Proximate Cause – The Often Overlooked Requirement for Claim Reopening in Washington
In order to reopen a workers’ compensation claim in Washington, a worker must establish that an accepted condition has objectively worsened since the date the claim was last closed or ordered to remain closed (either by an affirming order or a reopening denial order). However, the worsening must also be proximately related to the industrial injury or occupational disease was allowed for. The Department often overlooks this requirement, which is addressed by the Board in In re Arlen Long and In re Loren Hudson.
In re Arlen Long
In 1996 significant decision In re Arlen Long, a worker with pre-existing spondylolisthesis sustained a low back injury and was diagnosed with a lumbar strain. In re Arlen Long, BIIA Dec., 94 2539 (1996). The claim was closed with a Category 2 lumbar permanent impairment award. Claimant applied to reopen his claim due to increased low back pain. The claim was reopened through a “deemed granted” order given the failure of the Department to act upon the application within 90 days. The employer appealed the deemed granted reopening order, which was affirmed. However, the Board also examined the issue of whether the employer was responsible for paying time loss and for the low back treatment claimant underwent after the reopening.
The Board found claimant was not entitled to medical benefits or time loss following the reopening because his inability to work and his need for treatment were secondary to his pre-existing lumbar spondylolisthesis and unrelated to the industrial injury. The Board found to be entitled to benefits upon the reopening of a claim, it is necessary to show that an aggravation was caused by the industrial injury or occupational disease. In this case, even under an assumption that the Category 2 permanent impairment award had been premised on a theory that the injury lit up the pre-existing spondylolisthesis, it did not necessarily follow that the later need for treatment or subsequent disability should be considered causally related to the industrial injury. While a pre-existing condition may be made symptomatic by an industrial injury, the effects of the injury may not contribute to the further deterioration of the body part involved. The proper inquiry is whether the industrial injury continued to be a cause of a future need for treatment or further disability. The Board found no precedent or case law to support the conclusion that an employer would forever be held responsible for a worker’s pre-existing condition simply because a worker’s pre-existing condition had been lit up.
In re Loren Hudson
The Board recently reached the same conclusion in In re Loren M. Hudson, though this is not a significant decision. The Department allowed a worker’s occupational disease claim and accepted responsibility for chondromalacia of the left and right knees. In re Loren M. Hudson, Dckt. No. 20 22956 (October 22, 2021). The Department later denied the worker’s reopening application. It was undisputed that the worker’s left knee chondromalacia had objectively worsened since the first terminal date. He argued that because his chondromalacia was an accepted condition and objectively worsened, the claim should be reopened. Citing In re Arlen Long, the Board found this was not the end of the inquiry. The proper inquiry was whether the occupational disease continued to be the need for treatment or further disability. A pre-existing condition can progress on its own, unrelated to the occupational disease, and in that event, the Department or employer would not be responsible for the worsening. The case turned on whether the worker proved a proximate causal relationship existed between the occupational disease and his deteriorated left knee condition. The Department’s medical expert witness testified any worsening of the left knee chondromalacia was not related to the occupational disease and instead was attributable to morbid obesity and normal age-related degeneration. The Board concluded the worker’s underlying condition had continued to progress on its own after the claim was closed, independent of the occupational disease. Therefore, the Department was not responsible for the worsening.
When a worker applies to reopen a claim, it is important to ask not only whether there was an objective worsening of an accepted condition, but also whether the objective worsening, if present, was proximately caused by the underlying industrial injury/occupational disease. This is especially critical when dealing with degenerative conditions, which often progress naturally. Even if a degenerative condition, such as osteoarthritis, has been accepted under the claim as a permanent aggravation, it does not follow any progression of the osteoarthritis is automatically attributable to the claim. As such, it is important to have an IME examiner address not only whether objective worsening is present, but also proximate cause.
If you are an employer with questions about how to navigate a reopening application, please contact me or another experienced SBH employment attorney. I can be reached at or 503-595-6114.
Posted by Liz Aaberg.