Opinion
No. 30988-2-II
Filed: March 15, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Lewis County. Docket No. 02-2-00961-0. Judgment or order under review. Date filed: 09/29/2003. Judge signing: Hon. H. John Hall.
Counsel for Appellant(s), Elizabeth M. Knight, Attorney at Law, 925 Trosper Rd SW, PO Box 15147, Tumwater, WA 98511.
Counsel for Respondent(s), Charles Robert Bush, Vandeberg Johnson Gandara, 600 University St Ste 2424, Seattle, WA 98101-1192.
Counsel for Other Parties, John R. Wasberg, Attorney General Office, 900 4th Ave Ste 2000, Seattle, WA 98164-1076.
In 2000, after the Department of Labor and Industries (LI) denied Dennis Frost's application to reopen his 1992 neck injury claim, the Board of Industrial Insurance Appeals (Board) reversed. On review, the superior court reinstated LI's ruling. We reverse and remand for reinstatement of the Board's decision.
FACTS
On July 10, 1992, Frost, a 42-year-old heavy equipment operator, suffered an industrial neck injury while working for Centralia Mining Company. Ten months later, he filed a workers' compensation claim with LI.
Dr. Christiansen, Frost's physician since 1984, initially treated his injury with pain medications and traction. In 1993, when a magnetic resonance imaging (MRI) of Frost's neck revealed a herniated disk at the C5/6 vertebrae, Christiansen referred him to a neurosurgeon, who performed a C5/6 left cervical laminectomy to remove part of the disk. Four months later, Frost returned to his regular job and LI closed his claim.
On March 15, 1994, Frost terminated his employment with Centralia due to neck pain. On November 4, 1994, he asked LI to reopen his 1992 claim. LI reopened his claim for temporary aggravation of his injury and closed it on December 22, 1995. On December 23, 1996, Frost filed his second application to reopen his 1992 claim, but when LI denied it, Frost did not appeal.
On March 8, 1999, Frost filed his third application. On May 28, 1999, LI denied the application on the grounds that the condition caused by his injury had not worsened since his final claim closure. Frost did not appeal.
In 2000, the MRI of Frost's neck revealed marked degenerative disk disease at levels C4/5 and C6/7, the levels right above and below the point of his 1993 neck surgery. On August 18, 2000, Frost filed his fourth application with the LI to reopen his 1992 claim.
In October 2000, Dr. Tobin, a retired orthopedic surgeon, performed an independent medical examination of Frost and noted that during the seven-year interval, Frost's spinal canal progressively degenerated throughout his neck at the levels C3/4, C4/5, and C5/6. But Tobin noted that these changes could be the result of Frost's natural aging process, not the 1992 industrial injury. Based on that evaluation, LI denied Frost's application.
Centralia requested the independent examination.
In response to the question of whether the 1992 industrial accident caused the degenerative disk changes in Frost's neck, Tobin testified: `In my opinion any statement as to the relationship would be purely speculative. There is no basis in medical practice that I know of to confirm that that would be the basis for the advanced changes, no.' Clerk's Papers (CP) at 237. But during cross-examination, Tobin stated: `Yes, I can't state with any degree of medical probability what the exact etiology is.' CP at 248.
On May 22, 2001, Frost appealed LI's decision to the Board. In February 2002, Christiansen, who did not see Frost between 1995 and 2002, examined him and concluded that his medical condition had worsened between May 28, 1999, and April 10, 2001. He testified:
It's my studied opinion that the degenerative condition that caused his widespread neuropathy was probably caused by his idiosyncratic work behavior of 15 or 17 years running heavy equipment and, no doubt, the accident that he had wherein he had the specific finding of a C6 neuropathy and herniated disk at C5-6 probably injured more levels of disk to some degree, but the level that was injured the most was at C5-6, and that's where he had an overt herniated disk. . . . It would be . . . unlikely that a person who had a meaningful injury to his neck by a sudden accelerated motion, and all the force and all the damage would be on one little level. No doubt there was a certain amount of damage at other levels, but it didn't show up at that small frame of time.
Clerk's Papers (CP) at 204-05.
Thereafter, an Industrial Appeals Judge (IAJ) entered a proposed decision ordering LI to reopen Frost's claim. In response to Centralia's petition for review, the Board adopted the IAJ's proposed order and directed LI to reopen Frost's claim.
Centralia appealed to the superior court for a de novo review of the Board's decision. The trial court reversed, finding that Frost had failed to establish by medical testimony that aggravation or worsening at the C3/4, C4/5, and C6/7 disk levels was proximately caused by the 1992 industrial injury.
ANALYSIS Standard of Review
A trial court reviews de novo a Board decision, based solely on the evidence and testimony before the Board. RCW 51.52.115; Romo v. Dep't of Labor Indus., 92 Wn. App. 348, 353, 962 P.2d 844 (1998) (citing Johnson v. Weyerhaeuser Co., 134 Wn.2d 795, 800 n. 4, 953 P.2d 800 (1998); Dep't of Labor Indus. v. Fankhauser, 121 Wn.2d 304, 308, 849 P.2d 1209 (1993); McClelland v. ITT Rayonier, Inc., 65 Wn. App. 386, 828 P.2d 1138 (1992)). The trial court considers the Board's findings and conclusions prima facie correct, although it may substitute its own findings and decision for the Board's if it finds, from a fair preponderance of credible evidence, that the Board's findings and decisions are incorrect. Romo, 92 Wn. App. at 353 (citing McClelland, 65 Wn. App. at 390).
In turn, we examine the record to determine whether substantial evidence supports the trial court's findings and whether the court's conclusions of law flow from the findings. Ruse v. Dep't of Labor Indus., 138 Wn.2d 1, 5-6, 977 P.2d 570 (1999) (citing Young v. Dep't of Labor Indus., 81 Wn. App. 123, 128, 913 P.2d 402 (1996)); Weatherspoon v. Dep't of Labor Indus., 55 Wn. App. 439, 441, 777 P.2d 1084, review denied, 113 Wn.2d 1030 (1989). Substantial evidence means evidence of a quantity sufficient to persuade a fair-minded, rational person of the truth of the declared premise. Bering v. SHARE, 106 Wn.2d 212, 220, 721 P.2d 918 (1986).
Frost's Injury
Frost contends that the Board correctly found that aggravation of his neck condition was proximately caused by his 1992 industrial injury. He asserts that the trial court erred in overturning the Board's decision.
According to RCW 51.32.160, a claimant can reopen a workers' compensation claim within seven years of the date of first closure for a worsening of the conditions related to the industrial injuries. Although the Industrial Insurance Act should be liberally construed in favor of injured workers, a worker claiming entitlement to disability benefits for an occupational disease carries the burden of proving the disabling condition arose naturally and proximately out of employment. Ruse, 138 Wn.2d at 6-7 (citing Dennis v. Dep't of Labor Indus., 109 Wn.2d 467, 470, 481, 745 P.2d 1295 (1987); Dillon v. Seattle Police Pension Bd., 82 Wn. App. 168, 171, 916 P.2d 956 (1996)). A worker is entitled to benefits if the employment either causes a disabling disease, or aggravates a preexisting disease so as to result in a new disability. Ruse, 138 Wn.2d at 7 (citing Dennis, 109 Wn.2d at 474). To prevail on an aggravation claim, the claimant must establish the following elements by medical testimony:
(1) The causal relationship between the injury and the subsequent disability must be established by medical testimony.
(2) The claimant must prove by medical testimony, some of it based upon objective symptoms, that an aggravation of the injury resulted in increased disability.
(3) A claimant's medical testimony must show that the increased aggravation occurred between the terminal dates of the aggravation period.
(4) A claimant must prove by medical testimony, some of it based upon objective symptoms which existed on or prior to the closing date . . ., that his disability on the date of the closing order was greater than the supervisor found it to be.
Loushin v. ITT Rayonier, 84 Wn. App. 113, 117-18, 924 P.2d 953 (1996) (quoting Phillips v. Dep't of Labor Indus., 49 Wn.2d 195, 197, 298 P.2d 1117 (1956)). To prove objective symptoms, the claimant is required to produce medical evidence that the objective symptoms either existed before the closing date (or within a reasonable time thereafter), or that the objective symptoms `left their record in or on the claimant's body' on or before to the closing date. Phillips, 49 Wn.2d at 197 (citing Hyde v. Dep't of Labor Indus., 46 Wn.2d 31, 34, 278 P.2d 390 (1955)).
The parties concede that the terminal dates were May 28, 1999 and April 10, 2001.
The medical testimony must establish, more probably than not, that the worsening of the condition is causally related to the industrial injury. Dennis, 109 Wn.2d at 477; Loushin, 84 Wn. App. at 117-18; Grimes v. Lakeside Indus., 78 Wn. App. 554, 561, 897 P.2d 431 (1995). But testimony indicating that the injury might have or could have caused the condition is insufficient.
Zipp v. Seattle Sch. Dist. No. 1, 36 Wn. App. 598, 601, 676 P.2d 538, review denied, 101 Wn.2d 1023 (1984). There must be some probative evidence removing causal relationship from speculation. Zipp, 36 Wn. App. at 601. Such causal connection can be established with a combination of lay and medical testimony. Loushin, 84 Wn. App. at 123 (citing Knowles v. Dep't of Labor Indus., 28 Wn.2d 970, 184 P.2d 591 (1947)).
We give special consideration to the opinions and testimony of the attending physician because he has more intimate knowledge of the conditions and treatment of his patient. Hamilton v. Dep't of Labor Indus., 111 Wn.2d 569, 572, 761 P.2d 618 (1988). An attending physician who has cared for and treated a patient over a period of time "is better qualified to give an opinion as to the patient's disability than a doctor who has seen and examined the patient once." Ruse, 138 Wn.2d at 6 (citing Spalding v. Dep't of Labor Indus., 29 Wn.2d 115, 128-29, 186 P.2d 76 (1947)).
Frost's post-injury 1993 MRI disclosed a herniated disk at C5/6 and minor defects at C3/4, C4/5, and C6/7 that required surgery. The 2000 MRI showed marked degenerative disk disease at levels C4/5 and C6/7, the levels immediately above and below Frost's 1993 laminectomy surgery.
Christiansen, Frost's treating physician, opined that the disease at the related levels was related to the 1992 industrial injury, that Frost's disability increased between the terminal dates, and that the aggravation was related to the 1992 injury.
Although Tobin, who testified on behalf of Centralia after examining Frost and reviewing his medical files, opined that Frost's condition was not causally related to his 1992 industrial injury, he could not be certain as to the cause of the aggravation.
In light of medical testimony from Frost's treating physician that established a causal relationship between Frost's aggravated condition and the 1992 industrial injury, the special consideration we give to the treating doctor's testimony, and the independent examiner's inability to identify another cause, we hold that substantial evidence does not support the trial court's finding that Frost's 1992 industrial injury did not proximately cause his present condition.
Reversed and remanded to reinstate the Board's decision.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J., QUINN-BRINTNALL, C.J., concur.