Significant Decisions


IN RE: STEVEN M. LAING ) DOCKET NONOS. 08 12843 & 08 13044
  )  
CLAIM NO. AD-99184   ) DECISION AND ORDER
  )  
APPEARANCES
Claimant, Steven M. Laing, by
Casey & Casey, P.S., per
Gerald L. Casey
Employer, Dayspring Construction, Inc.,
None
Department of Labor and Industries, by
The Office of the Attorney General, per
Pat L. DeMarco, Assistant

 

           In Docket No. 08 12843, the claimant, Steven M. Laing, filed an appeal with the Board of Industrial Insurance Appeals on March 19, 2008, from an order of the Department of Labor and Industries dated March 12, 2008.  In this order, the Department determined the employer's January 16, 2008 job offer of safety monitor/pick up driver was a valid offer.  The Department order is REVERSED AND REMANDED.

           In Docket No. 08 13044, the claimant, Steven M. Laing, filed an appeal with the Board of Industrial Insurance Appeals on March 26, 2008, from an order of the Department of Labor and Industries dated March 21, 2008.  In this order, the Department ended time loss compensation on March 19, 2008, because the claimant was able to work.  The Department paid time loss compensation from March 6, 2008, through March 19, 2008; established the time loss compensation rate at $2,761.48 per month; and determined that time loss compensation paid up to March 19, 2008, was correct.  The Department order is REVERSED AND REMANDED.

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 claimant to a Proposed Decision and Order issued on January 28, 2009, in which the industrial appeals judge affirmed the Department order dated March 12, 2008, and reversed and remanded the Department order of March 21, 2008.  All contested issues are addressed in this order.[2]

           The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed.  The rulings are affirmed.  We have granted review to analyze the appeal in Docket No. 08 12843 under RCW 51.32.099, and we reverse and remand the Department orders in both Docket Nos. 08 12843 and 08 13044.

           Steven Laing is a 46-year-old man possessing a high school diploma.  After high school, he attended Olympic College in a construction program that allowed him to obtain a job with Dayspring Construction as a framer.  Mr. Laing has been doing this since age 20 for the same firm.  Some 10 years ago, he moved to Spokane because there was more work there.

           On September 18, 2006, Mr. Laing was on a forklift platform that was improperly connected to the forklift.  When the basket flipped up, he was thrown out of the basket and fell eight to ten feet, landing stiff-legged off to the right side.  He fractured bones in his right foot, requiring surgical fixation.  Unfortunately, his surgical result has not been optimal.  He continues to have pain, and wears a brace at all times.  His foot is not stable side to side, and will invert or evert, causing him to fall.  He uses a cane to walk, and he does not believe he could walk on a construction site, because the ground tends to be uneven and rough. 

           Mr. Laing has full custody of his 12-year-old son.  In the summer of 2007, he moved from Spokane to the Bremerton area where his mother and father reside.  He moved there to be near family, both because he wanted his son to be around family and because he needed help.  At the time he moved there was no indication the company would offer him a job he was able to perform.  At one point, he was apparently offered a position driving a forklift, but he could not perform this job. 

           Thus, by January 16, 2008, when he was offered the job of safety monitor/pick up driver, he had moved back to Bremerton and enrolled his son in school.  He was given 15 days to move back to the Spokane area and begin work, which he did not do.  He testified that he could not perform the safety monitor job, and that the firm has not had a safety monitor in all the years he has worked there.  Further, to perform a safety monitor job, he would have to get in and out of trucks all day, and be able to walk around the job sites, which are activities he cannot readily do.

           Marsha Laing is Mr. Laing's mother.  She testified that her son moved back to the Bremerton area last summer, as he was totally injured.  He has sole custody of a son, and wanted to be closer to his family.  Her son and grandson come to her house three to four times a week. 

           Lynn L. Staker, M.D., is a physician certified as a specialist in orthopedic surgery.  He first saw Mr. Laing on November 21, 2007, a little over a year after Mr. Laing's surgery.  Dr. Staker explained that Mr. Laing fractured his right calcaneus bone, leaving him with limited range of motion [3] in his ankle, but with significant limitations in subtalar motion in both inversion and eversion.  Additionally, Mr. Laing continues to have tenderness and pain with motion.  The surgery performed attempted to restore the "Bohler angle," but did not do so, and his subtalar joint, which is a weight-bearing joint, is destroyed.  Mr. Laing has significant limitations in his ability to walk and stand, and in Dr. Staker's opinion, Mr. Laing would have trouble walking on a construction site.  Walking or climbing on uneven surfaces would be difficult and carrying weights would aggravate the situation. 

           However, Dr. Staker does not limit Mr. Laing's ability to drive, sit, or reach.  He can bend or squat on only a very limited basis, and could lift 1 to 10 pounds occasionally, 11 to 20 pounds rarely.  Mr. Laing could walk 300 yards, but it would hurt every step, and he cannot stand for 45 minutes.  It is Dr. Staker's goal to "keep this guy off his feet."  Staker Dep. at 12.  If he could perform the job of safety monitor sitting at a desk, then Dr. Staker believes he could perform this job, but not if he had to go out onto a site and walk around.

           John Berg is a vocational rehabilitation counselor who evaluated Mr. Laing at the request of Mr. Laing's attorney.  Mr. Berg interviewed Mr. Laing sometime after June 2008.  He also reviewed the Department file, records from Dr. Staker, and a performance-based physical capacities evaluation done in Spokane.  There was also a vocational assessment in the file which stated that Mr. Laing was eligible for vocational services, and that testing showed he was retrainable.  

           The files Mr. Berg reviewed revealed that the employer of injury had offered Mr. Laing a job as a forklift driver.  Mr. Berg observed that this is a medium duty job, requiring 25 to 50 pounds of exertion.  In addition to this, the worker has to use his hands and feet, and have a safety certification, which Mr. Laing does not have.  In Mr. Berg's opinion, this exceeds his capabilities, and is not a viable employment option.

           Similarly, Mr. Berg believes that the job offer of safety monitor/pick up driver is also inappropriate.  Mr. Laing has no background in safety monitoring; this is a profession listed as skilled labor, requiring at least two years of preparation.  Moreover, he is unable to get around on the uneven terrain of job sites, and would have difficulty climbing ladders.  In Mr. Berg's opinion, Mr. Laing would benefit from vocational services.

           Mr. Berg admitted that the performance-based physical capacities evaluation found Mr. Laing capable of medium duty work.  However, Mr. Berg pointed out that even though Mr. Laing could perform upper extremity or torso lifts consistent with medium duty, this did not take into consideration Mr. Laing's walking and carrying abilities.  Moreover, he would have trouble driving a [4] vehicle with a manual transmission.  Further, Mr. Laing's ability to carry is limited because he uses a cane.  Finally, this is not a job that is described in any materials as a standardized job.

           Wayne Davis owns Dayspring Construction.  He is a framing contractor, which means he frames wood buildings.  He has owned this business for the last 35 years.  Mr. Davis noted that Mr. Laing had worked in Spokane for the last two to three years, and he offered Mr. Laing a job in Spokane.  Mr. Davis had in mind that Mr. Laing could drive a Suburban around to the various job sites, and do all the "running around" that Mr. Davis ends up doing, such as picking up broken tools and the like.  Mr. Laing would not have to climb ladders; he would just pick up Skil saws and other hand tools.  Any heavier lifting could be done by another worker on-site.  At the time the job was offered, Mr. Davis had no idea if Mr. Laing had moved permanently, and gave him seven days to report to work, or Mr. Davis would consider Mr. Laing had quit.

           Robert Aieta is a vocational rehabilitation counselor, who functions as a vocational therapist quality review manager for the Department of Labor and Industries.  Because there was a dispute as to whether the safety monitor/pick up driver job was "a valid job offer," it was he and others who staffed this case and made the decision that indeed, it was. 

           Mr. Aieta explained that on January 2, 2008, 1,600 letters went out to various employers, informing them that they had 15 days to make a job offer.  At this time, Mr. Laing had already been approved for vocational services.

           Although not referenced in the testimony, it is worthwhile to review the statutory backdrop for this action.  This case falls within the purview of RCW 51.32.099, the vocational rehabilitation pilot program that was enacted by the Legislature and which became effective January 1, 2008.  This statute changed many aspects of the vocational process, but in the context of this matter the most important change is in RCW 51.32.099(2).  This portion of the statute, in relevant part, is as follows:

2(a) For the purposes of this section, the day the worker commences vocational plan development means the date the department or self-insurer notifies the worker of his or her eligibility for plan development services.


(b)  When vocational rehabilitation is both necessary and likely to make the worker employable at gainful employment, he or she shall be provided with services necessary to develop a vocational plan that, if completed, would render the worker employable.  The vocational professional assigned to the claim shall, at the initial meeting with the worker, fully inform the worker of the return-to-work priorities set forth in RCW 51.32.095(2) and of his or her rights and responsibilities under the workers' compensation vocational system.  The department shall provide tools to the vocational professional for communicating this and [5] other information required by RCW 51.32.095 and this section to the worker.


(c) On the date the worker commences vocational plan development, the department shall also inform the employer in writing of the employer's right to make a valid return-to-work offer during the first fifteen days following the commencement of vocational plan development.  To be valid, the offer must be for bona fide employment with the employer of injury, consistent with the worker's documented physical and mental restrictions as provided by the worker's health care provider.  When the employer makes a valid return-to-work offer, the vocational plan development services and temporary total disability compensation shall be terminated effective [on] the starting date for the job without regard to whether the worker accepts the return-to-work offer.  Following the fifteen-day period, the employer may still provide, and the worker may accept, any valid return-to-work offer.  The worker's acceptance of such an offer shall result in the termination of vocational plan development or implementation services and temporary total disability compensation effective the day the employment begins. 


           When Mr. Davis received the Department's letter, he had only a short time to generate a job offer.  The jurisdictional history reflects that initially, the Department sent out a letter in which it stated that the job offer was not valid because it was not consistent with the worker's restrictions.  This was protested, and ultimately an order was issued (the order under appeal) in which the Department stated that the employer's job offer of safety monitor/pick up driver on January 16, 2008, was valid. 

           Thus, Mr. Aieta evaluated whether this was a valid job offer, and issued the order under appeal.  This evaluation and order are authorized by RCW 51.32.099.  In this regard, Mr. Aieta explained that the Vocational Dispute Resolution Office (VDRO) looked at information prepared by James Strandy, the physical therapist who performed the performance-based physical capacities evaluation.  The VDRO also looked at information on file from Christopher Lang, M.D., who apparently was Mr. Laing's surgeon when he lived in Spokane.  Dr. Lang was not Mr. Laing's attending physician at the time of the decision‑making process.  Apparently, Dr. Lang approved the job of safety monitor/pick up driver, although Dr. Staker did not.  The VDRO chose to rely on the opinions of Dr. Lang.  Further, Mr. Aieta testified that there were no objective findings.  We are constrained to observe, however, that this is difficult to comprehend, because a worker with a broken calcaneus with internal fixation, of necessity, has objective findings.  Mr. Aieta also explained that the VDRO was aware that Mr. Laing had moved from Spokane to Bremerton, but determined that based on WAC 296-19A-110(4), the employer had the right to make a job offer in the labor market where the industrial injury occurred. [6]

           On cross-examination, Mr. Aieta admitted that no physician had ever signed off on the job offer, stating that this was not necessary.  He also stated that he did not know when Dr. Lang had last seen the claimant, and that at the time the Department withdrew Mr. Laing's eligibility for vocational services it was aware that Dr. Staker had certified that Mr. Laing was unable to work.  Still, the VDRO elected to give Dr. Lang's opinions greater weight.

           The Department's final witness was James Strandy, the physical therapist who performed the performance-based physical capacities evaluation on August 14, 2007.  Mr. Strandy testified that based on the results of the physical capacities evaluation, material-handling testing puts Mr. Laing in the medium level of exertion.  He admitted, however, that Mr. Laing could stand, walk, or climb stairs only occasionally.  He believed that Mr. Laing could squat occasionally, kneel frequently, and although he did not possess balancing abilities on the right, he could balance on the left.  He characterized Mr. Laing's heel toe walk as average, and testified that Mr. Laing was capable of working on protected heights and on uneven terrain, but did not qualify Mr. Laing for high steel construction. 

           In Mr. Strandy's opinion, Mr. Laing could perform the job of safety monitor/pick up driver.  He placed one modification, however, which is that standing and walking are characterized as frequent in the job analysis, and Mr. Laing can do this only occasionally.  He believed that Mr. Laing could carry weights on an uneven surface and deliver tools.  However, he admitted that Mr. Laing uses a cane, and that it is difficult to carry items when using a cane. He also admitted that climbing stairs should be done only on an occasional basis, and that Mr. Laing should use a cane or handrail when doing so; again, it would be difficult to carry something under these circumstances.

           With regard to the first issue, that of whether the job offer was a valid one, our industrial appeals judge determined that the standard of review was whether the Director had abused her discretion when it made this determination, and further that the Director had not abused her discretion.  We note, however, that this is not a decision made under the auspices of RCW 51.32.095; indeed, when the job offer of safety monitor/pickup driver was made, the Director had already exercised her discretion and determined that Mr. Laing was in need of vocational services.  However, RCW 51.32.099 gives employers the right to stop the vocational process if the employer makes a valid job offer to the claimant.  The issue, then, is whether it is a valid job offer.  This is reviewable on a preponderance standard, not whether there was an abuse of discretion. [7] 

           Pursuant to RCW 51.32.099(2)(c), "To be valid, the offer must be for bona fide employment with the employer of injury, consistent with the worker's documented physical and mental restrictions as provided by the worker's health care provider."  The term "bona fide" is not defined in the statute, but we need not reach this issue, as we do not believe that the job of safety monitor/pickup driver is consistent with the worker's documented physical restrictions.  First and foremost, we do not believe that Mr. Laing has the physical capabilities to perform this job.  The performance-based physical capacities evaluation is flawed.  It is difficult to comprehend how the claimant could negotiate the uneven terrain so common on jobsites while carrying tools and using a cane.  Moreover, it is difficult to understand how Mr. Laing can carry 50 pounds (medium duty) with a destroyed weight-bearing ankle joint.  Finally, even Mr. Strandy admitted that there would have to be a job modification, as Mr. Laing cannot walk and stand frequently, which is what the job would require.  We would thus assign more weight to the testimony of Dr. Staker, who testified that Mr. Laing needs to stay off his feet.  While this information was in the file the Department reviewed when it made its decision, it chose instead to rely on information from a former health care provider. 

           Parenthetically, we must observe that this is not the same as a job offer made under the auspices of RCW 51.32.090(4)(a), which allows an employer to provide a job analysis to a physician, so that the physician can certify the worker can perform a given job (so-called "light duty").  RCW 51.32.099(2) does not require that a physician sign off on the job; it requires that the employment be "consistent with the worker's documented physical and mental restrictions as provided by the worker's health care provider."  This means that a person hired for purposes of performing an independent medical examination or physical capacities evaluation, for that matter, is not the worker's health care provider, and decisions involving validity of a return-to-work offer cannot be made in reliance on them. 

           Finally, there is the issue of the location of the proper job market: Spokane or Bremerton.  Although RCW 51.32.099 does not mention job market, we believe that such consideration must be a part of the analysis.  Mr. Aieta testified that pursuant to WAC 296-19A-010(4), the proper job market is the geographic area where the worker was last gainfully employed.  That section of the regulation lists certain exemptions, however, not the least of which is when the claimant relocates to a labor market other than at the time of injury or onset of illness, and the move was proximately caused by the medical condition arising from the occupational injury or disease.  Mr. Laing moved from Spokane to the Bremerton area after his surgery.  He has sole custody of his 12-year-old son, and needed his mother's assistance to care for his son after this injury.  Using a preponderance of [8]the evidence standard, and looking at this record as a whole, we do not believe that this was a valid return-to-work offer.

           With regard to the second issue, that of whether the Department should have ended time loss compensation, our industrial appeals judge determined that Mr. Laing remained a temporarily totally disabled worker and we agree with him, for much the same reasons as noted above.  The analysis is a little different, however; the question is whether Mr. Laing is capable of reasonably continuous gainful employment.  In this regard, we are most persuaded by the testimony of Mr. Berg and Dr. Staker.  Mr. Berg testified that Mr. Laing lacks the knowledge to act as a safety monitor, which requires at least two years of training.  More importantly, Dr. Staker testified that Mr. Laing needs to stay off his feet.  Finally, we must observe that the Department had previously determined that Mr. Laing was eligible for vocational plan development, which, in and of itself, establishes that Mr. Laing is not capable of reasonably continuous gainful employment.  We note, however, that no evidence was produced relative to the issue of time loss compensation rate, and thus we affirm this aspect of the order under appeal. 

           With regard to Docket No. 08 12843, we determine that the issue of whether the employer made a valid job offer is reviewable on a preponderance [8] of the evidence standard, and further that the Department order is incorrect, and the January 16, 2008 job offer of safety monitor/pick up driver was not a valid job offer.  With regard to Docket No. 08 13044, we determine that Mr. Laing was not capable of reasonably continuous gainful employment as of March 20, 2008, and reverse the Department order and remand this matter to the Department with direction to pay time loss compensation for the period of March 20, 2008, through March 21, 2008, and to affirm the time loss compensation rate of $2,761.48 per month. 

FINDINGS OF FACT

  1. The claimant, Steven M. Laing, filed an Application for Benefits with the Department of Labor and Industries on September 21, 2006, in which he alleged the occurrence of an industrial injury on September 18, 2006, during the course of his employment with Dayspring Construction, Inc.  The claim was allowed and benefits paid.
    2. Docket No. 08 12843

    The Department issued an order on March 12, 2008, in which it determined that the January 16, 2008 Dayspring Construction, Inc. job offer for a safety monitor/pick up driver was a valid job offer.  Mr. Laing filed a Notice of Appeal from this order on March 19, 2008, with the Board of Industrial Insurance Appeals.  On April 9, 2008, the Board granted the appeal under Docket No. 08 12843, and agreed to hear the appeal.

    Docket No. 08 13044

    The Department issued an order on March 21, 2008, in which it paid time loss compensation from March 6, 2008, through March 19, 2008; determined the time loss compensation rate of $2,761.48 per month was correctly paid; ended time loss compensation on March 19, 2008, but the claim remained open for further action.  Mr. Laing filed a Notice of Appeal from this order on March 26, 2008, with the Board of Industrial Insurance Appeals.  On April 9, 2008, the Board granted the appeal under Docket No. 08 13044, and agreed to hear the appeal. [9]
  2. On September 18, 2006, Steven M. Laing sustained an industrial injury during the course of his employment with Dayspring Construction, Inc., when he stood on a forklift platform, elevated about 8 to 10 feet.  The forklift driver reversed the forklift, causing a cord, hooked onto the platform, to pull the platform off the forklift's forks.  The platform flipped, threw Mr. Laing off the platform, and caused him to land on the ground with stiff legs.  Mr. Laing fractured his right ankle, requiring surgery.

  3. Mr. Laing is a 45-year-old man with a twelfth grade education.  Mr. Laing's core work experience is in construction and carpentry from 1983 to 2006.

  4. As of January 1, 2008, as a proximate result of the industrial injury of September 18, 2006, Mr. Laing's attending physician, Lynn L. Staker, M.D., believed that the claimant had significant limitation of his subtalar motion in his right ankle, with generalized tenderness in the anterior lateral aspect of his foot and ankle, and pain with motion.  He has significant limitations in his ability to walk and stand.  He is unable to climb or ambulate on uneven surfaces, particularly with weight.  He cannot walk or stand on a prolonged basis, and he uses a cane when he walks. 

  5. At the time of the industrial injury, September 18, 2006, the claimant lived and worked in the Spokane area.  He had and continues to have sole custody of his 12-year-old son.  After the industrial injury, he required assistance and moved to Bremerton in the summer of 2007, where his mother resides. 

  6. The Director of the Department of Labor and Industries exercised her discretion, and found Mr. Laing eligible for vocational plan development and so notified him. 

  7. Within 15 days of the claimant's notification that he was eligible for vocational plan development, the claimant's employer at the time of injury, Dayspring Construction, Inc., offered Mr. Laing a job as a safety monitor/pick up driver in the Spokane area.  As of this date, however, Mr. Laing had moved to Bremerton.  This job required that Mr. Laing stand and walk throughout the day, carry small tools, and walk on uneven ground on construction sites.  This job also required experience and training as a safety monitor.

  8. The claimant does not have training or experience as a safety monitor.
    9.  
  9. The job offer of safety monitor/pick up driver was not consistent with Mr. Laing's documented physical restrictions, as provided by his health care provider, Lynn L. Staker, M.D. 

  10. During the period from March 20, 2008, through March 21, 2008, inclusive, the residual effects of the September 18, 2006 industrial injury precluded Steven M. Laing from obtaining or performing reasonably continuous, gainful employment in the competitive labor market, when considered in conjunction with Mr. Laing's age, education, work history, and pre-existing disabilities.

CONCLUSIONS OF LAW


  1. The Board of Industrial Insurance Appeals has jurisdiction over the parties to and the subject matter of this appeal.

  2. The determination of whether a job offer made pursuant to RCW 51.32.099(2)(c) is valid is reviewable on a preponderance standard. 

  3. The employer's job offer of safety monitor/pick up driver was not valid within the meaning of RCW 51.32.099(2)(c). 

  4. The Department order of March 12, 2008, which is the subject matter of Docket No. 08 12843, is incorrect and is reversed.  This matter is remanded to the Department with direction to initiate vocational plan development within the meaning of RCW 51.32.095 and RCW 51.32.099. 

  5. During the period from March 20, 2008, through March 21, 2008, inclusive, Steven M. Laing was a temporarily, totally disabled worker within the meaning of RCW 51.32.090, and, therefore, is entitled to time loss compensation for this period.

  6. The Department order dated March 21, 2008, which is the subject matter of Docket No. 08 13044, is incorrect as to payment of time loss compensation, and is reversed.  This matter is remanded to the Department with direction to pay time loss compensation benefits for the period from March 20, 2008, through March 21, 2008; to affirm the part of the order establishing the time loss compensation rate as $2761.48 per month; and to take such further action as necessary according to the law and the facts.
Dated: May 20, 2009.

BOARD OF INDUSTRIAL INSURANCE APPEALS

/s/

THOMAS E. EGAN Chairperson

/s/

FRANK E. FENNERTY, JR. Member


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