By / JP Dowdle, Lawyer, Employer Solutions Law
Employer Solutions Law
This month’s legal update will be a review and summary of a recent Board of Industrial Insurance Appeals Significant Decision in Todd A. Saeger, Claim No. Y-769857, Dkt. No. 19 18448 et al. (BIIA Mar. 4, 2021).
Washington has had the most expensive workers’ compensation costs for employers in the entire country for many years running. The significance of the Saeger case is that a prior Department of Labor and Industries’ order that rejected depression being related to the industrial injury because the Claimant did not meet the criteria for the diagnosis did not prevent the Claimant from later asserting he had depression related to the claim. In this case, the Claimant was able to add depression onto his claim at a later date and received a workers’ compensation pension in doing so.
Employers should continually monitor and have a proactive plan on their workers’ compensation claims.
In re: Todd A. Saeger, Claim No. Y-769857, Dkt. No. 19 18448 et al. (BIIA Mar. 4, 2021)
Facts
The Claimant suffered back injury while working as mechanic for Empire Office Machine, Inc. in 2014. The Department denied payment for chiropractic services, ended/denied further time-loss compensation benefits, and closed the claim without an award for permanent partial impairment. The Claimant contends he suffered claim-related depressive disorder and is entitled to additional benefits. The Industrial Appeals Judge (IAJ) found Claimant was entitled to payment of the outstanding chiropractic bills for claim-related treatment, but that the Department had previously segregated the depressive disorder condition and affirmed the Department decisions regarding time-loss and claim closure.
Issue
If the Department has previously determined a Claimant does not have depression at the time it issues and order, then is the Claimant precluded from establishing he developed claim-related depression since that time? Answer: No.
Result
The Board of Industrial Insurance Appeals (BIIA) determined that the Claimant established developing depression proximately caused by his industrial injury. And, considering his claim-related depression along with other conditions, the BIIA found that he was permanently and totally disabled and that he was entitled to time-loss compensation for the time periods at issue and to a pension thereafter.
Analysis
The BIIA granted review because it disagreed with the analysis and determinations of the IAJ concerning the status of Claimant’s depressive disorder and its impact on his entitlement to benefits. The order issued in 2017 stated that depressive disorder was segregated from the claim because the worker “did not present with the condition upon examination.” This order was not on appeal and became final.
However, the BIIA found Dinnis v. Department of Labor & Industries to be instructive. Because the claim was first closed in 2010 and later reopened, and closed, in 2020, under Dinnis, the Claimant was required to show that the conditions proximately caused by the industrial injury had permanently worsened based on a comparison of findings between the two terminal dates (2010 and 2020). Additional permanent disability needs to be supported by a comparison of medical findings as required by the supreme court in Dinnis. And while permanent disability based on physical conditions requires objective findings, such is not the case when a worsening is contended based on psychiatric conditions.
The appeal also addresses the issue in Knowles v. Department of Labor and Industries. In Knowles, the injured worker established that he developed a new condition during the aggravation period as a result of his industrial injury. The court held that the new condition was prima facie evidence of aggravation.
Here, the Claimant had a claim-related psychiatric evaluation that did not result in a diagnosis of depression. This was the basis for the 2017 order denying responsibility for the then undiagnosed depression. In turn, Claimant presented testimony from psychiatrist Ronald Early, M.D., who stated that Claimant’s depression worsened between 2017 and 2020—the date of Dr. Early’s examination. The BIIA found that the IAJ’s determination that Dr. Early’s testimony to be moot was made in error. Further, the BIIA found that the 2017 order was limited to a declaration that Claimant did not have depression as to that order’s date. And, that Dr. Early’s testimony established Claimant’s depression was due to the industrial injury and should be covered.
Finally, the BIIA found the combination of Claimant’s physical conditions, preexisting mental health conditions, and the recently diagnosed depression, to establish no testifying medical or vocational expert believed that he could sustain full time gainful employment. Accordingly, Claimant persuasively showed he has ■
J.P. joined Employer Solutions Law in September 2021 as an Associate Attorney. He comes to the firm with a wide breadth of experience in employment litigation, personal injury law, insurance litigation, and business law. J.P. received his B.S. in Business from the Kelley School of Business at Indiana University in Bloomington, Indiana. He received his J.D. from the University of Washington School of Law. When not working at Employer Solutions Law, J.P enjoys trail running in the greater Seattle area and playing with his Great Dane, Wallace.
