|IN RE: MARVEN SANDVEN||)||DOCKET NO. 89 3338|
|Claim No. S-251347||)||DECISION AND ORDER|
- Claimant, Marven Sandven, by
- Robert M. Keefe
- Self-Insured Employer, Associated Sand & Gravel Co. Inc.,
- by Anderson Hunter, per
- Todd R. Startzel
This is an appeal filed by the claimant, Marven Sandven, on July 28, 1989 from an order of the Department of Labor and Industries dated July 21, 1989. The order provided that:
We received your application to reopen your claim on 10/13/88. You are not eligible for disability benefits because we did not receive your application within the time limitations set by law (10 years for eye injuries, 7 years for all other injuries). Since there is no evidence the condition covered by your claim has worsened, medical benefits are denied, and the claim will remain closed.
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 by the claimant to a Proposed Decision and Order issued on January 11, 1990 in which the order of the Department dated July 21, 1989 was affirmed.
Although Exhibit Nos. 3 and 4 are referred to in the Proposed Decision and Order, there is nothing which establishes in the record  that those exhibits, or Exhibit No. 2, were ever offered or admitted. While we find claimant's objections to Exhibit No. 3 anomalous in light of the fact that this exhibit and Exhibits 2 and 4 were marked and discussed during testimony presented on his behalf, these three exhibits were not offered into evidence by either party, nor were they withdrawn. Exhibits 2, 3, and 4 will therefore appear in the record as rejected exhibits.
The Board has reviewed the other evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed.
By his appeal, Marven Sandven raises the issue of his right to have this claim reopened for the payment of additional disability benefits or the provision of additional medical treatment, pursuant to RCW 51.32.160 as amended by Laws of 1988, ch. 161 § 11, p. 698 (effective June 9, 1988). Mr. Sandven contends that the initial order closing his claim on May 11, 1979 was not a "closing order" as that term is defined in RCW 51.32.160 (1988) and that he is therefore entitled as a matter of right to have his aggravation application considered for further compensation or disability benefits, in addition to the provision of further medical treatment. The question of the constitutionality of the 1988 amendment to RCW 51.32.160 is also raised tangentially.
In light of the manner in which the Supreme Court has previously dealt with legislative changes regarding the process by which injured workers may apply to reopen their claims, we can find no constitutional  impediment to the 1988 amendments to RCW 51.32.160. See, e.g., Mattson v. Dep't of Labor & Indus., 176 Wash. 345 (1934); Pate v. Dep't of Labor & Indus., 43 Wn.2d 736 (1953); and Lane v. Dep't of Labor & Indus., 21 Wn.2d 402 (1944). It also appears to us as almost axiomatic that the 1988 amendments were remedial in nature and apply to any application to reopen a claim on the basis of aggravation of condition filed subsequent to the effective date of the amendment, June 9, 1988. As Mr. Sandven's application to reopen his claim was not filed with the Department until October 13, 1988, the application was appropriately considered under the amended provisions of RCW 51.32.160.
This claim was filed and allowed in 1978 and on May 11, 1979 the Department issued the initial order closing the claim. After the claim was subsequently reopened in response to Mr. Sandven's May 20, 1980 application, the claim was again closed on December 15, 1982. On October 13, 1988 an application to reopen for aggravation of condition was filed by Mr. Sandven with the Department and the order denying this application, dated July 21, 1989, is the subject of this appeal. That order denied the application as it related to compensation or disability benefits for the reason that it was not timely, having been filed more than seven years after the first closing order became final. In addition, the order also denied the application as it related to the provision of proper and necessary medical and surgical services.
As amended, the pertinent portions of RCW 51.32.160 provide:
If aggravation, diminution, or termination of disability takes place, the director may, upon the application of the beneficiary, made within seven years from the date the first closing  order becomes final, or at any time upon his or her own motion, readjust the rate of compensation in accordance with the rules in this section provided for the same, or in a proper case terminate the payment: PROVIDED, That the director may, upon application of the worker made at any time, provide proper and necessary medical and surgical services as authorized under RCW 51.36.010. "Closing order" as used in this section means an order based on factors which include medical recommendation, advice, or examination. Applications for benefits where the claim has been closed without medical recommendation, advice, or examination are not subject to the seven year limitation of this section. The preceding sentence shall not apply to any closing order issued prior to July 1, 1981.
The statute, as amended, continues the seven year limitation for filing of applications, but changes the event which commences this period. Previously an injured worker had seven years " ... after the establishment or termination of . . . compensation . . ." in which to file an application. Now the statute provides that the application be ". . . made within seven years from the date the first closing order becomes final. . . ." In addition, the 1988 amendments removed any time limitation from applications made to receive " ... proper and necessary medical and surgical services as authorized under RCW 51.36.010."
Initially, we must determine which order issued by the Department of Labor and Industries constituted the "first closing order". In addition to providing a definition of "closing order", the statute provides that claims closed with orders that fall outside that definition are not subject to the seven year limitation. However, the  statute also provides that orders issued prior to July 1, 1981 are not subject to the provision which eliminates the seven year limitation. While consideration of selected portions of the statute might lead to the conclusion that any order must meet the definition in order to constitute a closing order, that interpretation of the statute would not be consistent with the legislative intent. In order to give meaning to the sentence contained in the statute relating to closing orders issued prior to July 1, 1981, it is incumbent upon us to consider any order issued prior to that date as a "closing order" whether or not it is ". . . based on factors which include medical recommendation, advice, or examination."
As the initial closing order entered in Mr. Sandven's claim was issued on May 11, 1979, prior to July 1, 1981, it is not relevant to the present inquiry whether or not it was based upon factors which include medical recommendation, advice, or examination. By the clear provisions of RCW 51.32.160, any first closing order issued prior to July 1, 1981 serves as the starting point of the seven year period set forth in the statute. It follows that Mr. Sandven's aggravation application filed on October 13, 1988 was filed more than seven years after the date on which the first closing order became final, and accordingly, he is not entitled as a matter of right to have his claim considered for readjustment of the rate of compensation or for the payment of additional disability benefits.
As the proviso contained in RCW 51.32.160 has removed any time limitation for applying to reopen a claim to obtain additional medical  and surgical services, Mr. Sandven is entitled to have his application for these services considered as a matter of right. In the absence of statutory language to the contrary, the standards for determining aggravation of disability, established by case law prior to the 1988 amendments, should continue to apply. Thus, Mr. Sandven, in order to show an entitlement to additional treatment, must establish by a preponderance of the evidence that his condition causally related to the industrial injury of February 6, 1978 worsened or became aggravated on an objective basis between December 15, 1982 and July 21, 1989.
On February 6, 1978 Mr. Sandven was injured when a crane which was unloading his truck struck electrical lines, causing them to break. As the lines fell, they struck claimant in the lower back, causing electrical burns and low back pain. As of the first terminal date, December 15, 1982, claimant had a permanent partial disability equal to Category 3 of WAC 296-20-280.
While diagnostic studies such as x-rays, MRIs, and CAT scans reveal abnormalities, the record does not support a conclusion that Mr. Sandven's condition causally related to the industrial injury worsened between December 15, 1982 and July 21, 1989. The only expert witness to testify in Mr. Sandven's behalf was the attending osteopath, Dr. Del Wetstone. He first saw the claimant on October 10, 1988, ten years after the industrial injury. After performing an examination, he provided treatment consisting of osteopathic manipulation and medication. The only other form of treatment he could recommend was  evaluation of the claimant by an orthopedic surgeon or neurosurgeon to determine if there was a surgically correctable problem.
Although the medical witnesses presented on behalf of the self-insured employer did not have the advantage of treating the claimant, they were, by their qualifications and specialization, able to perform precisely the type of evaluation recommended by Dr. Wetstone. Dr. Jacquelyn A. Weiss, a certified specialist in neurology and clinical neurophysiology, could find no consistent pattern of neurological abnormality on examination. In fact, her findings on examination were sufficiently bizarre that they would best be described as inconsistent neurological responses and were indicative, in her view, of an attempt to mislead. As an example, during strength testing, Mr. Sandven demonstrated extreme weakness in the legs, yet at other times during the examination he adopted a bizarre gait which required great strength in the leg muscles. According to Dr. Weiss, claimant's industrially related condition had not objectively worsened between the terminal dates.
Also testifying on behalf of the self-insured employer was Dr. Kenneth Sawyer, an orthopedic surgeon who examined the claimant with Dr. Weiss on June 27, 1989. Based upon the same bizarre physical findings testified to by Dr. Weiss, Dr. Sawyer diagnosed degenerative disc disease, status post electrical shock injury, and a "markedly functional examination." He was of the opinion that the degenerative disc disease was not in any way causally related to the electric shock injury of February 6, 1978. His last diagnosis of a "functional examination" was  based upon Mr. Sandven's inappropriate responses during examination, which suggested that Mr. Sandven was trying to make his condition appear to be worse than it really was. Based upon a hypothetical question asking Dr. Sawyer to compare his findings to those made by Dr. Huddlestone close to the first terminal date of December 15, 1982, he responded that there was no objective evidence of worsening in Mr. Sandven's condition. This is entirely consistent with the findings of Dr. Weiss, who, based upon a comprehensive neurological examination, could find no demonstrable neurological defect in 1988 or 1989 which was any different or greater than Mr. Sandven had as a result of his injury when the claim was closed on December 15, 1982.
While Dr. Wetstone has provided Mr. Sandven with medication and osteopathic manipulative treatment, this treatment appears to be palliative in nature. As previously pointed out, Dr. Wetstone would rely upon an evaluation performed by an orthopedic surgeon or neurosurgeon to determine whether the claimant has a problem amenable to surgical correction. In a very real sense, this evaluation has been provided by Drs. Weiss and Sawyer and establishes clearly that neither surgical nor any other form of treatment will alter the course of any conditions attributable to the industrial injury.
Since the claimant's application to reopen his claim for aggravation of condition was filed more than seven years after the first closing order of May 11, 1979 became final, and since he has not established entitlement to further treatment based on aggravation, the Department acted correctly in denying Mr. Sandven's application. 
After consideration of the Proposed Decision and Order, the Petition for Review filed thereto by the claimant, the Employer's Responsive Memorandum to Claimant's Petition for Review, and a careful review of the entire record before us, we have determined that the Department order dated July 21, 1989 is correct in its entirety and must be affirmed.
FINDINGS OF FACT
1. On March 9, 1978 the claimant, Marven Sandven, filed an application for benefits with the Department of Labor and Industries, alleging that he had suffered an industrial injury on February 6, 1978 during the course of his employment with Associated Sand & Gravel Co. Inc. On September 27, 1978 the claim was allowed and on May 11, 1979 the Department issued an order closing the claim with time loss compensation as paid to February 12, 1978 and without further award for time loss compensation or permanent partial disability.
On May 20, 1980 the claimant filed an application to reopen his claim for aggravation of condition and on December 29, 1980 a Department order was issued reopening the claim effective May 1, 1980 for treatment and action as indicated. On August 9, 1982 the Department issued an order closing the claim with time loss compensation as paid to May 9, 1982 inclusive, and directed the employer to pay the claimant an award in the amount of $3,000.00. On August 13, 1982 the claimant filed a protest and request for reconsideration from the Department's order dated August 9, 1982. On December 15, 1982 the Department issued an order directing that the claim shall remain closed pursuant to the order dated August 9, 1982.
On October 13, 1988, the claimant filed an application to reopen his claim for aggravation of condition. On October 21, 1988 the Department issued an order denying the claimant's application to reopen for the reason  that it was not presented within the statutory time limit of seven years from the date compensation was terminated on May 11, 1979. On November 3, 1988 a protest and request for reconsideration was filed by the claimant. On December 2, 1988 the Department issued an order affirming its prior order of October 21, 1988. On December 6, 1988 the claimant filed a notice of appeal with the Board of Industrial Insurance Appeals. On May 10, 1989, the Board issued an Order on Agreement of Parties remanding the claim to the Department to further investigate whether the claimant was in need of proper and necessary medical services for conditions causally related to his industrial injury and to take such further action as is appropriate. On May 17, 1989 the Department issued an order setting aside the December 2, 1988 order. On July 21, 1989, the Department issued a further order denying the application to reopen the claim for the reasons that it was not received within the time limitations set by law and that there was no evidence that the condition covered by the claim had worsened, so as to entitle claimant to further medical benefits. On July 28, 1989, the claimant filed a notice of appeal with the Board of Industrial Insurance Appeals. On August 2, 1989, the Board issued an order granting the appeal, assigned it Docket No. 89 3338 and ordered that hearings be held on the issues raised by the notice of appeal.
2. The Department order dated May 11, 1979 was the first closing order in this claim and became final sixty days after it was communicated to the claimant.
3. The application to reopen the claim on the basis of aggravation of condition filed on October 13, 1988, was filed more than seven years after the first closing order issued on May 11, 1979 became final.
4. Between December 15, 1982 and July 21, 1989, claimant's condition causally related to the industrial injury of February 6, 1978 did not worsen or become aggravated or cause him to have increased impairment or disability. 
5. Between December 15, 1982 and July 21, 1989, and as of the latter date, there was no medical treatment available which would reduce the claimant's disability attributable to the industrial injury and throughout this period the conditions causally related to the industrial injury were fixed and permanent.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter to this appeal.
- The claimant's application to reopen his claim on the basis of aggravation of condition filed on October 13, 1988 was not timely within the provisions of RCW 51.32.160, as it was filed more than seven years after the first closing order dated May 11, 1979 became final. As a result, the Department order of July 21, 1989 properly denied disability benefits.
- The claimant's aggravation application filed on October 13, 1988 entitled the claimant to a determination under the provisions of RCW 51.32.160 of his entitlement to proper and necessary medical and surgical services as authorized under RCW 51.36.010.
- Between December 15, 1982 and July 21, 1989, the claimant's condition causally related to his industrial injury of February 6, 1978 did not worsen or become aggravated and was not in need of proper and necessary medical and surgical services as authorized under RCW 51.36.010.
- The order of the Department of Labor and Industries dated July 21, 1989 determining that the application to reopen the claim on the grounds of aggravation of condition was not filed within the time limitations set by law and determining that the claimant's condition causally related to the industrial injury had not worsened and he was not entitled to medical services for conditions causally related to the industrial injury, is correct and is affirmed. 
It is so ORDERED.
Dated this 24th day of August, 1990.
BOARD OF INDUSTRIAL INSURANCE APPEALS
SARA T. HARMON Chairperson
PHILLIP T. BORKMember