| IN RE: JANET D. LORD | ) | DOCKET NO. 93 6147 |
| ) | ||
| CLAIM NO. T-103622 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Janet D. Lord, by
- Walthew, Warner, Costello, Thompson & Eagan, P.S., per
- Thomas A. Thompson and Timothy McGarry
- Self-Insured Employer, The Boeing Company, by,
- Eisenhower & Carlson, per
- Rebecca D. Craig
This is an appeal filed by the claimant, Janet D. Lord, on November 18, 1993, from an order of the Department of Labor and Industries dated September 21, 1993, which closed the claim with time-loss compensation ended as paid to November 30, 1988, and without award for further time-loss compensation or permanent partial disability. 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 self-insured employer, the Boeing Company, to a Proposed Decision and Order issued on November 9, 1995, in which the order of the Department dated September 21, 1993, was reversed and the claim remanded to the Department with direction to classify the claimant as a totally and permanently disabled worker and to take such further action as indicated by law.
The self-insured employer does not contest the determination made in the Proposed Decision and Order that the claimant is totally and permanently disabled. It is the employer's contention that the Board should include a finding regarding the claimant's preexisting, non-industrially related conditions and a finding that, but for the preexisting physical conditions, the industrial injury alone would not have rendered the claimant totally and permanently disabled. The [2] employer further contends that the Board should direct the Department of Labor and Industries to consider the provision of Second Injury Fund Relief in light of the findings of the case.
The claimant and Dr. Gary Schuster were the only witnesses who testified in this appeal. Their testimony established that the claimant had a number of symptomatic preexisting conditions which limited her activities. These preexisting conditions include: 1) bilateral carpal tunnel syndrome, 2) right shoulder rotator cuff tendinitis, chronic with impingement syndrome, 3) low back pain, secondary to lumbar strain, and lumbar disc disease, degenerative type. Probable disc injury at L4 with some motor loss in the right leg, evidence for sensory loss left leg as well as right lateral foot, 4) osteoarthritis of the thumbs, left greater than right, 5) chronic obstructive pulmonary disease, 6) reactive asthma/bronchial hyperactivity secondary to industrial exposure, 7) status post bilateral hip replacement with a vascular necrosis of the femoral heads, and residual loss of range of motion of movement of the hips bilaterally.
The Proposed Decision and Order found that, as a proximate result of the industrial injury, the claimant has a condition diagnosed as bilateral elbow problems/chronic epicondylitis, bilateral forearm tendinitis, and bilateral wrist sprains. Further, the Proposed Decision and Order found that the claimant was incapable of gainful employment on a reasonably consistent basis as the proximate result of the industrial injury, considered with her age, education, work experience, and training superimposed on her preexisting non-industrially related physical conditions. We agree with the self-insured employer that a finding should be made identifying these conditions.
We disagree, however, that an additional finding should be made that, but for the preexisting conditions, the industrial injury alone would not have rendered the claimant totally and permanently disabled. Although the record would support such a finding, that issue is not before the Board. The proposed finding relates to the issue of Second Injury Fund Relief, which has not [3] yet been passed upon by the Department. To make such a finding would invade the province of the Department, which was not represented in this appeal. By the same reasoning, the employer's assignment of error to Conclusion of Law No. 3 for its failure to direct the Department to consider the provision of Second Injury Fund Relief is also incorrect. As noted above, this issue is not before the Board, and, in any event, RCW 51.16.120 directs the Department to pass upon the application of Second Injury Fund Relief in all cases where benefits are paid for permanent total disability and to issue an order appealable by the employer.
FINDINGS OF FACT
1. On October 6, 1986, an application for benefits from the claimant was received by the Department of Labor and Industries alleging an industrial injury on April 24, 1986, while in the course of employment with The Boeing Company.
The claim was allowed and time-loss compensation was paid. On May 21, 1990, the Department issued an order closing the claim without an award for permanent partial disability and further ordered the self-insured employer to deny responsibility for right shoulder tendinitis as unrelated to the industrial injury. A timely protest and request for reconsideration was filed by the claimant, and on August 14, 1990, the Department issued an order setting aside the order of May 21, 1990, and directed the self-insured employer to accept responsibility for the condition of right shoulder tendinitis with mild impingement syndrome. The employer filed a Notice of Appeal and on May 5, 1992, the Board issued an Order Adopting Proposed Decision and Order which reversed the Department order of August 14, 1990, and remanded the claim to the Department with direction to issue an order requiring the self-insured employer to deny responsibility for right shoulder condition diagnosed as tendinitis with mild impingement syndrome. On May 15, 1992, the Department issued an order pursuant to the Board order dated May 5, 1992.
On September 21, 1993, the Department issued an order closing the claim without award for permanent partial disability and with time-loss compensation ended as paid to November 30, 1988. On November 18, 1993, the claimant filed a Notice of Appeal with the Board of Industrial Insurance Appeals. On December 20, 1993, the Board issued an order granting the appeal. [4]
2. The claimant is a 61-year-old woman with a high school education and work experience as a waitress, bartender, practical nurse, wire assembler, and clerk.
3. On April 24, 1986, while working for The Boeing Company, the claimant sustained an industrial injury to her right and left elbow and right and left wrist.
4. As a proximate result of the industrial injury, the claimant has conditions diagnosed as bilateral elbow problems/chronic epicondylitis, bilateral forearm tendinitis, and bilateral wrist sprains.
5. As of September 23, 1993, the claimant's conditions proximately caused by the industrial injury of April 24, 1986, were fixed and stable, and no further treatment was indicated.
6. Prior to her industrial injury of April 24, 1986, the claimant suffered from several preexisting, non industrially-related conditions including: (a) bilateral carpal tunnel syndrome; (b) right shoulder rotator cuff tendinitis, chronic with impingement syndrome; (c) low back pain secondary to lumbar strain and lumbar degenerative disc disease; (d) probable disc injury at L4 with some motor loss in the right leg and evidence of sensory loss to the left leg as well as the right lateral foot; (e) osteoarthritis of the thumbs; (f) chronic obstructive pulmonary disease; (g) bilateral hip replacement with avascular necrosis of the femoral heads with residual loss of range of movement of the hips bilaterally; (h) chronic bronchitis/asthmatic bronchitis..
7. As of September 21, 1993, the claimant was incapable of gainful employment on a reasonably continuous basis as a proximate result of the industrial injury of April 24, 1986, considered with her age, education, work experience, and training, superimposed on her preexisting physical conditions.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter of this appeal.
- As of September 21, 1993, the claimant was a totally and permanently disabled worker within the meaning of RCW 51.32.060.
- The Department order of September 21, 1993, is incorrect and is reversed and the claim is remanded to the Department of Labor and Industries with direction to classify the claimant as a totally and permanently disabled worker and to take such further action as is indicated by law. [5]
It is so ORDERED.
Dated this 1st day of February, 1996.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
S. FREDERICK FELLER Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
ROBERT L. McCALLISTER Member