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Young v. Department of Labor and Industries

filed: April 2, 1996.

PAULINE YOUNG, RESPONDENT,
v.
DEPARTMENT OF LABOR AND INDUSTRIES, DEFENDANT, SISTERS OF CHARITY OF PROVIDENCE, APPELLANT.



Appeal from SUPERIOR COURT SPOKANE COUNTY. Superior Court No: 92-2-03026-2. Date filed in Superior Court: 12/27/94. Superior Court Judge signing: JAMES MURPHY.

John A. Schultheis, Dennis J. Sweeney & Philip J. Thompson, concur

Author: Schultheis

SCHULTHEIS, J. -- After reviewing a Board of Industrial Insurance Appeals decision affirming a Department of Labor and Industries (L&I) order, the Spokane County Superior Court reversed Pauline Young's award of permanent partial disability. The court ordered Ms. Young's employer, Sisters of Charity of Providence, to pay Ms. Young pension benefits for permanent total disability. Sisters appeals, contending: (1) the court erred in applying the attending physician rule, (2) certain of the court's findings are unsupported by substantial evidence, and (3) the findings do not support the court's conclusion that Ms. Young was totally and permanently disabled as a result of her industrial injury. We affirm.

Ms. Young cleaned patient rooms in a nursing home run by Sisters, a self-insured employer. In February 1986, she slipped on ice while working and fell, injuring her knees. After about a month off work, Ms. Young returned to her nursing home duties but continued to complain of pain and swelling, especially in her left knee. The doctors she consulted diagnosed cartilage and ligament damage. They prescribed pain medication, recommended cessation of physical work and referred her to physical therapy.

Ms. Young's first L&I claim was closed in July 1987 with an award for permanent partial disability equal to 5 percent of the amputation value of the left leg at or above the knee joint with functional stump. She continued to work at Sisters until March 1988, when she applied to reopen her claim. Since that time, she has not returned to any kind of employment.

From June 1988 until April 1990, Ms. Young was treated by Dr. William Loomis, an osteopathic physician. He noted that Ms. Young began reporting left hip pain at

least by 1988, while she was seeing an orthopedic surgeon and a physical therapist. In the course of Dr. Loomis's treatment, he came to believe the hip pain was caused either by the original "jamming" of the leg bone into the hip joint, or by postural changes compensating for the knee injury. He eventually discarded the first theory and decided the hip pain was caused by the postural changes. On a more-probable-than-not basis, he determined the knee injury was a contributing factor in Ms. Young's hip pain.

"Physical capacities" tests run on Ms. Young during Dr. Loomis's treatment indicated that she could sit for only one-half hour at a time, for a total of 3 hours in an 8-hour day; stand for 15 minutes, for a total of 1 hour a day; and walk for 15 minutes, for a total of one-half hour a day. Additionally, she could lift 5 pounds "frequently" during an 8-hour day, and 10 pounds no more than four times a day. She could not squat, crawl, climb ladders or stairs, and she could only bend or kneel occasionally. Her only unobstructed movements were fine manipulation, such as that used with hand controls. Dr. Loomis believed this condition was fixed and permanent by the time Ms. Young moved to New Jersey in 1990. Because he was not a "vocational expert," Dr. Loomis declined at trial to give an opinion on Ms. Young's employability, but he stated that if she could find work to fit her limitations--including the "very real factor" that she may be able to work 4 hours 1 day and only 1 or 2 hours the next day--he would have no objection.

After Ms. Young reopened her claim in 1988, L&I sent her to three orthopedic surgeons for diagnosis: Dr. James Dunlap in November 1988 (as part of a panel examination), Dr. Bruce Powell in April 1989 and Dr. Donald Smith in March 1990. These doctors diagnosed bursitis (inflammation of the bursa sac around the joint) and spurring of the hip joint, all unrelated to the knee injury. Dr.

Smith did agree with Dr. Loomis that the postural change might have been one reason for the hip pain.*fn1

Ms. Young's second claim was closed on September 10, 1990, with time loss to January 10, 1989. She was awarded permanent partial disability equal to 10 percent of the amputation value of the left leg, less the 5 percent already paid. Her appeal to the Board was unsuccessful. She then filed a notice of appeal in the superior court. On April 14, 1994, in a bench trial, the court reviewed the record and found that Ms. Young's hip pain was directly and proximately caused by the knee injury. Based on its finding that she had not been capable of reasonably continuous gainful employment since January 10, 1989, the court concluded she was totally and permanently disabled as a direct result of her industrial injury. The court reversed the order of the Board, ...


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