WPI 155.07 Permanent Total Disability

Use this instruction in permanent total disability cases when there is an issue whether the industrial injury or occupational disease has rendered the worker permanently totally disabled. Use WPI 155.07.01 (Permanent Total Disability—Special Work) with this instruction if there is an issue whether the injury restricts the worker to odd jobs or to special work not generally available.

RCW 51.08.160. The instructional language derives from Fochtman v. Department of Labor & Industries, 7 Wn.App. 286, 499 P.2d 255 (1972), and was approved in Leeper v. Department of Labor & Industries, 123 Wn.2d 803, 872 P.2d 507 (1994).

The statute defines permanent total disability as meaning “loss of both legs, arms, or one leg and one arm, total loss of eyesight, paralysis or other condition permanently incapacitating the worker from performing any work at any gainful occupation.” When a worker claims permanent total disability but does not suffer any of the disabilities specified in the statute, the inquiry becomes whether the injury permanently incapacitates the worker “from performing any work at any gainful occupation.” Allen v. Dep't of Lab. & Indus., 30 Wn.App. 693, 638 P.2d 104 (1981).

The statutory language that the condition must permanently incapacitate “the worker from performing any work at any gainful occupation” does not mean that the worker must be physically or mentally helpless for all purposes except to live. The intent of the act is to insure against loss of wage earning capacity. A worker's wage earning capacity may be destroyed although the worker still has the capacity to accomplish minor tasks. Kuhnle v. Dep't of Lab. & Indus., 12 Wn.2d 191, 120 P.2d 1003 (1942); see also Spring v. Dep't of Lab. & Indus., 96 Wn.2d 914, 640 P.2d 1 (1982); Nash v. Dep't of Lab. & Indus., 1 Wn.App. 705, 462 P.2d 988 (1969).

A prima facie case of total disability can be made: when it is established that a worker was able to work prior to injury and is unable to do so after injury because of pain and the nature of the injury; when medical experts have testified to the loss of function and limitations on the ability to work; and when vocational experts have concluded that the worker is not employable in the competitive labor market. Spring, 96 Wn.2d 914; Fochtman, 7 Wn.App. 286.

For a discussion of the differences between permanent and temporary total disability, see Wilson v. Dep't of Lab. & Indus., 6 Wn.App. 902, 496 P.2d 551 (1972); Bonko v. Dep't of Lab. & Indus., 2 Wn.App. 22, 466 P.2d 526 (1970). In Washington Irrigation and Development Co. v. Sherman, 106 Wn.2d 685, 724 P.2d 997 (1986), the court held that WPI 155.07 as presented in the second edition of the WPI is a correct statement of the law and that the trial court did not err in refusing the worker's proposed instruction that referred to the “whole man theory of total disability.”

The inclusion of the phrase “or obtain” in this instruction was specifically upheld in Leeper v. Department of Labor & Industries, 123 Wn.2d 803, 872 P.2d 507 (1994), disapproving the analysis in Graham v. Weyerhaeuser Co., 71 Wn.App. 55, 856 P.2d 717 (1993). The court pointed out that “[t]he language of the statute acknowledges proof of a disability will evolve with the development of new industries, the sophistication of medical diagnoses and treatment, and the changing composition of the labor market.” Leeper, 123 Wn.2d at 811. In a case in which such factors take on particular relevance, it may be appropriate to instruct further on them. Board of Industrial Insurance Appeals decisions, while not precedential, may provide helpful guidance in this regard.

The court in Leeper employed the phrase “reaction to the injury.” The WPI Committee has recommended the phrase “and loss of function resulting from the [industrial injury] [occupational disease]” to encompass this concept.

In Adams v. Department of Labor & Industries, 128 Wn.2d 224, 231–33, 905 P.2d 1220 (1995), (discussing Turner v. Dep't of Lab. & Indus., 41 Wn.2d 739, 251 P.2d 883 (1953)) (in which a worker was found to be permanently totally disabled even though he was working at the time of claim closure), the court reasoned that work that causes serious discomfort or pain or endangers the health of the worker is not “sustainable” and supported an argument that his earning power was impaired, thus the question of permanent total disability was appropriately a jury question. The bracketed language should be added only if there is evidence limiting work activities due to serious discomfort or pain or due to endangerment of the worker's life or health.