Fall 2013 Washington Case Law Updates
Significant Board of Industrial Insurance Appeals Decisions
In re: Michael J. Bell, BIIA Dec. 11 15598 (2012). The claimant in this matter was injured on August 7, 1996. The claim was closed, and the Department denied a reopening application on April 15, 2004. The Department granted a later reopening application, and the reopening was affirmed on December 10, 2010. The employer appealed a Department Order which reopened the claim. The Industrial Appeals Hearings Judge affirmed reopening of the claim based, in part, upon the rationale that the reopening of an “over seven” claim is subject to the Director’s discretion. The Board reversed the reopening, clarifying that the Department’s discretion in the context of a reopening application governs only whether time loss or other disability benefits should be awarded.
Summary: The reopening of an “over seven” claim is not subject to the Director’s discretion. Rather, the Director has discretion as to whether time loss compensation or other disability benefits should be paid.
Court of Appeals Decisions
Dept. of Labor and Industries v. Shirley, 288 P.3d 390 (2012), review denied 177 Wn.2d 1006 (2013) The Department appealed this matter to the Washington State Court of Appeals, seeking a reversal of an award of survivor’s pension benefits to Mr. Shirley’s widow. Mr. Shirley died approximately 2 years after the closure of his low back claim. His death resulted from the ingestion of alcohol, oxycodone, Celexa, Xanax, Tegretol, Amitryptiline, and Tylenol. Although Mr. Shirley’s claim was closed at the time of his death, his attending physician, family medicine specialist Chester Jangala, M.D. stated that he had continued to treat the residuals of Mr. Shirley’s industrial injury, namely low back pain and depression. Dr. Jangala specifically stated that all of the prescriptions were related to treatment of the industrial injury. The Department argued that Mr. Shirley’s ingestion of alcohol (BAC .07), combined with the other drugs, constituted an intervening, unrelated event that broke the causal chain between the original industrial injury and his death. Although the level of Oxycodone in Mr. Shirley’s system was determined to be higher than his normal dosage, it did not rise to a level of toxicity. Accordingly, the Court determined that, because Mr. Shirley’s use of the prescription drugs was proximately related to his original industrial injury, survivor benefits were appropriate.
Summary: A survivor’s pension may be awarded when death results from an overdose after a claim is closed if the medications are deemed to be related to the industrial injury.
Nelson v. Department of Labor and Industries, 175 Wash.App 718 (2013). The claimant was injured in 2003 when she fell from a chair, jarring her back and striking her right ear on the ground. She developed an aggravation of degenerative disc disease and depressive disorder as a result. In 2006, Ms. Nelson died of an overdose, which included morphine, methadone, and cocaine. At the time of her death, Ms. Nelson was receiving time loss compensation. The Department issued an Order closing the claim, finding Ms. Nelson permanently and totally disabled as of the day she died, and awarding no permanent partial disability. The decision was based upon expert medical and vocational opinions that Ms. Nelson was permanently and totally disabled prior to her death. There were no beneficiaries who qualified for a survivor’s pension. Ms. Nelson’s estate appealed, arguing that they were entitled to a permanent partial disability award for her back and mental health conditions. The case reached the Court of Appeals, which determined that, because a worker cannot simultaneously be both permanently and totally disabled, and permanently partially disabled, the Estate was not entitled to a permanent partial disability award.
Summary: Where the Department issues an Order closing a claim and rendering a finding of permanent total disability after a claimant’s work-related death, the survivors are precluded from receiving an award of permanently partial disability.
Stone v. State, Dep’t of Labor & Indus., 172 Wn.App. 256 (2012) A worker appealed trial court determination that he was not entitled to both a permanent partial disability (PPD) award for an earlier claim and a pension based on the combined effects of that and a later claim. Prior case law indicates a worker can receive a pension and PPD for an unrelated claim, but not whether PPD can be awarded for a claim related to the pension. Citing a former version of RCW 51.32.080 (in place at the time of the Board decision), the Court held that when a PPD injury is part of the basis for pension, a worker is not entitled to both the PPD and pension.
Summary: When an injury results, at least in part, in permanent total disability, the worker cannot receive a permanent partial disability award for that injury. However, if the injury is entirely unrelated to the conditions which create the basis for the pension, the worker may receive a PPD award.
Joy v. Dep’t of Labor and Indus., 170 Wn.App. 614 (2012), review denied, 176 Wn.2d 1021 (2013) Claimant appealed a trial court holding that RCW § 70.14.120(3) precluded a court determination regarding whether a spinal cord stimulator was necessary and proper in her case. RCW 70.14.120(3) states that when the Health Technology Clinical Committee (HTCC) denies a technology under state programs, there is no right to determine whether that technology is necessary or proper in a specific case. While claimant’s appeal was pending, the HTCC determined spinal stimulation was not covered under state programs. The Court agreed the HTCC spinal stimulation determination applied and claimant was not entitled to an individual determination of whether the treatment was necessary and proper in her case.
Summary: After the HTCC deems that medical technology is not necessary and proper for state programs, no agency or reviewing agency can make an individual determination of whether the treatment is medically necessary and proper. The link to the HTCC’s determination: //www.hca.wa.gov/hta/Pages/spinal_cord.aspx