John Klor
Wallace Klor & Mann, PC
WSIA Amicus Subcommittee Chair
June 2009
There have been a number of interesting cases lately that warrant your attention. Three outlined below
are published, and I've included one unpublished decision as well for you to read.
Exclusive Remedy
Rothwell v. Nine Mile Falls School District
Dckt. No. 07-2-02127-7 April 21, 2009
In Rothwell, the issue before the Court of Appeals was whether a custodian who filed suit against the Nine Mile Falls School District for negligent infliction of emotional distress was barred by the Industrial Insurance Act’s “exclusive remedy” provision. Plaintiff, Ms. Rothwell, had been employed by the district as a custodian for eight years. In December 2004, a student tragically took his own life by shooting himself in the head during the school day. Ms. Rothwell was asked to clean up the scene and go through classrooms to determine whether the student had left any bombs. At one point, she picked up a book bag belonging to the victim, which contained a pipe bomb. Ms. Rothwell was subsequently asked to perform more clean-up tasks around the school.
Ms. Rothwell’s suit alleged negligent infliction of emotional distress, caused by “extraordinary clean-up duties that continued long after her normal work shift had ended,” and for several days later. She alleged emotional distress and PTSD as a result of her supervisors’ directives. The District moved to dismiss pursuant to CR 12(b)(6) (failure to state a claim). The District argued that Ms. Rothwell’s claim was precluded by the Industrial Insurance Act because her mental condition occurred during the course of employment.
The Court of Appeals found Ms. Rothwell was acting in the course of employment for purposes of RCW 51.08.013. Thus, the question of whether Claimant was precluded from filing her tort suit hinged on whether her claim was an “injury” or “occupational disease” as defined by the Act. Mental conditions do not fall within the definition of occupational disease as per RCW 51.08.142 and WAC 296-14-300. Thus, the Court acknowledged a mental condition is compensable only if it resulted from a sudden, tangible, and traumatic event that produced an immediate result. Ms. Rothwell argued her PTSD was not the result of a single traumatic event. Rather, she argued the District’s directives over a period of several days caused her stress-induced mental condition. The Court found Ms. Rothwell’s PTSD resulted from a series of incidents over a period of days. Thus, it held her PTSD was not an injury or occupational disease under the Act, and was not barred by the exclusive remedy provision.
Judge Kulik authored the dissenting opinion. She argued Ms. Rothwell’s mental response to cleaning up the area occurred suddenly, was tangible, and produced immediate results. Therefore, she felt Ms. Rothwell’s PTSD should be covered under the Act. However, Judge Kulik felt as though Ms. Rothwell was being penalized by the majority for “having a series of traumatic events that she sustained only because she was a dedicated employee who kept returning to ever-increasing emotional tasks at work.”
Second Injury Fund
Puget Sound Energy v. Lee (DLI)
Dckt. No. 61179-8-I, April 27, 2009
In Lee, the Court of Appeals addressed two inquiries regarding second injury fund relief. First, the Court addressed whether second injury fund relief is appropriate where there was no evidence that the injured worker suffered from a previous disability that adversely affected his wage-earning ability. The second issue was whether an employer should be entitled to a jury trial on its appeal of an adverse second injury fund relief decision by the Board.
Claimant worked as a lineman for Puget Sound Energy for over 20 years. In 1992, he sustained an industrial injury, which eventually led to his permanent total disability. Claimant had previously suffered two additional industrial injuries, and one non-industrial injury.
The employer argued that, as a result of the previous incidents, Claimant had a preexisting disability that contributed to his becoming permanently and totally disabled. Thus, the employer argued it was entitled to second injury fund relief. The Department pointed to the Rothschild standard, under which the employer must show that the preexisting condition impacted the worker’s ability to perform work duties. As there was no evidence that Claimant was symptomatic in the months prior to the industrial injury, required accommodation, or was limited in his ability to perform his job duties, the Department asserted second injury fund relief was not appropriate.
The Court agreed with the employer, concluding Claimant had ongoing intermittent symptoms from previous injuries that substantially impaired his ability to function prior to the industrial injury. The fact that Claimant did not experience symptoms during the six-month period preceding the injury can be consistent with a determination that the worker had a disability prior to the industrial injury. To interpret otherwise would frustrate the purpose of the second injury fund statute (to encourage hiring of handicapped workers). It clarified that a “previous bodily injury” for second injury fund purpose must relate to loss of bodily function, but need not substantially hinder a worker from performing his job duties.
Finally, the Court concluded whether a preexisting condition has permanently impacted the worker’s physical or mental functioning is a question of fact. As such, on appeal to Superior Court, a party is entitled to a jury trial to resolve disputes as to whether the worker had a previous bodily disability. Moreover, the Court found the employer presented substantial evidence showing Claimant had a previous disability, thus making it entitled to a jury trial.
The dissenting opinion felt second injury fund relief should not be granted as there was no evidence that Claimant’s previous injuries were more than temporarily disabling. Rather, the dissent argued Claimant’s injuries were best characterized as a latent, non-disabling condition. Thus, the dissent noted, allowing second injury fund relief to be granted for situations such as these would have the “fiscally unfortunate effect of depleting the second injury fund.”
Pre-Existing Disability/Arthritis
Tomlinson v. Puget Sournd Frieght Lines
Dckt. No. 80811-2, May 7, 2009
[EDITOR'S NOTE: WSIA filed an amicus in the Tomlinson case]
In Tomlinson, the issue before the Supreme Court was whether arthritis may be compensable both as an industrial injury and as a preexisting condition, such that it may reduce an award for PPD. Claimant worked as a dispatcher for the self-insured employer. At the age of 63, he slipped down a flight of stairs at work, injuring his left knee. Claimant later had three surgeries on the knee, including two total knee replacements. The results of the first two surgeries were poor and, after the third surgery, Claimant filed for benefits.
The medical evidence established Claimant had a 75% permanent impairment rating for Claimant’s left leg. Every doctor further agreed Claimant had a 50% preexisting permanent impairment rating. Accordingly, the Department granted Claimant a 25% PPD award. The Board, Superior Court, and the Court of Appeals affirmed the 25% PPD award. Claimant argued on appeal to the Supreme Court that, since arthritis is progressive by nature, there is no point at which it reaches maximum medical improvement. Therefore, Claimant asserted, there is no point where the percentage of partial disability may be calculated.
The Court disagreed with Claimant, noting PPD also has a “refined meaning” which applies to medical conditions that may stabilize or improve, but later deteriorate again. The Court pointed to WAC 296-20-01002 for the rule that a condition may reach permanency when it becomes stable and further treatment is unlikely to cure it, even if it may be expected to deteriorate further. Moreover, it noted, the corollary to finding that arthritis is not a preexisting permanent impairment under the Industrial Insurance Act, is a finding that arthritis is not compensable at all. Thus, the Court held that degenerative arthritis may be the basis of a compensable, and offsetable, permanent impairment award.
Finally, the Court did agree with Claimant that, if arthritis can be characterized as a permanent impairment, it qualifies only if it causes lack of functionality. The Court noted the mere presence of arthritis that is “latent or quiescent, and not disabling” is not enough to warrant a reduction in PPD. Thus, in order for a worker’s preexisting impairment to be capable of offsetting, it must have substantial and permanent impact on function, which was present in Mr. Tomlinson’s case.
Attending Physician Special Consideration
Hamm v. Dept. of Labor and Indus.
Dckt. No. 27075-1-III (May 19, 2009)
[Editor's Note: This is an UNPUBLISHED case.]
The Court of Appeals in Hamm dealt with the attending physician’s role and the “special consideration” afforded to his or her testimony. Claimant worked as a meat wrapper for Safeway. While lifting a tray of meat from over her head to a counter, she felt a sharp pain from her back to her stomach. She proceeded to go into a back room and fall down, holding her hand over her abdomen. Diagnostic surgery revealed Claimant had degenerative discogenic disease with degenerative spondyloarthosis. Claimant did not tell this treater that any injury occurred at work.
Claimant was then referred to a neurologist, Dr. Cooke, who ordered MRI’s. The studies confirmed severe disc disease, disc dehydration, and a small broad-based disc at L4-5. The doctor felt Claimant likely had an acute disc herniation, which irritated a nerve root. Importantly, Claimant also did not tell Dr. Cooke of the industrial injury. However, the doctor was of the opinion Claimant had suffered an industrial injury on the date listed in the incident report. An independent medical examination performed at the employer=s request concluded Claimant had not suffered a work-related injury, although she did have a degenerative disease of the spine.
The claim was ultimately allowed and Safeway appealed to the Board. The Board emphasized the fact that Claimant failed to personally tell any physician that she hurt her back on the date listed in the incident report. Thus, the Board concluded Claimant failed to establish an industrial injury had in fact occurred. The Superior Court, however, concluded Claimant had suffered an industrial injury. The Court placed great weight on the treating physicians’ testimony that industrial injury had occurred.
The Court of Appeals affirmed the Superior Court’s conclusion, noting the attending physicians rules established under Hamilton (courts will give “special consideration” to the opinions of treating physicians). The medical evidence before the Court consisted of Dr. Cooke’s testimony contradicting the conclusions of the independent medical examiner. The Court concluded Dr. Cooke treated Claimant over a six-month period and determined that her industrial injury caused her back pain on a more probable than not basis. Coupled with Claimant’s testimony that she was injured while moving the meat tray, this constituted substantial evidence in support of a compensable claim.
as of 10 June 2009
