|IN RE: WILLIAM ZYGARLISKI, Dec'd||)||DOCKET NO. DOCKET NO. 89 1094|
|CLAIM NO. J-498493||)||DECISION AND ORDER|
Elizabeth Zygarliski, surviving spouse of William Zygarliski, by
- Law Offices of David B. Vail, per
- Thomas E. Egan and David B. Vail
Employer, Triad Mechanical, Inc.,
Department of Labor and Industries, by
- The Attorney General, per
- Art E. DeBusschere, Leslie V. Johnson, and
- Thomas Anderson, Assistants
This is an appeal filed by the claimant, William Zygarliski, on March 27, 1989 from an order of the Department of Labor and Industries dated February 7, 1989 which denied responsibility for unrelated pathology described as "dementia associated with alcoholism, alcohol dependency, and mixed personality disorder", and which adhered to the provisions of a Department order dated December 29, 1988 which closed the claim with time loss compensation as paid to April 4, 1988 and which awarded a permanent partial disability consistent with Category 3 for low back impairment (10% as compared to total bodily impairment), payable at 75% of monetary value. Reversed and remanded.
PROCEDURAL AND EVIDENTIARY MATTERS
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 on behalf of the claimant to a Proposed Decision and Order issued on February 1, 1990 in which the order of the Department dated February 7, 1989 was affirmed. 
As a preliminary matter we address Elizabeth Zygarliski's Motion and Affidavit for Substitution, filed on April 12, 1990. Pursuant to an agreement of the parties, we have admitted into the record a certified copy of the certificate of death of William Zygarliski as Exhibit No. 4, a copy of the certificate of marriage of William Zygarliski to Elizabeth L. Goff as Exhibit No. 5, and a copy of the claim for pension by spouse submitted by Elizabeth Zygarliski as Exhibit No. 6. These exhibits establish that William Zygarliski died on February 27, 1990 as the result of a self-inflicted gunshot wound, that at the time of his death he was married to Elizabeth Zygarliski, and that she has filed an application for benefits, as the surviving spouse, with the Department of Labor and Industries.
As Elizabeth Zygarliski has clearly established her status as a surviving widow, she is entitled under RCW 51.32.040 to pursue any benefits to which her late husband may have been entitled. This right is quite independent and separate from any claim that she may have under the provisions of RCW 51.32.050(6) to receive benefits as the result of being the surviving widow of an injured worker who dies during a period of permanent total disability.<1>
As Elizabeth Zygarliski has filed an application for compensation with the Department of Labor and Industries within one year of her husband's death and is a surviving spouse, she falls within the class of beneficiaries to whom awards and payments survive under the provisions of RCW 51.32.040. Her situation is distinguished from that of the personal representative in Johnson v. Dep't of Labor & Indus., 114 Wn.2d 479 (1990), where the claim was determined to have abated as there was no surviving spouse or child. Rather, Elizabeth Zygarliski's situation is analogous to that of the widows in Lightle v. Dep't of Labor & Indus., 68 Wn.2d 507 (1966) and Powell v. Dep't of Labor & Indus., 79 Wn.2d 378 (1971). As enunciated in Powell at 386-387:
... 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.
In the case before us, the Board of Industrial Insurance Appeals has determined, upon the evidence, that Mrs. Powell's husband was totally disabled from October 23, 1959 until November 27, 1961. Having made that determination, the board should have ordered that payments for such disability, which the workman did not receive during his lifetime, should be made to his widow.
Under the holdings of Lightle and Powell, Elizabeth Zygarliski is entitled to be substituted for her deceased husband, William Zygarliski, as the real party in interest to this appeal. Accordingly, we grant the  motion filed by Elizabeth Zygarliski on April 12, 1990 and substitute her as surviving widow for the claimant, William Zygarliski.
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 direct appeal filed on behalf of William Zygarliski from the Department order closing his claim raises a number of issues regarding causal relationship and extent of disability. It was the contention of Mr. Zygarliski that conditions delineated in the Department order dated February 7, 1989 consisting of "dementia associated with alcoholism, alcohol dependency, and a mixed personality disorder" were all conditions which were related to the industrial injury of October 25, 1984. In addition, and probably most significantly, was the issue of the extent of Mr. Zygarliski's entire disability in light of the permanent impairment caused by the industrial injury, combined with the disability caused by conditions which preexisted that injury. It was argued on Mr. Zygarliski's behalf that the Category 3 low back impairment previously awarded by the Department of Labor and Industries for the effects of the industrial injury had rendered him unable to perform any forms of continuous gainful employment when considered in light of his preexisting limitations and disabilities.
While the evidence presented by the parties is fully and accurately discussed in the Proposed Decision and Order, we believe that insufficient consideration was given to the disabling effect of the  impairment caused by this industrial injury when considered in light of Mr. Zygarliski's preexisting disabilities. By closing the claim with a permanent partial disability award for a Category 3 low back impairment, the Department has conceded that Mr. Zygarliski had a permanent physical impairment which was causally related to the industrial injury of October 25, 1984. In our view, that impairment, coupled with the myriad disabilities Mr. Zygarliski had prior to the industrial injury, rendered him totally and permanently disabled.
The record provides a clear picture of Mr. Zygarliski as a person who had limited education and skills. His lifetime employment was as an iron worker, a trade which places some demands on intellectual abilities but higher demands on physical skill and strength. Mr. Zygarliski was first employed as an iron worker in 1956. He injured his back on the job in 1963, but continued to work as an iron worker on a regular basis until he suffered his second industrial injury to his low back in 1979. After 1979, Mr. Zygarliski worked on an irregular and limited basis, his principal employment being the four or five days he worked prior to the 1984 industrial injury here in issue.
It is also clearly established in the record that Mr. Zygarliski had a long-term serious problem with alcohol abuse. The long-term alcohol abuse, which was commented on by almost every witness who testified in this matter, resulted in Mr. Zygarliski's permanent loss of driving privileges in 1981 and caused a number of significant health problems. 
In addition to suffering from the health problems attributable to chronic alcohol abuse, Mr. Zygarliski suffered from the effects of a number of injuries which occurred prior to his industrial injury. In addition to job-related low back injuries which occurred in 1963 and 1979, Mr. Zygarliski suffered a severe head injury in 1967 when he was assaulted, and injured his right shoulder, hand and left elbow when he fell from his bicycle in 1982. In spite of the many problems associated with these various injuries and conditions, Mr. Zygarliski was capable of at least marginal gainful employment prior to the October 25, 1984 industrial injury, as evidenced by the fact that he worked for four or five days as an iron worker immediately prior to that industrial injury. He did not work thereafter.
During the course of proceedings the parties presented the testimony of three mental health professionals, and although they disagreed to some degree about the causal relationship of some conditions to the industrial injury, they were in agreement that Mr. Zygarliski had substantial psychiatric or psychological problems preexisting the industrial injury.
Dr. Hugh Murray, a psychiatrist, testified on behalf of the claimant on the basis of an examination he performed on August 8, 1989. Based upon his examination and upon testing performed by Dr. Robert A. Lester, a psychologist, he expressed the opinion that Mr. Zygarliski's primary problems related to organic brain dysfunction, a condition which preexisted the industrial injury. In addition to organic brain dysfunction and a number of other conditions, Dr. Murray diagnosed  dementia associated with alcoholism or possibly attributable to head trauma.
Based upon the testing he performed, Dr. Lester expressed the opinion that Mr. Zygarliski was intellectually limited, having an IQ of only 76. He also felt that Mr. Zygarliski's level of intellectual function had remained unchanged throughout his life.
Dr. Jeanne Boucher-Leif, a psychiatrist, testified on behalf of the Department relying upon examinations that she performed in April of 1986 and August of 1988. Based upon her examinations and upon information supplied by the attorney for the Department, she expressed the opinion that Mr. Zygarliski suffered from significant intellectual impairment due to damage to his nervous system which was most likely caused by chronic alcoholism. She did not feel that either the dementia associated with alcohol dependency or the mixed personality disorder, which she diagnosed, were in any way causally related to the industrial injury.
While the exact cause may be in doubt, there is no question that Mr. Zygarliski had substantial psychiatric or psychological impairment prior to his industrial injury of October 25, 1984. The disability caused by these conditions provides us with a convincing explanation of why Mr. Zygarliski would be unable to perform any type of employment other than the physically demanding type of work he had performed for all of his adult life. In light of Mr. Zygarliski's limited intellectual capacity and the conditions associated with his prior head injury and chronic alcoholism, he was not capable of performing any forms of employment of a lighter or more intellectual nature than he was involved  in as an iron worker. Although we agree with the Department's determination that the "dementia associated with alcoholism, alcohol dependency, and the mixed personality disorder" were unrelated to the industrial injury, these conditions must still be considered in the permanent total disability equation, because they all existed and were disabling prior to the occurrence of the industrial injury on October 25, 1984.
If we were relying solely upon the testimony presented by the parties, we might very well come to the conclusion that Mr. Zygarliski had no permanent impairment or permanent partial disability attributable to the industrial injury of October 25, 1984. However, as the Department closed this claim with a permanent partial disability award for a level of impairment best described by Category 3 of WAC 296-20-280, we are not faced with this question. By closing the claim with a disability award for low back impairment, the Department conceded that Mr. Zygarliski had a permanent impairment or loss of physical function attributable to the industrial injury of October 25, 1984. While the physical effect of this impairment may have been minor, its legal effect on the outcome of Mr. Zygarliski's appeal is significant. The impairment admitted to have been caused by the industrial injury is truly analogous to the "straw that broke the camel's back". While Mr. Zygarliski may have been a most marginal member of the workforce, he was employed prior to the industrial injury in his usual trade as an iron worker. Although he was employed on a limited and fitful basis, he was performing employment as an iron  worker immediately prior to his industrial injury even though he had substantial limitations, impairment and disability.
Considering the testimony of the various expert witnesses, it is clear that Mr. Zygarliski was unable to return to work as an iron worker after his industrial injury and was in fact probably incapable of returning to work in any form of gainful employment. The only significant disagreement between the various experts relates to their opinions regarding the cause of Mr. Zygarliski's inability to perform gainful employment. We are convinced that the low back impairment caused by the industrial injury was the final causative factor which completely removed Mr. Zygarliski from the work force. While the effect of a Category 3 low back impairment would have been relatively minor on any number of individuals, it had a substantial impact on Mr. Zygarliski because of his significant preexisting problems. Considering the combined effects of the impairment caused by this injury and Mr. Zygarliski's preexisting limitations, impairments and disabilities, we are firmly convinced that he was totally and permanently disabled and was entitled to be placed upon the pension rolls as of April 5, 1988.
After consideration of the Proposed Decision and Order and the Petition for Review filed thereto on behalf of the claimant, and a careful review of the entire record before us, we are persuaded that the Department order closing the claim is incorrect and must be reversed. The claim will be remanded to the Department with direction to declare that Mr. Zygarliski was a totally and permanently disabled worker, effective April 5, 1988. 
Proposed Findings of Fact Nos. 1, 2, and 3, and proposed Conclusions of Law Nos. 1 and 2 are hereby adopted as this Board's final findings and conclusions. In addition, the Board enters the following findings and conclusions:
FINDINGS OF FACT
4. As of April 5, 1988 and through February 7, 1989, claimant's condition causally related to his industrial injury of October 25, 1984, was fixed and stable and in need of no further treatment.
5. As of April 5, 1988 and through February 7, 1989, claimant's permanent impairment, causally related to his industrial injury of October 25, 1984, was best described by Category 3 of the categories for lumbosacral impairments contained in WAC 296-20-280.
6. In 1989, claimant was a 55 year old man with a seventh grade education. His working career was limited to heavy work as an iron worker, structural steel worker and as a longshoreman, since he commenced working in 1956.
7. Mr. Zygarliski injured his back on-the-job in 1963, but continued to work as an iron worker. He suffered a head injury in 1967 when he was assaulted. He worked relatively consistently from 1956 until he sustained his second industrial back injury in 1979. His work record after 1979 was spotty. He injured his right shoulder, hand, and left elbow in 1982, when he fell off his bicycle. Mr. Zygarliski also had a long history of severe alcohol abuse.
8. As of April 5, 1988 and through February 7, 1989, claimant suffered from pathological conditions including dementia associated with alcoholism, alcohol dependency and mixed personality disorder, which preexisted his industrial injury of October 25, 1984 and which were not aggravated by that injury. 
9. As of February 7, 1989, and during the period between April 4, 1988 and February 7, 1989, the claimant was prevented from performing the physical activities necessary to maintain employment as an iron worker as a result of the impairment caused by the industrial injury of October 25, 1984, when considered in combination with the disabilities and limitations which existed prior to that injury.
10. As of April 5, 1988 and through February 7, 1989, William Zygarliski, in light of his age, training, education, work experience, preexisting disabilities, and additional disability causally related to the industrial injury of October 25, 1984, was incapable of engaging in any form of continuous gainful employment.
11. William Zygarliski died on February 27, 1990, as the result of a self-inflicted gunshot wound to the head.
12. Elizabeth Zygarliski was married to William Zygarliski on December 5, 1986 and was his surviving widow at the time of his death on February 27, 1990.
13. On April 4, 1990, Elizabeth Zygarliski filed an application for benefits with the Department of Labor and Industries as the surviving widow of William Zygarliski.
CONSLUSIONS OF LAW
3. As of April 5, 1988 and through February 7, 1989, the claimant, William Zygarliski, was totally and permanently disabled within the meaning of RCW 51.08.160.
4. As Elizabeth Zygarliski is the surviving widow of William Zygarliski and has filed an application for benefits within one year of the date of death, this appeal does not abate and she is entitled to be substituted as the real party in interest and to prosecute this appeal under the provisions of RCW 51.32.040.
5. The order of the Department of Labor and Industries dated February 7, 1989 which denied  responsibility for unrelated pathology described as "dementia associated with alcoholism, alcohol dependency, and mixed personality disorder", and which adhered to the provisions of a Department order dated December 29, 1988 which closed the claim with time loss compensation as paid to April 4, 1988 and which awarded a permanent partial disability consistent with Category 3 for low back impairment (10% as compared to total bodily impairment), payable at 75% of monetary value, is incorrect and is reversed and the claim is remanded to the Department with directions to declare that William Zygarliski was a totally and permanently disabled worker under the Industrial Insurance Act as of April 5, 1988, to pay to Elizabeth Zygarliski as the surviving widow any benefits to which William Zygarliski was entitled at the time of his death, and to issue a further order determining whether Elizabeth Zygarliski is entitled to further benefits as the surviving widow of a totally permanently disabled worker in light of the determinations made herein.
It is so ORDERED.
Dated this 21st day of September, 1990.
BOARD OF INDUSTRIAL INSURANCE APPEALS
SARA T. HARMONChairperson
FRANK E. FENNERTY, JR.Member
<1>If, as we believe the record establishes, Elizabeth Zygarliski is entitled to benefits under the provisions of RCW 51.32.050(6) as the surviving widow of an injured worker who dies during a period of permanent total disability, she is not disqualified from these benefits by the manner in which her late husband met his demise. While the certificate of death, Exhibit No. 4, establishes that death resulted from a "self-inflicted gunshot wound to the head", Mr. Zygarliski's suicide does not bar a survivorship claim as it was not the "singular event for which compensation is claimed." Dep't of Labor & Indus. v. Baker, 57 Wn. App. 57, at 59 (1990).