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Conner v. Department of Labor and Industries of the State of Washington5/2/2005
Schelie Conner appeals the Department of Labor & Industries' Notice of Decision terminating her time-loss compensation . The order stated in part that Conner's cerebral palsy had prevented complete recovery from her injury. Conner appealed to the Board of Industrial Insurance Appeals. At the hearing, the Department's medical experts opined that Conner's cerebral palsy and injury did not affect each other, and that she had no objective symptoms. The Board upheld the denial of benefits, as did the trial court on appeal. Conner claims that the trial court erred in not striking the testimony of the Department's medical experts, as their testimony that her cerebral palsy had not affected her recovery was inconsistent with the Department's statement in the Notice of Decision, thus prejudicing Conner. She also claims that the trial court's findings as to her disability are not supported by substantial evidence. We hold that the Department was not precluded by the Notice of Decision from presenting testimony on appeal that Conner had no compensable disability because the existence of Conner's disability was the issue on appeal. In addition, the findings on appeal are supported by substantial evidence. We affirm.
FACTS
Schelie Conner was injured at work in May 1993. She was helping transfer a wheelchair-bound patient when she felt a pain in her right foot. Later Conner felt pain in her back as well. At first she attributed the pain to her cerebral palsy, a condition that had affected her right arm and leg since childhood. However, she filed an application for industrial insurance benefits in February 1994. The Department of Labor & Industries (the Department) paid Conner time-loss compensation for temporary total disability from September 1993 to March 1998.
In March 1998, the Department terminated Conner's time-loss compensation , and her claim was closed. Conner requested reconsideration, and on August 16, 2000, the Department issued a Notice of Decision. Language in the Notice of Decision indicated that Conner's cerebral palsy had interfered with recovery from her injury. The Department affirmed the termination of benefits.
Conner appealed to the Board of Industrial Insurance Appeals (the Board). At the hearing before the Industrial Appeals Judge (IAJ), Conner presented testimony of three experts: Dr. Broman, a family physician who had examined Conner; Dr. Johnson, an orthopedic surgeon who had reviewed Conner's medical records, but had not examined her; and an occupational therapist who had performed physical capacities evaluations (PCEs) on Conner. Dr. Broman and Dr. Johnson opined that Conner was permanently incapable of reasonably continuous gainful employment. Dr. Broman had first diagnosed Conner's industrial injury, and had examined Conner in 1998 and 2001.
The Department presented testimony of two experts who had examined Conner: Dr. Bradley, an orthopedic surgeon and Dr. Wray, a neurologist. The Department's experts had examined Conner together in May 2000 and testified that Conner's cerebral palsy would not have affected the recovery from her injury, and both found that Conner exhibited no objective symptoms remaining from the 1993 injury.
The parties stipulated that an agreed-upon vocational expert would testify regarding Conner's disability in accordance with the experts that the IAJ found more persuasive. If the IAJ adopted the limitations set out by Conner's experts, then the vocational expert would testify that Conner was totally disabled. If the IAJ found no limitations based on the testimony of the Department's experts, then the vocational expert would testify that Conner was not totally disabled.
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