Bayliner Marine Corp. v. Perrigoue

• Decision Date: 18 March 1985
• Docket Number: No. 12490-1-I,12490-1-I
• Citation: 40 Wn.App. 110,697 P.2d 277
• Parties: BAYLINER MARINE CORPORATION, Respondent, v. Shizue PERRIGOUE, Appellant.
• Court: Washington Court of Appeals

Page 110

40 Wn.App. 110

697 P.2d 277

BAYLINER MARINE CORPORATION, Respondent, v. Shizue PERRIGOUE, Appellant.

No. 12490-1-I.

Court of Appeals of Washington,

Division 1.

March 18, 1985.

Williams A. Stiles, Jr., Sedro Woolley, for appellant.

Perkins, Coie, Stone, Olsen & Williams, Calhoun Dickinson, Seattle, for respondent.

RINGOLD, Judge.

Shizue Perrigoue appeals the superior court's decision reversing the Board of Industrial Insurance Appeals (Board) and reinstating the hearing examiner's order to terminate time loss compensation. Perrigoue argues that the superior court did not apply the appropriate standard of review and improperly concluded that Bayliner Marine Corp. (Bayliner) complied with the provisions of the Workmen's Compensation Act (Act) RCW 51.32.090(4).

On June 1, 1977, Shizue Perrigoue suffered a back injury while working for Bayliner, and became unable to work. She was afforded benefits under the Act for this injury and began seeing Dr. Kenneth S. Carnine for treatment. In the Fall of 1978, Bayliner contacted Dr. Carnine concerning Perrigoue's ability to return to light duty work. He responded that she might be able to do some light duty, but that she first required treatment by the Everett Pain Clinic. Perrigoue received treatment at the clinic and was released.

In February 1979, Sue Dornberg, Bayliner's representative, sent Dr. Carnine a letter informing him that Perrigoue had been released from the clinic. She also asked whether Dr. Carnine thought Perrigoue could return to light duty work as a screw sorter. A copy of Bayliner's job description for a screw sorter was enclosed.

The screw sorter position is a flexible job designed for recuperating workers, including those with a back injury such as Perrigoue had suffered. Perrigoue had previously performed this job following a similar back injury without complaint.

On March 21, 1979, Dornberg again wrote to Dr. Carnine requesting that he advise Bayliner whether Perrigoue could return to light duty work. By letter on March 27, 1979, Dr. Carnine responded that he had just recently examined Perrigoue and favored her return to work. He also wrote:

However there remains a possibility that she will be unable to do even light-duty work because of an increase in pain in her back. This is certainly impossible to predict, but I would encourage your contacting the patient and trying to set up a trial of light-duty employment.

Bayliner then sent Perrigoue a letter informing her that Dr. Carnine had recommended that she return to light duty work and requesting that she contact Bayliner to arrange the date and time she should report for work. Perrigoue never responded to the letter.

At the time of Dr. Carnine's deposition on April 2, 1980, he could not remember receiving a screw sorter's job description from Bayliner. Dr. Carnine opined that Perrigoue was limited to doing work that did not involve lifting, prolonged standing, sitting or reaching above shoulder height. He also stated, "Well, in that letter to Mrs. Dornberg, I extended my thoughts that I would like her to return to work. I did not ever, to my knowledge, sign any formal release for her to return to work and was not contacted for such a release."

The Department of Labor & Industries ordered Perrigoue's time-loss compensation terminated as of May 19 1979. Perrigoue appealed to the Board, and evidence was presented before a hearing examiner who ruled the termination was appropriate. Dr. Clark Jones, Perrigoue's psychiatrist testified at the hearing, and Dr. Carnine's deposition was admitted in evidence. The hearing examiner stated:

Perhaps the biggest problem in this case is as Dr. Jones describes it, the claimant's increasing distrust of the employer due to the prior experiences. However unfortunate this may be, it appears clear from the record that she is able to perform some type of light duty work, a job of that description was available during the period in question and as a result the claimant was not entitled to time-loss compensation between those dates.

The Board, with one member dissenting, reversed the hearing examiner, reasoning the requirements of RCW 51.32.090(4) had not been met, because Dr. Carnine's letter only authorized work on a "trial" basis. When the Board reached its decision it did not have a complete record and believed that Dr. Carnine had not received a screw sorter job description. On presentation of a complete record, the Board recognized that Dr. Carnine had received the job description; nevertheless, the Board denied a motion for reconsideration.

On appeal to the superior court the trial judge reversed the Board and reinstated the hearing examiner's order. In its memorandum decision the court stated:

The Board can not find any support for its position in the notion that the doctor did not "formally release" the claimant for the light duty work, as the statute does not require any particular formality, nor in its finding (number 3) that the doctor failed to notify the claimant that she was physically able to perform the work. The statute carries no such...