|IN RE: LARRY ALFANO, DEC'D||)||DOCKET NO. 86 1384|
|Claim No. S-296197||)||ORDER DENYING APPEAL|
- Widow-petitioner, Suellen Alfano, by
- Schroeter, Goldmark & Bender, per
- James D. Hailey
- Self-insured Employer, Associated Grocers, Inc., by
- Schwabe, Williamson, Wyatt & Lenihan (withdrawn), and
- Hall and Keehn, per
- Gary D. Keehn
- Department of Labor and Industries, by
- The Attorney General, per
- Deborah Hilsman and William Garling, Jr., Assistants
This is an appeal filed by the self-insured employer on April 29, 1986 from an order of the Department of Labor and Industries dated February 19, 1986 which adhered to the provisions of prior orders which placed Suellen Alfano, the surviving spouse of Larry Alfano, on the pension rolls effective May 29, 1984 and determined that second injury fund relief was not available to the self-insured employer.
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decison on a timely Petition for Review filed by the self-insured employer to a Proposed Decision and Order issued on June 17, 1987 in which the order of the Department dated February 19, 1986 was affirmed. 
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed.
The issue is whether Mr. Alfano was permanently totally disabled as a result of his industrially related conditions at the time of his death due to unrelated cancer on May 29, 1984. The parties agree that his back condition was fixed as of that date but dispute the fixity of his psychiatric condition.
In concluding that Mr. Alfano was permanently totally disabled at the time of death, the Industrial Appeals Judge relied on a prior Decision and Order, In re Ronald E. Cowell, Dec'd., BIIA Dec., 62,207 (1984). The employer argues that Cowell was wrongly decided, essentially reiterating the reasons set forth in the Cowell dissent. Because we conclude that Mr. Alfano's psychiatric condition was in fact fixed at the time of his death, we need not reach the question of whether Cowell was correctly decided. However, because the question has significance beyond this particular appeal, a special concurring opinion has been appended.
The widow-petitioner, Suellen Alfano, had been married to Mr. Alfano for fourteen years at the time of his death on May 29, 1984, at age 53. Mr. Alfano had worked as a truck driver for Associated Grocers his entire adult working life and had a high school equivalency diploma. Mrs. Alfano stated that he had been in very good health prior to his injury in January of 1979. He had been active with his children and engaged in various activities including hunting, fishing, camping bowling and remodeling houses. 
On January 23, 1979 Mr. Alfano injured his low back at work while attempting to lift a loading platform. His condition rapidly worsened. Dr. John C. Callahan placed Mr. Alfano in the hospital for traction, prescribed muscle relaxants, and directed him to stay home and relax. Because Mr. Alfano experienced little or no improvement, Dr. Callahan recommended and performed decompressive laminotomy surgery. Mr. Alfano slowly recovered after surgery and attempted to return to work in October of 1979. The attempt was unsuccessful and after two weeks his severe back pain forced him to quit once again.
In March or April of 1980 Mr. Alfano's back pain began worsening, he started dragging his foot, often stubbing his toe and he was unable to wear a shoe. He continued to deteriorate and Mrs. Alfano was forced to find work in order to support the family. Mr. Alfano became upset because he was no longer able to provide for his family. At this time his daily activities were severely limited; he spent most of the time reading and watching television while sitting or lying down. He began experiencing sexual functional problems at the end of 1981. He apparently became angry and depressed and had lost much of his self esteem. He became verbally abusive, frustrated, depressed and alienated from other people.
Lung cancer, unrelated to the industrial injury, was diagnosed in September, 1982. Mr. Alfano began seeing a psychiatrist, Dr. Robert B. Olsen, on July 22, 1983. Following psychiatric treatment with Dr. Olsen he appeared to improve. However, his psychiatric condition was characterized by large swings in overall adjustment.
Peter W. Wright, M.D., an oncologist, treated Mr. Alfano with chemotherapy starting in October of 1982. In January of 1983 he had a  portion of his right lung removed and then received radiation and additional chemotherapy. In the fall of 1983 Mr. Alfano developed a tumor in his left hip, his condition continued to deteriorate and on May 29, 1984 Mr. Alfano passed away as a result of the cancer.
John C. Callahan, M.D., an orthopedic surgeon, first saw Mr. Alfano in 1975 for a minor back injury. Dr. Callahan began treating Mr. Alfano again in 1979 for the industrial injury of January, 1979. Dr. Callahan's opinion was that Mr. Alfano was a well motivated individual who tried to go back to work in spite of a seriously disabling back injury. Dr. Callahan originally attempted conservative treatment but in February of 1979 a myelogram demonstrated a narrowing of the L4-5 interspace on the left side and a narrowing of the width of the spinal canal. In April of 1979 Dr. Callahan performed a decompressive laminotomy. Dr. Callahan stated that the recovery took longer than usual. In the fall of 1979 Dr. Callahan released Mr. Alfano to work. However, as indicated above, this attempt to return to work was unsuccessful.
Dr. Callahan stated that Mr. Alfano's condition continued to deteriorate and he believed that, by the end of 1979, Mr. Alfano was physically disabled from performing any kind of work as a result of conditions causally related to his industrial injury. It was further Dr. Callahan's opinion that by 1982 Mr. Alfano still would not have been able to return to any form of work. In May of 1983 Dr. Callahan's opinion was that Mr. Alfano was permanently disabled from doing the work of a truck driver, although he somewhat equivocally stated that Mr. Alfano might have been able to perform some form of gainful occupa-  tion. He rated Mr. Alfano's permanent disability as equal to 40% as compared to total bodily impairment for his low back.
Anthony Choppa, a vocational rehabilitation counselor, reviewed the medical records and interviewed Mrs. Alfano in December of 1986. It was Mr. Choppa's opinion that, excluding the effects of the cancer, Mr. Alfano would not have been capable of working on a reasonably continuous basis, taking into account his age, work history, education and physical and emotional problems.
Dr. Philip Grisham, a neurologist, examined Mr. Alfano on March 17, 1983. He stated that Mr. Alfano's low back condition was fixed and stable and best described by Category 5 of permanent dorso-lumbar and lumbosacral impairments. In his opinion, Mr. Alfano could have been employed on a reasonably continuous basis based only upon the residuals of his his low back injury.
Joseph A. Moisan, a rehabilitation counselor, based his opinions upon a review of records and information supplied to him. He felt that, with the assistance of vocational rehabilitation services, Mr. Alfano would have been capable of gainful employment on a reasonable continuous basis.
There is no question that Mr. Alfano's back condition was fixed and in need of no further treatment at the time of his death. The critical question is whether Mr. Alfano's psychiatric condition causally related to the industrial injury was fixed at the time of his death. The witnesses who gave psychiatric opinions, Dr. John E. Hamm, Dr. Robert B. Olsin, Dr. Arthur A. Murray and Dr. Lesley J. Barnette, are consistent in that they agree that Mr. Alfano did suffer from a psychiatric condition causally related to his industrial injury,  diagnosed as severe depression and dysthymic disorder. It was clear to all these doctors that the symptomatology of the depression began appearing well before the diagnosis of cancer was ever made.
However, while Dr. Hamm and Dr. Olsen were of the opinion that Mr. Alfano was precluded from employment due in part to his psychiatric condition at the time of his death, they both felt that if he had lived he would have improved psychiatrically to the point where he could engage in gainful employment. In contrast, Dr. Murray and Dr. Barnette were of the opinion that psychiatric treatment was unlikely to reduce Mr. Alfano's psychiatric impairment and that his psychiatric condition was therefore fixed at the time of his death.
Overall the evidence establishes that based on Mr. Alfano's age, his work history, his lack of transferable skills, his education, his chronic pain syndrome, his severe physical restrictions, excluding any due to his cancer condition, he was unemployable at the time of his death. The question is whether this inability to work was temporary or permanent, i.e., whether his psychiatric condition was amenable to treatment at the time of his death.
We feel that the most persuasive testimony is that Mr. Alfano's psychiatric condition would not have been made less disabling through treatment. Dr. Olsen and Dr. Hamm were of the opinion that Mr. Alfano's psychiatric condition was treatable and would improve with a prescription of anti-depressive drugs. However, their opinions are inconsistent with their own state view that Mr. Alfano's chronic low back pain and physical inability to return to his prior lifelong employment as a truck driver were the cause of his psychiatric problems. Because Mr. Alfano was unable to avoid the chronic pain and  unable to return to his past employment, it is unlikely that further psychiatric treatment would have improved his condition.
Furthermore, Dr. Olsen conceded that for psychiatric treatment to be successful, it should be started as close as possible to the initial injury and that if treatment for chronic pain is started more than two years after the industrial injury, the likelihood of success considerably decreases. In light of this statement, it is significant that in this case psychiatric treatment was not started until three-and-a-half years after the initial injury.
Further, Dr. Olsen does not adequately explain how psychiatric treatment would be successful given Mr. Alfano's failed attempt to return to work, which Dr. Olson characterized as a severe and significant psychological blow. Similarly, Dr. Hamm does not adequately explain how Mr. Alfano would have overcome his psychiatric problems, given the fact that a strong work history was closely tied to his emotional health. It should be noted that Dr. Hamm did not feel that the depression could have been cured, but only that it would have been kept mild with continuing treatment.
The more persuasive psychiatric opinions are those of Dr. Murray and Dr. Barnette, who realized that no amount of psychiatric treatment could change the fact that Mr. Alfano would continue to experience chronic pain due to this low back condition and that he would never be able to return to the only employment he had ever known. Dr. Barnette's assessment that Mr. Alfano would not be amenable to psychiatric treatment is particularly persuasive because of his realistic view of Mr. Alfano as an individual. According to Dr. Barnette, Mr. Alfano was a very "macho" male who had found his identity  in his role as a truck driver, and had lost his sense of self worth as a man and a human being due to his inability to work. It was Dr. Barnette's opinion that Mr. Alfano was convinced he was by nature a truck driver and could not learn anything new and did not have the essential energy to do so. While Dr. Barnette believed that Mr. Alfano needed psychiatric treatment, he concluded that he would not have been successful with this treatment do to his "old world" view of mental disease, i.e., that he would have been a "loonie" in order to need psychiatric treatment.
For all the foregoing reasons, we are convinced that Mr. Alfano's psychiatric condition was fixed and stable and that he was permanently totally disabled as a result of the industrial injury of January 23, 1979 at the time of his death due to unrelated causes on May 29, 1984. Therefore, the Department order appealed from should be affirmed.
FINDINGS OF FACT
1. On February 15, 1979 an accident report was filed on behalf of the claimant alleging an industrial injury on January 23, 1979, during the course of his employment with the self-insured employer, Associated Grocers, Inc. On May 9, 1980 the Department issued an order closing the claim with a permanent partial disability award equal to 25% as compared to total bodily impairment for unspecified disabilities. On June 5, 1980, a Notice of Appeal was filed on behalf of the claimant with the Board of Industrial Insurance Appeals. On June 10, 1980 an application to reopen for aggravation of conditions was filed with the Department. On June 20, 1980, a cross-appeal was filed on behalf of the employer. On July 1, 1980 the Board issued orders granting the appeal and the cross-appeal. On April 3, 1981 the Board issued an order dismissing the employer's appeal and on April 7, 1981 the Board issued an order dismissing the claimant's appeal.
On July 30, 1981 the Department issued an order denying the application to reopen for aggravation of conditions filed on June 10, 1980. On August 7,  1981 a Notice of Appeal was filed with the Board of Industrial Insurance Appeals on behalf of the claimant. On August 26, 1981 the Board issued an order granting the appeal. On April 21, 1982 a Proposed Decision and Order was issued reopening the claim. On May 25, 1982 the Board issued a Decision and Order adopting the Proposed Decision and Order. On June 2, 1982 the Department issued an order reversing the July 30, 1981 order and reopened the claim for treatment effective June 4, 1980 and providing other benefits as required by law.
On May 17, 1985 a claim for pension benefits by the deceased worker's spouse and children was filed with the Department, based on the fact of the worker's death on May 29, 1984. On July 19, 1985 the Department issued an order denying second injury fund relief to the employer. On July 23, 1985 the Department issued an order determining that the surviving spouse was entitled to a spouse's pension. On September 10, 1985 a letter of protest and request for reconsideration was filed with the Department on behalf of the employer to the Department orders of July 19, 1985 and July 23, 1985. The February 19, 1986 the Department issued an order adhering to the provisions of its prior orders and notices dated July 19, 1985 and July 23, 1985. The February 19, 1986 order was received by the employer on April 21, 1986. On April 29, 1986, a Notice of Appeal was filed with the Board on behalf of the employer from the Department order of February 19, 1986. On May 6, 1986 the Board issued an order granting the appeal subject to proof of timeliness, assigned it Docket No. 86 1384 and directed that further proceedings be held in the matter.
2. On January 23, 1979, while in the course of employment with Associated Grocers, Inc., Larry Alfano injured his back while attempting to lift a loading platform. As a result of this injury, he required medical treatment, including a decompressive laminotomy, physical therapy and medications.
3. At the time of his death on May 29,1 984 Mr. Alfano's lumbosacral condition proximately caused by his industrial injury was fixed and stable and in no need of further treatment, and his permanent impairment as a result of the industrial injury was best described by Category 6 of permanent dorso-lumbar and lumbo sacral impairments. 
4. At and prior to the time of his death on May 29, 1984 Mr. Alfano suffered from a psychiatric condition diagnosed as severe depression and dysthymic disorder, which conditions were proximately caused by his industrial injury of January 23, 1979.
5. At the time of Mr. Alfano's death on May 29, 1984 his psychiatric condition proximately caused by the industrial injury was fixed an permanent.
6. On September 21, 1982 Mr. Alfano was diagnosed as suffering from lung cancer. On may 29, 1984, he died as a result of this cancer, which was unrelated to his industrial injury of January 23, 1979.
7. Mr. Alfano was fifty-three years of age at the time of his death, had a high school G.E.D. and had worked as a truck driver for a single employer his entire adult working life.
8. Taking into consideration Mr. Alfano's age, training, education, and work experience, together with the severe physical and psychiatric residuals of his industrial injury, Mr. Alfano was permanently unable to be gainfully employed on a reasonably continuous basis at the time of his death on May 29,1 984.
9. Mr. Alfano did not have any preexisting bodily disability from any pervious injury or disease at the time of his January 23, 1979 industrial injury.
CONCLUSIONS OF LAW
- The self-insured employer's appeal was timely filed and the Board of Industrial Insurance Appeals has jurisdiction over the parties and subject matter of this appeal.
- Mr. Alfano's death on May 29, 1984, was not caused by the industrial injury of January 23, 1979, within the meaning and contemplation of RCW 51.32.050(2).
- At the time of his death on May 29, 1984 Mr. Alfano was permanently and totally disabled within the meaning of RCW 51.32.050(6) and RCW 51.08.160 as a result of his industrial injury on January 23, 1979. 
- The self-insured employer is not entitled to second injury fund relief pursuant to RCW 51.16.120.
- The order of the Department of Labor and Industries dated February 19, 1986, which adhered to the provisions of orders and notices dated July 19, 1985 and July 23, 1985, which determined that the surviving spouse, Suellen Alfano, was entitled to receive a spouse's pension and denied the employer second injury fund relief, is correct and should be affirmed.
It is so ORDERED.
Dated this 8th day of January, 1988.
BOARD OF INDUSTRIAL INSURANCE APPEALS
SARA T. HARMON Chairperson
FRANK E. FENNERTY, JR. Member
PHILLIP T. BORK Member
In re Ronald E. Cowell, Dec'd, BIIA Dec., 92,207 (1984), is a good example of the maxim that hard cases make bad law. Indeed, within a month of deciding Cowell, the majority of the Board at that time found it necessary to distinguish that decision. See In re Mabel Gates, BIIA Dec., 93,850 (1984). The Cowell majority quite straightforwardly conceded that its interpretation of RCW 51.32.060 was not supported by the specific language of the statute itself. We agree. Rather than repeating the dissenting and concurring opinions in Cowell and Gates here, we incorporate them in toto by this reference. 
Thus, we feel that, while the result reached by the Proposed Decision and Order in the current appeal was correct, its reliance on Cowell to reach that result was not. Had we not determined that the preponderance of the evidence supports the conclusion that Mr. Alfano's psychiatric condition was in fact fixed at the time of his death, we would have been constrained to reach a different result.
Dated this 8th day of January, 1988.
PHILLIP T. BORK Member