Pont v. Department of Labor & Industries

730 P.2d 1345, 46 Wash. App. 471
CourtCourt of Appeals of Washington
DecidedSeptember 22, 1986
DocketNo. 15556-3-I
StatusPublished
Cited by21 cases

This text of 730 P.2d 1345 (Pont v. Department of Labor & Industries) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pont v. Department of Labor & Industries, 730 P.2d 1345, 46 Wash. App. 471 (Wash. Ct. App. 1986).

Opinion

Pekelis, J.

The Municipality of Metropolitan Seattle (Metro) appeals the finding entered by the trial court that the Board of Industrial Insurance Appeals erred in deciding that as of April 19, 1983, claimant Metro bus driver Ber[472]*472tram J. Du Pont's condition related to his industrial injury was fixed and further treatment was not indicated. Metro also appeals the court's denial of its motion to prevent Du Pont from submitting proof on the issue of whether his claim should have been closed. We affirm the trial court.

On March 1, 1982, Du Pont twisted his right knee when he slipped and fell while walking down some stairs at the Metro transit base. On April 22, 1982, the Department of Labor and Industries issued an order allowing the claim.

In May 1982, Du Pont was referred to Dr. Charles Peterson, an orthopedic specialist, who performed arthroscopic surgery on the knee. Following a program of physical therapy, Du Pont returned to work in July 1982. On September 4, 1982, Du Pont reinjured his knee at work, and on October 8,1982, Dr. Peterson once again performed arthroscopic surgery, removing a large portion of torn cartilage. On January 28, 1983, Dr. Peterson released Du Pont to return to work as of February 4, 1983.

On February 3, 1983, Dr. Irving Tobin, an orthopedic specialist, examined Du Pont at the request of Metro and concluded that Du Pont's injury had reached a fixed state. He further recommended that Du Pont's claim be closed. In a letter dated February 15, 1983, Dr. Peterson agreed with Dr. Tobin's conclusions regarding Du Pont's knee. Du Pont returned to see Dr. Peterson on February 25, 1983, after he had returned to work, because his knee was bothering him.1 On March 7, 1983, the Department issued an order closing Du Pont's claim, concluding that Du Pont had "sustained a permanent partial disability of 25% amputation value of the right leg”. On April 19, 1983, the Department denied Du Pont's request for reconsideration and adhered to its March 7 order. On May 13, 1983, Du Pont filed a notice of appeal to the Board from the April 19 order, alleging that the Department closed his claim with [473]*473an inadequate disability award. At the August 23, 1983 prehearing conference, Du Pont maintained that the notice correctly stated the issue before the Board.

On August 31, 1983, after receiving a letter from Dr. Peterson,2 Du Pont's attorney advised Metro that he took issue with the initial closure decision. On November 14, 1983, Du Pont filed an amended notice of appeal which advised the Board, the industrial appeals judge, and Metro that

the relief sought... is the additional treatment and the ability to have his claim remain open until such time as his attending physician feels it is ready to be closed. We will not be presenting any evidence as to additional permanent partial disability as it is the workman's position that rating of disability is premature until his case is ready for closure.

The hearing before the industrial appeals judge was held on December 1, 1983. Dr. Peterson testified on cross examination regarding the office visits of February 25, May 20, and October 4:

Q. And the treatment was nothing that would make his knee medically better?
A. That's probably true. It's not going to be medically better, but, on the other hand, we can alleviate the pain and can keep the patient working, although it doesn't change the underlying quality of the impairment.
Q. The impairment is, then, fixed?
A. That's up to you, right.
Q. ... So the times you saw him were to treat his pain and symptoms, but, as you said, he had the underlying medical condition remaining the same?
A. That's true.
[474]*474Q. And it was therefore—would you term that medically fixed?
Whether, from your legal point of view, it is fixed or not, I do not know. From a medical point of view, I think I make the knee better. He feels better, and that is all that I can really say. I am probably not going to change the cruciate laxity and probably not going to change the degeneration of the medial compartment.

Dr. Peterson also testified that he could improve the knee with surgical treatment, but he did not feel that Du Pont's condition was serious enough to require that.

In Dr. Tobin's deposition, which was admitted into evidence, he testified:

A. My opinion [about Du Pont's medical condition] was one, that he had been injured on the job, that he had adequate treatment, that his condition was fixed, that further definitive treatment was not indicated, that he did have a residual permanent impairment of function as a result of that injury.
Q. Do you have further opinions?
A. In view of his complaints and the findings at the time of my examination, treatment at that point would have been palliative in nature only. Further treatment would be palliative in nature.

On March 5, 1984, the industrial appeals judge entered a proposed decision and order reversing the Department's closing of Du Pont's claim, finding, in part:

As of April 19, 1983, the claimant's condition causally related to his industrial injury of March 1, 1982, was not fixed, and further curative treatment was indicated.

(Italics ours.) Upon review of the proposed decision, the Board first determined that it had jurisdiction to hear the issue of whether further treatment was indicated. However, it declined to adopt the proposed decision and instead affirmed the Department's April 19 order that Du Pont's condition was fixed.

[475]*475Du Pont appealed the Board's decision to superior court, which in a judgment entered October 8, 1984, reversed the Board, concluding:

The Board of Industrial Insurance Appeals in rendering its decision on the 31st day of May, 1984, was incorrect when they determined that as of April 19, 1983, the Claimant's condition causally related to his industrial injury of March 1, 1982 was fixed and further treatment designed to lessen his permanent impairment was not indicated.

Metro appeals and assigns error to the trial court's denial of its motion to prevent Du Pont from submitting proof on the issue of whether his claim should have been closed. Metro alleges that under RCW 51.52.070 Du Pont waived his right to appeal his disability status when he did not include the issue in his initial notice of appeal to the Board or raise it during the August 23 prehearing conference.

The provisions of the Industrial Insurance Act, RCW Title 51, should be liberally applied to achieve its purpose which is to provide expedient relief to those coming within its provisions. Sacred Heart Med. Ctr. v. Carrado, 92 Wn.2d 631, 635, 600 P.2d 1015 (1979); Lloyd's of Yakima Floor Ctr. v. Department of Labor & Indus., 33 Wn. App.

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Bluebook (online)
730 P.2d 1345, 46 Wash. App. 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pont-v-department-of-labor-industries-washctapp-1986.