| IN RE: LAWRENCE A. LARSEN | ) | DOCKET NO. 54,979 |
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| CLAIM No. H-183172 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Lawrence A. Larsen
- Richter, Wimberley & Ericson, per
- Daniel P. Harbaugh
- Employer, Robert Lukenbill
- None
- Department of Labor and Industries
- The Attorney General, per
- C. Mark Casey, Assistant
This is an appeal filed by the claimant on July 23, 1979, from an order of the Department of Labor and Industries dated May 10, 1979, which awarded the claimant compensation for unspecified disabilities of 3% as compared to total bodily impairment, time loss as paid, and the claim was closed. 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 of Labor and Industries to a Proposed Decision and Order issued by a hearing examiner for this Board on April 11, 1980 in which the order of the Department dated May 10, 1979 was reversed, and the matter remanded to the Department with direction to enter the claimant on the pension rolls as a totally disabled worker.
The issue presented by this direct appeal is the extent of the claimant's permanent disability on or about May 10, 1979, attributable to an industrial injury of July 9, 1977. It is the claimant's theory of the case that he has been rendered unable to engage in gainful employment as the result of the combined effects of his injury of July 9, 1977, consisting of a cervical strain, and a prior industrial injury to the low back of December 29, 1973, consisting of a low back strain.
To our analysis the medical evidence in this matter belies the [2] claimant's contention that he is permanently and totally disabled. In this respect, we have given controlling weight to the testimony of the two orthopedists who testified in this matter inasmuch as it is within their special expertise where the claimant's physical complaints lie. The evidence affirmatively refutes any particular disability of the low back. Dwight J. Cheff, D.C., who attended the claimant from a chiropractic standpoint for his injury of July 9, 1977, testified:
"Q Based on your review of Dr. Dreyer's examinations and reports of what he had done for Mr. Larsen, did you feel that the low back condition that he had prior to the '77 injury was disabling?
A No.
Q Has that condition gotten any worse as you've see Mr. Larsen over the years, the low back condition I'm referring to?
A No, it's been essentially the same."
By like token, Dr. Francis M. Brink, the claimant's treating orthopedist and his medical witness herein, testified in regard to the claimant's low back as follows:
"Q What were your findings referrable to the low back?
A I couldn't find too much."
As for the claimant's cervical injury, it has not left him with any particular restrictions in regard to his upper body. Dr. Jack B. Watkins, orthopedist, described the strength through the claimant's shoulders and arms as being "excellent." The claimant has no neurological deficits, and all reflexes are normal. Dr. Watkins further found that muscle strength in the claimant's lower extremities was "excellent." Likewise, Dr. Brink testified that the claimant had no restrictions in regard to walking, standing or sitting. Both Drs. Brink and Watkins were of the view that the claimant could return to his usual occupation as a truck driver with the only limitation being to avoid heavy lifting on a repetitive basis. As a parenthetical note, we would point out that the opinion of the claimant's vocational expert, [3] Mr. Lawrence R. Belka, that the claimant is unemployable in today's labor market was based upon physical limitations and restrictions which the claimant recited to him, rather than upon any physical limitations or restrictions which had been placed upon the claimant by a medical expert. Consequently, we consider that opinion to be of little moment. cf. Fochtman v. Department of Labor and Industries, 7 Wn. App. 286 (1972).
As for the extent of permanent partial disability resulting from the claimant's cervical injury, we accept the rating of Dr. Brink inasmuch as he was more familiar with the claimant's cervical disability than Dr. Watkins. Dr. Brink rated the claimant's cervical disability in Category II of Cervical and Cervico-Dorsal Impairments.
As a final note, the hearing examiner's evidentiary ruling excluding the opinion of Dr. Dennis Pollack, the Department's vocational expert, as to the claimant's employability, is hereby overruled. Contrary to the argument advanced by the claimant, we do not read the Fochtman case as prescribing any rule relating to the competency of a vocational expert to testify. To our mind, the fact that Dr. Pollack did not personally see or interview the claimant and based his opinion on a hypothetical question, would go to the weight but not the competency or admissibility of his testimony.
FINDINGS
Based upon the record, the Board makes the following findings:
1. On July 26, 1977, the claimant filed an accident report with the Department of Labor and Industries wherein he alleged that he sustained an industrial injury to his upper body on July 9, 1977. His claim was allowed, time-loss compensation paid, and on May 10, 1979, the Department issued an order closing the claim with a permanent partial disability award of 3% as compared to total bodily impairment. On July 23, 1979, the claimant filed a notice of appeal to the Board. On August 2, 1979, the Board issued an order granting the appeal subject to proof of timeliness.
2. The Department's closing order of May 10, 1979, was not communicated to the claimant until May 22, 1979. July 21, 1979 was a Saturday and the next business [4] day was Monday, July 23, 1979.
3. The claimant's injury of July 9, 1977, was medically diagnosed as a cervical strain. This injury did not aggravate a prior low back injury sustained by the claimant on December 29, 1973.
4. On or about May 10, 1979, when the Department closed this claim, the claimant's condition resulting from his industrial injury of July 9, 1977, was fixed, and his permanent partial disability attributable thereto was consistent with Category II of Categories of Permanent Cervical and Cervico-Dorsal Impairments. (WAC 296-20-240(2)).
5. The claimant is able to engage in gainful employment on a reasonably continuous basis.
CONCLUSIONS
Based upon the foregoing findings, the Board makes the following conclusions:
- The Board of Industrial Insurance Appeals has jurisdiction of the parties and the subject matter of this appeal.
- The claimant is not permanently and totally disabled within the meaning of the Workers' Compensation Act.
- The order of the Department of Labor and Industries dated May 10, 1979, closing the claim with a permanent partial disability award of 3% as compared to total bodily impairment, is incorrect and should be reversed, and this claim remanded to the Department with instructions to reopen the claim and award the claimant a permanent partial disability award concomitant with Category II of WAC 296-20-240(2) (10% as compared to total bodily impairment) less the prior award, and thereupon to close the claim.
It is so ORDERED.
Dated this 24th day of November, 1980.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
MICHAEL L. HALLChairperson
/s/
AUGUST P. MARDESICHMember