Opinion
No. 25030-0-III.
May 17, 2007.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 05-2-00794-1, Robert L. Zagelow, J., entered February 21, 2006.
Affirmed in part and reversed in part by unpublished opinion per Kulik, J., concurred in by Sweeney, C.J., and Kato, J. Pro Tem.
In 2003, Hector Garza, a Transtate Asphalt Co. (Transtate) employee, was struck in the back by a pickup. Mr. Garza filed an injury claim with the Department of Labor and Industries (DLI) and began receiving benefits. In 2004, DLI closed Mr. Garza's claim. Mr. Garza appealed this decision, and the Board of Industrial Insurance Appeals (BIIA) reversed, ordering that Mr. Garza's claim remain open for further proper and necessary treatment. Transtate appealed, and the superior court affirmed the decision of the BIIA.
On appeal here, Transtate contends the superior court erred by: (1) failing to make its own independent evaluation of the testimony; (2) finding that Dr. Michael Breland was a treating physician whose testimony was entitled to special weight; (3) finding that there was sufficient medical evidence to support the BIIA's decision; and (4) ordering Transtate to pay medical expenses when the court lacked jurisdiction to do so. This court's review is limited to whether the superior court's findings are supported by substantial evidence, and whether the findings support the superior court's conclusions. We affirm the superior court. However, because neither the BIIA nor DLI considered the reasonableness of the medical expenses incurred after July 13, 2004, we reverse that portion of the court's order, and conclude that those expenses must be considered by the DLI.
FACTS
On June 10, 2003, Mr. Garza was working on a Transtate road project when he was struck in the back by a Washington State Department of Transportation pickup. The impact of the collision caused Mr. Garza to be thrown 7 to 10 feet in the air.
One day after the injury, Mr. Garza went to St. Mary's Medical Center. Dr. Robert Waring examined Mr. Garza and ordered x-rays and an MRI. Dr. Waring also prescribed pain medication and placed Mr. Garza on light duty at his employment. Dr. Waring diagnosed a back contusion, muscle spasm, and thoracic strain.
Magnetic resonance imaging.
The x-rays showed some straightening of the normal lordotic curve and mild wedging of T12 and L1, raising a question of whether there were fractures through the transverse process of L1. When Dr. Waring saw Mr. Garza one month later, his neurologic examination was normal. Dr. Waring's diagnosis was back contusion, slowly progressing.
In June and July, Mr. Garza participated in physical therapy that had been prescribed by Dr. Waring. Mr. Garza did not believe that he received any benefit from the physical therapy. Dissatisfied with his progress under Dr. Waring's care, Mr. Garza went to see Dr. Albert Randolph in early August.
In addition to Dr. Waring's notes, Dr. Randolph reviewed Mr. Garza's x-rays and the MRI. Dr. Randolph diagnosed a lumbosacral back strain or sprain with a L5-S1 annular disc tear and a small herniation with no impingement, and an improving sprain of the left ankle. According to Dr. Randolph, Mr. Garza was two-thirds through his recovery.
Dr. Chester McLaughlin, an orthopedist, and Dr. William Stump, a neurologist, performed an independent medical examination (IME). They diagnosed a history of contusion injuries to the low back with apparent lumbosacral strain resulting from the industrial accident. They also observed generalized global pain, and subjective complaints of neck and left ankle pain, without objective evidence of injury. They concluded that Mr. Garza's condition was fixed and that no further treatment was required.
In October, Mr. Garza was seen again by Dr. Randolph, who prescribed additional physical therapy. In November, Dr. Randolph diagnosed a dramatically improved lumbosacral sprain, strain, or contusion. Dr. Randolph believed that Mr. Garza was suffering from posttraumatic myofascial syndrome.
On November 7, 2003, DLI closed Mr. Garza's claim. Dr. Randolph wrote to Transtate and DLI stating that Mr. Garza's condition was not fixed and stable. Dr. Randolph requested that Mr. Garza be referred to a physical medicine specialist.
A second IME was performed on Mr. Garza in February 2004 by Dr. Leslie Bornfleth and Dr. Walter Fife. Dr. Fife examined Mr. Garza's iliac crest and hips, but did not observe any problems. Dr. Bornfleth and Dr. Fife concluded that Mr. Garza had reached the maximum amount of medical improvement and that his condition was fixed and stable. They rated his permanent partial disability as a WAC 296-20-280 Category 1. They found no clinical evidence that Mr. Garza had posttraumatic myofascial disorder. DLI closed Mr. Garza's claim on March 29, 2004.
On September 10, 2004, Mr. Garza was examined by Dr. Michael Breland, a physical rehabilitation specialist. Dr. Breland's diagnosis was a lumbosacral contusion, traumatic myofascial syndrome, and an L5-S1 annular tear. No hip problems were mentioned in Dr. Breland's report. Dr. Breland's report concluded with a plan and recommendations for two medications, a CT scan, and physical limitations.
Computed tomography.
During the course of the additional physical therapy, Mr. Garza was treated for a sacroiliac (SI) problem. Mr. Garza complained of a problem in his hips in February 2005 and was treated by physical therapy. Mr. Garza testified that he noticed a big difference after the SI adjustment.
ANALYSIS
Superior Court's Evaluation of the Evidence
When considering the appeal of a BIIA decision, the superior court holds a de novo hearing limited to the testimony and evidence contained in the BIIA record. RCW 51.52.115. The findings and decisions of the BIIA are prima facie correct and the burden of proof is on the party challenging the BIIA decision. The party challenging the decision must support his or her challenge by a preponderance of the evidence. Ravsten v. Dep't of Labor Indus., 108 Wn.2d 143, 146, 736 P.2d 265 (1987). The superior court may substitute its own findings and decision for the BIIA decision only if the court finds "from a fair preponderance of credible evidence" that the BIIA decision is incorrect. Weatherspoon v. Dep't of Labor Indus., 55 Wn. App. 439, 440, 777 P.2d 1084 (1989).
RCW 51.52.140 provides that the appeal of a BIIA decision to the appellate court shall be treated as other civil cases. Consequently, the appellate court is limited to an inquiry as to whether the superior court's findings are supported by substantial evidence and whether the findings support the superior court's conclusions. Garrett Freightlines, Inc. v. Dep't of Labor Indus., 45 Wn. App. 335, 339-40, 725 P.2d 463 (1986).
Transtate contends that the superior court believed it had to accept the BIIA findings because the industrial appeals judge (IAJ) had the opportunity to listen to the witnesses and there appeared to be evidence to support his conclusions. To support this argument, Transtate points to the following statement by the superior court:
I understand that Dr. Fife did look at it, and apparently didn't find anything. But both the [sic] Ms. Wigmar [sic] and Dr. Berglund [sic] thought the hip was related. The finder of fact had a chance to listen to all this and that was his conclusion, and I can't say that was beyond the scope of the evidence. There was evidence there that he could believe Dr. Berglund, and he did, so I'm not going to set it aside.
Report of Proceedings at 16-17.
However, here, the superior court was merely acknowledging that the IAJ made his decision based on live testimony. The court went on to explain that there was sufficient evidence to support the IAJ's finding.
Transtate argues repeatedly that the superior court failed to independently evaluate all of the evidence in the BIIA record, thereby denying Transtate a de novo hearing. Transtate's argument is based on an erroneous belief that, in this context, the term "de novo" requires a retrial of the matter in superior court. But this view is mistaken. While RCW 51.52.115 provides for a de novo hearing, the statute also states that the findings and decisions of the BIIA are prima facie correct and that the burden of proof is on the party challenging them. Here, there is every indication that the superior court conducted a complete and proper inquiry.
Transtate next argues that the superior court failed to make adequate findings and conclusions. Transtate maintains that CR 52(a)(1) required the superior court to "find the facts specifically and state separately its conclusions of law." According to Transtate, the superior court violated the requirements of CR 52(a)(1) by failing to make any conclusions of law.
The superior court's findings of fact and order upheld the BIIA's findings and decision. The superior court's order contained conclusions of law because the order adopted the BIIA decision. In short, the superior court independently evaluated the evidence and adopted the BIIA's decision.
Treating Physician
In its oral ruling, the superior court stated that it did not need to decide whether Dr. Breland was a treating physician. However, the court later made a specific finding of fact stating:
Dr. Breland is a physician who saw Claimant Garza for the purpose of prescribing medical treatment. His opinions should be given special weight.
Clerk's Papers (CP) at 384.
In Boeing Co. v. Harker-Lott, 93 Wn. App. 181, 188 n. 12, 968 P.2d 14 (1998), the court concluded that a physician's testimony should be given special weight "if he or she attended to the patient for a considerable period of time for the purpose of treatment." Moreover, the attending physician who cared for 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." Spalding v. Dep't of Labor Indus., 29 Wn.2d 115, 129, 186 P.2d 76 (1947).
Transtate maintains that Dr. Breland was not Mr. Garza's treating physician because he did not prescribe medicine and because he saw Mr. Garza on only one occasion. Transtate asserts that Dr. Breland is merely an ordinary medical expert, not a treating physician whose testimony is given special weight.
Dr. Randolph referred Mr. Garza to Dr. Breland, a board-certified physical medicine rehabilitation specialist. Dr. Breland saw Mr. Garza on one occasion and made treatment recommendations. As the Director of Turning Point Rehabilitation Center at St. Mary's Medical Center, Dr. Breland supervised all of the physical therapy, including the therapy received by Mr. Garza. Given the nature of Dr. Breland's specialty and Mr. Garza's injuries, Dr. Breland was acting as a treating physician, but in a limited capacity.
Even if we assume that Dr. Breland was a nontreating physician, the court was entitled to draw distinctions between Dr. Breland and the IME experts. Dr. Breland's purpose was to make treatment recommendations concerning Mr. Garza to the physical therapy staff. Moreover, the superior court's decision was not dependent on whether it considered Dr. Breland a treating or nontreating physician.
Burden of Proof
This court reviews the decision of the superior court for substantial evidence. Substantial evidence is the amount of evidence sufficient to persuade a fair-minded person of the truth of the declared premise. Garrett Freightlines, 45 Wn. App. at 340 (quoting Nichols Hills Bank v. McCool, 104 Wn.2d 78, 82, 701 P.2d 1114 (1985)). The findings and decision of the BIIA are prima facie correct and the burden of proof is on Transtate to show that the BIIA's decision is incorrect. See RCW 51.52.115.
(1) Medical evidence of the disability. According to Transtate, physical therapy records indicate that Mr. Garza responded well to treatment for an SI dysfunction, but nothing in the record shows a hip condition or a relationship between the hip condition and the industrial accident.
Transtate contends that Mr. Garza's hip problem was diagnosed by a physical therapist and there is no competent medical testimony establishing that Mr. Garza had a hip condition. Transtate points out that Dr. Waring did not diagnose a hip condition, and when Dr. McLaughlin and Dr. Stump performed an IME examination, they concluded that Mr. Garza's condition was fixed and stable. Transtate also points out that Dr. Randolph did not immediately diagnose a hip condition, and Dr. Fife, who examined Mr. Garza's iliac crest and hips, did not observe any problems.
The superior court based its findings on the evidence presented. Dr. Breland testified that Mr. Garza had a crush injury to his back and that his back would never be "like the original equipment." CP at 155. Mr. Garza testified that his pain was at its worst when he saw Dr. Breland but that he noticed a big change after the sacroiliac adjustment. Sara Lafferty, Mr. Garza's partner, noticed a dramatic change after Mr. Garza had the sacroiliac adjustment.
Based on his examination of Mr. Garza and a review of the medical records, Dr. Breland concluded that Mr. Garza's dramatic response to the sacroiliac treatment was proof of the diagnosis. He explained: "Do a specific treatment, you get better, that shows that he probably had that problem." CP at 190. Dr. Breland explained that when Mr. Garza had a flare-up that was relieved by a sacroiliac treatment, Jeannine Stadelman, the physical therapist, told Dr. Breland that she had found the problem and corrected it. Dr. Breland testified that physical therapists sometimes found injuries that he missed in a physical examination. Dr. Breland testified that SI problems are a special interest with Ms. Stadelman and that he would believe Ms. Stadelman if she told him that she had found an injury that he had missed. Hence, Dr. Breland's opinion regarding the sacroiliac problem is based on his professional experience with Ms. Stadelman, his review of the treatment notes, and his knowledge of the mechanism of the injury.
Transtate also contends that Dr. Breland's diagnosis that Mr. Garza was orthopedically and neurologically normal repudiates his later testimony about the possible connection between the hip condition and the industrial injury. However, this court's review is limited to whether there is substantial evidence to support the superior court's finding. This court is not the fact finder and does not make determinations related to credibility.
(2) Proximate cause. In an industrial injury claim, medical testimony must establish that it is more probable than not that the industrial injury caused the subsequent disability. Sacred Heart Med. Ctr. v. Carrado, 92 Wn.2d 631, 636, 600 P.2d 1015 (1979). However, "incantatory words" are not required to establish the necessary causal relation between the industrial injury and the need for additional treatment. Zip v. Seattle Sch. Dist. No. 1, 36 Wn. App. 598, 605, 676 P.2d 538 (1984). A challenge to the sufficiency of the evidence will succeed only when the claimant's medical witness fails to provide anything objective upon which the fact finder could reasonably find the necessary causation. Id.
Transtate asserts that Mr. Garza failed to prove that the sacroiliac injury was related to the industrial accident. But Transtate misstates the question on appeal. The question this court must address is whether, assuming the BIIA's findings and decision are prima facie correct, Transtate has met its burden of demonstrating that the evidence was insufficient to show a proximate cause relationship between the hip condition and the industrial accident.
Dr. Breland described the injury as a "crushing injury" that would cause permanent injury. CP at 153. Significantly, Mr. Garza had no history of prior back problems and Dr. Breland found Mr. Garza to be honest and credible. Also, when discussing how SI injuries are sometimes discovered in physical therapy, Dr. Breland was asked: "And would you find that consistent with the mechanism of injury." CP at 163.
To which Dr. Breland responded, "Correct." CP at 163. Transtate did not present any evidence that Mr. Garza had suffered or sustained another injury which could be viewed as an intervening superseding proximate cause of the hip injury.
Substantial evidence supports the superior court's finding of a causal relationship between Mr. Garza's hip injury and the industrial accident.
Medical Expenses after Claim Closure
The superior court exercises appellate jurisdiction when reviewing a decision of the BIIA. Shufeldt v. Dep't Labor Indus., 57 Wn.2d 758, 760, 359 P.2d 495 (1961). The superior court has no original jurisdiction and may consider only those matters decided by the BIIA. Id.
The superior court ordered Transtate to pay specified medical expenses, but these expenses were incurred after the closure of Mr. Garza's claim. The BIIA did not make any findings with respect to medical expenses incurred after July 13, 2004. The BIIA's conclusion of law 4, stated:
The July 13, 2004, Department order is incorrect and is reversed. This matter is remanded to the Department with directions to issue an order that declares that Mr. Garza's claim remains open for further proper and necessary medical treatment and for such other and further action as the law and the facts dictate.
CP at 378.
Transtate contends the superior court lacked the authority to order Transtate to pay the medical expenses incurred by Mr. Garza after the closure of his claim.
Mr. Garza asserts that the payment of medical expenses already incurred for treatment of the hip problem is implicit in the superior court's finding of fact 5 which reads:
The medical conditions proximately caused by Mr. Garza's June 10, 2003, industrial injury, were not fixed and stable as of July 13, 2004, and the conditions required further proper and necessary medical treatment.
CP at 377.
But this finding does not make a determination as to which expenses were reasonable and necessary to treat Mr. Garza's hip condition. And these expenses were not considered by the DLI and the BIIA. Because these issues were not resolved by the BIIA, they cannot be considered by the superior court or by this court on appeal. An appellate court should not consider a question that was not reached by the BIIA. See Ruse v. Dep't of Labor Indus., 138 Wn.2d 1, 8, 977 P.2d 570 (1999). Given our decision that Mr. Garza's claim should remain open, the medical expenses incurred after July 13, 2004, must now be considered by DLI.
In summary, we affirm the superior court's decision. We conclude that medical expenses incurred after July 13, 2004, must be considered by DLI. We award Mr. Garza his attorney fees and costs pursuant to RCW 51.52.130.
A majority of the panel has determined 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.
Kulik, J.
WE CONCUR:
Sweeney, C.J.
Kato, J. Pro Tem.