Opinion
No. 28959-1-III.
Received date: September 29, 2011 UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 09-2-00436-7, Donald W. Schacht, J., entered March 22, 2010.
Affirmed by unpublished opinion per Siddoway, J., concurred in by Korsmo, A.C.J., and Sweeney, J.
Cynthia Turner was denied a disability pension and awarded only limited time-loss benefits for a workplace injury reported to the Department of Labor and Industries in 1996, an injury she contends resulted in escalating and ultimately chronic pain. Her appeal to the Board of Industrial Insurance Appeals resulted in reversal and a finding of permanent total disability. An appeal to superior court by her employer, the Walla Walla School District, resulted in reversal and reinstatement of the Department's findings, from which she now appeals. The conflicting testimony of the medical and vocational experts could support either the findings of the Board or the findings of the superior court, depending on their weighing of the evidence and assessment of credibility. We defer to the findings of the superior court under the applicable standard of review and therefore affirm.
FACTS AND PROCEDURAL BACKGROUND
Cynthia Turner, a cafeteria cook employed by the Walla Walla School District, injured her right shoulder at work in February 1995 while stirring a large pot of hamburger meat. Despite the injury, and with what she reports was the support and accommodation of her co-workers, she continued working that school year and the next, through June 1996.
She did not seek medical treatment for the injury for almost a year, but filed a worker's compensation claim with the Department in March 1996 in order to cover the cost of treatment and began receiving benefits. The medical testimony below was that she tested negative for shoulder instability in July 1996. She began physical therapy in December 1996. The therapy produced some positive results, after which she returned to part-time work. She reported to her therapist on February 18, 1997 that she was able to stir large pots of food without increased shoulder pain and that she used both hands for any heavy activity. Ms. Turner was involved in an auto accident that day, and in the days following the accident reported increased pain to her therapist; in proceedings below, she insisted the accident had no impact on her condition.
In the course of her continuing treatment, the first medical observation that Ms. Turner exhibited pain behavior with a significant "functional overlay" — meaning that her complaints of pain could not be accounted for by her physical condition alone, suggesting an emotional or psychological component — was in June 1997, when she was seen by Dr. Perry Camp. Dr. Camp noted her display of pain behavior disproportionate to her physical condition and that it impaired his assessment of her. She was seen by a number of doctors in 1997, including Dr. Pierce Scranton Jr., who concluded that she did not have thoracic outlet syndrome (TOS), an injury complex that occurs in the thoracic outlet region of the body, located just above the collarbone. He, too, concluded that she had functional overlay. A neurologist and a neurosurgeon also saw Ms. Turner that year, both of whom agreed with Dr. Scranton that she did not have TOS.
The injury involves nerve damage only to the thoracic outlet. There are essentially two types of TOS, one of which is a vascular injury involving the compression of veins and arteries. The other is neurogenic TOS, and that is an injury to the brachial plexus (the region of the first rib). All of the muscles that stabilize the shoulder joint and arm pass through that anatomic location and are subject to injury at that place. Administrative Record, Dep. of H. Graeme French, MD, at 8-9.
Sometime shortly after these examinations, Dr. George Thomas diagnosed neurogenic TOS and recommended surgery, which she underwent in February 1998. The surgery provided no relief. She next sought treatment at a pain clinic, where Dr. Dejan Dordevich and his colleagues participated in her diagnosis and treatment.
In proceedings below, Dr. Dordevich testified that he found no reason to continue treating Ms. Turner in the pain program after viewing a surveillance videotape provided to the clinic in 1998. In the video, taken in June 1998, Ms. Turner is seen walking her dogs. She occasionally uses her right hand to hold the leash and swings her arm as she walks, without apparent limitation or pain. Dr. Dordevich testified that by comparison, Ms. Turner complained during treatment at the clinic that she could not walk on a treadmill because she could not step lightly enough to avoid painful movement of her right arm. The doctor testified that he and his colleagues at the pain clinic concluded upon viewing the video that there was "no disease based reason to limit Mrs. Turner's ability to return to work in any capacity." Administrative Record (AR), Dep. of Dejan Dordevich, MD, at 23. He also testified that the video "suggests a conscious embellishment of pain symptoms and behaviors." Id. at 59. Dr. Dordevich expressed his opinion that Ms. Turner does not have complex regional pain syndrome (CRPS), a pain condition that usually involves one of the peripheral limbs and is associated with trauma to local nerve structures, as she displayed none of the physical or radiographic changes required for that diagnosis.
CRPS is also occasionally referred to as reflex sympathetic dystrophy (RSD). Multiple objective findings (including at least eight physical findings and one radiographic finding according to the American Medical Association) must be made before CRPS can be diagnosed. Physical changes indicative of CRPS include skin atrophy, shiny skin, changes in the hair pattern, changes in fingernail appearance, changes in skin temperature, sweating pattern changes, and changes in skin color. Radiographic changes include loss of bone density and redistribution of blood flow. AR, Dep. of Dr. Dordevich at 27-29.
The Department issued an order closing Ms. Turner's claim in December 1999. No disability pension was awarded, only time-loss benefits from the date of the injury through October 5, 1998. Ms. Turner appealed the decision to the Board, which reversed the Department's decision and found she was a temporarily totally disabled worker from October 5, 1998 to December 29, 1999. The Board ordered the Department to continue to pay Ms. Turner time-loss benefits and also ordered the Department to reopen her claim in light of its determination that her industrial injury was not yet fixed and stable. Its order was not appealed.
In the meantime, Ms. Turner had begun seeing Dr. Harold French every one to three months. During her first appointment, he diagnosed her with cervical stenosis and residual compression brachial plexopathy, but found no shoulder instability. A month later he diagnosed a grade three multidirectional instability of the right shoulder and recommended surgery. He performed the surgery in December 1999; it produced little to no relief for Ms. Turner. He performed his second surgery on her in June 2000 as a result of his findings during the first surgery. Dr. French concluded that she developed CRPS as a result of her February 1995 injury and its sequela.
In January 2008 the Department found that Ms. Turner was able to work in her former position and issued an order closing her claim with additional time-loss benefits paid through December 28, 2006 and a partial disability award of 10 percent right arm impairment for her shoulder injury. Ms. Turner appealed the Department's decision to the Board.
The Board was presented with the testimony of seven medical and vocational experts: Ms. Turner's treating physician, Dr. French, and her experts Ronald Early, MD (a psychiatrist) and Maurilio Garza (a vocational rehabilitation counselor); and the school district's experts John Hamm, MD (a psychiatrist), Howard Kellogg, MD (a general thoracic and vascular surgeon), John Lipon, DO (an orthopedic surgeon), Richard Marks, MD (a neurologist), and Stephen Renz (a vocational rehabilitation counselor).
Collectively, Ms. Turner's witnesses testified that she had the shoulder injuries diagnosed by Dr. French and a psychogenic pain disorder associated with depression, anxiety, and personality factors; that both resulted from her work injury; and that, in light of the activity restrictions imposed by her doctors and her physical limitations, age, and skills, she was not capable of obtaining and performing reasonably continuous gainful employment. The school district's witnesses testified, collectively, that Ms. Turner never had CRPS or TOS; that because she had no atrophy in her back, shoulders, or right arm, she must be using that arm, contrary to her reports; that she had a right shoulder sprain or strain but that given the onset of her symptoms, it was not the result of her much earlier work injury; that she exhibited dramatic pain behavior that could not be attributable to her work injury, which was minor; that she exhibited symptom magnification; that her work limitations are "mostly self-imposed" and she has no limitations on her ability to work in terms of a psychiatric problem (AR, Dep. of John Hamm, MD, at 24); and that she was able to work including in her former capacity as a cafeteria cook with, at most, some limitations in using her right arm. In addition to presenting its own experts, the school district challenged Dr. French's opinions on the basis of a peer review, requested by the Department, which concluded that in the sample cases reviewed Dr. French consistently disagreed with the interpretation of diagnostic studies and diagnoses of other examiners.
The Board found that Ms. Turner's 1995 injury had caused a right shoulder sprain, TOS, a compression brachial plexus injury of the right shoulder, CRPS, and a psychiatric chronic pain disorder. It concluded she was temporarily and totally disabled between December 29, 2006 and January 17, 2008, and that she was permanently totally disabled as of the latter date.
The school district appealed the Board's decision to superior court. After reviewing the administrative record, the superior court reversed the Board's decision, reinstated the Department's decision, and ordered Ms. Turner's claim closed effective December 26, 2006. It found that Ms. Turner does not have CRPS or TOS, that the workplace injury did not proximately cause a chronic pain condition, and that she was capable of working.
On appeal, Ms. Turner challenges virtually all of the superior court's findings. She argues that when we reject the unsupported findings, we will see that the superior court's conclusion that she is not a disabled worker cannot stand.
ANALYSIS
I
As a threshold matter, the school district asks us to dismiss the appeal because Ms. Turner failed to identify each assigned error, to argue why challenged findings are not supported by the evidence, and to cite to the record.
RAP 10.3(g) provides 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." Ms. Turner has provided a single assignment of error in her brief that challenges nine findings of fact and eight conclusions of law. Br. of Appellant at 1. More significantly, and even construing her initial and reply brief in the most favorable light, she provides argument bearing on the sufficiency of the evidence only for findings 2 through 5. Elsewhere she argues that the superior court failed to cite to the record and expresses her view that it did not conduct as thorough a review as did the Board, but complaints of that sort are not relevant to sufficiency of the evidence review. See State v. Mewes, 84 Wn. App. 620, 622, 929 P.2d 505 (1997) (recognizing that a sufficiency of the evidence review is limited to whether substantial evidence in the record supports the trial court's findings of fact). Her citations to the record are largely to the Board's proposed order rather than to underlying evidence.
Ms. Turner misapprehends our role in reviewing for error, encouraging us to "refuse to review for substantial evidence the court's finding" because the superior court did not "provide any citations to the record" and suggesting that we consult the Board's proposed order, as it "provides excellent references to the record [that] need not be repeated here." Br. of Appellant at 15. As the party challenging the superior court's findings, it is Ms. Turner who has the burden of showing that the record does not support them, not the court. See Panorama Vill. Homeowners Ass'n v. Golden Rule Roofing, Inc., 102 Wn. App. 422, 425, 10 P.3d 417 (2000), review denied, 142 Wn.2d 1018 (2001).
We may waive technical violations of the rules where the briefing makes the nature of the challenge perfectly clear, particularly where the challenged finding can be found in the text of the brief. State v. Neeley, 113 Wn. App. 100, 104-05, 52 P.3d 539 (2002). Ms. Turner's identification of the challenged findings and conclusions, while technically noncompliant, is sufficient.
Failure to support a challenged finding or conclusion with appropriate argument and citations to the record, however, waives the assignment. RAP 10.3(a)(5)-(6); Milligan v. Thompson, 110 Wn. App. 628, 635, 42 P.3d 418 (2002); Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 ("[p]assing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration"), review denied, 136 Wn.2d 1015 (1998). We will therefore review for substantial evidence only findings of fact 2 through 5. Finding of fact 8 is unchallenged and is a verity on appeal. We treat findings of fact 6, 7, 9, and 10 as verities because Ms. Turner has not cited to evidence in the record supporting her challenge nor presented argument why they lack evidentiary support. As in all cases, we limit our review to argument and authority, whether in Ms. Turner's opening brief or reply brief, which was first identified in some manner in her opening brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
II
In industrial insurance cases, the superior court conducts a de novo review of the Board's decision, relying exclusively on the Board record. RCW 51.52.115; Gallo v. Dep't of Labor Indus., 119 Wn. App. 49, 53, 81 P.3d 869 (2003), aff'd, 155 Wn.2d 470, 120 P.3d 564 (2005). The Board's findings and decision are prima facie correct and the party challenging the Board's decision has the burden of proof. Id. at 53-54. The presumption means that the Board's decision will be overturned if the trier of fact finds from a preponderance of the credible evidence that the findings and decision of the Board are incorrect. Only if the trier of fact finds the evidence to be equally balanced does the presumption require the findings of the Board to stand. Allison v. Dep't of Labor Indus., 66 Wn.2d 263, 268, 401 P.2d 982 (1965).
We review the superior court's decision under the ordinary standard of review for civil cases, reviewing whether substantial evidence supports the trial court's factual findings and then, de novo, whether the trial court's conclusions of law flow from the findings. RCW 51.52.140; Ruse v. Dep't of Labor Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999). Substantial evidence supports a finding when the evidence is sufficient to persuade a rational, fair-minded person that the finding is true. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). "A challenge to the sufficiency of the evidence admits the truth of [the opposing party's] evidence and any inference drawn therefrom and requires that the evidence be viewed in a light most favorable to [the opposing party]." Bott v. Rockwell Int'l, 80 Wn. App. 326, 332, 908 P.2d 909 (1996). "As an appellate tribunal, we are not entitled to weigh either the evidence or the credibility of witnesses even though we may disagree with the trial court in either regard." In re Welfare of Sego, 82 Wn.2d 736, 739-40, 513 P.2d 831 (1973).
Ms. Turner's appeal ultimately turns on whether the superior court erred when it concluded that she was not a temporarily or permanently totally disabled worker. To prevail, Ms. Turner must demonstrate that several of the trial court's findings are not supported by substantial evidence, because the conclusion of disability requires findings of injury, proximate cause, and an inability to obtain employment in the general labor market. See Spring v. Dep't of Labor Indus., 96 Wn.2d 914, 918, 640 P.2d 1 (1982). The absence of any factor precludes a finding of total disability.
The parties principally dispute whether Ms. Turner's workplace injury occurring in February 1995 proximately caused a chronic pain condition. The trial court found a substantial preponderance of the evidence demonstrates that the February 27, 1995 injury did not proximately cause a chronic pain condition, pain disorder associated with psychological factors or other psychiatric or mental health condition, or any associated permanent impairment.
Clerk's Papers (CP) at 44-45 (Finding of Fact 3). It also found that Ms. Turner does not have CRPS or TOS as a result of her injury and that she has greatly exaggerated her pain complaints and associated limitations. Id. at 45 (Findings of Fact 4 and 5).
Substantial evidence supports each of these findings. Dr. Dordevich testified that there was "no disease based reason to limit Mrs. Turner's ability to return to work in any capacity." AR, Dep. of Dr. Dordevich at 23. He determined that the videotape "suggests a conscious embellishment of pain symptoms and behaviors" and that Ms. Turner does not have CRPS. Id. at 59.
Dr. Hamm testified that during his April 2006 examination Ms. Turner displayed dramatic pain behavior during the physical examination but not prior to it or during his subsequent psychiatric interview. He testified that Ms. Turner "whimpered, became tearful, even though the examination movements were no different than what she had been doing spontaneously on her own when she walked into the exam." AR, Dep. of Dr. Hamm at 12. He testified that "what was dramatic is that she turned it on quickly and turned it off quickly. And that coupled with underlying lack of objective findings to explain her suffering behaviors I thought was significant." Id. at 14.
Dr. Hamm concluded that the industrial injury did not cause a pain disorder because it was a minor injury without physical trauma, and the pain behavior is usually related to a combination of personality factors for which the injury has been substituted for other interpersonal issues or internal psychological issues. He testified that her work limitations are "mostly self-imposed" and that she has no limitations on her ability to work in terms of a psychiatric problem. Id. at 24. In its letter reporting its decision to the parties, the superior court stated that it found Dr. Hamm's testimony to be "most persuasive." CP at 43.
Dr. Kellogg concluded that Ms. Turner never had CRPS or TOS. He testified, with respect to what he characterized as a critical significance of the absence of atrophy in Ms. Turner's right arm, "She had no atrophy; both arms were equal [in diameter]. That means she had to be using her arm, otherwise . . . she would have had shown marked atrophy of that arm and forearm." AR, Dep. of Howard Kellogg, MD, at 29.
Drs. Lipon and Marks echoed Dr. Kellogg's conclusions regarding Ms. Turner's lack of atrophy. Dr. Lipon expressed the opinion that Ms. Turner exhibited abnormal pain behavior and symptom magnification. He diagnosed Ms. Turner with a right shoulder sprain/strain and opined that her shoulder surgery performed by Dr. French was not related to her workplace injury, since almost five years had passed before any shoulder instability was diagnosed. Dr. Marks concluded that Ms. Turner did not have CRPS or TOS. He also testified to his opinion that she was able to work with some limitation in using her right arm.
Ms. Turner has emphatically argued throughout that none of the medical experts have diagnosed malingering. Her position appears to be that absent a malingering diagnosis, the only conclusion to be drawn from the fact that she reports pain significantly exceeding what can be objectively substantiated is that she has the psychogenic pain disorder testified to by Dr. Early and Dr. French. But a rational, fair-minded person could find, from medical testimony that Ms. Turner turns her pain behavior on and off, that her pain does not appear genuine, that the absence of atrophy in her arm is a strong indication she has full use of it, and that the industrial injury did not cause a chronic pain condition or pain disorder.
With regard to the trial court's findings that Ms. Turner did not suffer from CRPS or TOS and that she was employable, nothing more need be said than that the school district presented qualified experts who provided understandable testimony addressed to these matters, which directly supports the superior court's findings. We do not weigh the evidence or the credibility of witnesses.
Because sufficient evidence supports the trial court's other findings, we need not reach the school district's alternative argument that because Ms. Turner alleged no psychogenic injury in 1999, she is barred by claim preclusion from seeking compensation for a psychogenic pain disorder through a later claim.
The trial court's findings of fact 2 through 5 are supported by substantial evidence and support the trial court's determination that Ms. Turner's industrial injury does not prevent her from obtaining gainful employment. The trial court's ultimate conclusion that Ms. Turner was not a temporarily or permanently totally disabled worker flows from its findings. RCW 51.08.160; RCW 51.32.090; Williams v. Virginia Mason Med. Ctr., 75 Wn. App. 582, 586, 880 P.2d 539 (1994).
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KORSMO, A.C.J. and SWEENEY, J., concur.