|IN RE: BERNARD J. NICKOLAI, DEC'D.||)||DOCKET NO. 38,266|
|Claim No. F-322792||)||DECISION AND ORDER|
- Widow-petitioner, Wilma B. Nickolai, by
- William J. Van Natter
- Employer, The Boeing Company, by
- Perkins, Coie, Stone, Olsen & Williams, per
- Fred S. Merritt
- Department of Labor and Industries, by
- The Attorney General, per
- Edward G. Gough, Assistant
Appeal filed by the widow-petitioner on March 9, 1971, from a letter of the Supervisor of Industrial Insurance dated February 26, 1971, rejecting petitioner's claim as the surviving widow of the decedent herein to both temporary and permanent partial disability compensation. Reversed and remanded.
This appeal is before the Board pursuant to a timely Statement of Exceptions filed by the petitioner to a Corrected Proposed Decision and Order issued on June 9, 1971, upholding the petitioner's claim in major part as to certain temporary disability compensation, but rejecting it as to permanent partial disability compensation. Since only issues of law were presented, the case was submitted for decision on the basis of the Department file.
At this juncture, the inquiry is reduced to two questions, to wit:
(1) Is the supervisor's letter of February 26, 1971,  appealable by the petitioner?
(2) If so, under the provisions of RCW 51.32.040, is she entitled to the permanent partial disability compensation to which the decedent would have been entitled had he lived?
We answer both questions in the affirmative, as detailed below.
On February 19, 1971, the petitioner's attorney wrote the Department of Labor and Industries requesting that certain time loss compensation be paid to the widow, and further requesting "the establishment of a disability award for Mr. Nickolai's disc surgery and the payment of the same to his widow." The supervisor's letter of February 26, 1971, the letter here in question, was in direct response to the afore- said letter and expressly rejected by requests on the ground that none of the decedent's benefits survived to his widow.
Quite clearly, we think this rejection constituted, at the very least, Departmental "action" within the purview of RCW 51.52.050, which "may", as distinguished from "must" (as prescribed in RCW 51.52.060), be appealed. Stated somewhat differently, the petitioner had the right to appeal the letter in question, but was not required to do so in order to avoid the decisive effects thereof, since the letter did not meet the "final" requirements of an "order, decision or award" as provided in RCW 51.52.050.
As for the question of petitioner's right under RCW 51.32.040 to a permanent partial disability award, it is to be first noted that the decision of Powell v. Department of Labor and Industries, 79 Wn. 2d 378, construing that statute, was handed down on June 10, 1971, one day subsequent to the issuance of the Corrected Proposed Decision and Order in this matter which denied the petitioner permanent partial disability  compensation under the authority of Urban v. Department of Labor and Industries, 75 Wn. 2d 787, and cases falling within what may be termed the Urban line of authority. However, Powell expressly overruled Urban and its judicial forerunners, and in so doing, the court, speaking in regard to RCW 51.32.040, stated:
". . . this statute contains no language to indicate a legislative intent that the widow's right to collect her husband's compensation should be made contingent upon his success in getting his evidence before the Department of Labor and Industries and receiving a favorable decision prior to his death. We cannot assume that the legislature intended a valuable right to depend upon such a fortuity as the length of time between an accident and the death of the victim from some other cause."
The court then went on to state its holding as follows:
"We hold that under the provisions of RCW 51.32.040, a widow of a workman who has suffered an industrial injury and has died from some other cause, is entitled to receive the compensation to which her husband was entitled but which he did not receive, whether or not a decision in his favor was rendered by the department prior to his death."
The outer reaches of the Powell decision are, of course, not yet discernible. However, it seems clear therefrom that if the situation presented in Urban were to be presented today, a different result would obtain. Factually, the instant case can be distinguished from Urban primarily in that Mr. Nickolai expired while his claim was still before the Department and prior to all the evidence of his disability having been presented to the Department; whereas in Urban, the workman died while his case was before this tribunal and after all evidence of his disability had been presented to the Board, but prior to any final determination of such disability by the Board.
Distinctions with a difference? We don't think so. To  our mind, as a practical matter the question of disability was as readily determinable by the Department at the time of Mr. Nickolai's death as it was by the Board at the time of death in the Urban matter.
More specifically, the Department file discloses that Dr. Ivan K. Loughlen became the decedent's attending doctor in early 1969, following an orthopedic consultation examination by him of the decedent. On March 11, 1969, Dr. Loughlen performed a surgical procedure on the decedent's back and followed him postoperatively until late March, 1970, at which time the doctor advised the Department that the decedent's condition was fixed and that he did have a permanent partial disability. The doctor noted that he preferred not to rate his own patients. Accordingly, the Department proceeded to schedule an examination with Dr. Irving Tobin for June 16, 1970. Mr. Nickolai unexpectedly expired on April 19, 1970, from causes unrelated to his industrial injury. Under the law as it then existed (urban, supra), any permanent partial disability award to which the decedent may have been entitled had he lived, died with him. Thus, the Department made no further attempt to secure a disability evaluation from Dr. Loughlen, even though he was the decedent's attending doctor at the time of death and had indicated to the Department shortly prior thereto that the decedent's condition was fixed and that he did have a permanent partial disability.
Due to the intervention of Powell, supra, just one day following the Corrected Proposed Decision and Order in this matter, the case came to us for review in a decidedly different posture than that presented to either the Department or our hearing examiner. From the above-recited history, it was immediately apparent to us that Dr. Loughlen was in a uniquely advantageous position to evaluate the decedent's disability,  and we accordingly proceeded to elicit from him a written report thereon. This report, dated September 13, 1971, rated the decedent's industrially related permanent partial disability at 20 per cent of the maximum allowable for unspecified disabilities. After review thereof, all parties, by way of separate letters to the Board, agreed that this report could be incorporated into the record as an exhibit and that the appeal could thereupon be submitted to the Board for decision without the necessity of further proceedings (both the Department and the employer expressly reserving their position as to the legal question of the survival of such an award to the widow).
Accordingly, the report of Dr. Ivan K. Loughlen dated September 13, 1971, is hereby incorporated into the record as Exhibit No. 1. based thereon, and the Department file, we find that the decedent's industrially related back condition was fixed at the time of death and that his permanent partial disability attributable thereto was 20 per cent of the maximum allowable for unspecified disabilities. Where, as here, no specific disability rating has been expressly communicated to the Department prior to the workman's death, so that no "decision" upon the disability question has been made by the Department prior to the date of death, but all the evidence necessary to make such a "decision" is available to the Department at the time of death through a doctor who treated and personally witnessed the workman's condition, found it to be fixed and therefore rateable prior to the time of death, we think under the Powell doctrine, that it becomes incumbent upon the Department to secure such evidence, render a "decision," and, if disability is found make payment therefor to the surviving widow. 
Technically, if jurisdictional dictates were to be slavishly followed, this case should be remanded to the Depart- ment with instructions to rate the decedent's disability as it existed when his condition became fixed and make payment there- for to the petitioner. The case is unique, however, in light of the Powell decision having intervened between the Department's disposition and ours, and we trust that any violence done to the law by virtue of our having proceeded to gather the necessary evidence and making the original disability adjudication (which is the only credible rating that could ultimately be made by the Department upon remand) and thereby hopefully expediting the award, will be outweighed by consideration for the widow herein, who has already waited over one and one-half years for her compensation.
Based upon the record, the Board makes the following findings:
- On June 7, 1965, Bernard J. Nickolai sustained an injury during the course of his employment with The Boeing Company. On November 23, 1965, the Department of Labor and Industries issued an order allowing and closing the claim for medical treatment only. On December 27, 1965, Mr. Nickolai filed a notice of appeal. On January 5, 1966, the Department issued an order reassuming jurisdiction of the claim for further consideration. On January 7, 1966, the Board issued an order denying the appeal in light of the Department's reassuming jurisdiction of the claim. On December 20, 1966, the Department issued an order adhering to the provisions of its order of November 23, 1965, allowing and closing the claim for medical treatment only. On December 29, 1966, Mr. Nickolai filed a notice of appeal an don March 1, 1967, the Board issued an order granting the appeal. On March 10, 1969, a Proposed Decision and Order was issued sustaining the Department's allowance and closure of the claim for medical treatment only. On April 24, 1969, the Board issued an order adopting the Proposed Decision and Order of March 10, 1969. 
- On March 3, 1969, the Department received a medical report upon Mr. Nickolai's condition dated February 17, 1969, from Dr. Ivan K. Loughlen, his attending doctor.
- On March 26, 1969, the Department received a letter from the claimant's legal counsel dated March 25, 1969, requesting that the claim be reopened for aggravation of condition, and advising that a formal application to reopen the claim would be forthcoming, supported by the attending doctor's report (the report of February 17, 1969, by Dr. Loughlen).
- On April 17, 1969, the Department received a formal application to reopen the claim signed by Dr. Loughlen and accompanied by a copy of his medical report of claimant's condition dated February 17, 1969.
- On May 14, 1969, the Department issued an order denying the application to reopen the claim. On May 27, 1969, the claimant filed a notice of appeal and on June 19, 1969, the Board issued an order granting the appeal. On September 23, 1969, the Board issued an order on agreement of the parties reopening the claim for treatment and such other and further action as might be indicated.
- On October 29, 1969, the Department issued an order reopening the claim pursuant to the Board's order of September 23, 1969. On November 12, 1969, the Department issued an order paying the claimant time loss compensation for the period from April 15, 1969, to August 17, 1969, inclusive. On June 9, 1970, the Department issued an order closing the claim with time loss as paid to August 17, 1969, and without award for permanent partial disability.
- On November 12, 1969, the Department received a certificate of disability card signed by the claimant and Dr. Loughlen certifying to time loss from February 28, 1969, to August 18, 1969.
- By "final report card" dated March 23, 1970, Dr. Loughlen advised the Department that the claimant's condition was fixed and that he did have permanent partial disability. The doctor further advised the Department that he preferred not to rate his own patients for permanent partial disability. Accordingly, the Department scheduled a rating examination with Dr. Irving Tobin for June 16, 1970.
- On April 19, 1970, Bernard J. Nickolai  expired from causes unrelated to his industrial injury.
- By letter dated February 19, 1971, legal counsel for Wilma B. Nickolai, surviving widow of Bernard J. Nickolai and petitioner herein, requested the Department to pay time loss compensation and permanent partial dis- ability compensation to which the decedent would have been entitled had he lived.
- By letter of the Supervisor of Industrial Insurance dated February 26, 1971, the Department rejected the petitioner's request upon the ground that none of the decedent's benefits survived his death.
- On March 9, 1971, the petitioner filed a notice of appeal from the letter of the Supervisor of Industrial Insurance dated February 26, 1971. On April 8, 1971, the Board issued an order granting the appeal. On May 28, 1971, a Proposed Decision and Order was issued by a hearing examiner of the Board, followed by a Corrected Proposed Decision and Order issued on June 9, 1971, and on June 25, 1971, petitioner filed a Statement of Exceptions thereto.
- On or about February 11, 1970, Bernard J. Nickolai's industrially related condition was fixed and his permanent partial dis- ability attributable thereto was equal to 20% of the maximum allowable for unspecified disabilities.
Based on the foregoing findings of fact, this Board concludes as follows:
- The letter of the Supervisor of Industrial Insurance dated February 26, 1971, is appealable by the petitioner.
- The Board has jurisdiction of the parties and subject matter of this appeal.
- Time loss compensation for the period from March 26 1969, through April 14, 1969, to which Bernard J. Nickolai would have been entitled had he lived, survives to the petitioner and is payable to her.
- Permanent partial disability compensation in the amount of 20% of the maximum allowable for unspecified disabilities, to which Bernard J. Nickolai would have been entitled had he lived, survives to the petitioner and is payable to her. 
- This claim should be remanded to the Department of Labor and Industries with instructions to pay Wilma B. Nickolai, the petitioner, time loss compensation for the period from March 26, 1969, through April 14, 1969, and to further pay to her a permanent partial disability award equal to 20% of the maximum allowable for unspecified disabilities.
It is so ORDERED.
Dated this 17th day of November, 1971.
BOARD OF INDUSTRIAL INSURANCE APPEALS
ROBERT C. WETHERHOLTChairperson
R. H. POWELLMember
R. M. GILMOREMember