Significant Decisions

SEE TREATMENT Fixity of condition
A worker's refusal to undergo recommended treatment may result in a finding that the conditions are medically fixed.  ….Smajo Mesan, 08 22054 (2010)
[Editor's Note: The Board's decision was appealed to superior court under Benton County Cause No. 10-2-03101-1.]

IN RE: SMAJO MESAN ) DOCKET NOS. 08 22054 & 09 16858


Claimant, Smajo Mesan, by
Smart, Connell, Childers & Verhulp, P.S., per
Christopher L. Childers

Self-Insured Employer, Tyson Foods, Inc., by
The Law Office of Randall Leeland, per
Randall Leeland

Docket No. 0822054: The claimant, Smajo Mesan, filed an appeal with the Board of Industrial Insurance Appeals on December 18, 2008, from an order of the Department of Labor and Industries dated November 21, 2008. In this order, the Department closed the claim for Mr.Mesan's right upper arm and shoulder condition with time-loss compensation benefits as paid to November 3, 2008, and with no award for permanent partial disability. The Department order is REVERSED AND REMANDED.

Docket No. 0916858: The claimant, Smajo Mesan, filed an appeal with the Board of Industrial Insurance Appeals on July 6, 2009, from an order of the Department of Labor and Industries dated May 6, 2009. In this order, the Department determined the bilateral carpal tunnel syndrome condition was stable and closed the claim without award for time-loss compensation or permanent partial disability. The Department order is AFFIRMED.


As provided by RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision. The employer filed a timely Petition for Review on September 29, 2010, and the claimant filed a Petition for Review on September 30, 2010, from a Proposed Decision and Order issued on August 13, 2010, in which the industrial appeals judge reversed and remanded the Department orders dated November 21, 2008, and May 6, 2009.

The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed. The rulings are affirmed.[2]

We grant review because we disagree with the result reached in the Proposed Decision and Order. The industrial appeals judge remanded Mr. Mesan's claims to the Department with directions to accept certain conditions as occupational diseases; to take such other and further action as authorized or required; to determine that the surgeries offered to Mr. Mesan were proper and necessary treatment; and to inquire of Mr. Mesan if he would undergo these surgeries. Although we can appreciate our industrial appeal judge's concerns about Mr. Mesan refusing proper and necessary treatment, we believe that the case law supports fully resolving all the issues raised by Mr. Mesan within our scope of review in this case. Both parties contend that Mr. Mesan is medically fixed and stable.

Smajo Mesan is a 56-year-old Bosnian man who has had a difficult life. After the war broke out in Bosnia, Mr. Mesan went to Germany as a refugee. He lived there in an encampment for about four years, during which time he was not allowed to work. In Bosnia, he had worked as a mechanical engineer for about 15 years doing mostly paperwork and being the "boss." Mr. Mesan does not understand English very well and does not speak German. Once he came to America, he worked as a machine operator for an engineering company in Kent, Washington for about a year. This job ended when the Boeing layoffs occurred. He worked briefly in the warehouse for Office Depot in 2002, was laid off, then moved to Kennewick and went to work cutting meat for Tyson Foods, Inc. (Tyson) in September 2002.

Despite difficulties with his shoulder, arms, and wrists, Mr. Mesan managed to work for Tyson until October 2006, when his shift was laid off. He contends that he has pre-existing neck and back problems aggravated or related to his work at Tyson. After Mr.Mesan began experiencing problems with his wrists and shoulder, he declined surgery by his attending physician, Owen M. Higgs, M.D. He testified that although he has a mechanical engineering degree from Bosnia, he does not think that he could work "because of my back." He also has problems with his hearing

Dr. Higgs, a certified orthopedic doctor, testified about his patient. He first saw Mr.Mesan for his hands and shoulder in October 2005, which included a trigger finger on his left hand. Dr.Higgs diagnosed bilateral carpal tunnel syndrome based on moderate findings on nerve conduction studies. Dr. Higgs prescribed braces and anti-inflammatory medication, and offered surgery, for which he felt the prognosis was "very good" but Mr. Mesan did not want the surgery. Dr. Higgs also diagnosed right shoulder impingement and recommended arthroscopic shoulder surgery for that condition. Mr. Mesan did not want surgery for his shoulder either. By the time [3]Dr.Higgs testified in this matter, he had not seen Mr. Mesan in three years. Like most of the other doctors who testified in this matter, Dr. Higgs questioned Mr. Mesan's motivation and whether he was being straightforward about his complaints. Dr. Higgs testified that he worked with a vocational counselor, Maui Garza, on Mr.Mesan's vocational issues, but in the end agreed that Mr. Mesan could return to his job of injury.

Thomas L. Gritzka, M.D., a certified orthopedic doctor, examined Mr. Mesan on May 6, 2009, at Mr. Mesan's attorney's request. Dr. Gritzka found a positive impingement sign in Mr.Mesan's right shoulder. He also found upper extremity sensory impairment consistent with diabetic peripheral neuropathy. Dr. Gritzka agreed with Dr. Higgs that Mr. Mesan had a type 3 acromion and that he would be a reasonable candidate for arthroscopic shoulder surgery and acromionectomy. Dr.Gritzka was clear that he felt Mr. Mesan would benefit from surgery, but felt it would be the patient's choice whether to have the surgery. In addition to bilateral carpal tunnel syndrome and shoulder impingement, Dr. Gritzka diagnosed chronic cervical and lumbosacral sprains but noted that on examination of the back and neck, Mr. Mesan's exam was essentially normal. He felt that no treatment was needed for the carpal tunnel syndrome. Dr.Gritzka rated Mr.Mesan at 8percent impairment for the right upper extremity per the AMA Guides. On cross-examination, Dr. Gritzka conceded that Mr. Mesan could do sedentary to sedentary-light work.

Mr. Mesan also called vocational rehabilitation counselor, Jill Falk, VRC, who met with Mr.Mesan twice at the request of counsel. Ms. Falk did a thorough records review and had a good understanding of Mr. Mesan's work history and the job picture at Tyson. She testified as to why Mr.Mesan is unable to work. On cross-examination, Ms. Falk agreed that all of the medical providers had indicated that they felt Mr. Mesan was capable of work in some capacity.

Walter Daniel Fife, M.D., certified orthopedic doctor, examined Mr. Mesan as part of a panel examination in May 2008. Dr. Fife noted non-organic complaints. He diagnosed arthritis in the neck (not related to industrial exposure), shoulder weakness (not related), and trigger finger (not related). Dr. Fife indicated that Mr. Mesan could perform medium work or lower and he approved three of five job analyses submitted for his review. In his opinion, Mr. Mesan was medically fixed and stable at the time he examined him. On cross-examination, Dr. Fife stated that he did not agree with Dr.Higgs that Mr. Mesan had an impingement syndrome in his right shoulder, but he agreed that Mr. Mesan had bilateral carpal tunnel syndrome. He would not agree with a Physical Capacities Evaluation (PCE) that showed that Mr. Mesan should avoid repetitive work.[4]

William Bozarth, M.D., neurologist, examined Mr. Mesan as part of a panel on May 4, 2007. On examination, Dr. Bozarth noted many instances of pain magnification/non-organic responses. In his estimation, Mr. Mesan's effort was poor. The panel diagnosed right shoulder pain due to impingement caused by congenital type 3 acromion; multiple and diffuse pain complaints; and no findings of carpal tunnel syndrome or trigger fingers. Dr. Bozarth would place no restrictions on Mr.Mesan based on this examination. At that time, Mr. Mesan was medically fixed and stable and had no impairment proximately caused by his occupational exposures. Dr. Bozarth felt that Mr.Mesan's unhappiness with his job and his feeling that he had been treated unfairly at Tyson contributed greatly to his overall picture.

Maui Garza, a vocational rehabilitation counselor, was assigned by Tyson to work with Mr.Mesan after Mr.Mesan was laid off in October 2006. Mr. Garza testified to meeting with Dr.Higgs, and that Dr. Higgs felt Mr. Mesan could perform the "pick bone sparse lean" job without limitations. This was Mr. Mesan's job of injury. Dr. Higgs also had concurred with Dr. Fife's Independent Medical Examination (IME) report in which Dr. Fife found Mr. Mesan capable of working. Mr. Garza subsequently reviewed all of the medical reports and testimony in this appeal and indicated that Mr.Mesan was capable of work based on either his attending physician's opinion or a preponderance of the medical evidence related to his appeals.

A preponderance of the evidence in this appeal supports the conclusion that Mr. Mesan is capable of substantial gainful employment, and has been since his time-loss compensation benefits were ended.

The parties agreed that Mr. Mesan has consistently and adamantly opposed the only treatment offered by his attending physician: surgeries for bilateral carpal tunnel syndrome and for his right shoulder impingement syndrome. Their contentions are supported by this record. Mr. Mesan did not testify that he would undergo surgery of any kind. He testified that he was "scared" of an operation and chooses to wear wrist splints instead, and there were no guarantees he would be better off with the surgery.

The attending physician, Dr. Higgs, testified he offered both carpal tunnel surgery and arthroscopic shoulder surgery to Mr. Mesan, who declined even though the prognosis for surgery was very good. If Mr. Mesan were to change his mind about having surgery at this point, Dr.Higgs would have to reevaluate him to ensure he remains a candidate for surgery. Finally, Dr.Higgs indicated that when he met with VRC Garza in October 2007, Mr. Mesan was medically fixed and stable if he were not to have surgery.[5]

Dr. Gritzka, who examined Mr. Mesan at the request of his attorney, testified that Mr. Mesan would be a reasonable candidate for arthroscopic shoulder surgery and that he would likely benefit from the surgery, but that having surgery is the patient's choice. As to carpal tunnel surgery, Dr.Gritzka indicated that Mr. Mesan's carpal tunnel syndrome was not active at the time of his examination, in which case the results of surgery would be unpredictable. As of May 6, 2009, when Dr. Gritzka examined Mr. Mesan, he felt that no treatment was needed for carpal tunnel syndrome.

Although Dr. Fife agreed that Mr. Mesan has bilateral carpal tunnel syndrome, he felt Mr.Mesan was fixed and stable and without impairment. Dr. Bozarth made no findings related to carpal tunnel syndrome but did diagnose right shoulder impingement. He felt Mr. Mesan was medically fixed and stable.

Our industrial appeals judge determined that Mr. Mesan's medical conditions were not fixed and stable within the meaning of Miller v. Department of Labor & Indus., 200 Wash. 674 (1939). However, the Miller court actually determined that because the only treatment that would improve Mr.Miller's industriallyrelated condition was refused by Mr. Miller, the Department was correct to have found his condition to be fixed. (Miller at 681-682.) The Miller court also disposed of the Department's contention that because Mr.Miller had refused the surgery on his back, he should not be permitted to recover for his impairment. Citing to the suspension of benefits statute, the Miller court indicated that the statute applies only to suspension of benefits during periods of "recuperation from an injury." It does not apply after the worker's condition is fixed. As to Mr.Miller's contention that his condition was not fixed:

The record discloses that the first report was made on the assumption that an operation would be performed, from which the doctors concluded that appellant's condition was not fixed, because, in their opinions, surgical treatment would either rectify or materially improve his condition; while the second report was made upon the assurance that no operation would be had and upon the doctors' belief and decision that the condition was permanent. Moreover, regardless of any prior reports, there is ample evidence to support the finding of the department that appellant's condition had become fixed, because, without an operation, no improvement could be expected. Appellant's condition having become fixed, it was necessary for the department to determine whether the disability was total or partial. Upon that question, the evidence abundantly supports the finding that the fixed condition was one of permanent partial disability. We, therefore, conclude that the classification made by the department should be affirmed.

Miller at 681, 682. [6]

The Miller court also considered a suspension of benefits issue because the Department had taken the position that because Mr. Miller refused surgery, he should not be permitted to recover at all. The Miller court stated:

That provision of the statute has reference only to a reduction or suspension of monthly payments which are being made to an injured workman during the period of recuperation from an injury. It does not apply to a lump sum settlement for a permanent partial disability which has been determined by the department after the condition of the workman has become fixed. For these reasons, it becomes unnecessary to discuss further the question suggested by the department.

Miller at 685, 686.

In other words, where a worker refuses or declines surgery, even when proper and necessary, the Department is then authorized to close the worker's claim and deem the worker's medical condition to be fixed.

Although there are no significant decisions on point, In re James L. Powers, Dckt. No.,932077 (July 18, 1994) addresses this issue under similar circumstances as the case before us. In Powers, the Department closed Mr. Powers' claim with a permanent partial disability award after Mr. Powers had declined an ankle fusion, the only treatment recommended by his attending physician that might reduce his disability. The Board determined that under the circumstances, the Department's closure of Mr. Powers' claim was appropriate:

While Mr. Powers has the right to refuse any treatment, his repeated and continued refusal of the only treatment available can lead to only one conclusion. As Mr. Powers has refused the only form of treatment available which might reduce his disability, his condition is medically fixed. Whether Mr. Powers' refusal of left ankle fusion surgery was reasonable is irrelevant to a determination of fixity of condition. (Emphasis ours.)

Powers at 3, 4.

The Powers case, read in conjunction with the Miller case, leads to the conclusion that Mr.Mesan's refusal of surgery, whether reasonable or not and whether medically necessary and proper or not, gives the Department the authority to close his claims. In Mr. Mesan's case, the Department obviously considered his condition to be fixed and stable. This could have been because the preponderance of medical evidence in their view supported this result or it could have been because the only treatment that might be of benefit to Mr. Mesancarpal tunnel surgery or surgery to correct his shoulder impingementwas repeatedly declined by Mr. Mesan. Thus, we agree with counsel that to remand at this point to give Mr. Mesan the opportunity to once again decline surgical intervention merely postpones the inevitable. [7]

As noted above, we determine that a preponderance of the evidence supports a conclusion that Mr. Mesan is capable of substantial gainful employment. However, we agree with Mr. Mesan that a preponderance of the evidence supports a conclusion that repetitive work at Tyson aggravated his right shoulder condition and made it symptomatic.

Dr. Gritzka is the only medical expert in this appeal to have rated Mr. Mesan's right shoulder impairment under the AMA Guidelines. Dr. Gritzka found that Mr. Mesan's right shoulder was stiff, with mild crepitus and a positive impingement sign, and measured decreased range of motion in all planes. Dr. Gritzka determined that Mr. Mesan had an 8 percent impairment of his right upper extremity per the AMA Guides.

Based on a thorough review of the Board record, we affirm the Department order of May 6, 2009, in Docket No. 09 16858, and we reverse and remand the November 21, 2008 order in Docket No. 08 22054 to the Department to pay a permanent partial disability award consistent with 8 percent impairment of the right upper extremity.



9. In Docket No. 08 22054, the order of the Department of Labor and Industries dated November 21, 2008, is reversed. This matter is remanded to the Department to require the self-insured employer to pay to Mr. Mesan an award equal to 8 percent of the amputation value of the right arm and to thereupon close the claim as otherwise provided.

DATED: November 10, 2010.




DAVID E. THREEDY Chairperson