Sterling O. Hayden v. The Boeing Company ( 2016 )


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  •                                                           '•<•>•' U U;-
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    STERLING O. HAYDEN,                                   No. 73344-3-1
    Respondent,                     DIVISION ONE
    v.
    THE BOEING COMPANY,                                   UNPUBLISHED
    Appellant.                       FILED: April 25. 2016
    Cox, J. — The Boeing Company appeals the superior court's decision
    reversing the order of the Board of Industrial Insurance Appeals (BIIA) that
    denied workers compensation benefits to Sterling Hayden. Because substantial
    evidence does not support the superior court's critical findings and the supported
    findings do not support the court's conclusions of law, we reverse.
    Sterling Hayden worked as a janitor for Boeing from January 2007. In
    March 2010, he filed a claim for benefits. The Department of Labor and
    Industries accepted this claim as an occupational disease of his left shoulder.
    The Department later segregated this accepted claim from Hayden's pre-existing
    left shoulder condition of glenohumeral osteoarthritis. But the Department later
    reversed itself. It ordered Boeing to assume responsibility for Hayden's pre
    existing left shoulder glenohumeral osteoarthritis.
    No. 73344-3-1/2
    Boeing appealed this order to the BIIA. An administrative law judge
    reversed the Department's order in a proposed decision and order that denied
    benefits. Hayden petitioned for review, which the BIIA denied.
    Hayden then sought judicial review of the BIIA's decision. The superior
    court reversed the BIIA's decision. The court concluded that Hayden's accepted
    shoulder strain condition aggravated his glenohumeral osteoarthritis, entitling him
    to benefits.
    Boeing appeals.
    STANDARD OF REVIEW
    Boeing argues that substantial evidence does not support the superior
    court's findings and that its findings do not support its conclusions. At issue is
    whether the record before the BIIA establishes a causal connection between
    Hayden's accepted work condition and his left shoulder glenohumeral
    osteoarthritis.
    The Industrial Insurance Act, title 51 RCW, governs the standard of review
    in workers' compensation cases.1 Hayden had the burden of establishing a
    prima facie case for relief before the BIIA.2 The superior court reviews the BIIA's
    decision de novo, based solely on the BIIA record.3
    1 RCW 51.52.115.
    2RCW51.52.050(2)(a).
    3 Potter v. Dep't of Labor & Indus.. 
    172 Wn. App. 301
    , 310, 
    289 P.3d 727
    (2012).
    No. 73344-3-1/3
    In the superior court, Hayden had the burden of proving the BIIA's
    findings and decision were not prima facie correct.4 We review the BIIA record to
    see whether substantial evidence supports the superior court's findings and
    whether the conclusions of law flow from the supported findings.5 "Evidence is
    substantial if [it is] 'sufficient to persuade a fair-minded, rational person of the
    truth of the matter.'"6
    A worker with an "occupational disease" is entitled to workers'
    compensation benefits.7 An "occupational disease" is one that "arises naturally
    and proximately out of employment. . . ."8 Workers are entitled to benefits iftheir
    employment causes a new disease or "aggravates a preexisting disease so as to
    result in a new disability."9
    Here, the critical findings of fact of the superior court that are at issue are:
    21. Exacerbation of the underlying pre-existing condition is what
    the plaintiff has to prove in this case. The testimony of Dr. Verdin
    establishes that Mr. Hayden's work activities did exacerbate the
    underlying condition.
    22. Under the law of the State of Washington, the Plaintiff does not
    need to show that the work activities created a whole new
    condition. We are not perfect as human beings. Every single one
    4ld
    5ld
    6 \± (quoting R & G Probst v. Dep't of Labor & Indus.. 
    121 Wn. App. 288
    ,
    293, 
    88 P.3d 413
     (2004)).
    7 RCW 51.32.180.
    8 RCW 51.08.140.
    9 Ruse v. Dep't of Labor & Indus.. 
    138 Wn.2d 1
    , 7, 
    977 P.2d 570
     (1999)
    (emphasis omitted).
    No. 73344-3-1/4
    of us has something wrong with us at one time or another. Some of
    us have permanent injuries.
    The record establishes that Mr. Hayden sought medical
    attention for new pain in his left shoulder after he aggravated
    his condition by work, because he had hurt his right shoulder,
    so he's putting more pressure on his left.
    26. The activities of Mr. Hayden's employment did light up the
    otherwise non-symptomatic condition. Whether that condition
    would always permanently remain non-symptomatic we don't know.
    Most likely, at some point in his life Mr. Hayden would have
    experienced a deterioration of the shoulder. According to all the
    medical testimony his joint was in really bad shape. It would have,
    at some point in his life, been a problem. But the condition was lit
    up or made active and accelerated due to his job or work related
    activities.
    28. Because of the occupational disease, the pre-existing condition
    was lit up or made active. For this reason Mr. Hayden is
    eligible for benefits, including allowance of the glenohumeral
    osteoarthritis of the left shoulder.
    30. [The BIIA's] Finding of Fact No. 3 is incorrect. Mr. Hayden's
    pre-existing left shoulder glenohumeral osteoarthritis was
    aggravated by his accepted shoulder strain condition.™
    The parties do not dispute that Hayden's glenohumeral osteoarthritis
    preexisted both his employment and his left shoulder strain, which he reported in
    March 2010 and the Department later accepted. The legal question is whether
    substantial evidence supports the superior court's findings that Hayden's
    accepted work-related condition either accelerated or aggravated his
    osteoarthritis condition to create a new disability.
    To show that his disease arose "proximately" from his employment,
    Hayden was required to establish "by competent medical testimony" that his
    10 Clerk's Papers at 315-17 (emphasis added).
    4
    No. 73344-3-1/5
    employment "probably, as opposed to possibly," caused his claimed condition.11
    This causal link must be removed "from the field of speculation and surmise."12
    We give special consideration, as we must, to the testimony of Hayden's
    treating physician.13
    In this case, Hayden's treating physician is Dr. Verdin. Dr. Verdin testified
    by deposition at the hearing before the administrative law judge of the BIIA. He
    is an orthopedic surgeon who first saw Hayden in May 2011. He testified with
    the assistance of chart notes from Hayden's medical records.
    At the time of the first examination, Hayden complained of left shoulder
    pain. Dr. Verdin obtained Hayden's medical history from him and also had x-rays
    of his shoulder available. Dr. Verdin diagnosed Hayden as having "degenerative
    joint disease of his [left] shoulder secondary to osteoarthritis."14
    Dr. Verdin testified as follows:
    Q. And do you have an opinion as to whether or not Mr. Hayden's
    work activities as a janitor aggravated or worsened his shoulder
    condition on a more-probable-than-not basis?
    A. I feel that it probably did make his overall symptomatology in his
    shoulder worse with time, yes.
    Q. Do you have an opinion as to whether or not the distinctive work
    conditions of working as a janitor for The Boeing Company could
    have accelerated the progression of the shoulder condition?
    11 Dennis v. Dep't of Labor & Indus., 
    109 Wn.2d 467
    , 477, 
    745 P.2d 1295
    (1987).
    12 Zipp v. Seattle Sch. Dist. No. 1, 
    36 Wn. App. 598
    , 601, 
    676 P.2d 538
    (1984).
    13 Potter. 172 Wn. App. at 312.
    14 Clerk's Papers at 277.
    No. 73344-3-1/6
    A. I don't think that it accelerated it.
    Q. Do you have an opinion as to whether or not those work
    conditions were a cause for the worsening of Mr. Hayden's left-
    shoulder condition?
    A. Yeah. I think they were a factor.
    Q. Can you tell us about that. What is it that makes you think that
    they were a factor?
    A. I think it has to do with the fact that in general, taking care of
    patients who have had arthritic conditions in joints—hips, knees,
    shoulders—heavier physical activity tends to make arthritic joints
    much more symptomatic. Some joints that otherwise, you know,
    might be manageable at one level of activity get much worse at a
    different level of activity.[15J
    Boeing argues that no medical testimony in the record supports finding
    that Hayden's employment accelerated his glenohumeral osteoarthritis. We
    agree.
    Findings of Fact 26 states, among other things, that Hayden's shoulder
    condition "was lit up or made more active and accelerated due to his job or work
    related activities."16 This finding is incorrect.
    As shown above, Dr. Verdin's testimony shows he concluded that
    Hayden's work did not accelerate the progression of his osteoarthritis. Moreover,
    no testimony from either of the two other medical experts who testified support
    finding that Hayden's work activities accelerated his pre-existing glenohumeral
    15 Id at 278-79.
    16 Id. at 317.
    No. 73344-3-1/7
    osteoarthritis. In sum, substantial evidence does not support this portion of the
    finding.
    We turn to the other apparent basis for the superior court's findings: that
    Hayden's employment "aggravated" his pre-existing left shoulder glenohumeral
    osteoarthritis condition. Findings 21 ("exacerbate"), 26 ("lit up or made active"),
    28 ("lit up"), and 30 ("aggravated") are most reasonably read to be based on
    aggravation.
    The superior court found that Hayden's accepted work-related condition
    aggravated his pre-existing glenohumeral osteoarthritis. This finding is also
    unsupported in the record.
    In this case, Hayden's accepted condition was a left shoulder strain.
    Hayden sought and received treatment for this condition, which the Department
    accepted as work-related, and Boeing did not dispute.
    No medical testimony supports finding that this shoulder strain aggravated
    Hayden's glenohumeral osteoarthritis. Neither Dr. Verdin nor any of the other
    doctors who testified stated that Hayden's left shoulder strain aggravated his
    glenohumeral osteoarthritis. Thus, this finding is also unsupported.
    Another apparent basis for the superior court's conclusion was Findings of
    Fact 22, which states in relevant part:
    The record establishes that Mr. Hayden sought medical attention
    for new pain in his left shoulder after he aggravated his condition by
    work, because he had hurt his right shoulder, so he's putting more
    pressure on his left.[17]
    17 Id. at 316.
    No. 73344-3-1/8
    We cannot agree that substantial evidence supports this finding. Hayden
    testified that he injured his right shoulder in 2009. But no medical testimony
    establishes any link between Hayden's right shoulder injury and his left shoulder
    glenohumeral osteoarthritis.
    First, there was no medical evidence by Dr. Verdin, the treating physician
    in this case, or any other medical expert who testified, that Hayden's right
    shoulder injury in any way contributed to his pre-existing left shoulder condition.
    Dr. Verdin was quite clear that the focus of his testimony centered on Hayden's
    left shoulder, not his right. This is dispositive.
    Second, even if we look further, the only testimony in the record about
    increased use of the left shoulder due to an injured right shoulder came from
    Hayden. He testified that after he injured his right shoulder he began to use his
    left shoulder more and, after one or two years, began experiencing pain in his left
    shoulder. But even if this evidence is accepted as true, it does not meet the
    evidentiary standard. Without any medical testimony on the effect of this right
    shoulder injury on Hayden's left shoulder condition, any causal link between the
    two is in the nature of speculation, not probability.
    Some of the court's findings could also be read as determining that
    Hayden's work activities—as opposed to his accepted shoulder strain condition—
    aggravated his glenohumeral osteoarthritis. But this reading is also unsupported.
    The BIIA considered only whether Hayden's allowed shoulder strain aggravated
    his glenohumeral osteoarthritis. It did not consider whether his work activities
    aggravated this preexisting condition. And on appeal, Hayden argues only that
    8
    No. 73344-3-1/9
    his shoulder strain aggravated his glenohumeral osteoarthritis, not that his work
    activities did so.
    In sum, substantial evidence does not support the superior court's critical
    findings. In this absence of substantial evidence, the court's conclusions of law
    cannot be sustained. Specifically, the conclusion that "Hayden's pre-existing left
    shoulder glenohumeral osteoarthritis was aggravated by his accepted shoulder
    strain condition"18 cannot be sustained.
    The sole issue before the BIIA appears to have been proximate causation.
    Accordingly, we have limited our review to that issue on appeal.
    ATTORNEY FEES
    Hayden argues that he is entitled to attorney fees on appeal. We
    disagree.
    In Washington, parties may recover attorney fees ifa statute, contract, or
    recognized ground of equity authorizes the award.19 Under RCW 51.52.130, if "a
    party other than the worker or beneficiary" appeals and "the worker's or
    beneficiary's right to relief is sustained" the worker is entitled to an award of
    attorney fees.
    Here, we reverse and do not sustain the superior court's award. Thus,
    Hayden is not entitled to an award of attorney fees on appeal.
    18 Id at 317.
    19 LK Operating. LLC v. Collection Grp.. LLC, 
    181 Wn.2d 117
    , 123, 
    330 P.3d 190
     (2014).
    9
    No. 73344-3-1/10
    We reverse and deny Hayden's request for attorney fees on appeal.
    &JA,T
    WE CONCUR:
    luudj                                                          -ft
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