Tomlinson v. Puget Sound Freight Lines

206 P.3d 657
CourtWashington Supreme Court
DecidedMay 7, 2009
Docket80811-2
StatusPublished
Cited by16 cases

This text of 206 P.3d 657 (Tomlinson v. Puget Sound Freight Lines) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tomlinson v. Puget Sound Freight Lines, 206 P.3d 657 (Wash. 2009).

Opinion

206 P.3d 657 (2009)

James TOMLINSON, Petitioner,
v.
PUGET SOUND FREIGHT LINES, INC., and the Department of Labor & Industries of the State of Washington, Respondents.

No. 80811-2.

Supreme Court of Washington, En Banc.

Argued January 22, 2009.
Decided May 7, 2009.

*659 Stanley Jay Rumbaugh, John E. Wallace, Rumbaugh Rideout Barnett & Adkins, Tacoma, for Petitioner.

Jerald P. Keene, Michael H. Weier, Reinisch Mackenzie PC, Portland, OR, for Respondents.

Rachel E. Feldstein, Attorney General's Office, Amicus Counsel for Department of Labor & Industries.

John Klor, William Alexander Masters, Wallace Klor & Mann, Lake Oswego, OR, Amicus Counsel for Washington Self Insurers' Association.

CHAMBERS, J.

¶ 1 James Tomlinson's knee was injured on the job. After a series of largely unsuccessful surgeries, the Washington State Department of Labor and Industries concluded that Tomlinson had a permanent total impairment of 75 percent of the left leg above the knee joint. It also found that at the time of the industrial accident, he had a preexisting permanent partial disability (PPD) of 50 percent of the left leg. Tomlinson's claim was granted, but only for 25 percent of the compensation set by statute for the debilitation of the entire limb. Tomlinson unsuccessfully appealed, arguing, among other things, that his alleged preexisting condition, degenerative arthritis, was not the sort of condition that could be classified as a PPD. He contends that because arthritis is a progressive disease, there is no point before the end where it reaches maximum medical improvement and can be deemed fixed and stable and amenable to classification as a PPD.

¶ 2 We conclude that arthritis is both compensable as an industrial injury and may act as a PPD that reduces an award for an industrial injury. We affirm.

FACTS

¶ 3 Tomlinson worked as a dispatcher for Puget Sound Freight Lines, Inc. (PSFL), a self-insured company. In 1999, when Tomlinson was 63 years old, he slipped down a flight of stairs at work and severely injured his left knee. After more conservative treatment failed, Tomlinson had three surgeries on his injured knee, including two total knee replacements. Unfortunately, the results were poor. After the third surgery, Tomlinson applied for benefits under the Industrial Insurance Act (IIA), Title 51 RCW. Tomlinson's treating orthopedic surgeon and two surgeons retained by the self-insured employer all agreed that after the accident, Tomlinson had a 75 percent PPD of that leg. PPDs are rated based on a statutory schedule, adjusted by percentage of impairment and preexisting conditions. The finder of fact found that all three doctors agreed that before the accident, Tomlinson had a 50 percent preexisting PPD, and the department accordingly granted Tomlinson a 25 percent PPD award.

¶ 4 Industrial injuries that result in a PPD are compensable under the IIA. RCW 51.32.080. However, any award is reduced by relevant preexisting PPDs. RCW 51.32.080(5). Tomlinson first developed left knee problems by the time he was in the Air Force in the 1960s. He also received a disability award for his knee from the veterans administration. He also had an industrial injury to his knee in 1991, and in about 1992, he had a conversation with Dr. Teeny regarding bilateral total knee replacements. Before his 1999 industrial injury, it appears he had bone on bone contact in both the lateral and medial compartments of his left knee.

¶ 5 At his industrial insurance hearing, Tomlinson attempted to show that he had no impairment of function in his left knee before his July 21, 1999 industrial injury. The industrial appeals judge concluded otherwise. The judge found Tomlinson was evasive and somewhat antagonistic about his prior condition and lacked candor about his lack of symptoms. The judge was clear, stating on the record, "I cannot conceive that he was not symptomatic at the time of the industrial injury." Certified Appeal Board Record (CABR) at 9. Based upon the testimony of the three orthopedic surgeons, Tomlinson's testimony, and Tomlinson's medical history, the judge concluded that after the accident, *660 Tomlinson had a 75 percent PPD, and at the time of the accident Tomlinson had a 50 percent preexisting PPD due to degenerative arthritis in that knee. The department granted the claim for benefits, reduced to 25 percent. The superior court and Division Two of the Court of Appeals affirmed. Clerk's Papers at 51; Tomlinson v. Puget Sound Freight Lines, Inc., 140 Wash.App. 845, 166 P.3d 1276 (2007).

ANALYSIS

¶ 6 We review legal questions de novo and challenged factual findings for substantial evidence. E.g., Ingram v. Dep't of Licensing, 162 Wash.2d 514, 522, 173 P.3d 259 (2007). PPD compensation is set by statute. RCW 51.32.080. Essentially, there is a fee schedule based on the "amputation value" of the limb or organ in question, reduced in proportion to the percentage of impairment and arithmetically by any preexisting PPDs:

Should a worker receive an injury to a member or part of his or her body already, from whatever cause, permanently partially disabled, resulting in the amputation thereof or in an aggravation or increase in such permanent partial disability but not resulting in the permanent total disability of such worker, his or her compensation for such partial disability shall be adjudged with regard to the previous disability of the injured member or part and the degree or extent of the aggravation or increase of disability thereof.

RCW 51.32.080(5). As the department has defined it in the administrative code:

Permanent partial disability is any anatomic or functional abnormality or loss after maximum medical improvement (MMI) has been achieved. At MMI, the worker's condition is determined to be stable or nonprogressive at the time the evaluation is made. A permanent partial disability award is a monetary award designed to compensate the worker for the amputation or loss of function of a body part or organ system. Impairment is evaluated without reference to the nature of the injury or the treatment given. To ensure uniformity, consistency and fairness in rating permanent partial disability, it is essential that injured workers with comparable anatomic abnormalities and functional loss receive comparable disability awards. As such, the amount of the permanent partial disability award is not dependent upon or influenced by the economic impact of the occupational injury or disease on an individual worker. Rather, Washington's Industrial Insurance Act requires that permanent partial disability be established primarily by objective physical or clinical findings establishing a loss of function.

WAC 296-20-19000. Thus, procedurally, an industrial injury is not treated as a PPD until it has reached maximum medical improvement.

1. PROGRESSIVE DISEASES AND PPDS

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