Shea v. Department of Labor and Industries

• Decision Date: 31 December 1974
• Docket Number: No. 1080-II,1080-II
• Citation: 529 P.2d 1131,12 Wn.App. 410
• Parties: Kenneth E. SHEA, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent.
• Court: Washington Court of Appeals

Page 410

12 Wn.App. 410

529 P.2d 1131

Kenneth E. SHEA, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent.

No. 1080-II.

Court of Appeals of Washington, Division 2.

Dec. 31, 1974.

F. G. Enslow of Griffin & Enslow, Tacoma, for appellant.

Slade Gorton, Atty. Gen., Gomer L. Cannon, Asst. Atty. Gen., Seattle, for respondent.

PETRIE, Judge.

Kenneth E. Shea sustained an industrial injury to his right shoulder girdle and to the cervical region of his spine on April 29, 1964, when he fell from a beam, landing on his head on concrete below. His claim was ultimately closed by the Department of Labor and Industries on March 24, 1966, with a permanent partial disability award of 25 percent of the amputation value of the right arm at the shoulder and 5 percent of the maximum allowable for unspecified disabilities. In 1970, the claim was reopened, Mr. Shea was provided with further treatment, and on August 3, 1971 the claim was closed with a permanent partial disability award of 30 percent of the amputation value of the right arm at the shoulder and 10 percent of the maximum allowable for unspecified disabilities, less the prior award paid.

On appeal to the Board of Industrial Insurance Appeals, the department's last closing order was sustained. Mr. Shea's appeal to the Superior Court for Pierce County was dismissed after the trial court concluded that the evidence was insufficient as a matter of law to establish a prima facie case to submit to the jury.

Mr. Shea's appeal to this court raises the same issue as was presented to the trial court. He contends that the evidence of the physician who has treated him regularly since 1961, is sufficient to establish, prima facie, his right to pension benefits as a totally and permanently disabled workman under the workmen's compensation act. We review that evidence.

Asked to express an opinion of Mr. Shea's ability to work, taking into consideration the 1964 injury and the effect it had upon him as of August 3, 1971, the attending physician declared:

As of August, ,1971, I would say this man definitely could not have performed his usual occupation and could not have performed any work that required any degree of the use of his arm, that is, any degree of stress in using the arms.

Immediately following this response, Mr. Shea's work history was explored with the attending physician. That work history included hard labor all his life, working in the woods and in construction as a hod carrier as a 'scaffold man' for 25 years. After the physician was advised that Mr. Shea's formal education terminated at the 11th grade, and was made aware that he was 59 years of age, the following testimony was elicited:

Q Is there anything in his educational background, coupled with his work history, and taking into consideration the extent of his injury, that would indicate that he is capable of carrying on a gainful occupation as of August 3, 1971?

A I would say that with everything coupled together he is not able to carry on anything gainful.

Quite obviously, as thus presented, there was sufficient evidence for the jury to find Mr. Shea was totally and permanently disabled on August 3, 1971, as a result of his 1964 injury. Fochtman v. Department of Labor & Indus., 7 Wash.App. 286, 499 P.2d 255 (1972).

However, the fact pattern is complicated by another physiological problem. As early as 1961 (3 years prior to this industrial injury) Mr. Shea was suffering from, and was under active medical treatment for, a degenerative vascular disease and resultant hypertension. It is uncontroverted that this vascular problem and its sequelae in subsequent years are causally not related to the 1964 injury. It is also clear from the testimony of Mr. Shea's attending physician[529 P.2d 1133] --and disregarding any disability attributable to the 1964 industrial injury--as early as November, 1965, Mr. Shea could not have worked at any occupation on a reasonably continuous basis solely because of the progressively degenerative conditions causally related to the preexisting vascular disease. The same physician testified--and his is the only medical testimony which predates the 1964 injury--that prior to Mr. Shea's industrial injury, he was able to work, medication was keeping his blood pressure 'within a fairly reasonable range,' and to that extent at least he was not suffering from any disability in any degree.

Thus, viewing the evidence in a light most favorable to the workman (which we must), we visualize him as suffering from two totally independent conditions, each of which is progressively causing increasingly serious disabilities. On the one hand, disregarding his industrial injury and the effects thereof, he was effectively removed from the labor market as early as November, 1965, by reason of a condition which preexisted and was not affected by the industrial injury, but which, nevertheless became seriously disabling after the 1964 injury. On the other hand, disregarding the preexisting condition and the subsequent effects thereof, he was also effectively removed from the labor market on or about August, 1971, by reason of the disability attributable to the 1964 injury.

The department...