|IN RE: LEONARD NORGREN||)||DOCKET NO. 04 18211|
|CLAIM NO. W-424433||)||DECISION AND ORDER|
Law Offices of Albert R. Johnson, Jr., per
Albert R. Johnson, Jr.
Self-Insured Employer, Seattle Times, by
Keehn Arvidson, PLLC, per
Amy L. Arvidson
Department of Labor and Industries, by
The Office of the Attorney General, per
Lisa V. Brock, Assistant
The self-insured employer, Seattle Times, filed an appeal with the Board of Industrial Insurance Appeals on September 13, 2004, from an order of the Department of Labor and Industries dated September 3, 2004. In this order, the Department affirmed an order dated December 24, 2003, wherein the Department denied second injury fund relief to the self-insured employer. The Department order is AFFIRMED.
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 self-insured employer to a Proposed Decision and Order issued on August 4, 2005, in which the industrial appeals judge affirmed the Department order dated September 3, 2004.
We conclude that the disposition of this appeal that was contained within the Proposed Decision and Order was correct. We have granted review to make the changes in the evidentiary rulings set forth below and to further explain the rationale for our reaching this result. In order to do so, it is necessary for us to set forth in some detail the evidence presented to us.
We have reviewed the evidentiary rulings in the record of proceedings and affirm all of the rulings, except as follows:
Exhibit No. 1 is rejected as hearsay. Exhibit No. 3 is rejected as cumulative and hearsay. Exhibit No. 4 is rejected as cumulative. 
In the deposition of Leonard Norgren the objection at page 32, line 17 is sustained and testimony at lines 4-7 is stricken. The objection at page 33, line 23 is sustained and testimony is stricken from page 32, line 25 to page 33, line 10. The objections at page 51, line 14; page 54, line 2; page 57, line 19; page 58, line 15; page 59, line 6; page 60, lines 1, 9, and 10; and page 61, line 10 are sustained.
In the deposition of Arthur Ginsberg, M.D., the objection at page 44, line 15 is sustained.
In the deposition of Kenneth Briggs, M.D., the objections at page 19, line 23 and at page 20, lines 10 and 25 are overruled, but the evidence is admitted only insofar as a basis for the opinions of the expert witness. The objections at page 21, line 23; page 26, line 8; page 29, line 13; page 34, line 5; page 44, line 24; page 45, line 4; page 46, line 6; and page 52, line 1 are sustained.
In the deposition of Richard Carter, M.D., the objections at page 65, line 25; page 66, line 17; and page 67, line 12 are sustained. The objection at page 68, line 10 is sustained for lack of foundation. The objection at page 82, line 1 is sustained.
In the deposition of William Burkhardt, Ph.D., the objection at page 47, line 5 is sustained
In the deposition of Barbara Berndt, the objections at page 27, line 8; page 32, line 8; and page 43, line 15 are sustained. The objection at page 49, line 10 is overruled. The objections at page 58, lines 17 and 22; page 66, line 18; page 72, line 12; page 77, line 25; page 80, line 4; page 83, line 15; and page 88, line 8 are sustained.
In the transcript of the testimony of Kathy Keefe, the objection at page 29, line 12 is sustained and testimony at lines 4-11 is stricken. The objections at page 40, line 6; page 46, line 16; and page 49, line 15 are sustained.
Mr. Norgren was 63 years old when he was classified by Department order as a permanently and totally disabled worker. He is bilingual; English, and Swedish. He received five years of schooling in the U.S. and then his parents moved back to Sweden. Mr. Norgren received another two years of education in Sweden, after which his schooling ended due to the way the Swedish educational system is run rather than due to any intellectual deficiencies on his part. His spelling is at the fourth grade level, arithmetic skills are at the third grade level, and he is able to read English at the eighth to tenth grade level. Many years after his return to the U.S. he took approximately one quarter of community college classes in automotive tune up and in adult general education, but he has never obtained a GED.
Mr. Norgren began working in Sweden at age fourteen at a variety of jobs, but moved back to the U.S. in hopes of greater opportunity. Mr. Norgren worked approximately sixty hours per week for the Rainier Brewery for thirty-seven years as a forklift operator, delivery truck driver of trucks of various sizes up to a semi-tractor, and also as a "relief foreman." In approximately 1992, anticipating the loss of his employment with Rainier Brewery due to its financial difficulties, the claimant took a part-time job with the self-insured employer, the Seattle Times (hereinafter referred to as the Times) driving trucks at night delivering bundles of newspapers to locations where the carriers would pick them up. During the seven years he held both jobs, the claimant worked up to eighty hours per week. When Rainier Brewery finally closed in 1999, Mr. Norgren obtained a full‑time job as a dump truck driver for Pacific Topsoil. He worked for that company for less than one month when, on October 3, 1999, while in the course of his employment with the Times, he sustained the industrial injury that is the subject matter of this claim.
Mr. Norgren has been married once, for thirty-six years and counting. He testified that he had no problems in his marriage until after the industrial injury occurred. He and his wife have two adult children and several grandchildren. The claimant testified that his relationship with them has been fine. The claimant has no criminal history, does not drink or smoke, and stated that his relationship with his parents while growing up was good. Until the industrial injury, Mr. Norgren had never sought or obtained mental health counseling of any sort or used antidepressant medications.
Before the October 3, 1999 industrial injury, Mr. Norgren missed no more than three or four days from work at one time. He had at least one cervical strain and one low back strain for which industrial insurance claims were allowed, but those conditions resolved shortly afterward. He has a bad right knee for which surgery was recommended, but he did not undergo surgery. He testified that prior to the industrial injury his right knee problems did not affect his jobs at all. If his right knee bothered him, he went to a doctor for a cortisone injection that would clear up the problem. He filed a claim in 1993 for right shoulder and hand pain, but the symptoms did not bother him at work and the claim was rejected. He discovered he had glaucoma when he was having his eyes examined. He took medication to control the glaucoma, but that condition did not affect his driving prior to the October 3, 1999 industrial injury. Subsequent to the industrial injury, Mr. Norgren filed a claim for occupational hearing loss, which was allowed with a date of manifestation on July 1, 1999 (prior to this industrial injury) and which was closed with a permanent partial disability award of 16.88 percent complete loss of hearing in the left ear. The claimant first noticed the hearing loss in 1995, but it did not affect his ability to work in any way. Mr. Norgren had no problems with tinnitus, with concentration, or with his memory before his industrial injury.
On October 3, 1999, around midnight, Mr. Norgren was driving a large delivery truck that had stopped at an intersection in Mount Vernon, Washington, when a drunk driver plowed into the back of his truck. The car was going approximately sixty miles per hour when it hit the claimant's truck, which was knocked almost thirty feet into the intersection by the impact. Mr. Norgren received a severe whiplash injury, but did not lose consciousness. Since that time he has suffered from back, neck, and right arm pain, "floaters" in his left eye due to a torn retina, constant severe tinnitus, headaches, and memory and concentration difficulties. He has nightmares about the crash and flashbacks during the day about the crash. He is afraid to drive, and when he does, he is constantly apprehensive that he is going to be rear-ended. He is depressed, anxious, irritable, and his marriage has suffered. Mr. Norgren testified that sometime after the industrial injury his glaucoma progressed and required more medication.
The Times provided Mr. Norgren with two light-duty job trials. One job trial was as a trainer for truck drivers, but the claimant could not perform that due to anxiety and tinnitus and/or inability to hear the engine so that he could tell when to shift the gears. The second job trial was a telephone solicitor job in order to obtain subscriptions to the Times. The claimant stated that he could not perform that job due to his tinnitus and memory loss, as well as his anxiety that he would be irritable with customers. He never returned to any work thereafter and was found to be permanently and totally disabled effective January 6, 2004.
Dr. Ginsberg, the neurologist who saw Mr. Norgren on several occasions from May 2000 until May 2003, testified that Mr. Norgren's low back and cervical conditions related to the industrial injury each warranted a Category 2 permanent partial disability rating. Considering those conditions alone, Dr. Ginsberg felt that Mr. Norgren was capable of some employment, but he also testified that the post-injury psychological and cognitive symptoms were the main reasons why the claimant was incapacitated. When asked if the claimant was totally disabled due to the combined effects of the pre-existing hearing loss, glaucoma, and prior back and knee injuries, Dr. Ginsberg stated that all of the symptoms rendered the claimant disabled.
Dr. Briggs found no permanent partial or total disability due to the industrial injury. He believed that Mr. Norgren could have operated a forklift considering only the physical residuals of the industrial injury. However, his testimony was contradictory regarding what effects, if any, the pre-existing knee condition had on the claimant's ability to work. Answering a hypothetical  question, Dr. Briggs stated that the knee condition was not significant enough to prevent Mr. Norgren from performing the job duties of driving. Later he testified that the knee condition prevented Mr. Norgren from performing job duties of a forklift driver or of the job of injury, "transportation driver." Dr. Briggs then went on to say that he had no reason to believe that Mr. Norgren was unable to drive forklifts, dump trucks, or the delivery truck for the Times due to the knee complaints as they existed before the industrial injury. Furthermore, he specifically stated that the knee condition was not disabling prior to the industrial injury. We believe that this last statement is most reflective of Dr. Briggs’ true opinion regarding the effect of the pre-existing knee condition on the claimant.
Dr. Burkhardt, a neuropsychologist who examined and tested (but did not treat) Mr. Norgren, noted in 2000 when he first saw him that his post-traumatic stress disorder (PTSD) and major depression made him incapable of gainful employment. Later, Dr. Burkhardt decided that the claimant had a personality disorder that pre-existed the industrial injury. During his testimony he stated that the psychological residuals of the industrial injury alone did not render him totally disabled and that his pre-existing learning deficiencies and compulsive avoidant personality and their contribution to his impatience and social anxiety prevented him from functioning in the light‑duty job trials or other work.
Dr. Carter, the psychiatrist who evaluated Mr. Norgren on two occasions, concluded that prior to the industrial injury Mr. Norgren was functioning fine, both in employment and socially. Dr. Carter did not agree with Dr. Burkhardt that the claimant had a personality disorder. He testified that while Mr. Norgren might have personality traits such as stubbornness, they do not have any impact diagnostically and would not impair the claimant's functioning or cause any disability. Dr. Carter rated the claimant's mental health impairment related to the industrial injury at a Category 2. He was never asked about the claimant's ability to work.
Kathy Keefe, the vocational counselor who conducted the vocational assessment of Mr. Norgren, concluded that he was not eligible for vocational services due to the combined effects of pre-existing conditions and the conditions related to this industrial injury. She concluded that Mr. Norgren was not capable of reasonably continuous gainful employment based on his pre‑existing conditions and current injuries, as well as his limited education and singular work history. The pre-existing conditions that Ms. Keefe cited were the claimant's worsened glaucoma that prevented night driving, the hearing loss that prevented him from hearing the engine and driving a truck properly, and the right knee injury that prevented him from driving without pain.
 Barbara Berndt, a vocational counselor who conducted a record review as part of a vocational assessment directed toward determining if this was a second injury fund case, testified that Mr. Norgren was not employable based on the conclusion of his attending psychiatrist, Dr. Salmon, that his mental health conditions alone were sufficient to prevent him from working. She stated the claimant could not be retrained.
RCW 51.16.120(1) states, in relevant part:
Whenever a worker has a previous bodily disability from any previous injury or disease, whether known or unknown to the employer, and shall suffer a further disability from injury or occupational disease in employment covered by this title and become totally and permanently disabled from the combined effects thereof or die when death was substantially accelerated by the combined effects thereof, then the experience record of an employer insured with the state fund at the time of said further injury or disease shall be charged and a self-insured employer shall pay directly into the reserve fund only the accident cost which would have resulted solely from said further injury or disease, had there been no preexisting disability…
Based on the statutory language, there are three prerequisites to the application of the second injury fund when permanent total disability benefits are awarded. The worker must have a "previous bodily disability from a previous injury or disease," whether employment related or not, and whether known to the employer or not. The worker must then sustain an industrial injury or occupational disease. The worker must "become totally and permanently disabled from the combined effects thereof . . ." Seattle School Dist. No. 1. v. Department of Labor & Indus., 59 Wn.2d 87 (1990), affirmed in part and reversed in part, 116 Wn.2d 352 (1991).
In order for second injury fund relief to be afforded to an employer, a pre-existing, disabling condition or conditions, along with a condition or conditions related to the subsequent industrial injury or occupational disease, must both be causes of the permanent and total disability status of the worker. The pre-existing condition must be disabling before the industrial injury occurred. Donald Lyle, Inc. v. Department of Labor & Indus., 66 Wn.2d 745 (1965); Rothschild Internat'l Stevedoring Co. v. Department of Labor & Indus., 3 Wn. App. 967 (1970). We noted in In re Alfred Funk, BIIA Dec., 89 4156 (1991) that an employer must establish that the disability resulting from the industrial injury would not have been total but for the pre-existing condition(s). [Citing Jussila v. Department of Labor & Indus., 59 Wn.2d 772 (1962).]
 Unfortunately, the Industrial Insurance Act does not define the term "disability." The Supreme Court in Jussila, at 778-779, used the word "handicapped" to describe the type of disability meant by the Legislature. We have discussed the meaning of disability before. In In re Forrest Pate, Dec'd, Dckt. No. 90 4055 (May 7, 1992), we surveyed a number of court decisions interpreting the term "disability," including Henson v. Department of Labor & Indus., 15 Wn.2d 384 (1942). Based on that case law we stated:
Disability means the impairment of the workman's mental or physical efficiency. It embraces any loss of physical or mental functions which detracts from the former efficiency of the individual in the ordinary pursuits of life. It connotes a loss of earning power. Henson, at 391.
In an effort to enhance understanding of the term "disability", the court in Henson related disability to its negative effect upon an individual's physical or mental functioning as well as his or her earning capacity. Something more than existence of prior conditions requiring periodic medical attention was contemplated. In the context of second injury fund relief, a "preexisting disability" is more than a mere preexisting medical condition and must, in some fashion, permanently impact on the worker's physical and/or mental functioning. The court in Jussila restated this theme when it specifically used the word "handicapped" to describe the type of prior condition that must exist for second injury fund relief to be applied.
The Second-injury Fund is a special fund set up within the administrative framework of the workmen's compensation system to encourage the hiring of previously handicapped workmen by providing that the second employer will not, in the event such a workman suffers a subsequent injury on the job, be liable for a greater disability than actually results from the second accident. Jussila, at 778.
Thus, we must conclude that a case for second injury fund relief is not made where the evidence shows that a worker has a history of prior medical conditions but does not show that they had a substantial negative impact on the worker's physical or mental functioning.
Pate, at 4-6. (Emphasis in text.)
In Funk, at 4-5, we noted that in Lyle and Rothschild the worker's pre-existing conditions, which were only temporarily disabling prior to the industrial injury, were not sufficient to support a conclusion that those conditions were a cause of the permanent and total disability. This is especially true in a "lighting up" situation such as existed in Lyle and which the Department advocates is true in this case regarding the pre-existing cervical and low back arthritic conditions.
 The Times is not entitled to second injury fund relief because it did not prove that Mr. Norgren had any disabilities prior to the October 3, 1999 industrial injury, as defined and described by Jussila, Henson, and Pate. There is no factual foundation that supports the existence of any pre-existing handicap or permanent impact on the claimant's physical and/or mental functioning or his earning capacity. A review of Mr. Norgren’s work history, while not necessarily proving the absence of pre-existing physical or psychological disabilities or limitations that affected his ability to perform work, is strongly suggestive that no such pre-existing disability was present in his case. He worked medium-duty jobs, averaging over sixty hours per week for over thirty‑seven years. The fact that he was able to anticipate the loss of a full-time job he held for thirty‑seven years and take steps to obtain another full-time job immediately before the industrial injury shows that he had no pre-existing personality or psychological issues that would hamper his ability to obtain gainful employment or otherwise be considered disabling. His pre-injury personal life appears worthy of comparison to "Ozzie and Harriet." The record contains multiple statements by witnesses that there were few or no pre-injury records for them to refer to or rely on regarding the claimant's pre-injury status. The reason for that is obvious; Mr. Norgren was not seeing doctors regularly for any conditions because he had none that were significant, and certainly none that impaired his ability to work.
Nonetheless, it is helpful to discuss individually each of the pre-existing conditions cited by the Times as constituting a disability. Mr. Norgren’s occupational hearing loss was a pre-existing condition inasmuch as the date of manifestation of that disease arose before the industrial injury. This is true even though the claim for that condition was not filed until after the industrial injury occurred. The Times cannot rely on proof of the permanent partial disability award given to Mr. Norgren for the permanent impairment related to the hearing loss as proof of "disability" within the meaning of RCW 51.16.120(1). Such an impairment rating is not in and of itself sufficient to prove the existence of a pre-existing disability as a matter of law. Jussila. There is no evidence in the record that the pre-existing hearing loss impacted the claimant's physical and/or mental functioning or his earning capacity in any way.
We have reservations about considering the glaucoma condition at all because there is no medical foundation regarding its existence, its cause, the course of that condition, or its significance. The foundation for this condition appears to come from Mr. Norgren's testimony and his statements to witnesses. From this limited foundation it appears that prior to the industrial injury any glaucoma the claimant had did not prevent him from driving, even at night. That condition  worsened after the industrial injury, as evidenced by the need to increase the number of medications to control it. Assuming that the claimant is correct that the glaucoma is medically worse such that it now constitutes a disability, it is not relevant to the second injury fund issue. If the worsening was caused by the industrial injury, then that disability was not pre-existing and the Times cannot rely upon it to support second injury fund relief. If the post-injury worsening was not related to the industrial injury, the Times cannot rely upon it simply because it is post-injury worsening, just as Mr. Norgren could not have relied on an unrelated post-injury worsening of a pre-existing condition to prove entitlement to total disability benefits. See, e.g., Erickson v. Department of Labor & Indus., 48 Wn.2d 458 (1956).
Mr. Norgren's pre-existing knee condition also was not a "disability" prior to the industrial injury. The use of cortisone injections to treat it on rare occasions is not sufficient. As stated in Pate, "something more than (the) existence of prior conditions requiring periodic medical attention . . ." is necessary to prove that a disability existed prior to the industrial injury. Pate, at 4. Again, the Times failed to present proof that this condition impacted the claimant's physical and/or mental functioning or his earning capacity in any way.
The same reasoning is applicable to exclude the pre-existing cervical and lumbosacral arthritic conditions as a basis for second injury fund consideration. The Times did not present proof that those conditions were "disabilities" prior to the industrial injury. In addition, Dr. Ginsberg's conclusion that permanent partial disability ratings were appropriate for both conditions as a result of the industrial injury also supports the conclusion that the conditions were not disabling at the time the injury occurred and were in fact "lit up" by that injury.
As noted earlier, we find that Mr. Norgren had pre-existing physical conditions, albeit non‑disabling conditions within the meaning of RCW 51.16.120(1). We specifically find that Mr. Norgren did not have any pre-existing psychological or mental health condition. We believe that Dr. Carter's conclusion on that score is entitled to greater weight than that of Dr. Burkhardt. In particular, we find bemusing the logic of Dr. Burkhardt when reaching his conclusion that Mr. Norgren had a pre-existing personality disorder. Mr. Norgren's exemplary family life, work, and social history prior to the industrial injury simply do not support a finding of any mental health disorder. If one posits that Mr. Norgren had such a disorder, then virtually everyone on the planet would also have a personality disorder and every time a worker was rated as permanently and totally disabled, second injury fund relief would be applicable. Such a result would be contrary to Jussila, Henson, and common sense.
1. On October 20, 1999, the Department of Labor and Industries received an application for benefits wherein the claimant, Leonard Norgren, alleged he was injured on October 3, 1999, while in the course of employment with the Seattle Times. The claim was allowed. On December 23, 2003, the Department issued an order in which it determined the claimant's conditions were fixed and stable and classified Mr. Norgren as a permanently and totally disabled worker, effective January 6, 2004, and entitled to the benefits consistent with that status.
On December 24, 2003, the Department issued an order in which it declined to grant second injury fund relief to the Seattle Times. In the order, the Department determined that second injury fund relief was not applicable because the claimant’s permanent total disability was predicated on the claimant’s age, education, and work experience, coupled with the conditions accepted under the claim, notwithstanding previous disability, and therefore, the "but for" test had not been met.
On February 17, 2004, the self-insured employer filed a Protest and Request for Reconsideration. On September 2, 2004, the Department issued an order in which it corrected and superseded the order dated December 23, 2003. In the September 2, 2004 order, the Department further recited: Whereas the above named claimant sustained an injury while in the employment of a self-insured employer, and it [h]as been determined that the claimant’s accepted condition(s) has reached a fixed stage and the injury has resulted in total and permanent disability; Therefore it is ordered that the clamant be so classified and placed on the pension roles effective July 26, 2003.
On September 3, 2004, the Department issued an order in which it affirmed the December 24, 2003 order. On September 13, 2004, the self-insured employer filed a Notice of Appeal with the Board of Industrial Insurance Appeals. On October 8, 2004, the Board granted the appeal, assigned it Docket No. 04 18211, and directed that proceedings be held.
2. Before October 3, 1999, Mr. Norgren had numerous conditions, including a neck condition, sensorineural hearing loss, glaucoma, and a knee condition. On October 3, 1999, these conditions, individually or in combination, did not have any negative effect on his ability to work, his social relationships, or activities of his daily living.
3. Mr. Norgren did not suffer from any mental health condition or disorder prior to October 3, 1999.
 4. The October 3, 1999 industrial injury was the proximate cause of low back and cervical strains and other conditions, post-traumatic stress disorder, major depression, somatoform disorder, tinnitus, and post‑concussion syndrome, which were permanently disabling to Mr. Norgren.
5. On or about January 6, 2004, Leonard Norgren was precluded by the residuals of his industrial injury of October 3, 1999, from engaging in gainful employment on a reasonably continuous basis in occupations for which he was qualified, by his education, training, experience, and age. The industrial injury of October 3, 1999, in and of itself was the proximate cause of Mr. Norgren’s permanent total disability.
CONCLUSIONS OF LAW
1. The Board of Industrial Insurance Appeals has jurisdiction over the parties to and the subject matter of this appeal.
2. None of the claimant’s pre-existing physical conditions constituted a "previous bodily disability" within the meaning of RCW 51.16.120(1).
3. The self-insured employer is not entitled to second injury fund relief pursuant to RCW 51.16.120.
4. The order of the Department dated September 3, 2004, is correct and is affirmed.
It is so ORDERED.
Dated this 12th day of January, 2006.
BOARD OF INDUSTRIAL INSURANCE APPEALS
THOMAS E. EGAN Chairperson
FRANK E. FENNERTY, JR. Member