Sierra Pacific Industries, Inc., V. Harry A. Olson & Washington Dept. L & I ( 2022 )

Filed
Washington State
Court of Appeals
Division Two
March 1, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
SIERRA PACIFIC INDUSTRIES, INC., No. 54724-4-II
Appellant,
v.
UNPUBLISHED OPINION
HARRY A. OLSON and the WASHINGTON
STATE DEPARTMENT OF LABOR AND
INDUSTRIES,
Respondents.
PRICE, J. — Harry Olson made a workers’ compensation claim based on injuries to his neck
that occurred when he was participating in a welding training program. He received benefits and
the claim was closed in 2014. Three years later, he sought to reopen the claim alleging his neck
condition had objectively worsened. The Board of Industrial Insurance Appeals allowed the
reopening of the claim, finding that the condition that was proximately caused by the workplace
injury had objectively worsened since Olson’s claim was closed. After a bench trial, the superior
court affirmed the Board’s findings of fact and conclusions of law.
Sierra Pacific Industries, Inc. appeals the superior court’s ruling affirming the Board’s
order. Sierra Pacific argues that Olson presented insufficient medical testimony to support the
findings entered by the superior court. Because substantial evidence supports the superior court’s
findings, we affirm the superior court’s decision.
No. 54724-4-II
FACTS
I. BACKGROUND
In 2004, Harry Olson sustained a left knee injury while working for Sierra Pacific
Industries, Inc. Due to this incident, Olson participated in a vocational training program for
welding, and in April 2007 he sustained further injuries to his neck. Olson filed a workers’
compensation claim that included all of his injuries with the Department of Labor and Industries.
The Department accepted the claim.
On October 22, 2014, the Department closed Olson’s claim. The Department rated Olson
a “Category 3 cervical permanent partial disability.” Clerk’s Papers (CP) at 8, 372. Neither party
appealed this order.
In June 2017, Olson applied to reopen his claim because his cervical condition was
worsening. Olson wrote on the application that he suffered from pain and numbness. Dr. Robert
Lang, Olson’s treating physician, saw Olson in May 2017 and determined that his condition did in
fact worsen, based on measurable symptoms. In Olson’s June 8, 2017, application for reopening,
an advanced registered nurse practitioner at Olson’s doctor’s office, with the review and signature
of Dr. Lang, filled out the medical form. They wrote the following as to support objective
worsening of Olson’s injury:
Diminished sensation temperature right middle finger. Reduction in circumference
of upper arm from 29.5 cm right 29 cm left 1/14/13 to 23 cm left and 23 cm right
5/23/17.
CP at 161. In the application, Dr. Lang provided further evidence for a medical worsening,
including symptoms of “muscle tension in the back of the neck, stiffness, numbness in the left and
right hands” and physical limitations preventing the patient from working as “limited cervical
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flexion, limited shoulder abduction and flexion bilaterally.” Id. Dr. Lang confirmed in a causation
statement that Olson’s symptoms were the result of the covered injury.
II. ADMINISTRATIVE DECISION
On September 26, 2017, the Department denied Olson’s application for reopening his
claim. Olson appealed the Department’s order, and the parties appeared at a hearing before an
industrial appeals judge.
The parties stipulated that the terminal dates between which Olson must show an objective
worsening of his neck condition were October 22, 2014, and September 26, 2017. The judge heard
testimony from Olson and his sister Corinne Tobeck and considered the perpetuation deposition
testimony of Dr. Lang and Sierra Pacific’s expert witness, Dr. D. Casey Jones.
A. TESTIMONY OF OLSON AND TOBECK
At the hearing, Olson argued that his cervical condition had resulted from the April 2007
welding incident, and it worsened between October 22, 2014, and September 26, 2017. He testified
that the problems with his neck, arms, and hands had progressively worsened from 2014 to 2017.
He wanted to reopen the claim because his neck hurt, and he suffered from numbness “a lot more
often” in his arm and numbness in his hands. CP at 188. He had difficulty standing from his bed,
and the amount he could lift had decreased since 2014. Tobeck corroborated this testimony,
explaining that in 2013, Olson had gardened, mowed the lawn, and cut wood, but he no longer
engaged in those activities. Olson acknowledged that he had been in a number of car accidents
during the relevant time period, however, he denied that he sustained any injuries as a result.
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B. PERPETUATION DEPOSITION TESTIMONY OF DR. ROBERT LANG
Dr. Lang began treating Olson in 2010 before the closure of Olson’s claim, but did not see
him between May 2013 and May 2017. In his July 2018 deposition, Lang opined that Olson
experienced an objective worsening of his medical condition after October 22, 2014, based on his
assessment of Olson and electrodiagnostic and radiographic findings. Dr. Lang concluded that
Olson’s objective medical worsening of his cervical condition between October 2014 and
September 2017 was causally related to Olson’s prior workplace injury, on a more-probable-than-
not basis:
Q: Is it your opinion that between October 22, 2014, and September 26, 2017, there
was an objective medical worsening causally related to the industrial injury?
A: Yes.
CP 255.
During the deposition, Dr. Lang was shown a copy of the application for reopening. In
that form, Dr. Lang stated that Olson’s symptoms were the result of the covered injury and
provided evidence for a medical worsening. Dr. Lang confirmed the statements he provided for
Olson’s June 2017 application for reopening were accurate.
Dr. Lang reviewed electrodiagnostic studies conducted by Dr. Mohammed Saeed related
to Olson’s condition to determine that the C7 radiculopathy1 had objectively worsened between
2013 and 2017. In 2013, Dr. Saeed made findings “compatible with significant long-standing right
1
“Radiculopathy” is a “[d]isorder of the spinal nerve roots.” STEDMAN’S MEDICAL DICTIONARY
1622 (28th ed. 2006).
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C6 and C72 radiculopathy” with more involvement of the C7 nerve root. CP at 243. In a later
2017 electrodiagnostic study, Saeed described longstanding “[m]oderately severe bilateral C7
radiculopathy.” CP at 244 (internal quotation marks omitted). Dr. Lang testified that these studies
showed that the C7 radiculopathy had worsened electrodiagnostically.
Next, Dr. Lang testified regarding radiological findings from a cervical MRI conducted in
2017 and compared those findings to MRIs in 2012 and 2013. The findings showed changes at
multiple levels, including a worsening of stenosis (narrowing). Dr. Lang testified in 2017 there
was “mild to moderate central canal narrowing at C3-C4, C5-C6, and C6-C7. Neuroforaminal
narrowing3 is moderate to severe C5-C6 on the right and C7-T1 on the left.” CP at 245. From the
radiological findings, Dr. Lang emphasized the C6-C7 level and the description of a new disc
protrusion in 2017 that was absent from the earlier studies. He also testified that the recent 2017
study described a “mild to moderate” stenosis, which was worse than what appeared the March
2012 MRI findings. CP at 248. Dr. Lang concluded that “there has been objective worsening
according to the radiographic findings.” CP at 249.
In 2017, Dr. Lang recommended surgery at the C5-C6 and C6-C7 levels which had
demonstrably worsened.
2
“Cervical vertebrae (C1-C7)” refer to “the seven segments of the vertebral column located in
the neck. STEDMAN’S MEDICAL DICTIONARY 2118 (28th ed. 2006).
3
“Neuro” refers to “nerve, nerve tissue, the nervous system.” STEDMAN’S MEDICAL DICTIONARY
1307 (28th ed. 2006). “Foramina” the plural form of “foramen” refers to “[a]n aperture or
perforation through a bone or a membranous structure.” STEDMAN’S MEDICAL DICTIONARY 756-
57 (28th ed. 2006). Dr. Jones explained that “[t]he neuroforaminal are the little holes in the bony
spinal canal through which the nerve roots exit.” CP at 327.
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On cross-examination, Dr. Lang admitted that Olson suffered from extensive degenerative
pathology in his cervical spine. Dr. Lang explained that smoking can contribute to degenerative
changes and he knew that Olson was a smoker, however, he stated that he did not believe the neck
condition was “simply a result of aging and congenital changes.” CP at 262. He stated that the
disc protrusion that Olson has “is generally associated with injury.” CP at 263.
Dr. Lang was asked about a statement he made in his prior deposition regarding whether
he had stated that the C6-C7 findings were the result of natural degeneration:
Q: Do you recall testifying last month that the more recent problems or progression
at C6-7 are likely due to a natural progression of degenerative pathology?
A: I would have to see that. . . . All right. Yeah. I say “At C6-C7 but the C5-C6, I
think, has been implicated all along.”
CP at 287-88. He also acknowledged that Dr. Saeed determined that the C7 findings had not
worsened, pursuant to electrodiagnostic studies, and that he testified just the month before that he
would defer to Saeed with regard to worsening:
Q: And do you recall stating that you would defer to [Dr. Saeed] as to whether his
studies showed a worsening?
A: Yes.
CP at 287.
Relevant to the C5 level, Dr. Lang testified that pursuant to electrodiagnostic studies made
in 2017, findings indicated that C5 nerve roots appeared to be functional. Dr. Lang interpreted
this as meaning that changes related to C5 radiculopathy on either side had resolved. Dr. Lang
admitted stating in prior testimony that C5-C6 findings had improved:
Q: [Do] you recall stating . . . . that the C5-6 findings were improved in August of
2017?
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No. 54724-4-II
A: Yes.
CP at 287.
Finally, Dr. Lang acknowledged that Olson reported having moved a wood stove three
years before and feeling a pop in his back, and that this incident “could be consistent with any
worsening of symptoms [Olson] might have reported after that.” CP at 282.
C. DEPOSITION TESTIMONY OF DR. D. CASEY JONES
Dr. Jones performed independent medical examinations of Olson on behalf of Sierra
Pacific in February 2006, February 2008, April 2013, December 2013, and August 2017. As part
of the examinations, he reviewed treatment records from Dr. Lang and others, including MRI scan
reports and reports from electrodiagnostic studies. Dr. Jones determined that Olson suffered no
objective worsening of his cervical condition since his previous examination in December 2013;
rather, Olson’s neck motion was slightly improved. Dr. Jones also testified that the August 2017
electrodiagnostic study was consistent with earlier studies and showed that “[s]ome things were a
little bit better; some things were a little bit worse.” CP at 354. Dr. Jones testified:
Frankly, I don’t think any of his cervical changes or his electrodiagnostic
abnormalities relate[] to the cervical spine. I don’t think any of them are related to
his welding activities while he was studying welding.
CP at 355.
III. INDUSTRIAL APPEALS JUDGE DECISION
In a November 13, 2018, order the industrial appeals judge (IAJ) entered a proposed order
and decision, which reversed the Department’s order denying Olson’s application. The IAJ
remanded for the reopening of Olson’s claim. The IAJ relied on the testimony of Dr. Lang, writing
in his order:
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No. 54724-4-II
Olson, through the testimony of Dr. Lang, has shown that he has suffered a
worsening of his condition in his neck by both radiographic and electrodiagnostic
studies. Taking the record as a whole, this worsening took place between October
22, 2014 and September 26, 2017.
CP at 49. The IAJ also stated that “[t]his case illustrates the well-worn principal that reasonable
medical minds can differ. This case is razor close.” CP at 49. The IAJ entered the following
findings of fact:
3. On October 22, 2014, Harry Olson’s objective findings proximately caused by
the industrial injury were reversal of the cervical curve with retrolisthesis, disc
narrowing, a broad bulge at C5-C6 and C6-C7, narrowing of the openings through
which the nerve roots pass at both C4-C5, C5-C6 and C6-C7, and mild central canal
stenosis present at C6-C7 and to a lesser extent at C5-C6. A February 23, 2012
electrodiagnostic study showed that Mr. Olson had long standing left C5, C6, and
C7 changes; C5 had improved, but it was worse at C7, as well a[s] moderately
severe ulnar neuropathy.
4. On September 26, 2017, Harry Olson’s objective findings proximately caused
by the industrial injury were disc narrowing, a broad bulge at C5-C6 and C6-C7,
narrowing of the openings through which the nerve roots pass at C4-C5, C5-C6,
and C6-C7, and mild to moderate central canal stenosis present at C6-C7, and to a
lesser extent at C5-C6. The finding in an August 21, 2017 electrodiagnostic study
was moderately severe bilateral C7 radiculopathy.
5. Harry Olson’s Nick [sic] degenerative disc disease and central canal stenosis
and bilateral radiculopathy(s) proximately caused by the industrial injury
objectively worsened between October 22, 2014 and September 26, 2017.
CP at 49-50.
Sierra Pacific petitioned for review from the Board. Sierra Pacific claimed that Olson had
not met “his burden of proving that a cervical condition, causally related to the 2007 training
program welding activities, objectively worsened between October 22, 2014 and September 26,
2017[.]” CP at 15. On February 4, 2019, the Board granted review.
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IV. BOARD DECISION
The Board upheld the decision of the industrial appeals judge. In its order, the Board
“granted review to clarify Findings of Fact 3 and 4 to fully reflect Mr. Olson’s objective findings,
to remove a scrivener’s error from Finding of Fact 5, and to clarify the conditions listed in Finding
of Fact 5.” CP at 8. The Board found that Olson’s condition worsened as a result of his industrial
injury and entered the following relevant findings:
3. On October 22, 2014 [the date Olson’s claim was closed], Mr. Olson’s objective
findings proximately caused by the industrial injury were arm circumference
measurements of 29.5 cm on the right and 29 cm on the left; electrodiagnostic
findings of improved longstanding C5-6 radiculopathy on the left as compared to
previous studies and worsened C6-7 radiculopathy on the right as compared to
previous studies; MRI findings of reversal of the cervical curve with retrolisthesis;
disc narrowing; a broad bulge at C5 through C7; narrowing of the openings through
which the nerve roots pass at C4 through C7; and mild central canal stenosis present
at C6-C7 and, to a lesser extent, at C5-6.
4. On September 26, 2017, Mr. Olson’s objective findings proximately caused by
the industrial injury were diminished temperature sensation in the right middle
finger; arm circumference measurements of 23 cm on the right and 23 cm on the
left; electrodiagnostic findings of moderately severe bilateral C7 radiculopathy;
MRI findings of degenerative changes from C3 through T1; moderate central canal
narrowing from C3 to C6; moderate to severe neuroforaminal narrowing at C5-6
on the right and C7-T1 on the left; a moderate circumferential bulging annulus at
C5-7 with a broad-based central disc protrusion; and narrowing of the openings
through which the nerve roots pass at C4-7.
5. Mr. Olson’s cervical degenerative disc disease, central canal stenosis, and
radiculopathy proximately caused by the industrial injury objectively worsened
between October 22, 2014, and September 26, 2017.
CP at 9.
V. SUPERIOR COURT DECISION
Sierra Pacific appealed the Board’s order to the superior court. The superior court held a
bench trial where it considered the entire administrative record and heard argument from Sierra
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Pacific and Olson. Verbatim Report of Proceedings (VRP) 3-28. After reviewing the entire record,
the superior court adopted the Board’s findings and conclusions. CP 492-94.
The superior court affirmed all of the Board’s findings and found:
1. The Court independently reviewed and considered the full and complete record
provided from the Board of Industrial Insurance Appeals.
2. The preponderance of evidence does not establish that any of the Board’s
findings of fact are incorrect.
CP at 493.
Therefore, the superior court affirmed the Board’s order concluding:
2. The Findings of Fact of the Board of Industrial Insurance Appeals #1-5 are
affirmed.
3. Between October 22, 2014, and September 26, 2017, Defendant Olson’s cervical
condition proximately caused by the industrial injury objectively worsened within
the meaning of RCW 51.32.160.
4. The Board of Industrial Insurance Appeals’ Order, dated February 19, 2019,
reopening Defendant Olson's claim is affirmed.
5. Judgment should be entered in favor of [Olson] and against [Sierra Pacific], [ ]
Olson’s claim should be remanded to the Washington Department of Labor and
Industries to provide benefits, and such other and further relief as allowed by law.
CP at 493.
Sierra Pacific appeals.
ANALYSIS
Sierra Pacific challenges the superior court’s decision to affirm the Board’s determination
that the April 2007 welding activities proximately caused a cervical condition and associated
objective findings that worsened between October 2014 and September 2017. Specifically, Sierra
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No. 54724-4-II
Pacific contends that Dr. Lang’s medical testimony fails to make the required showing to support
the superior court’s decision.
I. LEGAL PRINCIPLES
Under the Industrial Insurance Act (IIA)4, a worker may file an application with the
Department of Labor and Industries to reopen a workers’ compensation claim for further benefits
provided he or she shows an aggravation of his or her disability. RCW 51.32.160(1)(a); Eastwood
v. Dep’t of Labor & Indus., 152 Wn. App. 652, 654, 656, 219 P.3d 711 (2009). In order to show
an aggravation of the injury proximately caused by the industrial incident, Olson must initially
establish the following elements:
(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) The 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.
Id. at 657-58 (internal footnote omitted).
Medical testimony is testimony provided by medical experts. Id. at 658. The “[m]edical
testimony must establish that it is more probable than not that the industrial injury caused the
subsequent disability.” Zipp v. Seattle Sch. Dist. No. 1, 36 Wn. App. 598, 601, 676 P.2d 538(1984). “Testimony that goes no further than to indicate that the injury might have caused the
4
Title 51 RCW.
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No. 54724-4-II
condition is insufficient; there must be some evidence of probative value that removes the question
of causal relation from the field of speculation and surmise.” Id. at 601. The medical testimony
must be based on some objective evidence. Moses v. Dep’t of Labor & Indus., 44 Wn.2d 511, 517
(1954).
On appeal to the superior court, “the findings and decision of the [B]oard shall be prima
facie correct and the burden of proof shall be upon the party attacking the same.” RCW 51.52.115.
The superior court may substitute its own findings for those of the Board only if it determines that
the Board’s findings and decision are incorrect by a preponderance of the evidence. Gorre v. City
of Tacoma, 184 Wn.2d 30, 36, 357 P.3d 625 (2015). A party can challenge the Board’s findings
by demonstrating “ ‘from a fair preponderance of credible evidence’, that the Board’s findings and
decision are incorrect.” Harrison Mem’l Hosp. v. Gagnon, 110 Wn. App. 475, 482, 40 P.3d 1221(2002) (internal quotation marks omitted) (quoting McClelland v. ITT Rayonier, Inc., 65 Wn. App.
386, 390, 828 P.2d 1138 (1992)). The burden of persuasion is on the appellant. RCW 51.52.115;
Harrison Mem'l Hosp., 110 Wn. App. at 484. The superior court applies de novo review to an
appeal from the Board based on the administrative record developed before the Board. RCW
51.52.115; Eastwood, 152 Wn. App. at 657.
On appeal to the appellate court, the statutory scheme results in a different standard of
review than is typical for appeals of administrative decisions. Hendrickson v. Dep't of Labor &
Indus., 2 Wn. App. 2d 343, 351, 409 P.3d 1162 (2018). Under the IIA, we review whether
substantial evidence supports the superior court’s findings of fact and review de novo whether the
findings support the conclusions of law. Id. Substantial evidence exists if there is evidence
sufficient to persuade a fair-minded, rational person of the truth of the matter asserted. Am.
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No. 54724-4-II
Nursery Prods., Inc. v. Indian Wells Orchards, 115 Wn.2d 217, 222, 797 P.2d 477 (1990). When
reviewing the Board’s findings for substantial evidence, we review the evidence in the light most
favorable to the prevailing party below. Harrison Mem’l Hosp., 110 Wn. App. at 485. We do not
reweigh the evidence, the credibility of the witnesses, or again apply the burden of persuasion. Id.
at 485-86; Zavala v. Twin City Foods, 185 Wn. App. 838, 859, 343 P.3d 761 (2015). The burden
of proof is also on the appellant to prove that the decision below was incorrect. RCW 51.52.115.
II. CAUSAL CONNECTION BETWEEN APRIL 2007 WELDING ACTIVITIES AND OLSON’S CERVICAL
CONDITION AND WORSENING OF THAT CONDITION.
Sierra Pacific argues that the superior court’s findings that Olson’s cervical condition was
related to the April 2007 welding injury and that this injury worsened between October 2014 and
September 2017 are not supported by substantial evidence. More specifically, Sierra Pacific
argues that there was not sufficient medical testimony and other evidence to support the Board’s
findings and conclusions connecting the objective findings to the 2007 industrial incident.
Sierra Pacific makes two general arguments. First, Sierra Pacific argues Dr. Lang provided
contradictory testimony on cross-examination during two depositions that shows an absence of
connection between the incident and some of the cervical conditions. Second, Sierra Pacific
contends that certain objective symptoms referenced in the Board’s finding of facts numbers 4 and
5 were not specifically relied on by Dr. Lang to support an aggravation of Olson’s injury,
insufficient medical testimony supports these findings, and other causes, unrelated to the industrial
incident, explain Olson’s condition.
Sierra Pacific points to extensive evidence in the record to illustrate the complexity of the
causation issues at the center of this case, including Olson’s involvement in multiple car accidents,
an injury from moving a wooden stove, a congenitally small spinal canal, and a history of smoking
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No. 54724-4-II
and argues that these other potential causes have not been sufficiently ruled out as a cause of
Olson’s condition.
Viewing the record as a whole, Sierra Pacific has not met its burden of proof. Dr. Lang
clearly testified that a causal connection existed between the April 2007 welding incident and a
worsening of Olson’s cervical condition. He also confirmed the accuracy of the causal statement
he signed as part of Olson’s reopening application. This testimony, while general, represents
sufficient medical testimony to connect Olson’s objective worsening to the industrial incident.
Sierra Pacific arguments to the contrary are unpersuasive considering the burden it must carry.
First, regarding Dr. Lang’s cross-examination, Sierra Pacific does not show how Dr.
Lang’s specific answers during his depositions convincingly impeach his general opinion of
medical causation in this case. Following his general testimony establishing causation, Sierra
Pacific asked Dr. Lang a series of questions about deposition testimony he provided to Sierra
Pacific the previous month. For example, Dr. Lang was asked whether he remembered previously
testifying that C6-C7 problems were “likely due to a natural progression of degenerative
pathology” and he responded, “Yeah, I [said], ‘At C6-C7 but the C5-C6, I think, has been
implicated all along.’ ” CP at 287-88. When asked if he previously testified that he was “relating
C5-C6, but saying C6-C7 was unrelated,” Dr. Lang said “Yes. That’s what I stated.” CP at 288.
Appellants argue that these statements during deposition constitute a concession by Dr. Lang that
Olson’s C6-7 pathology “is not related to the welding activities.” Br. of Appellant at 23 (emphasis
omitted). However, the deposition testimony falls short of a direct contradiction on this point.
Rather than asking Dr. Lang to explain the differences in this previous testimony, Sierra Pacific
chose to move to other topics in the deposition, thereby failing to obtain clarification that his
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No. 54724-4-II
general and more recent statement of causation was untrue.5 While portions of Dr. Lang’s
testimony may be less than clear, Sierra Pacific overstates the consequences under a substantial
evidence standard.
Second, with respect to Sierra Pacific’s assertions of other potential causes for Olson’s
conditions and an absence of detail in the medical testimony to support the Board’s findings, we
note that the Board made their determinations based on the record as a whole, taking into account
Olson’s testimony, Tobeck’s testimony, Dr. Lang’s findings, and Dr. Jones’s findings. Taking a
similarly broad view of the evidence, we agree with the Board and the superior court that Dr.
Lang’s general statements combined with all of the other testimony and evidence sufficiently
indicated that the objective findings indicated a worsening and were related to the workplace
injury.
In the end, we review the evidence in the light most favorable to Olson, the party that
prevailed below. Harrison Mem’l Hosp., 110 Wn. App. at 485. Looking at the record as a whole
and in light of our standard of review, Sierra Pacific fails to overcome Dr. Lang’s findings that a
sufficient causal connection existed to support the superior court’s conclusions. As acknowledged
by the superior court, this is a close call. While Dr. Lang’s testimony is unclear at times, we defer
credibility assessments to the trier of fact. Hendrickson, 2 Wn. App. 2d at 351–52. Appellate
courts are not well-suited to determine the credibility of the witnesses. Hendrickson, 2 Wn. App.
5
Also on cross-examination, Dr. Lang acknowledged that Dr. Saeed had concluded that C7
findings had not worsened and that Dr. Lang had previously said that he would defer to Dr. Saeed.
Like Dr. Lang’s answers on cross examination about the C6-C7, Sierra Pacific failed to ask follow
up questions leaving, again, the plausible conclusion that Dr. Lang’s testimony had simply
changed from his earlier deposition. Once again, this testimony falls short of a retraction of Dr.
Lang’s assertion that generally a causal connection existed between the April 2007 welding
incident and a worsening of Olson’s cervical condition.
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No. 54724-4-II
2d at 351-52. Ultimately, the Board had the power to judge the credibility of the witnesses.
Rosales v. Dep’t of Labor & Indus., 40 Wn. App. 712, 715,700 P.2d 748 (1985). Although Dr.
Lang’s statements on cross-examination may arguably go to the weight to be given to his findings,
the Board was entitled to evaluate this weight and Dr. Lang’s credibility as a whole and to find, as
it did, that it was sufficient for its conclusions—specifically, that there had been an objective
worsening between October 22, 2014, and September 26, 2017, and that it was casually related to
the industrial injury. We review this case for substantial evidence in the light most favorable to
Olson, not to substitute our judgment for the superior court or the Board. Sierra Pacific has not
met its burden under this standard.
Because there is substantial evidence supporting the Board’s findings, we affirm the
superior court.
ATTORNEY FEES
Olson requests attorney fees pursuant to RAP 18.1 and RCW 51.52.130. RAP 18.1(a)
permits the recovery of reasonable attorney fees or expenses when recovery of such fees is
permitted by applicable law. Pursuant to RCW 51.52.130(1):
[I]n cases where a party other than the worker or beneficiary is the appealing party
and the worker’s or beneficiary’s right to relief is sustained, a reasonable fee for the
services of the worker’s or beneficiary’s attorney shall be fixed by the court.
Because we affirm the superior court’s holding, Olson is entitled to his attorney fees.
CONCLUSION
In viewing the record as a whole in a light most favorable to the party prevailing below,
we determine Sierra Pacific has not met its burden in proving that the substantial evidence does
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No. 54724-4-II
not support the superior court’s findings that Olson suffered a worsening of his cervical condition
attributable to the April 2007 welding activities. We affirm the superior court’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 in accordance with RCW 2.06.040,
it is so ordered.
PRICE, J.
We concur:
WORSWICK, P.J.
VELJACIC, J.
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