James C. Mcchesney v. Department Of Labor & Industries ( 2020 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
JAMES MCCHESNEY,
No. 80121-0-I
Appellant,
v. DIVISION ONE
DEPARTMENT OF LABOR UNPUBLISHED OPINION
AND INDUSTRIES OF THE STATE OF
WASHINGTON,
Respondent.
LEACH, J. — James McChesney was injured while working as a carpenter for Ross
Display Fixture Company in 2015. He filed a claim for disability compensation with the
Department of Labor and Industries (Department). The Department closed McChesney’s
claim and awarded him permanent partial disability. McChesney appealed and an
industrial appeals judge awarded McChesney an additional 9.5 percent permanent partial
disability. The Department filed a petition for review, and the Board of Industrial Insurance
Appeals (BIIA) reversed the industrial appeals judge and affirmed the Department.
McChesney appealed and the superior court affirmed the BIIA’s decision. McChesney
appeals the superior court’s decision. We affirm.
FACTS
On December 8, 2015, an elevator door crushed James McChesney’s right hand
while he worked as a carpenter for Ross Display Fixture Company. Dr. Grant Lohse,
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80121-0-I/2
McChesney’s orthopedic surgeon, surgically treated McChesney’s hand. He placed pins
in McChesney’s fifth metacarpal bone, which were removed during a later procedure.
McChesney filed a workers’ compensation claim with the Department, which accepted
the claim.
On October 31, 2016, Dr. Lohse determined McChesney did not need further
medical treatment. Based on the loss of motion to McChesney’s hand, Dr. Lohse rated
his impairment at “5 percent whole person.” McChesney complained to Dr. Lohse that
his “impairment rating didn’t accurately summarize the deficit he felt with the function of
his hand.”
On November 28, 2016, the Department closed the claim and provided
McChesney compensation for permanent partial disability (PPD) for the loss of function
of his fingers. The Department valued McChesney’s PPD at “the following amputation
values at the metacarpophalangeal joint or with resection of the metacarpal bone.”
Finger Value
Index Finger 16%
Middle Finger 11%
Ring Finger 21.5%
Little Finger 33%
McChesney appealed the Department’s award of PPD to the Board of Industrial
Insurance Appeals. He asked for additional PPD because “his injury placed him on a
spectrum of development of Complex Regional Pain Syndrome (CRPS).”
Dr. Lohse testified that McChesney experienced two symptoms of CRPS:
(1) restricted range of motion of his fingers, and (2) pain. Dr. Lohse testified these
symptoms put McChesney on the path toward a CRPS diagnosis, but they did not satisfy
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the American Medical Association’s (AMA) diagnosis for CRPS. Because Dr. Lohse did
not actually diagnose McChesney with CRPS, he could not factor McChesney’s pain into
the PPD calculation.
Dr. Patricia David testified to reviewing McChesney’s medical records and
Dr. Lohse’s deposition testimony. Dr. David testified that “Spectrum CRPS” is not a
formally recognized diagnosis within the medical community or mentioned in the AMA
Guides to the Evaluation of Permanent Impairment or the Department’s treatment
guidelines. Dr. David also testified that CRPS is not a common diagnosis. Dr. David
testified for a CRPS diagnosis, the patient must meet four criteria and McChesney only
met one of the four criteria. She testified there was insufficient information to diagnose
McChesney with CRPS under the AMA Guides.
On June 12, 2018, an industrial appeals judge (IAJ) decided McChesney was
entitled to further compensation for PPD “equal to 9.5 percent as compared to the
amputation value of the claimant’s right arm, or equal to 10.5 percent of the whole person,
less the compensation for permanent partial disability previously paid.” The IAJ used the
“best fit” analysis. It explained that even though McChesney “did not meet the diagnostic
criteria for CRPS as noted by the AMA guides,” his symptoms were “consistent with
‘spectrum CRPS’ which is essentially not the complete diagnosis but an
acknowledgement that the claimant’s injury has involved a loss of function beyond the
loss of range of motion in his hand and fingers. [And, the] rating reflects this additional
impairment.”
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The Department asked the BIIA to review this decision. It argued the IAJ should
not extend the “best fit” analysis to a CRPS rating system case without a CRPS diagnosis.
On September 4, 2018, the BIIA issued a Decision and Order affirming the
Department’s November 28, 2016 order and calculation of PPD. The BIIA disagreed with
the IAJ and determined McChesney was not entitled to the additional 9.5 percent PPD
because he did not develop CRPS as a result of his industrial injury. Citing to WAC 296-
20-19030, the BIIA determined that because pain is not an objective physical or clinical
finding, pain is not considered when calculating PPD for work related impairments.
The BIIA’s Decision and Order contained a dissent. The dissent determined the
IAJ correctly concluded McChesney was entitled to additional PPD caused by CRPS
under the “best fit” analysis.
McChesney appealed the BIIA’s Decision and Order to the superior court. He
asked the superior court to reverse the BIIA’s decision and to award him the additional
9.5 percent PPD.
The superior court affirmed the BIIA’s decision. It determined McChesney’s
“symptoms do not rise to the level of a CRPS diagnosis per Department AMA guides.” It
also determined “CRPS is an inappropriate diagnosis for the use of ‘best fit.’” The
superior court adopted the BIIA’s findings of fact as its own.
McChesney appeals.
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ANALYSIS
I. Standard of Review
Washington’s Industrial Insurance Act (IIA) Title 51 RCW provides for judicial
review of workers’ compensation determinations. 1 The superior court reviews BIIA
decisions de novo. 2 The superior court considers only the evidence contained in the BIIA
record. 3 The superior court considers the BIIA’s findings and decisions prima facie
correct. 4 The party challenging the BIIA’s findings and decisions has the burden to prove
otherwise by a preponderance of evidence. 5
We review the record to determine “whether substantial evidence supports the
findings made after the superior court’s de novo review, and whether the court’s
conclusions of law flow from the findings.” 6 Substantial evidence is enough evidence to
persuade a fair-minded, rational person of the truth of the declared premise. 7 We review
the record in the light most favorable to the party that prevailed in superior court. 8 This
court does not reweigh or rebalance the competing testimony and inferences. 9 The
1RCW 51.52.110.
2Rogers v. Dep’t of Labor & Indus., 151 Wn. App. 174, 179-81, 210 P.3d 355(2009); RCW 51.52.115.
3 McDonald v. Dep’t of Labor & Indus., 104 Wn. App. 617, 619, 17 P.3d 1195(2001); RCW 51.52.140.
4 Ruse v. Dep’t. of Labor & Indus., 138 Wn. 2d 1, 5, 977 P.2d 570 (1999);
RCW 51.52.115.
5 Ruse, 138 Wn. 2d at 5.
6 Ruse, 138 Wn. 2d at 5-6 (quoting Young v. Dep’t of Labor & Indus., 81 Wn.
App. 123, 128, 913 P.2d 402 (1996)).
7 Mowat Const. Co. v. Dep’t of Labor & Indus., 148 Wn. App. 920, 925, 201 P.3d
407 (2009).
8 Stone v. Dep’t of Labor & Indus., 172 Wn. App. 256, 260, 289 P.3d 720 (2012).
9 Stone, 172 Wn. App. at 260.
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ordinary civil standards of review, rules of evidence, and rules of civil procedure govern
appeals from superior court decisions in IIA cases. 10
II. Permanent Partial Disability
McChesney argues the superior court should have reversed the BIIA’s decision.
Specifically, McChesney argues Dr. Lohse diagnosed him with “Spectrum CRPS” and
that diagnosis “may properly be rated for PPD by analogy using the AMA Guides’ system
for rating otherwise-undeniable presentations of full-blown CRPS.” The Department
claims McChesney’s “Spectrum CRPS” condition does not satisfy RCW 51.08.150’s
definition of a PPD, so McChesney is not entitled to more PPD.
The IIA provides “sure and certain relief for workers, injured in their work.” 11 The
IIA is “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.” 12
RCW 51.08.150 provides, “ ‘Permanent partial disability’ means the loss of . . . one
hand, . . . one or more fingers, . . . any dislocation where ligaments were severed where
repair is not complete, or any other injury known in surgery to be permanent partial
disability.” WAC 296-20-19000 states,
Permanent partial disability is any anatomic or functional abnormality or loss
after maximum medical improvement (MMI) has been achieved. At MMI,
the worker's condition is determined to be stable or nonprogressive at the
time the evaluation is made. A permanent partial disability award is a
monetary award designed to compensate the worker for the amputation or
loss of function of a body part or organ system. Impairment is evaluated
10 RCW 51.52.140.
11 RCW 51.04.010.
12 Dennis v. Dep’t of Labor & Indus., 109 Wn.2d 467, 470, 475 P.2d 1295 (1987).
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without reference to the nature of the injury or the treatment given. To
ensure uniformity, consistency and fairness in rating permanent partial
disability, it is essential that injured workers with comparable anatomic
abnormalities and functional loss receive comparable disability awards. As
such, the amount of the permanent partial disability award is not dependent
upon or influenced by the economic impact of the occupational injury or
disease on an individual worker. Rather, Washington’s Industrial Insurance
Act requires that permanent partial disability be established primarily by
objective physical or clinical findings establishing a loss of function.
RCW 51.32.080 authorizes PPD “based on a worker’s loss of bodily function.”13
RCW 51.32.080(1)(a) describes the PPD amount for injuries resulting in certain
amputations. Amputations not specified in RCW 51.32.080(1)(a) are compensated “in
proportion to that which such other amputation . . . most closely resembles and
approximates.” 14
RCW 51.32.080(3)(a) states, “the department shall give consideration to, but need
not necessarily adopt, any nationally recognized medical standards or guides for
determining various bodily impairments.” To determine PPD for loss of function of
extremities, the Department uses the AMA Guides to the Evaluation of Permanent
Impairment to determine the percentage of loss of function. 15 Then, the Department
compares the percentage of loss of function to the amputation value listed in
RCW 51.32.080. 16
a. Special Consideration
McChesney argues CRPS and “Spectrum CRPS” are different diagnoses.
McChesney notes that CRPS is listed under the AMA guidelines with established
13 Boeing Co. v. Doss, 183 Wn. 2d 54, 60, 347 P.3d 1083 (2015).
14 RCW 51.32.080(2).
15 WAC XXX-XX-XXXX.
16 WAC XXX-XX-XXXX.
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diagnostic criteria and contends that “Spectrum CRPS” is “known in surgery” under the
plain meaning of RCW 51.08.150. He argues the BIIA and superior court should have
given special consideration to Dr. Lohse’s testimony that “Spectrum CRPS” is “known in
surgery” because he was McChesney’s attending physician.
In Clark County v. McManus, the Washington Supreme Court determined a trial
court must instruct the jury reviewing a BIIA decision to give the testimony of the attending
physician special consideration. 17 The special consideration instruction exists because
the court recognizes that “[a]n 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.’” 18 And, this special consideration
supports the purpose of the IIA, “which is to promote benefits and to protect workers.” 19
But, a judge or jury need not give this special consideration when “specific reasons for
not accepting the attending physician’s opinion are articulated.” 20 The special
consideration instruction may not be appropriate if there are “multiple, conflicting
attending physicians’ testimony.” 21
Drs. Lohse and David testified that “Spectrum CRPS” is not a recognized diagnosis
and is not found in the AMA Guidelines. Dr. Lohse testified that McChesney does not
17185 Wn.2d 466, 475-76, 372 P.3d 764 (2016).
18Ruse, 138 Wn.2d at 6 (quoting Spalding v. Dep’t of Labor & Indus., 29 Wn.2d
115, 128-29, 186 P.2d 76 (1947)).
19 Hamilton v. Dep’t of Labor & Indus., 111 Wn.2d 569, 572-73, 761 P.2d 618(1988).
20 McManus, 185 Wn.2d at 475-76.
21 McManus, 185 Wn.2d at 474.
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meet the criteria for CRPS or “Spectrum CRPS.” Instead, Dr. Lohse testified that
McChesney is “on a spectrum of CRPS.”
Although Dr. Lohse was McChesney’s attending physician, the superior court did
not need to provide his testimony special consideration because both Drs. Lohse and
David determined McChesney does not have CRPS. So, even if the superior court gave
Dr. Lohse’s testimony special consideration, it would have arrived at the same conclusion.
b. “Best Fit” Analysis
McChesney argues the superior court should have applied the “best fit” analysis
to the PPD findings. The Department argues the superior court correctly rejected the
“best fit” analysis.
In Roening, the BIIA considered “whether a worker who has an objectively
demonstrable loss of function is entitled to a permanent partial disability award under a
‘best fit’ analysis, if that impairment is not specifically described in the AMA Guides.” 22 It
determined that a person may receive a PPD award in some circumstances where the
AMA Guides do not specifically address their condition. 23
Here, the superior court determined “CRPS is an inappropriate diagnose for the
use of ‘best fit.’” Because the AMA Guides specifically address CRPS, we agree and
affirm. Drs. Lohse and David determined McChesney did not meet the diagnostic criteria
for CRPS. McChesney offers no persuasive reason to analogize his condition to CRPS
22 In re Roening, Bd. of Indus. Ins. Appeals May 04 22220 (2006).
23 No. 04 22220 at 4-5.
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under this finding. By finding that McChesney did not have CRPS, Drs. Lohse and David
determined the “best fit” analysis did not apply.
McChesney tries to distinguish his case from other cases where the BIIA
determined a claimant was not entitled to PPD for CRPS. In In re Peterson, the BIIA
reversed an IAJ’s decision to allow a claim for CRPS because there was insufficient
evidence to show the appellant met all of the diagnostic criteria. 24 The BIIA did not apply
the “best fit” analysis. In In re Martinez, the BIIA determined the appellant did not meet
all of the diagnostic criteria for CRPS, and it did not apply the “best fit” analysis. 25 So, the
BIIA does not use the “best fit” analysis when a worker meets some but not all the
necessary diagnostic criteria for CRPS.
Reviewing the record in the light most favorable to the Department, substantial
evidence supports the superior court’s findings and its conclusions of law that flow from
those findings. Because Drs. Lohse and David determined McChesney does not meet
the criteria for CRPS, the superior court correctly affirmed the BIIA’s decision to reverse
the IAJ and affirm the Department’s finding that McChesney’s injury did not cause him to
develop CRPS and the Department’s award of PPD.
III. Expert Testimony
McChesney argues the superior court should have excluded Dr. David’s
disposition testimony under Evidence Rule (ER) 702 or ER 403. Alternatively,
McChesney argues the superior court should have given Dr. David’s testimony little
24 In re Virginia C. Peterson, Bd. of Indus. Ins. Appeals March 15 21676 (2017).
25 In re Guillermo Martinez, Bd. of Indus. Ins. Appeals June 14 12018 (2015).
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weight. Because substantial evidence supports the superior court’s decision to admit
Dr. David’s testimony as relevant expert testimony, we affirm.
a. ER 702
McChesney argues the superior court should have excluded Dr. David’s testimony
under ER 702. We disagree.
ER 702 provides, “If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.” In addition to being qualified as an expert
by “knowledge, skill, experience, training, or education,” to be admissible the expert must
rely on “generally accepted theories in the scientific community,” 26 and the testimony must
be helpful to understand matters outside the competence of lay people. 27 “But, the expert
testimony of an otherwise qualified witness is not admissible if the issue at hand lies
outside the witness’ area of expertise.”28 We review a superior court’s evidentiary
decisions for abuse of discretion looking to see if the court made a manifestly
unreasonable decision or based its decision on untenable grounds. 29
McChesney asked the IAJ to strike Dr. David’s testimony from the record. The IAJ
denied McChesney’s request and admitted the testimony because “The doctor was
qualified to testify to the various guidelines for CRPS set by the Department and the AMA
26 Johnston-Forbes v. Matsunaga, 181 Wn.2d 346, 352, 333 P.3d 388 (2014).
27 Anderson v. Akzo Noble Coatings, Inc., 172 Wn.2d 593, 600, 260 P.3d 857(2011).
28 State v. Farr-Lenzini, 93 Wn. App. 453, 461, 970 P.2d 313 (1999).
29 Esparza v. Skyreach Equipment, Inc., 103 Wn. App. 916, 924, 15 P.3d 188(2000).
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guides and to opine as to the applicability of those requirements to the claimant based on
her review of Dr. Lohse’s records.”
The superior court also considered Dr. David to be an expert. And, the superior
court’s opinion includes Dr. David’s testimony of the four CRPS diagnosis criteria.
First, McChesney argues the superior court should have excluded Dr. David’s
testimony because “Spectrum CRPS” is outside Dr. David’s expertise. McChesney
asserts Dr. David admitted “Spectrum CRPS” was beyond her expertise. During
Dr. David’s deposition McChesney’s attorney asked, “do you hold yourself out to be an
expert in CRPS?” and Dr. David testified, “No.” But, Dr. David also testified to
participating in continuing medical education classes in this area, having diagnosed
patients with CRPS, knowing the symptoms and criteria to make a CRPS diagnosis, and
to knowing and using the AMA Guides. Because Dr. David testified to having the
knowledge, skill, and experience to apply the relevant diagnostic criteria, substantial
evidence supports the superior court’s determination that she was an expert.
Second, McChesney argues the superior court should have excluded Dr. David’s
testimony because she is not a surgeon. But, she was being asked to evaluate the
residual impairment following an orthopedic surgery. Dr. David is a board-certified
occupational medicine physician. Dr. David is qualified to be an expert witness.
Dr. David testified to treating patients who received orthopedic surgery and testified that
the facts and data Dr. Lohse used to make his diagnosis are typical of what she uses to
make diagnoses. So, Dr. David testified about sufficient education, training, experience
and knowledge to qualify as an expert. Substantial evidence supports the superior court’s
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determination that Dr. David could provide expert testimony about McChesney’s
diagnosis and impairment.
Third, McChesney argues the superior court should have excluded Dr. David’s
testimony because it contradicts RCW 51.08.150’s “injury known in surgery” requirement
for PPD. Because both Drs. Lohse and David agreed, “Spectrum CRPS” is not a
recognized diagnosis, it is not an injury known in surgery. This claim lacks merit.
Fourth, McChesney argues the superior court should have excluded Dr. David’s
testimony because it was “inconsequential in comparison to that of Dr. Lohse’s
testimony.” Dr. David articulated the criteria for a CRPS diagnosis and testified that she
agreed with the facts and data Dr. Lohse relied on. Because Dr. David provided the
criteria for a CRPS diagnosis and confirmed the information relied on by Dr. Lohse, her
testimony was not inconsequential in comparison.
Fifth, McChesney argues the superior court should have excluded Dr. David’s
testimony because she did not examine, speak with McChesney, or review his testimony.
Medical experts commonly review patient medical records and rely on those records as
a factual basis for their testimony. 30 McChesney cites no authority disallowing this
common practice. Dr. David reviewed McChesney’s medical records and Dr. Lohse’s
testimony. So, this claim is without merit.
30
L.M. by and through Dussault v. Hamilton, 200 Wn. App. 535, 552-53, 304
P.3d 870 (2017).
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Because substantial evidence supports the superior court’s finding that Dr. David
is an expert in the areas where she provided testimony, and that finding supports its
decision to admit Dr. David’s testimony, the superior court properly admitted it.
b. ER 403
McChesney argues Dr. David’s testimony is inadmissible under ER 403 because
it was not helpful and was likely to confuse the trier of fact. We disagree.
ER 403 provides relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” When Dr. David testified, she articulated the
criteria for a CRPS diagnosis. She also confirmed Dr. Lohse’s testimony that McChesney
did not meet the diagnostic criteria for CRPS. So, Dr. David’s testimony was relevant and
not cumulative, prejudicial, confusing, misleading, or a waste of time.
Because Dr. David’s testimony was relevant, and none of the reasons for
excluding the testimony suggested by McChesney apply, the superior court properly
admitted it.
c. Weight
McChesney argues the superior court should have given Dr. David’s testimony
“insubstantial weight.” The Department argues the superior court correctly weighed
Dr. David’s testimony and this court should not reweigh the evidence on appeal. Because
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we do “not reweigh or rebalance competing testimony and inferences,” 31 we agree and
do not address this claim.
IV. Attorney Fees on Appeal
McChesney requests an award of attorney fees on appeal under RAP 18.1 and
RCW 51.52.130(1). We may grant reasonable attorney fees on appeal when an
applicable law allows. 32 If we sustain a worker’s right to relief on appeal, we may award
the worker with reasonable attorney fees. 33 Because we affirm the superior court’s
determination, we deny McChesney’s request for attorney fees on appeal.
CONCLUSION
We affirm the superior court’s decision affirming the BIIA’s decision to reverse the IAJ
and affirm the Department because substantial evidence supports the superior court,
BIIA, and Department’s findings that McChesney’s industrial injury did not proximately
cause CRPS, and he is not entitled to an increase in PPD. Because substantial evidence
supports the trial court’s determination about Dr. David as an expert and that her
testimony was relevant, the superior court properly admitted her testimony. We deny
McChesney’s request for attorney fees on appeal.
31 City of Bellevue v. Raum, 171 Wn. App. 124, 155, 286 P.3d 695 (2012).
32 RAP 18.1(a).
33 RCW 51.52.130(1).
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Affirmed.
WE CONCUR:
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