Kevin J. Luchi v. Southwest Airlines ( 2018 )

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON r -.1
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SOUTHWEST AIRLINES, rt. r
No. 77301-1-1
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KEVIN J. LUCHI, UNPUBLISHED OPINION
Appellant. FILED: July 23, 2018
LEACH, J. — Kevin Luchi appeals the trial court's reversal of the decision of
the Board of Industrial Insurance Appeals (Board). The Board found that Luchi's
2011 industrial injury was a proximate cause of his later injury in 2014. Because
our review of the record leaves this court with the definite and firm conviction that
the trial court made a factual mistake about a proximate cause of Luchi's later
injury, we reverse and remand.
BACKGROUND
In February 2011, Luchi suffered injuries at the L4-5 and L5-S1 levels of his
vertebrae while working for Southwest Airlines (SW). SW agrees that these
injuries resulted in disc herniations at these levels. Luchi filed a workers'
compensation claim. He had surgery to address these injuries and was later
diagnosed with right leg radiculopathy due to scar tissue from this surgery. Luchi
continued to experience pain in his lower back, pain and weakness in his right
No. 77301-1-I / 2
lower extremity, and tripping and falling. In April 2014, as Luchi was entering the
post office, his right foot slipped and he jarred his leg but did not fall. A subsequent
MRI (magnetic resonance imaging) showed a disc herniation at the L3-4 level.
In March 2015,the Department of Labor and Industries affirmed its January
2015 order segregating Luchi's L3-4 disc herniation as unrelated to his February
2011 industrial injury. Luchi appealed to the Board. It reversed, holding that
Luchi's industrial injury and its consequences were a proximate cause of his later
injury. SW appealed to the King County Superior Court, which reversed the
Board's decision and affirmed the Department of Labor and Industries' order. The
trial courtfound,"Mr. Luchi's incident of April 15,2014, was not proximately caused
by his February 28, 2011, industrial injury, and his new right herniated disc at the
L3-4 level was not proximately caused or aggravated by the industrial injury or its
sequelae." Luchi appeals.
STANDARD OF REVIEW
On review, the superior court accepts the Board's decision as prima facie
correct and the burden of proof is on the challenger.1 It reviews the Board's
decision de novo and "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 decision were incorrect."2
1 Dep't of Labor & Indus. v. Shirley, 171 Wash. App. 870, 878, 288 P.3d 390
(2012).
2 Shirley, 171 Wn.App. at 878(quoting Ruse v. Dep't of Labor & Indus., 138
Wash. 2d 1, 5,977 P.2d 570(1999)).
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We use the clearly erroneous standard to review the trial court's findings of
fact.3 "A finding offact is clearly erroneous when, although there is some evidence
to support it, review of all of the evidence leads to a 'definite and firm conviction
that a mistake has been committed."4 An appellate court reviews de novo whether
the trial court's findings support the challenged conclusions of law.5 We base our
review on the evidence presented to the Board.6
ANALYSIS
Luchi makes two claims. First, he claims that insufficient evidence supports
that his slip, and not his industrial injury or its consequences, caused his L3-4 disc
herniation. We reject this claim because SW's expert medical testimony provides
substantial evidence supporting the trial court's finding that his slip caused his new
disc herniation.
Second, he claims that his right leg radiculopathy resulting from his
Industrial injury caused him to slip and jar his leg at the post office. We agree.
Luchi's treatment providers opined that the consequences of Luchi's industrial
injury caused him to slip and jar his leg; SW's experts did not address at all whether
the radiculopathy caused weakness that in turn caused Luchi to slip and herniate
his L3-4 disc. SW claims that it is equally plausible that Luchi slipped because of
3 See Schrwers v. Coulee Cmtv. Hosp., 138 Wn. App. 648,654, 158
P.3d 113(2007); see also Wenatchee Sportsmen Ass'n v. Chelan County, 141
Wash. 2d 169, 176,4 P.3d 123(2000).
4 Schrvvers, 138 Wash. App. at 654 (quoting Wenatchee Sportsmen Ass'n,
141 Wash. 2d at 176).
5 Shirley, 171 Wash. App. at 878.
6 Shirley, 171 Wash. App. at 878.
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a puddle of water or a banana peel on the floor. But the record contains no
evidence to support either of these theories. The only evidence of the cause of his
slip is his history of medical problems resulting from his industrial injury. We thus
conclude that the trial court made a clear mistake because it did not address this
uncontroverted evidence.
As a preliminary matter, Luchi asserts that in reviewing his claims, this court
should resolve any doubts in his favor because the Industrial Insurance Act(Act)7
"'is to be liberally construed in order to achieve its purpose of providing
compensation to all covered employees injured in their employment, with doubts
resolved in favor of the worker.'"8 But the principle of liberal construction applies
only to matters concerning the construction of the statute, not to questions of fact.°
Here, the principle does not apply because Luchi does not challenge the trial
court's interpretation of the Act; he challenges only the court's proximate cause
determination.
As discussed below, proximate cause includes cause in fact and legal
causation." There may be more than one proximate cause of a condition for a
worker to recover benefits under the Act.11 Although the industrial injury must be
7 Title 51 RCW. The Act is a time-loss compensation scheme for workers
who experience industrial (work-related) injuries. Shirley, 171 Wash. App. at 879.
Shirley, 171 Wash. App. at 880 (quoting Dennis v. Den't of Labor & Indus.,
109 Wash. 2d 467, 470,745 P.2d 1295(1987)).
9 Ehman v. Deal of Labor & Indus., 33 Wash. 2d 584, 595, 206 P.2d 787
(1949).
10 Bauohn v. Honda Motor Co., 107 Wash. 2d 127, 142, 727 P.2d 655(1986).
11 Shirley, 171 Wash. App. at 880.
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a proximate cause of the alleged condition for which the worker seeks benefits, the
law does not require that the industrial injury be the sole proximate cause.12 But
"Et must be made to appear that the injury probably caused the disability."
Testimony of medical experts must establish the probability of a causal connection
between the industrial injury and the subsequent physical condition.14
Cause In Fact
Luchi claims that but for his industrial injury and its consequences, he would
not have injured the L3-4 level of his vertebrae or slipped. We agree that but for
his industrial injury and its consequences, he would not have slipped.
Cause in fact is the "but for" consequences of an act. This means that but
for the act, the later events resulting in a direct, unbroken sequence would not have
occurred.15 The "but for" cause of injury is typically a question of fact for the trier
of fact."
Luchi primarily contends that expert medical testimony establishes that his
surgery, vocational retraining activities, and activities of daily living caused his L3-
4 disc herniation independent of his slip at the post office. By contrast, SW claims
that objective medical evidence and expert medical testimony support that Luchi's
12 Shirley, 171Wn. App. at 880.
13 Jackson v. Dep't of Labor & Indus., 54 Wash. 2d 643, 649, 343 P.2d 1033
(1959)(quoting Stampas v. Dep't of Labor & Indus., 38 Wash. 2d 48, 51, 227 P.2d.
739 (1951)).
14 Jackson 54 Wash. 2d at 648.
15 Jenkins v. Weyerhaeuser Co., 143 Wash. App. 246, 254, 177 P.3d 180
(2008).
16 Indoor Billboard/Wash., Inc., v. Integra Telecom of Wash.. Inc., 162
Wash. 2d 59, 83, 170 P.3d 10(2007).
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slip alone caused his 13-4 disc herniation. We agree with SW that substantial
evidence supports the trial court's finding that Luchi did not herniate his L3-4 disc
independent of his slip.
But uncontroverted evidence supports Luchi's claim that his radiculopathy
caused him to slip, and no evidence supports another explanation. All the experts
for both parties agree that this medical condition resulted from his industrial injury.
So we are confident that the trial court made a mistake in finding that the
consequences of his industrial injury were not a cause of his slip. We discuss each
of these points in turn.
In August 2011, Luchi had a microdiscectomy at levels 14-5 and L5-S1.
Luchi testified that after his surgery, his low back remained symptomatic, with pain
radiating down the right side of his buttocks and down his calf to the outside of his
foot. He received physical therapy and continuing chiropractic care. In January
2013, he started a vocational retraining program for medical assisting. Physician
Assistant-Certified Brian Hiller, who treated Luchi consistently since 2009,testified
about Luchi's complications from his surgery, including inflammation, pain, and
scar tissue buildup. Hiller also stated that Luchi's vocational retraining activities
caused him daily lower back and right leg pain because it required him to stand
and sit for long periods of time.
Similarly, Dr. Richard Wohns, a board-certified neurosurgeon, who testified
on Luchi's behalf, stated that practicing CPR (cardiopulmonary resuscitation) and
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bending over lab tables to practice stitches and other procedures could have
aggravated Luchi's lower back condition.
In addition, Hiller stated that simple activities like sitting or sleeping caused
Luchi aggravations on a regular basis. Wohns agreed that activities of daily living
for someone with Luchi's history could cause his condition to worsen. In May 2013,
Luchi went to the emergency room after bending over to talk to his son and feeling
a sharp pain in his right lower back. Wohns stated that this could have caused
worsening or aggravation of his lower back condition. Although Luchi told Hiller
that his pain worsened after he slipped at the post office, in March 2014,one month
before the incident, Luchi also reported that he was experiencing worsening back
pain. Both Hiller and Wohns testified that Luchi's vocational activities and activities
of daily living, not his slip, could have caused the L3-4 disc herniation on a more-
probable-than-not basis.
By contrast, Dr. Patrick Bays, a board-certified orthopedic surgeon who
testified for SW, stated that on a more-probable-than-not basis Luchi's industrial
Injury or its consequences did not cause the L3-4 herniation for two reasons. First,
he stated that the most important evidence was the objective evidence consisting
offour MRI studies. Luchi had three MRIs in 2011, one before his surgery and two
after. All showed a normal L3-4 disc. Not until June 2014,two months after Luchi
slipped at the post office, when Luchi had a fourth MRI, did any study show a disc
herniation at the L3-4 level. Although Luchi asserts that this objective medical
evidence has little probative value because his last MRI before he slipped was
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No. 77301-1-1 / 8
three years earlier, Bays stated that slipping, grabbing a railing at the door, and
twisting like Luchi did at the post office is sufficient to herniate a disc.
Second, Bays explained that to his knowledge there are "no evidence-
based medicine studies that support an increased incidence of pathology, or the
predisposition to pathology [at the L3-4 level], as a consequence of having a one-
sided microdis[c]ectomy at the lower two levels, [namely, the L4-3 and L5-S1
levels]."
Dr. David Bauer, a board-certified orthopedic surgeon with a specialty in
spinal injuries and diseases who also testified for SW, similarly concluded that
slipping and twisting like Luchi did at the post office could create a disc herniation.
Bauer explained that the medical literature shows that discectomy like Luchi's does
not change the anatomy of the spine enough to weaken an adjacent level like the
L3-4 level.
Bauer also reviewed Luchi's chiropractic records as part of his evaluation
of Luchi's claim for SW in May 2015. He stated that Luchi first had increased
symptoms in his back and wrapping around into his thigh and groin after he slipped.
These symptoms were consistent with a herniation at the L3-4 level because the
L3 nerve root gives sensation to the anterior thigh and groin. And he explained
that the pain Luchi experienced from sitting in class or from driving is common in
people who have degenerative changes in their backs and "is a condition that we
all deal with." Bays' and Bauer's testimony provide substantial evidence
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supporting the trial court finding that Luchi did not herniate his L3-4 disc
Independent of his slip at the post office.
Although Bauer and Bays each testified about how the slip caused the L3-
4 herniation, they did not discuss whether the consequences of Luchi's industrial
injury caused him to slip. Their testimony provides no evidence to answer this
question. They agree that his industrial injury caused issues with his right lower
leg, but they do not address at all Luchi's claim that these problems caused him to
slip. Consistent with the Board's well-reasoned decision,17 we conclude that
substantial evidence supports only one finding, that but for Luchi's radiculopathy
caused by his industrial injury, he would not have slipped and consequently
herniated his L3-4 disc.
Hiller defined "radiculitis" as "a pain and inflammation of a nerve root when
there is pressure on the nerve root. It gives pain from the spine down the
dermatome or area. For Mr. Luchi it's down his right leg." While a 2011
electrodiagnostic test of Luchi's lower leg did not show evidence of radiculopathy,
Hiller, Wohns,and Bays diagnosed Luchi with right-sided radiculopathy as a result
of his industrial injury. SW relies on the results of the electrodiagnostic testing to
support its position, but it does not dispute Hiller's, Wohns', or Bays' diagnosis.
Hiller testified about the symptoms Luchi experiences as a result of
radiculopathy. He stated that Luchi fell repeatedly in 2014 because he "was having
17 In re Luchi, No. 15 15166, at 4(Wash. Bd. of Indus. Ins. Appeals Aug.
29, 2016).
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weakness to the right lower extremity with his radiculitis and with that he was
tripping over objects and having weakness and a giving-out sensation with his leg
causing him to fall." Similarly, Wohns stated that Luchi "had back pain, right leg
pain, numbness and tingling; right buttock, posterior upper leg, and foot. Could not
sit. Some weakness in the right leg." Luchi testified that he falls on a regular basis
and sometimes falls down and up steps because he has difficulty determining
where the step is in relation to his foot. In addition, he sometimes experiences
numbness radiating down into his right leg causing his foot to drag and has
numbness in the outer part of his right foot around his outer small toes. His wife,
Erin Luchi, testified that she has seen him fall a number of times because he trips
on steps when he walks and even stubs his foot when walking on flat ground.
Luchi's slip at the post office is consistent with the symptoms he
experiences as a result of his right-sided radiculopathy. Hiller described Luchi's
fall in a chart note and reported that although Luchi did not actually fall, he "slipped,
and extended his leg on the right, while falling towards his buttock." SW asserts
that because Hiller did not indicate that Luchi slipped as a result of lower extremity
numbness or pain or back pain, the record does not show that Luchi slipped as a
result of his radiculopathy. SW claims that it is equally plausible that he slipped
because of a puddle of water or a banana peel on the floor.
But uncontroverted evidence in the record supports Luchi's claim that he
slipped, as he had many times after his industrial injury, because of his
radiculopathy. The record contains no evidence of a puddle of water, a banana,
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or any other alternative explanation. This includes any claim that he slipped
because of an object on the floor, a feature of the building, or a medical condition
other than radiculopathy. Because the only evidence about the cause of his slip
Is his radiculopathy, we are convinced that the trial court made a mistake in finding
that the consequences of Luchi's industrial injury were not a proximate cause of
his slip.
Legal Causation
Relatedly, Luchi asserts that his slip was not an intervening act that served
as a superseding cause and broke the chain of causation between his industrial
injury and L3-4 disc herniation. We agree.
Legal causation involves policy considerations about how far the
consequences of an event should extend." "Aggravation of the claimant's
condition caused by the ordinary incidents of living—by work which he could be
expected to do; by sports or activities in which he could be expected to
participate—is compensable because it is attributable to the condition caused by
the original injury."19 But there is no legal causation when the "connection between
the ultimate result and the [original event] is too remote or insubstantial to impose
liability."20 For example, the act is too remote when an Intervening act is a
18
Baughn, 107 Wash. 2d at 146.
19 McDougle v. Den't of Labor & Indus., 64 Wash. 2d 640, 644, 393 P.2d 631
(1964).
29 Schooley v. Pinch's Deli Mkt., Inc., 134 Wn.2d 468,478-79,951 P.2d 749
(1998).
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superseding cause that breaks the chain of causation.2I "To be a superseding
cause, an intervening act must be one that is not reasonably foreseeable."22
Legal causation is a question of law for the court.23
SW relies on In re Swinde11.24 There,a year after an industrial injury causing
a herniated disc, the claimant was walking on a rotted log while hunting when it
crumbled under his feet and he fell, worsening his injury.25 The Board found that
falling through a rotted log was a new injury unrelated to his industrial injury:
Hunting, which we assume would normally consist of walking while
carrying a gun was not an unreasonable activity for this claimant
under the circumstances. However, the aggravation of the
claimant's condition following the October 15, 1978 incident was not
the direct result of the hunting "activity", but rather an accident while
hunting. It was the result of a new and independent traumatic
occurrence, an accident of falling through a rotted log which acted
upon his previously weakened condition to create a disabling new
dimension to the claimant's low back problems.i261
We distinguish these facts from Luchi's circumstances. Swindell fell while
participating in what the Board found to be a reasonable activity based on his
physical restrictions caused by his industrial injury. Similarly, Luchi slipped while
walking, which was within the scope of his permissible activities.21 But Swindell's
21 Shirley, 171 Wash. App. at 886-87, 895(Grosse, J., dissenting).
22 Shirley, 171 Wn. App. at 895(Grosse, J., dissenting).
Tae Kim v. Budget Rent A Car Sys., Inc., 143 Wash. 2d 190, 204, 15 P.3d
1283(2001).
24 Nos. 53,792 and 58,864, 1980 WL 309455 (Wash. Bd. of Indus. Ins.
Appeals May 8, 1980).
25 Swindell, 1980 WL 309455, at *2.
26 Swindell, 1980 WL 309455, at *3.
27 In November 2011, Luchi had a physical capacities evaluation that
reported he could not go back to work at his job of injury and was restricted in his
overall ability to work. His restrictions included lifting no more than 50 pounds on
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No. 77301-1-1 / 13
industrial injury or its consequences did not cause him to fall through the rotted
log. The rotted log was a condition of Swindell's environment that caused an
accidental fall independent of his industrial injury. By contrast, as discussed
above, the record supports only one explanation for Luchi's slip; the alternative
explanations offered by SW are speculation not supported by any evidence.
Because the radiculopathy caused by Luchi's industrial injury caused the slip, the
slip was not an intervening act that served as a superseding cause but was instead
reasonably foreseeable.
CONCLUSION
Our review of all the evidence leaves us convinced that the trial court
committed a mistake in finding that the consequences of Luchi's industrial injury
were not a proximate cause of his slip, resulting in the herniation of his L3-4 disc.
We reverse and remand.
WE CONCUR:
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an occasional basis, no repetitive bending on more than an occasional basis, and
sitting for no more than 30 minutes at a time for a total of 2 hours per day.
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