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Our client had an injury to his low back in 2003, while working for Safeway. After a few months treatment, he returned to work and his claim was closed. Six years later, he was working in the meat department and on that particular day had to move a lot of freight. Toward the end of his shift, his back just got to the point where he could no longer go on, and he told his supervisor he had to leave work. He took five days off, and came back and his supervisor told him that if he was not 100%, he could not return to work. Our client continued to be treated for his back pain.

The claim was originally rejected, and when we protested, the claim was allowed. Then Safeway appealed the decision to the Board of Industrial Insurance Appeals which upheld the Department’s determination that our client had suffered an industrial injury.

That case was made complicated due to the fact our client did not feel he had a specific incident, or accident. He just regarded what had happened as being the cumulative effect of his heavy work over the years. The employer argued this proved he did not have an industrial injury, and that what had happened was simply his degenerative disc disease which pre-existed the 2009 work was the cause of his problems. The Board held that our client had an industrial injury.

Then, Safeway appealed to the Superior Court. In October of this year, we took the case to a jury in Clallam County, and the jury held that the Board had made the right decision and our client did suffer an industrial injury. Now he has an allowed claim, and has been receiving time loss benefits for the last three years due to our work before the Department, Board and Court.

Our client was injured when he bent over to pick up an item and stood up and hit a floor truss. He injured his low back, right hip and had pain down his right leg into the foot. He underwent surgery, physical therapy and work hardening.

At the time of his injury, the client was commuting from Rochester, Washington to Kent, Washington, in the Seattle area, to work eight hours and drive home.

The Department of Labor and Industries determined that although he could not return to the kind of heavy construction work he was doing at the time of injury, he could work as an electronic/production assembler which is a lighter job. There were no such jobs in the Rochester/Olympia labor market. Then, because he had worked in the Seattle area before, the Department determined that he could drive to Seattle and get an assembler job there.

We were able to show our client’s right leg and foot went numb after he sat for about an hour. We were able to show he could drive for about an hour and then he would have to shift his weight or stop and get out of the car and move around. We were able to show he would have to stop and get out of the car at least once going both ways.

The Board held that a commute that is reasonable for a person who has not had an injury can become unreasonable after the injury. As a result, our client’s time loss compensation was restored and he was later placed on the pension rolls.

Our client was an employee of the Department of Labor and Industries. He had diabetes and other health problems, and sometimes used a wheelchair at work. While at work, he used the restroom and fell hurting his knee, resulting in a small cut on his left big toe.

The client later developed methicillin-resistant Staphylococcus aureus (MRSA) and then had his left toe, left foot and then left leg amputated as a result.

We were able to establish through medical testimony that MRSA can colonize a body, and then when an open wound occurs can move into the open wound. We were able to show the MRSA was due to the industrial injury, and infected an open sore which may have been due to the pre-existing diabetes so as to cause the amputations.

The Department had held the amputation was the result of the pre-existing diabetes, and terminated the client’s time loss compensation.

We appealed to the Board of Industrial Insurance Appeals, and proved that the left leg amputation was a result of the MRSA caused by the cut to the toe as a result of the industrial injury. Then our client had his time loss restored, and has been placed on the pension rolls.

The Board of Industrial Insurance Appeals issued an order finding that this grocery store clerk sustained an occupational disease while performing distinctive conditions of employment that required her to repetitively reach, grasp, turn, stand, lift, carry and twist; to maneuver 50 to 100 cases of water off a waist high conveyer and lift them over a bag rack onto a platform. This happened over a three day period.

Fast forward. A couple years later, after work hardening and physical therapy treatment, she injured her lower back. Her treating physician opined her back condition was not due to the physical therapy. However, her new doctor disagreed. We also set up our own independent medical examination. The examiner agreed her lower back condition was related to the physical therapy. The Board of Industrial Insurance Appeals agreed, and issued a Decision and Order finding her lower back condition was related to the physical therapy and to allow that condition under her original occupational disease claim.

The Department sends you an order requiring you to pay them back approximately $88,000 in time loss benefits. The Department says you have misrepresented your inability to work. The Department bases its order on the fact you have been growing marijuana at your home. The Department alleges you pleaded no contest to a charge of selling marijuana. The Department also alleges that you could not have a bad back because you have to tend to your marijuana plants and that requires acts that you could not perform with a bad back.

The Department also refers your case to the Thurston County Prosecuting Attorney to prosecute you for fraud in connection with the receipt of your time loss payments. You plead no contest to those charges, on the advice of your criminal defense counsel.

We take the case and are able to prove you grew marijuana for personal use, marijuana growing is not “gainful employment” within the meaning of the appropriate statutes. The Board of Industrial Insurance Appeals rules you owe the Department nothing.

We then refer you to a criminal attorney in Olympia, who gets the fraud charges reversed, because you can’t defraud someone when they owed you the money.

The end result: time loss is restored, and the client is now on a pension.
In Re: Frank Hejna, DN 04 24184 (2006)

The claimant was in construction for over 30 years and developed arthritic knee problems. The Department denied his occupational disease claim, stating that no part of his knee problems were due to the 30 year beating they took from construction work. We appealed this decision. The claimant’s knee osteoarthritis was allowed as an occupational disease. He received over $113,000.00 in back time loss benefits. Eventually, he received a knee replacement and was placed on pension.

Truck driver falls at work, resulting in several conditions, including an infection of a lumbar disc (diskitis), which spreads to his pre-existing prosthetic heart valve, causing endocarditis. After a couple of IMEs, the Department found this worker able to go back to work, ignoring the diskitis, endocarditis and other significant pre-existing conditions. We appealed. The injured worker received nearly a year of back time loss and an open claim.

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