frank Inman, 65,119 (1984)
A worker may establish permanent total disability by combining the effects of the industrial injury with conditions preexisting the injury and causing a significant physical impairment. Even though the conditions were not discovered or diagnosed until after the injury, they should not be viewed as subsequently occurring events. ....Reuben Pister, 61,785 (1983)
A worker cannot establish permanent total disability by combining the effects of the industrial injury with an unrelated condition preexisting the injury, when there was no discernible disability due to that condition until after the injury had occurred. ....Coral Kaufman, 59,962 (1982) [dissent]
Where the worker was developing significant medical problems at the time of the industrial injury and those problems subsequently limited his capacity to be employed, he may still be found to be permanently totally disabled as a result of the industrial injury if the injury, independently or superimposed upon the pre-existing circumstances and conditions, was a significant contributing cause of his inability to perform reasonably obtainable work. ....Carlton Hague 59,331 (1982) [dissent]
A worker is not permanently totally disabled as a result of an industrial injury where only by considering the effects of subsequent unrelated conditions can she be said to be incapable of gainful employment. ....V. Pearl Howes, 58,356 (1982) [dissent]
Continuing medical benefitsA worker cannot establish permanent total disability by combining the effects of the industrial injury with unrelated preexisting dormant conditions which only became symptomatic and disabling after the injury. To establish that the industrial injury was the proximate cause of permanent total disability under a combined effects theory, the worker must show that the injury combined with disability existing at the time of the injury. ....Walter Larson, 21,004 (1966)
The supervisor has discretion to allow post pension treatment pursuant to RCW 51.36.010, including medications which are necessary to alleviate continuing pain. This includes medications which would be palliative, not curative, and it is an abuse of discretion to deny them based only on the palliative nature of the treatment. ....Pablo Garcia, 05 15329 (2006)
The pension was awarded with second injury fund relief available to the self-insured employer and continuing medical treatment for the worker. Because the second injury fund is not funded to provide for medical benefits, the ongoing medical treatment is the responsibility of the self-insured employer. [Editor's Note: The Board's decision was appealed to superior court in King County, Cause No. 00-2-05182-4KNT] ….Crella Boudon, 98 17459 (2000) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 00-2-05182-4KNT.]
Deduction of prior permanent partial disability award (RCW 51.32.080(2))
Where the evidence indicates second injury fund relief is appropriate, the self-insured employer is entitled to have the pension reserve charged against the second injury fund as of the date of onset of the worker's permanent total disability, not the date the Department identified as the date it was placing the worker on the pension rolls. ....Harold McCormack, 90 3178 (1992)
Effective date of pension
The effective date of permanent total disability is the date the worker is both medically fixed and as a vocational matter, demonstrably permanently unable to be gainfully employed on a reasonably continuous basis. Citing In re Roger Neuman, BIIA Dec., 97 7648 (1999). The holding contained in the decision of In re Mickey Chiu, BIIA Dec. 97 7432 (1999) wherein it was determined the effective date of total disability to be the date of legal fixity is reversed. ….Frederic Cuendet, 99 21825 (2001)
The worker continued to be totally temporarily disabled until a vocational expert concluded that he was unable to benefit from vocational services. The vocational counselor’s assessment and conclusion were necessary to establish vocational fixity and the worker’s entitlement to permanent total disability benefits. The earliest date these facts are shown to be in existence is the date of the vocational counselor's assessment report. Accordingly, the date of the vocational counselor's assessment is the effective date of the worker status as permanently and totally disabled. Citing In re Roger Neuman, BIIA Dec., 97 7648 (1999) .…James Eddy, 99 18062 (2000)
The effective date of permanent total disability benefits is the date the worker is both medically fixed and as a vocational matter, demonstrably permanently unable to be gainfully employed. ….Roger Neuman, 97 7648 (1999) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 99-2-18088-7 KNT.]
The effective date of a pension is not merely the date of medical fixity. If totally disabled prior to the effective date of the pension, the worker is entitled to time-loss compensation benefits until the Department acts to change the classification from temporary to permanent. The effective date may be the date the Department first acted to close the claim. Citing In re Douglas Weston, BIIA Dec., 86 1645 (1987). ….Mickey Chiu, 97 7432 (1999) [Editor's Note: The Board's decision was appealed to superior court under Spokane County Cause No. 99-2-01327-6.] [Overruled, In re Frederic Cuendet , BIIA Dec., 99 21825 (2001)]
Employment on closing date
Turner (41 Wn.2d 739) does not preclude a pension in the situation where the worker was employed full-time on the date his claim was closed, but in an odd lot position causing "much discomfort" from which he was laid off two months later. ....Richard Chase, 60,114 (1982) [dissent]
Fixity of condition at time of death from unrelated cause (RCW 51.32.050(6))
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)
In a claim for survivor's benefits premised on the worker being permanently and totally disabled at the date of death, the widow must first establish a permanent worsening of the worker's condition between the date his claim was last closed with a permanent partial disability award and the date of his death. The widow is held to the same burden as the worker with respect to the need to prove aggravation of condition. ....Lowrey Pugh, Dec'd., 86 2693 (1989) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 89-08880-1.]
Through special concurring opinion the Board majority rejects the holding in Cowell that a surviving spouse may be entitled to pension benefits even if the worker's condition was not fixed at the time of his death. ....Larry Alfano, Dec'd., 86 1384 (1988) [concurrence] Majority of Board accepts holding in Cowell, In re James McShane, Dec'd., BIIA Dec., 05 16629.[Editor's Note: The Board's decision was appealed to superior court under King County Cause No.88-2-01192-3.]
Where, at the time of the worker's death from an unrelated cause, the worker's condition causally related to the industrial injury was neither fixed nor in a state of decline which further treatment could not remedy, and the medical evidence did not establish that she would ultimately be permanently totally disabled, her surviving spouse was not entitled to pension benefits. ....Mabel Gates, Dec'd., 63,850 (1984) [special concurrence] [Editor's Note: The Board's decision was appealed to superior court under Grant County Cause No. 84-2-00138-7.]
Where the worker's refusal to undergo treatment was reasonable because of the limited prospect for success, and where even if the worker had undergone surgery it would not have affected his ability to return to gainful employment, the worker's condition was fixed at the time of his death and the surviving spouse was entitled to benefits pursuant to RCW 51.32.050(6). ....Robert McIlrath, Dec'd., 65,592 (1984)
Where, at the time of the worker's death from an unrelated cause, the worker's condition causally related to the industrial injury was not fixed but there was no reasonable likelihood that he would ever have been able to return to gainful employment, the surviving spouse was entitled to benefits pursuant to RCW 51.32.050(6). ....Ronald Cowell, Dec'd., 62,207 (1984) [dissent] [Contra In re Larry Alfano, BIIA Dec., 86 1384 (1988), followedIn re James McShane, Dec'd., BIIA Dec., 05 16629.]
Gainful Employment
Where a worker performs services at a gas station in order to become more active on an intermittent and informal basis, and does not receive wages or any remuneration in exchange for the services, such activity does not constitute a return to gainful employment for wages. ....Nestor Vargas, 89 2000, (1991) [special concurring opinion]
Obtaining work vs. performing work
Whether a worker can obtain work is not a factor in determining whether the worker is permanently totally disabled. The question is whether the worker can perform any substantial gainful employment which exists in the competitive labor market and is within the worker's qualifications. ....Violet Canfield, 60,811 (1983) [concurrence] [See Leeper v. Department of Labor & Indus., 123 Wn.2d 803 (1994)]
Odd lot
Once it is proved that a worker is precluded from performing light or sedentary work of a general nature, the burden shifts to the Department or employer to prove not only that specific "odd lot" work is available to the worker, but also that such employment would allow the worker to be gainfully employed on a reasonably continuous basis. ....Betty Helm, 87 1511 (1988)
Part-time employment
Part-time employment paying less than full-time employment at minimum wage may not be gainful. ....Norman Pixler, 88 1201 (1989) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Spokane County Cause No. 89-2-04666-5.]
Worker, who was a part-time bingo caller at the time of her injury and was capable of returning to such employment, was not deprived of her ability to follow her previous occupation and was therefore not permanently and totally disabled. ....Rose Elliott, 87 4017 (1989) [Editor's Note: The Board's decision was appealed to superior court under Pierce County Cause No. 89-2-05748-0.]
An odd lot worker capable of obtaining and performing only part-time or half-time work is not necessarily precluded from permanent total disability status. ....Eugene Brixen, 63,381 (1984)
Steady employment at skilled work on a regular basis of four hours per day, five days per week, commencing two days after the closing date and continuing through the hearing date, constitutes work at a gainful occupation within the meaning of RCW 51.08.160 and, as a matter of law, disqualifies the worker from a pension. ....Sterling Taylor, 19,725 (1965) [dissent]
Permanent partial disability award under another claim
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)
Reduction of benefits by prior permanent partial disability award
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) (Overruled, In re Esther Rodriguez, BIIA Dec., 91 5594 (1993)) (Reversed, Stuckey v. Department of Labor & Indus., 129 Wn. 2d 289 (1996))
Retroactive effective date of pension
A permanent total disability determination is a combination of medical and vocational fixity, and should turn on the facts then in existence. A retroactive determination should be based on the date medical and vocational experts arrive at the determination that a worker is permanently totally disabled. Our decision should not be interpreted as an invitation for parties to establish a date for permanent total disability by the use of hindsight. …. Roger Neuman, 97 7648 (1999) [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 99-2-18088-7 KNT.]`
Subsequent industrial injury
The disability resulting from a subsequent industrial injury may be considered with preexisting conditions and the residuals of the current claim to determine whether a worker is totally disabled, where both claims are on appeal at the same time. ….Thomas Redeye, 00 13114 (2002)
Survivors' benefits
A spouse, substituted as the appealing party where the worker died during the pendency of the appeal, who established that the worker was permanently totally disabled as of the date his time-loss compensation benefits were terminated, two years before his suicide, was entitled to benefits under RCW 51.52.050(6). ....William Zygarliski, Dec'd.,89 1094 (1990)
RCW 51.32.020 only applies when compensability hinges on the cause of the death. That statute does not bar a claim for benefits by a surviving spouse where the worker's death by suicide takes place while the worker is in a status of permanent total disability. ....John Hoerner, Dec'd., 67,267 (1985) [Rule upheld by Department of Labor & Indus. v. Baker, 57 Wn. App. 57 (1990)]
While the death of a worker who commits suicide with intent and deliberation is not compensable under RCW 51.32.020, the surviving spouse is not foreclosed from benefits under RCW 51.32.050(6) if the worker was permanently totally disabled at the time of death. ....Owen Larkin, Dec'd., 18,441 (1965) [dissent] [Rule upheld by Department of Labor & Indus. v. Baker, 57 Wn. App. 57 (1990)]
Termination of benefits (RCW 51.32.160) - See DIMINUTION OF DISABILITY (RCW 51.32.160)
Vocational testimony
An opinion by a vocational expert that the worker is unemployable must be based on physical limitations or restrictions imposed by a medical expert. An opinion based on the worker's own statement of limitations is insufficient. ....Lawrence Larsen, 54,979 (1980)