APPEARANCES:

 

Claimant, Andrew R. Carey, Pro Se

 

Self-Insured Employer, Simpson Timber Company, by

Wallace, Klor & Mann, P.C., per

Schuyler T. Wallace, Jr.

 

Department of Labor and Industries, by

The Office of the Attorney General, per

Natalee Fillinger, Assistant

 

            The self-insured employer, Simpson Timber Company, filed an appeal with the Board of Industrial Insurance Appeals on July 12, 2004 , from an order of the Department of Labor and Industries dated June 23, 2004 .  In this order, the Department affirmed its order of April 27, 2004 , in which it directed the self-insured employer to pay for hearing aids.  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 Department to a Proposed Decision and Order issued on March 15, 2005 , in which the industrial appeals judge dismissed the appeal from the Department order dated June 23, 2004 .

             The issue presented by this appeal is whether the self-insured employer must furnish hearing aids.  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 are persuaded that the substance of the Proposed Decision and Order issued by our industrial appeals judge on March 15, 2005, is supported by the preponderance of the evidence, and we adopt the body of the decision as our own.

             On March 14, 1978 , Andrew R. Carey filed an application for benefits with the Department of Labor and Industries, in which he alleged an occupational hearing loss while in the course of his employment with Simpson Timber Company (Simpson).  The Department considered Mr. Carey's application and, in an order dated November 2, 1981 , allowed and closed the claim, directing Simpson to pay Mr. Carey a permanent partial disability award consistent with 5.9 percent of the [2] complete loss of hearing in both ears.  Pertinent to the present appeal, the Department order of November 2, 1981 , failed to include language indicating the self-insured employer was to be responsible for the purchase and maintenance of hearing aids.  Following a timely protest from Mr. Carey, the subject of which is unknown, the Department issued its order of January 15, 1982 , in which it affirmed the order of November 2, 1981 .  The January 15, 1982 order was neither protested nor appealed and became final.  Twenty-one years passed.

             In early 2003, Simpson received a letter from Avada Hearing Care Center in Centralia that referenced Mr. Carey's 1978 claim number and requested authorization to provide Mr. Carey with hearing aids.  Simpson declined to provide authorization, and, apparently, the request was forwarded to the Department.

             On April 27, 2004 , the Department issued an order in which it directed Simpson to pay for Mr. Carey's hearing aids.  Simpson protested, the Department affirmed its order, and Simpson appealed to the Board, moving for summary judgment.  The affirmance order of June 23, 2004 , is presently before the Board.

             The Department suggests that RCW 51.36.020(5) gives it the authority to order self‑insured employers to provide necessary mechanical appliances to a worker without regard to the date treatment was completed or whether the claim was closed.  While acknowledging that the Department of Labor and Industries has the authority to provide mechanical appliances in certain situations, we do not believe that the Department's interpretation of RCW 51.36.020(5) is entirely accurate.  WAC 296-20-1101 states that when the Department or self-insurer has accepted a hearing loss condition either as a result of an industrial injury or an occupational exposure, the Department or self‑insurer will furnish a hearing aid (hearing aids when bilateral hearing loss is present) when prescribed or recommended by a physician.  In the case at hand, we fail to find evidence that hearing aids were prescribed or recommended to Mr. Carey by any such physician.  We note that prior to the claim being closed in 1981, Richard Voorhees, M.D., commented that hearing aids could help Mr. Carey, but he was not sure.  Beyond that, we find no other doctors' opinion on the subject. 

             The Department order dated January 15, 1982 , failed to indicate that the self-insured employer was responsible for the purchase and maintenance of hearing aids.  The order was neither protested nor appealed.  It became final and binding, both on the Department and on the [3] parties.  Marley v. Department of Labor & Indus., 125 Wn.2d 533, 537 (1994). 

             RCW 51.36.020(5) provides:

 

All mechanical appliances necessary in the treatment of an injured worker, such as braces, belts, casts, and crutches, shall be provided and all mechanical appliances required as permanent equipment after treatment has been completed shall continue to be provided or replaced without regard to the date of injury or date treatment was completed, notwithstanding any other provision of law.

 

             As noted by our industrial appeals judge, the statute addresses treatment while a claim remains open.  There is provision to "continue" treatment but not to provide it for the first time some twenty-two years after claim closure.  If Simpson had been directed to provide hearing aids prior to or by the January 15, 1982 closing order, RCW 51.36.020(5) would be compelling authority that hearing aids should "continue to be provided" by Simpson.  Here, Simpson was never required to provide hearing aids so cannot be required to "continue" to provide them.

             Once the Department's January 15, 1982 closing order became final, in the absence of a reopening of the claim based on aggravation of condition, the Department no longer had the authority to order further treatment.

 

FINDINGS OF FACT

1.         On March 14, 1978 , the claimant, Andrew R. Carey, filed an application for benefits with the Department, in which he alleged an occupational hearing loss while working within the scope of his employment with Simpson Timber Company.

 

            On June 19, 1981 , the Department issued an order in which it rejected the claim. On July 14, 1981 , the claimant filed his protest with the Department from the Department order dated June 19, 1981 .  On September 10, 1981 , the Department issued an order in which it affirmed its order dated June 19, 1981 , wherein it rejected the claim.

 

            On November 2, 1981, the Department issued an order in which it set aside its earlier orders dated June 19, 1981 and September 10, 1981, allowed the claim, and closed the claim with an award for permanent partial disability equal to 5.9 percent of the complete loss of hearing in both ears, but without directing that the self-insured employer pay for hearing aids.

 

            On December 31, 1981 , the claimant filed his protest with the Department from a prior order dated November 2, 1981 .  On January 15, 1982 , the Department issued an order in which it affirmed its claim closure order dated November 2, 1981 .  That Department [4] closing order, dated January 15, 1982 , was neither protested nor appealed.

 

            Twenty-one years later, on March 25, 2003 , the claimant wrote to the self-insured employer to request hearing aids.  The self-insured employer denied the claimant's request.  On April 27, 2004 , the Department issued an order in which it directed the self-insured employer to provide hearing aids for the claimant.

 

            On June 4, 2004 , the self-insured employer filed its protest with the Department from an order dated April 27, 2004 .  On June 23, 2004 , the Department issued an order in which it affirmed its earlier order dated April 27, 2004 .

 

            On July 12, 2004 , the self-insured employer filed its Notice of Appeal with the Board of Industrial Insurance Appeals from the Department order dated June 23, 2004 .  On August 11, 2004 , the Board granted the self-insured employer's appeal, assigned the appeal Docket No. 04 18928, and directed that proceedings be held on the issues raised by the Notice of Appeal.

 

2.         Mr. Carey has not filed an aggravation application since his claim was closed in 1982.

 

3.         There are no genuine issues of material fact.

 

 

CONCLUSIONS OF LAW

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

 

2.         RCW 51.36.020(5) does not authorize the Department of Labor and Industries to order the post-closure purchase and maintenance of hearing aids if the order wherein the Department closed the claim does not contain provisions to this effect. 

 

3.         The Department of Labor and Industries lacked the authority to issue the order appealed from because the final order wherein the Department closed the claim did not include language making the employer responsible for the post-closure purchase and maintenance of hearing aids.

 

4.         The Department order of June 23, 2004 , is incorrect and is reversed.  This matter is remanded to the Department of Labor and Industries with instructions to issue a further order indicating the self-insured employer [5] is not responsible for the purchase and maintenance of hearing aids and denying the claimant's request for hearing aids.

 

It is so ORDERED.

Dated this 30th day of August, 2005.

                                                                                BOARD OF INDUSTRIAL INSURANCE APPEALS

 

 

                                                                              /s/________________________________________

                                                                              THOMAS E. EGAN                                   Chairperson

 

 

                                                                              /s/________________________________________

                                                                              CALHOUN DICKINSON                                   Member

 

 

DISSENT

            I am unconvinced that RCW 51.36.020(5) requires that we read into the statute that the provision of hearing aids or other mechanical devices must be determined in the closing order.  Although the Department generally does not provide treatment or other benefits to an injured worker once the injured worker has reached maximum medical improvement, there are limited situations in which the Industrial Insurance Act authorizes the Department to provide aid to an injured worker, despite the fact that the worker's condition has become fixed and stable and the worker's claim is ready to be closed.

            RCW 51.36.020(5) states:

All mechanical appliances necessary in the treatment of an injured worker, such as braces, belts, casts, and crutches, shall be provided and all mechanical appliances required as permanent equipment after treatment has been completed shall continue to be provided or replaced without regard to the date of injury or date treatment was completed, notwithstanding any other provision of law.

 

            I believe that the language "without regard to the date of injury or date treatment was completed" is that language that requires the Department to provide devices after claim closure.  If not interpreted this way, I am unaware of any other statutory provision that authorizes the Department to provide such devices on a closed claim.  It follows that the existence of language in an order requiring provision of the devices is unnecessary because of the statutory obligation.  The Department must provide, or require the self-insured employer to provide, the devices when they are necessary. [6]

            For the above reasons, I believe that the Department order of April 27, 2004 , wherein the Department directed the self-insured employer to provide Mr. Carey with hearing aids, is correct.  Under the liberal interpretation of the Industrial Insurance Act, as mandated by statute, Mr. Carey is entitled to hearing aids under this claim.  I would affirm the order under appeal, allow Mr. Carey to be fitted for hearing aids, and require the self-insured employer to be responsible for the maintenance of the hearing aids for as long as such maintenance is required.

            Dated this 30th day of August, 2005.

                                                                                 BOARD OF INDUSTRIAL INSURANCE APPEALS

 

 

                                                                                 /s/________________________________________

                                                                                 FRANK E. FENNERTY, JR.                            Member