Oien v. Department of Labor and Industries

• Decision Date: 14 June 1994
• Docket Number: No. 13083-5-III,13083-5-III
• Citation: 74 Wn.App. 566,874 P.2d 876
• Court: Washington Court of Appeals
• Parties: Ronald OIEN, Respondent, v. The DEPARTMENT OF LABOR AND INDUSTRIES, Defendant, IBP, Inc., the self-insured employer, Appellant.

Page 566

74 Wn.App. 566

874 P.2d 876

Ronald OIEN, Respondent, v. The DEPARTMENT OF LABOR AND INDUSTRIES, Defendant, IBP, Inc., the self-insured employer, Appellant.

No. 13083-5-III.

Court of Appeals of Washington,

Division 3, Panel Three.

June 14, 1994.

Reconsideration Denied Aug. 3, 1994.

Wayne L. Williams, Rolland O'Malley Law Office, Olympia, for appellant.

James T. Solan, Solan, Doran Law Firm, Spokane, for respondent.

MUNSON, Judge.

IBP, Inc., appeals the judgment of the trial court ordering it to pay temporary total disability to Ronald Oien for the period June 29, 1985 through November 2, 1987. We reverse.

On October 22, 1977, Mr. Oien injured his left elbow, middle and lower back when he slipped on grease and fell down two flights of stairs while working for IBP. He filed a claim with the Department of Labor and Industries and was treated. In November 1977, he was released to return to work and his claim was closed.

In June 1981, Mr. Oien applied to reopen his claim, and the claim was eventually reopened. He sought chiropractic treatment for his back as well as medical treatments through T.D. Lahiri, M.D., a neurologist. Mr. Oien's claim was finally ordered closed January 23, 1990, when he was awarded benefits for a permanent partial disability. He appealed the Department's order to the Board of Industrial Insurance Appeals (the Board). The appeal concerned a gap in the payment of time loss benefits from June 29, 1985 through November 2, 1987. The Board heard testimony of two doctors who had examined Mr. Oien. Dr. Lahiri testified in support of Mr. Oien. H.G. Copsey, M.D., testified in support of IBP. On May 28, 1991, the Board issued its order denying the appeal. Mr. Oien appealed the Board's order to the Benton County Superior Court. Pursuant to RCW 51.52.115, superior court review is limited to the evidence and testimony presented to the Board. The court, after a trial to the bench, found Mr. Oien's preexisting condition was aggravated by the industrial injury and reversed the Board's order. IBP now appeals to this court.

IBP has assigned error to several of the trial court's findings of fact and conclusions of law. However, the determinative question is whether there is objective evidence to support the medical finding Mr. Oien was precluded from engaging in gainful employment as a result of the accident.

This court's review of an appeal under the Industrial Insurance Act, RCW 51, is limited to whether the trial court's findings of fact are supported by the evidence and whether its conclusions of law flow therefrom. RCW 51.52.140; Lloyd's of Yakima Floor Ctr. v. Department of Labor &amp Indus., 33 Wash.App. 745, 748, 662 P.2d 391 (1982). All such inquiries begin with the premise the Industrial Insurance Act is to be liberally construed in favor of the injured worker. RCW 51.12.010.

Temporary total disability is defined as a "condition temporarily incapacitating the workman from performing any work at any gainful occupation." Bonko v. Department of Labor & Indus., 2 Wash.App. 22, 25, 466 P.2d 526 (1970).

If an industrial injury "lights up" or aggravates a latent preexisting condition, the resulting disability is attributed to the injury, not to the preexisting condition. Harbor Plywood Corp. v. Department of Labor and Indus., 48 Wash.2d 553, 295 P.2d 310 (1956); Wendt v. Department of Labor & Indus., 18 Wash.App. 674, 676, 571 P.2d 229 (1977).

Medical testimony as to the extent of a worker's disability must be supported by at least one objective finding. Wendt. In aggravation cases, there must be some objective finding that the increased disability was caused by the industrial injury. See Parks v. Department of Labor & Indus., 46 Wash.2d 895, 898, 286 P.2d 104 (1955).

We are unable to find any testimony by Dr. Lahiri stating there were objective findings the industrial injury caused the aggravation. The only objective findings appear to relate to the existence of Mr. Oien's preexisting condition. Dr. Lahiri was questioned on cross examination regarding the nature of the findings:

Q And the range of motion tests or back gymnastics you've described are subjective tests?

A Yes.

Q And the straight-leg-raising is a subjective test?

A Yes.

Q The congenital kyphosis of the dorsal area pre-existed the industrial injury?

A Yes.

Q The spina bifida at the L-5 level pre-existed the industrial injury?

A Yes.

Q Upon an objective medical anatomical basis, other than the preexisting congenital conditions, what is Mr. Oien's problem?

A His problem is a chronic low back strain.

Q That's based on his subjective findings of pain, correct?

A There's also the findings on examination.

Q The subjective findings?

A Yes.

And later on recross examination, the doctor was asked:

Q Doctor, the limitations you have imposed on Mr. Oien in terms of his work are based on his subjective complaints, correct?

A And the findings as well.

Q Which are also subjective?

A Yes.

Q And the connection, if any, between the industrial injury and his congenital condition is based on his subjective complaints?

A Yes.

In questioning by the Industrial Appeals Judge, the doctor...