Shawn L. Robbins , Appellant ,
The Department of Labor and Industries , Respondent
Appeal from Okanogan County Superior Court. Docket No: 12-2-00584-4. Judge signing: Honorable Christopher E Culp. Judgment or order under review. Date filed: 01/24/2014.
Christopher L. Childers (of Smart Connell & Childers ), for appellant.
Robert W. Ferguson, Attorney General, and William Henry, Assistant, for respondent.
Authored by George B. Fearing. Concurring: Robert E. Lawrence-Berrey, Laurel H. Siddoway.
[187 Wn.App. 241] George B. Fearing,
¶ 1 We address whether, under RCW 51.32.160, a second copy of an application to reopen a worker's compensation claim, which copy attaches fresh medical records, constitutes a new application that requires a response from the Department of Labor and Industries (Department). We answer the question no. We affirm the Department and the superior court's ruling that the Department did not suffer a default by failing to respond to the second copy of the application.
FACTS AND PROCEDURE
¶ 2 On September 27, 2002, Shawn Robbins injured his right arm while working as an HVAC (heating, ventilating, and air-conditioning) installer. Robbins went to an emergency room, which diagnosed Robbins with a distal biceps tendon rupture. He filed a claim for worker's compensation, which the Department allowed. Robbins returned to work on December 1, 2002. In the meantime, the Department paid Robbins' medical bills and compensation for lost work. The Department closed Robbins' claim on September 29, 2003.
¶ 3 On November 30, 2006, Shawn Robbins applied to reopen his worker's compensation claim. The Department denied this application on December 26, 2006. Robbins protested, but the Department affirmed its denial of Robbins' application to reopen. Robbins appealed to the [187 Wn.App. 242] Board of Industrial Insurance Appeals (BIIA) on August 6, 2007. On April 24, 2008, at Robbins' request, BIIA dismissed the appeal.
¶ 4 On June 17, 2008, Dr. Thomas Gritzka evaluated Shawn Robbins. Dr. Gritzka then wrote a thirteen-page medical report outlining Robbins' medical history and the results
of the physical evaluation. Dr. Gritzka opined that Robbins suffered from a worsening of the 2002 industrial injury, writing:
[Robbins] has slightly greater impairment due to right elbow flexion contracture, a previously non-described ulnar deviation, and impaired radial deviation of the right wrist, and in my opinion, also has a low-grade cubital tunnel syndrome, which is consistent with having had an injury to the right elbow. When an individual ruptures the biceps tendon, there is bleeding that occurs in and around the elbow. There certainly is potential for this bleeding and edema to result in scarring within the cubital tunnel.
Clerk's Papers (CP) at 174.
¶ 5 On July 22, 2008, Shawn Robbins signed and completed another two-page " APPLICATION TO REOPEN CLAIM," with the subtitle " DUE TO WORSENING OF CONDITION." CP at 158. The worker completes the first page of this form, and the doctor finishes the second page. On the first page of his July application to reopen, Robbins listed a right arm injury, which worsened on June 17, 2008, the date Dr. Gritzka evaluated him. Robbins left the second page blank. Robbins attached Dr. Gritzka's medical report with the application rather than asking Dr. Gritzka to complete the second page.
¶ 6 On July 24, 2008, Shawn Robbins' attorney sent the July 22 application to reopen to the Department. The attorney mailed a letter with the application. The letter stated a reapplication was enclosed and asked the Department to issue an order reopening Robbins' worker's compensation claim.
[187 Wn.App. 243] ¶ 7 On August 21, 2008, the Department denied Shawn Robbins' July 2008 application to reopen his claim. The order read, in part, " The medical record shows the conditions caused by the injury have not worsened since the final claim closure." CP at 160. Robbins appealed to the BIIA on October 20, 2008, and the BIIA granted review on October 28.
¶ 8 Also on October 28, 2008, Physician Assistant Robert Barber evaluated Shawn Robbins. Barber completed page two of an " APPLICATION TO REOPEN CLAIM" form. CP at 178-79. On this page, Barber listed Robbins' current symptoms by writing: " Pain, mm spasm ® UE. Muscle Loss ® forearm. Pain w/ fine manip. ® Hand. w/ [illegible] mm spasm ® upper arm [and] Elbow. [illegible] ® forehand/Hand." CP at 179. The form asks the medical provider to list the medical findings that support a measurable worsening of the industrial injury. Barber wrote: " [illegible] muscle ® Bicep. [darr] Ext. strength ® elbow. Sis. mm Atrophy ® forearm, [darr] Grip ® Hand." CP at 179.
¶ 9 On November 3, 2008, Shawn Robbins filed, with the Department, another " APPLICATION TO REOPEN CLAIM" form that included the second page completed by Robert Barber. CP at 178. The first page of that form, however, was a photocopy of the July 2008 application's first page completed by Shawn Robbins. Like the July 2008 application, the first page of the November 2008 filing indicated that the injury affected Robbins' right arm and the condition worsened on June 17, 2008. The November application also contained Shawn Robbins' July 22, 2008 signature used for the July application. The November 2008 filing was not accompanied with a letter from Robbins' attorney. The Department never responded to Robbins' November 2008 application to reopen.
¶ 10 On March 23, 2009, the BIIA conducted a conference on Shawn Robbins' July 2008 application to reopen his 2002 claim. During the conference, Robbins and the Department stipulated that, if called to testify, Dr. Thomas Gritzka [187 Wn.App. 244] would opine, on a more-probable-than-not basis, that Robbins' right arm condition caused by the industrial injury worsened between June 15, 2007 and August 21, 2008, as shown by objective medical findings. On that basis, Robbins and the Department agreed that Robbins, as of August 21, 2008, suffered a permanent partial impairment consistent with four percent of the amputation
value of the right arm at or above the deltoid insertion or by disarticulation at the shoulder. On July 6, 2009, the BIIA reversed the August 21, 2008 denial to reopen and instructed the Department to award Robbins a permanent partial disability consistent with four percent of the amputation value of the right arm at or above the deltoid insertion or by disarticulation at the shoulder, less one percent previously paid, and then to close the claim.
¶ 11 On December 13, 2010, Shawn Robbins once again applied to reopen his 2002 right arm injury claim. On April 25, 2011, the Department denied the December 2010 application on the ground that Robbins' condition had not worsened since the claim closure in July 2009. The Department reaffirmed this denial on September 23, 2011.
¶ 12 We return to Shawn Robbins' November 2008 application to reopen his worker's compensation claim, which application's first page was a copy of the July 2008 application. On April 25, 2012, an adroit Shawn Robbins moved the BIIA to grant him summary judgment on his November 2008 application. Robbins argued that his November 2008 filing constituted an application to reopen and the Department's failure to respond constituted the granting of that application under RCW 51.32.160.
¶ 13 On May 31, 2012, BIIA hearings Judge Donna Emmingham denied Robbins' summary judgment motion. She wrote:
If I were to look at the facts in the light most favorable to the non-moving party, the Department, then I must find that there are material facts in dispute with respect to what exactly the claimant and [Physician Assistant Robert Barber] intended by [187 Wn.App. 245] submitting the November 3, 2008 Application to Reopen Claim and whether that put the Department on notice that the claimant was ...