Winter 2010 SBH Work Comp Quarterly
PDF FormatNew and Significant Washington Supreme Court Case Law
By Aaron Bass
Employers maintain right to deduct preexisting permanent disability for injuries that “light up” preexisting conditions. Tomlinson v. Puget Sound Freight Lines, http://www.wasupremecourtblog.com/uploads/file/808112_opn.pdf.
Facts:
Claimant sustained an injury to his left knee in July 1999. Medical evidence established the injury aggravated or “lit up” his preexisting degenerative arthritis, resulting in the need for significant treatment and knee replacements. The claim was closed with 75% the amputation value of the left leg. However, based on the pre-injury medical evidence, the employer was allowed to deduct 50% of the amputation value as it depicted his condition prior to the work injury.
Decision:
Claimant appealed through the Court of Appeals and the case was ultimately decided by the Supreme Court of Washington. The Court determined the employer has the right to deduct permanent impairment resultant from preexisting degenerative arthritis from injuries that “light up” such conditions when paying PPD awards. In order to deduct the prior impairment, the Court requires the record clearly demonstrate the arthritis caused “substantial and permanent” disability prior to the work injury.
Lesson:
If there is evidence of a preexisting arthritic condition, obtain an opinion from your experts regarding the nature and extent of any permanent impairment resulting from such condition and have the expert explain how the condition impacts function prior to the industrial injury. Factually, investigate all prior employment and confirm any limitations claimant may have had to establish the preexisting condition caused “substantial and permanent” disability.
Department Orders do not become final until 60 days after the Order is received by the attending physician. Shafer v. Dep’t of Labor & Indus., http://www.courts.wa.gov/opinions/pdf/810494.opn.pdf.
Facts:
Claimant sustained an industrial injury that was eventually closed in 2000. Believing further treatment was necessary, claimant returned to her attending physician in 2003 and requested her claim be reopened. The Department declined to do so and claimant appealed.
Decision:
Despite the evidence establishing claimant’s condition had not worsened, the Supreme Court concluded the 2000 closing order was never final because it was never received by claimant’s attending physician. The Court noted that the RCW 51.52.050 requires the Department to serve upon the worker, beneficiary, employer, and “other person affected thereby” and grants rights of appeal to a “person aggrieved thereby.” The Court includes the attending physician in such category.
Lesson:
It is important to review all Department Orders to confirm that every necessary party is served with such notice. If the Department failed to copy the attending physician, the employer should forward the order to the physician to ensure it is final and binding.
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