| IN RE: PATSY L. SCHMITZ | ) | DOCKET NO. 68,429 |
| ) | ||
| CLAIM NO. S-654964 | ) | DECISION AND ORDER |
| ) |
- APPEARANCES
- Claimant, Patsy L. Schmitz, by
- James D. Oswald
- Employer, Rainier Brewing Company, by
- Perkins, Coie, Stone, Olsen & Williams, per
- Calhoun Dickinson
- Department of Labor and Industries, by
- The Attorney General, per
- Sidney Stillerman Swan, Assistant
This is an appeal filed by the self-insured employer on August 9, 1984 from an order of the Department of Labor and Industries dated June 11, 1984, which adhered to the provisions of a prior order allowing the claim, and ordering the self-insured employer to deny responsibility for replacement of a right breast implant as unrelated to the injury for which the claim was filed. Affirmed.
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 employer to a Proposed Decision and Order issued on August 8, 1985 in which the order of the Department dated June 11, 1984 was affirmed.
The employer's petition argues that the damage done to the claimant by an incident at her work on December 16, 1983, involving [2] her left breast, did not involve an injury to her person, or to an artificial or substitute mechanical aid within the scope of coverage provided by RCW 51.36.020, and therefore is not compensable under the industrial insurance act.
The record discloses that the claimant was working on the day in question at a machine which forms corrugated boxes. The machine jammed, and while attempting to make it operable a piece of fiber suddenly dislodged, striking her left breast. The event was painful but no apparent damage to live tissue occurred. The blow, however, caused a breast implant to deflate, which Ms. Schmitz discovered on returning home after the end of her work-shift. She had undergone breast augmentation surgery some ten years before, at which time enlargement of both breasts was done by implantation of silicone prostheses.
It is clear that the only damage caused by the traumatic incident was to the left breast implant. No other physical harm resulted, as the claimant sustained no apparent abrasions, bruises or external punctures as a result of the incident.
We are aware that the legislature did not include breast implants within its listings IN RCW 51.36.020 of artificial substitutes covered for repair or replacement because of an industrial accident thereto. The specific devices covered under subsection (3) of that section include artificial limbs, eyes, or teeth, and subsection (4) covers hearing aids, eyeglasses or lenses. Nevertheless, to our thinking, the blow caused damage to more than just an artificial object. Certainly, the incident caused a change in the physical appearance of the claimant's left breast. While the record does not establish that [3] deflation of her implant posed a particular health hazard, it was at the very least disfiguring. Also, we can infer that deflation of such implant would have caused a change in the internal structure of the breast since the implant would no longer be supportive of the underlying chest musculature. Clearly there was a change in the claimant's physical condition as a result of the December 16, 1983 incident. Inasmuch as a change did occur, the result of the incident would therefore qualify as an industrial injury under RCW 51.08.100. It is our understanding of the Act's intent, relating to the provision for medical care, that injured workers be returned as closely as possible to their pre-injury state. In order to do this, the claimant had to be provided with a new left breast implant to permit her to regain her pre-injury appearance.
In short, we do not agree with the employer's rationale that damage occurred only to an artificial object. Unlike those devices listed in RCW 51.36.020, the only way to repair or replace a breast implant is to surgically enter the breast itself. Since this need for surgery was the direct result of the trauma causing damage to the original implant, the self-insurer must be responsible for the cost of this surgery. Additionally, as noted above, the rupture of the implant following the December 16, 1983 incident did result in physical changes to the claimant's body. It would thus be incorrect to state that the incident caused nothing more than damage to an artificial object. We believe the Department properly allowed the claim as framed by its order of June 11, 1984.
After consideration of the Proposed Decision and Order and the Petition for Review filed thereto, and a careful review of the entire record before us, we are persuaded that the Proposed Decision and Order [4] is supported by a preponderance of the evidence and is correct as a matter of law.
The proposed Findings, Conclusions and Order are hereby adopted as this Board's final Findings, Conclusions and Order and are incorporated herein by this reference.
It is so ORDERED.
Dated this 24th day of February, 1986.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
GARY B. WIGGSChairperson
/s/
FRANK E. FENNERTY, JR.Member
DISSENTING OPINION
I dissent from the Board majority's conclusion that this claim for replacement of the claimant's cosmetic left breast implant is allowable as an industrial "injury" under RCW 51.08.100. There was no "physical condition" resulting from the claimant's incident of December 16, 1983, i.e., no damage to the worker's person, and thus no industrial injury within the meaning of the Act.
Because damage to an artificial appliance or prosthesis is not included in the basic definition of injury, the legislature has specifically addressed the circumstances under which such devices may be repaired or replaced. Subsections (3) and (4) of RCW 51.36.020. Nowhere in these provisions or elsewhere in the Act is there any authority, either specifically or inferentially, for replacement of a cosmetic breast implant damaged or deflated in the course of employment. [5]
RCW 51.32.260 gives further illustration of the legislative intent to extend the scope of the Act's "injury" coverage, beyond that contemplated in the basic injury definition, only in carefully and specifically prescribed situations. It provides:
"Workers otherwise entitled to compensation under this title may also claim compensation for loss of or damage to the worker's personal clothing, footwear or protective equipment resulting from the industrial accident or incurred in the course of emergency medical treatment for injuries."
Replacement of the described items is possible only when the worker is "otherwise entitled to compensation" under the Act, i.e., injured and given treatment or other benefits. Again, no provision is made for cosmetic devices such as breast implants.
The majority, in reaching its conclusion to allow coverage, feels it necessary to emphasize the altered appearance of claimant's breast by the deflated implant, and states that "we can infer" that such deflation would have caused a "change in the internal structure of the breast." This statement is purely an inference, without evidentiary support in the record.
No amount of rhetoric alters the fact that the damage here was not to the worker's person, but rather to an artificial breast implant. Replacement of a purely cosmetic and nontherapeutic breast augmentation implant is not, in my opinion, a benefit provided under the present terms of the Washington workers' compensation law. I would reverse the Department's allowance order of June 11, 1984.
Dated this 24th day of February, 1986.
/s/
PHILLIP T. BORKMember