Opinion
No. 53128-0-I
Filed: May 2, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-2-10962-4. Judgment or order under review. Date filed: 09/04/2003. Judge signing: Hon. L Gene Middaugh.
Counsel for Appellant(s), Carroll Guy Jr Rusk, Law Offices of David B Vail, 819 Martin Luther King Jr Way, Tacoma, WA 98415-0707.
Philip Albert Talmadge, Talmadge Law Group PLLC, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630.
Counsel for Respondent(s), John R. Wasberg, Attorney General Office, 900 4th Ave Ste 2000, Seattle, WA 98164-1076.
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.
Conner objected to the testimony of the Department's experts, claiming that it was irrelevant, prejudicial, and inconsistent with the Department's Notice of Decision. The IAJ overruled the objection. The IAJ affirmed the Notice of Decision. Conner appealed the IAJ's decision to the superior court in April 2002. The trial court affirmed the findings and conclusions of the IAJ, with the exception of one sentence excised from the Notice of Decision. Conner appeals.
DISCUSSION I. Assignments of Error
The Department notes that Conner did not specifically assign error to any of the trial court's findings of fact. Thus, the Department claims, the findings of fact are verities on appeal. Since Conner does not argue that the trial court's conclusions of law do not flow from the findings, the Department claims that we must reject Conner's appeal. RAP 10.3(g) states, in relevant part, that:
A separate assignment of error for each finding of fact a party contends was improperly made must be included with reference to the finding by number. The appellate court will only review a claimed error which is included in an assignment of error or clearly disclosed in the associated issue pertaining thereto.
Generally, an unchallenged finding of fact will be considered a verity on appeal. See, e.g., State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). 'However, a less strict approach is applied if the claimed error is included in an assignment of error or is clearly disclosed in the associated issues pertaining thereto.' Sherrell v. Selfors, 73 Wn. App. 596, 599, 871 P.2d 168 (1994).
Conner made the following relevant assignments of error:
1. The trial court erred in concluding that Schelie Conner was not temporarily totally disabled and entitled to time-loss compensation from March 11, 1998 to August 16, 2000.
2. The trial court erred in concluding that Schelie Conner was not permanently totally disabled and entitled to a pension after August 16, 2000.
3. The trial court erred in concluding that Schelie Conner has no permanent partial disability that was proximately caused by her industrial injury.
The trial court made the following two findings of fact:
1. The Findings of Fact as found by the Board of Industrial Insurance Appeals in its Proposed Decision and Order dated January 24, 2002 and adopted by Decision and Order of the Board dated April 1, 2002 are affirmed and incorporated herein with the exception indicated below.
2. The sentence in the August 16, 2000 Department order that states: 'Medical evidence discloses that this condition has prevented complete recovery from the industrial injury' is inconsistent with the substance of the order and is not supported by the evidence.
The trial court also adopted the Board's conclusions of law. It is in the Board's findings of fact and conclusions of law that the substance of Conner's assignments of error lies. We find that Conner assigned error to the trial court's first finding of fact, as it encompasses all but one of the Board's findings of fact. Thus, we may review Conner's claims.
II. Preclusion of the Department's Medical Experts' Testimony
Conner claims that the trial court erred in denying her motion to strike the testimony of the Department's medical experts. She asserts that the Department's Notice of Decision precluded the Department's medical experts from testifying in the way that they did. Conner claims that the Department admitted in the August 16, 2000 Notice of Decision that her cerebral palsy prevented her complete recovery from the injury. Yet, Conner notes, the Department's medical experts testified at the hearing that Conner's cerebral palsy had not interfered with her recovery from the injury. Thus, Conner asserts, the testimony was inconsistent with a previous Department position and Conner was prejudiced. We disagree.
The hearing occurred over several dates in fall 2001.
The August 16, 2000, Notice of Decision reads, in pertinent part:
The Department hereby denies responsibility for the condition diagnosed as pre-existing Cerebral Palsy with spastic right hemiparesis as being neither caused nor aggravated by the industrial injury. Medical evidence discloses that this condition has prevented complete recovery from the industrial injury. In accordance with RCW 51.32.100 the Department's responsibility is limited to the extent of the effects of the industrial injury were it not for this pre-existing condition.
(Emphasis added.) The IAJ attempted to reconcile the italicized sentence in the Notice of Decision with the other evidence presented, stating: It is possible to construe the 'has prevented' language in that statement to refer to the claimant's back condition prior to claim closure when, for at least a time, the cerebral palsy did prevent the claimant from making a complete recovery from her industrial injury. Since the claim was closed without a permanent partial or permanent total disability award, it appears that is what the adjudicator who issued that order meant by using that language.
In her trial court brief, Conner again objected to the testimony of the Department's experts, asking the trial court to strike the testimony as irrelevant and prejudicial. The trial court presumably denied this request and upheld the Board's order. The trial court also excised the above-underlined sentence from the Notice of Decision, holding that it was inconsistent and unsupported by the evidence.
Conner did not submit a separate motion to strike — rather, she included her request to strike in the body of her trial brief. The record does not reflect whether the trial court specifically ruled on Conner's request. However, the fact that the trial court incorporated all but one of the IAJ's findings and conclusions indicates that Conner's request was not granted.
The essence of Conner's claim is best understood by examining her citation to Brakus v. Dep't of Labor Indus., 48 Wn.2d 218, 292 P.2d 865 (1956). In Brakus, the worker was awarded a certain amount for a permanent partial disability, but appealed the award, claiming he was entitled to a greater amount. Brakus, 48 Wn.2d at 219. The Board found that the worker had not established that any of his disability was due to his industrial injury, reversed the award and closed the claim. Brakus, 48 Wn.2d at 219. The Court reversed and held that the Board's authority is limited to the issue raised on appeal, which was whether the worker was entitled to greater disability award. Brakus, 48 Wn.2d at 219-20. In Brakus, only the greater extent of the worker's disability was at issue, and the Board was wrong to rule on the existence of the disability.
In essence, Conner is arguing that the language favorable to her in the Notice of Decision is analogous to the initial finding in Brakus that the worker was disabled. Just as the worker in Brakus was only appealing the issue of whether he was entitled to more benefits, Conner is only appealing the pension adjudicator's denial of benefits. The Brakus worker was not appealing the issue of whether he was entitled to benefits at all; similarly, Conner is not appealing the statement in the Notice of Decision that her cerebral palsy prevented complete recovery from her injury. Therefore, Conner argues, the Department should not have been allowed to present evidence on an issue Conner had not appealed, and the IAJ erred in relying on that evidence.
We frame this issue as whether the language in the August 16, 2000, Notice of Decision precluded the Department from presenting evidence before the IAJ on the effect of Conner's cerebral palsy on her recovery. The issue of the preclusive effect of an earlier order is a question of law. Questions of law are reviewed de novo. Mains Farm Homeowners v. Worthington, 121 Wn.2d 810, 813, 854 P.2d 1072 (1993).
We do not accept that Conner's appeal was limited in the same manner as the appeal in Brakus. We hold that the Department was not bound in this case by the language at issue. This decision is driven by the fact that Conner appealed a Notice of Decision that denied her benefits. An order that denies benefits necessarily concludes that the worker has no disability that provides a basis for compensation. Thus, an appeal of such an order necessarily puts at issue the questions of the existence and the extent of any disability. The parties must therefore be allowed to present evidence on the issue of whether the claimant is disabled.
This decision is further supported by the general procedures surrounding worker's compensation appeals. The structure of the appeals process suggests that the Department is not bound by a Notice of Decision that is appealed. When a Notice of Decision is appealed, the IAJ takes new testimony and a hearing is held. The hearing is 'de novo and summary.' RCW 51.52.100. The Department is 'entitled to appear in all proceedings before the board and introduce testimony in support of its order.' RCW 51.52.100. In this case, that order was an order denying Conner benefits, so the Department was entitled to present the testimony of its experts that supported the denial.
Further, Conner's citation to Brakus to support the proposition that the Board cannot allow inconsistent testimony is inapposite. In Brakus, only the greater extent of the worker's disability was at issue, and the Board was wrong to rule on the existence of the disability. But here, both the existence and the extent of Conner's disability were at issue, since she had appealed an order that denied her benefits. Thus, the IAJ properly allowed the Department's experts to testify regarding both the existence and the extent of Conner's disability, if any. The Department and the Board were entitled to address those issues.
Conner's appeal from the August 16, 2000, Notice of Decision frames the issues appealed in the broadest of terms, alleging that she was injured at work, is currently disabled, and is entitled to an award and/or further treatment.
Conner argues that the language in the Notice of Decision is inconsistent with the testimony of the Department's experts. The Department refutes this, claiming that the IAJ's interpretation of the language as being temporally limited is the most reasonable interpretation. If the two positions are not inconsistent, the Department claims, then there is no issue as to whether the Department was bound by an earlier inconsistent position. In the alternative, the Department argues, if the IAJ's interpretation is incorrect, then the Notice of Decision is too ambiguous to be given any binding effect. In light of our holding above, it is irrelevant whether the language in the Notice of Decision is or is not consistent with the testimony of the Department's experts.
III. Substantial Evidence Supports the Board's Findings and Conclusions
Conner assigns error to the trial court's adoption of some of the Board's findings and conclusions. Specifically, she claims that the trial court erred in concluding that she was not temporarily totally disabled between March 11, 1998, and August 16, 2000, in concluding that she was not permanently totally disabled after August 16, 2000, and in concluding that she was not permanently partially disabled.
The standard of review for a trial court's findings of fact and conclusions of law is two-pronged. Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 573, 980 P.2d 1234 (1999). First, the findings of fact must be supported by substantial evidence in the record; if so, then the appellate court must decide whether the findings support the trial court's conclusions of law. Landmark Dev., 138 Wn.2d at 573. 'Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise.' Holland v. Boeing Co., 90 Wn.2d 384, 390-91, 583 P.2d 621 (1978). We defer to the trier of fact with respect to credibility determinations or conflicting testimony. Weyerhaeuser v. Health Dep't, 123 Wn. App. 59, 65, 96 P.3d 460 (2004).
The relevant findings and conclusions of the Board in relation to Conner's assignments of error are:
FINDINGS OF FACT
6. Ms. Conner's May 9, 1993 industrial injury did not proximately cause her to have temporary limitations on her ability to do physical activities either between March 11, 1998 through August 16, 2000, or on a permanent basis as of August 16, 2000.
. . .
8. As of August 16, 2000, the claimant then had no permanent partial disability in her low back that was proximately caused by her May 9, 1993 industrial injury.
. . .
10. . . . between March 11, 1998 and August 16, 2000, the claimant was not rendered incapable of reasonably continuous gainful employment as a proximate cause of her May 9, 1993 industrial injury . . .
. . .
CONCLUSIONS OF LAW
2. The claimant was not temporarily totally disabled between March 11, 1998 and August 16, 2000, as defined in RCW 51.32.090.
3. As of August 16, 2000, the claimant was not permanently totally disabled, as defined in RCW 51.08.160.
4. As of August 16, 2000, the claimant has no low back permanent partial disability that was proximately caused by her industrial injury.
The findings are supported by substantial evidence. Dr. Wray, the Department's neurologist, testified that Conner could work as of March 11, 1998. Dr. Bradley, the Department's orthopedist, testified that Conner could have returned to the type of work she was doing in 1993. Drs. Wray and Bradley examined Conner in May 2000, and concluded that at that time, there were no residual effects from the 1993 injury. The Department's experts also found nothing that would impair Conner from gainful employment. Dr. Wray testified that no permanent impairment had resulted. The experts also testified that, barring any further injury or illness, their opinions as to Conner's condition were also their opinions of her condition as of August 16, 2000. Thus, the testimony of Drs. Wray and Bradley supports Findings 6, 8 and 10.
After the May 2000 examination, Drs. Bradley and Wray were sent subsequent evaluations of Conner to review. Their assessment of her condition as of August 16, 2000, was based on these records.
The conclusions of the IAJ also flow from the findings. The IAJ found that Conner had no physical limitations as of March 11, 1998. Thus, the conclusion that Conner was not temporarily totally disabled between March 11, 1998 and
August 16, 2000, flows from the findings. The IAJ also found that Conner had no low back permanent partial disability as of August 16, 2000. The conclusion that Conner was not permanently partially disabled as of August 16, 2000, flows from that finding. Finally, the conclusion that Conner was not permanently totally disabled as of August 16, 2000, flows from the finding that Conner had no permanent limitations as of August 16, 2000. Furthermore, the IAJ was entitled to weigh the credibility of the doctors. Both of the Department's experts examined Conner. Dr. Bradley specialized in cerebral palsy, and Dr. Wray was a board-certified neurologist. The IAJ weighed these opinions against those of Dr. Broman and Dr. Johnson. Dr. Broman was a family practice physician, and Dr. Johnson had only reviewed Conner's medical records. The IAJ found the Department's experts more persuasive. The IAJ's assessment of credibility must stand.
IV. Combined Effects Doctrine
Conner argues that she is entitled to a disability award under the combined effects doctrine. Conner asserts that Washington law clearly establishes that if a worker has a pre-existing physical condition, is injured on the job, and the combined effects of the pre-existing condition and the industrial injury prevent her from working again, the worker is entitled to compensation. Conner is correct that case law establishes that if an industrial injury 'lights up' or activates a pre-existing but asymptomatic condition, the resulting disability is attributed to the industrial injury. See, e.g., Miller v. Dep't of Labor Indus., 200 Wn. 674, 682, 94 P.2d 764 (1939). However, the Notice of Decision specifically stated that Conner's cerebral palsy was 'neither caused nor aggravated by the industrial injury.' Thus, even if the Notice of Decision was binding, the combined effects doctrine is inapplicable to Conner.
Further, the testimony of the Department's experts indicated that the combined effects doctrine is inapplicable. Dr. Bradley stated that Conner's back injury had no impact on her cerebral palsy, and that her cerebral palsy likewise had no impact on her back injury or recovery. Dr. Wray similarly opined that Conner's cerebral palsy had no impact on her healing from the back injury, and that the injury had no impact on her cerebral palsy. The IAJ was entitled to believe the Department's experts, and did, finding that the injury did not aggravate Conner's cerebral palsy. The IAJ further stated that 'the claimant's continuing right-sided symptoms are due to her cerebral palsy that affected that side of her body.' Thus, Conner has not shown that the combined effects doctrine is applicable to her circumstances.
IV. Attorney Fees
Conner asserts that, to the extent she obtains a reversal of the decision and order, she is entitled to her attorney fees on appeal under RAP 18.1, RCW 51.52.130, and Brand v. Dep't of Labor Indus., 139 Wn.2d 659, 989 P.2d 1111 (1999). Since Conner has not succeeded in obtaining a reversal or modification of the order, her request for attorney fees is denied.
Affirmed.
SCHINDLER and COX, JJ., Concur.