Roger A. Street, V Weyerhaeuser Company ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASWJNbhfo^ h ^" U'
ROGER A. STREET, No. 75644-3-1
Respondent, DIVISION ONE
v.
WEYERHAEUSER COMPANY, UNPUBLISHED
Appellant. FILED: November 28,2016
Cox, J. - Weyerhaeuser Co. appeals the trial court's judgment on a jury
verdict in Roger Street's appeal from an adverse determination by the Board of
Industrial Insurance Appeals. At issue is whether Street's chronic low back
condition is an occupational disease that arose naturally and proximately out of
his distinctive employment conditions. Because substantial evidence supports
the jury's verdict, we affirm.
Street worked for either Weyerhaeuser or its subsidiary for his entire
career. He first worked as a logger. Starting in 1991, he worked in various
positions in a paper mill. His duties included moving 40 to 50 inch diameter rolls
of paper. At times, Street had to "manhandle" rolls of paper to move them, which
included twisting and pushing the rolls on conveyor belts. On average, these
rolls weighed 1,000 pounds. Street's job also required that he repetitively load
"cores," which weighed between 1.5 and 15 pounds.
In 2013, Street applied for workers' compensation benefits for a lower
back condition. The Department of Labor and Industries denied his claim.
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An Industrial Insurance Appeals Judge reversed the Department. The
proposed decision and order stated that Street's manhandling of heavy paper
rolls constituted distinctive conditions of employment. This decision further
stated that Street's back condition arose "naturally and proximately" out of such
distinctive employment conditions.
Weyerhaeuser petitioned for review to the Board of Industrial Insurance
Appeals (the "Board"). The Board ruled that there was no showing of distinctive
employment conditions. And the Board further ruled there was no showing that
Street's back condition arose "naturally and proximately" out of any distinctive
employment conditions.
On appeal to the superior court, a jury decided that the Board's decision
and order was incorrect. The jury further found that Street's condition is an
occupational disease.
Weyerhaeuser appeals.
OCCUPATIONAL DISEASE
Weyerhaeuser primarily argues that Street must present expert medical
testimony showing that his work conditions were distinctive to his employment in
order to establish an occupational disease. Essentially, this is a challenge to the
sufficiency of the evidence supporting the jury verdict. We hold that there is
sufficient evidence to support the jury's verdict.
The Industrial Insurance Act (IIA) governs the standard of review in
workers' compensation cases, where an evidentiary hearing occurs only at the
No. 75644-3-1/3
Board.1 The party challenging the Board decision in the superior court bears the
burden of proving that the Board's findings and decision were not prima facie
correct.2 The superior court reviews de novo the Board's decision but does so
solely on the Board record.3 The superior court may substitute its own findings
and decision for the Board's only if the superior court finds that the Board's
findings and decision are incorrect by a preponderance of the credible evidence.4
In reviewing the superior court's decision, we review the record in the light
most favorable to the party who prevailed in superior court.5 We determine
whether substantial evidence supports the jury verdict.6 Substantial evidence is
"'evidence sufficient to persuade a fair-minded, rational person of the truth of the
matter.'"7 We review de novo the trial court's conclusions of law.8
Under RCW 51.08.140, an occupational disease is a disease that "arises
naturally and proximately out of employment." In this case, the parties
1 Potter v. Dep't of Labor & Indus., 172 Wash. App. 301, 310, 289 P.3d 727
(2012); seeajso RCW51.52.100; RCW51.52.115; RCW51.52.140.
2 Zavala v. Twin City Foods. 185 Wash. App. 838, 858, 343 P.3d 761 (2015).
3 Potter, 172 Wash. App. at 310.
4 Ruse v. Dep't of Labor & Indus.. 138 Wash. 2d 1, 5, 977 P.2d 570 (1999).
5 Zavala. 185 Wash. App. at 859.
e Cedar River Water & Sewer Dist. v. King County. 178 Wash. 2d 763, 777,
315P.3d 1065(2013).
7 Dep't of Labor & Indus, v. Lyons Enters.. 185 Wash. 2d 721, 731, 374 P.3d
1097 (2016) (quoting R &G Probst v. Dep't of Labor &Indus.. 121 Wash. App. 288,
293, 88 P.3d 413 (2004)).
8 Potter. 172 Wash. App. at 310.
No. 75644-3-1/4
disagree about what is required to establish whether a disease arises naturally
out of employment. Weyerhaeuser argues that Street must present expert
medical testimony showing that his work conditions were distinctive to his
particular employment and caused his back condition. Street disagrees. We
agree with Street.
Dennis v. Department of Labor & Industries9 is instructive. There,
Kenneth Dennis had joint osteoarthritis in his wrists, and his job required that he
cut metal with tin snips for four to five hours a day.10 Dennis pursued an
occupational disease claim.11
The parties disputed whether Dennis's disabling wrist condition arose
naturally out of his employment.12 The supreme court explained that "[t]he
causal connection between a claimant's physical condition and his or her
employment must be established by competent medical testimony which shows
that the disease is probably, as opposed to possibly, caused by the
employment."13 In that case, the court stated there was "sufficient medical
evidence in the record from which a trier of fact could infer the required causal
connection" that the osteoarthritis in Dennis's wrists was rendered symptomatic
9 109 Wash. 2d 467, 477, 745 P.2d 1295 (1987).
101^81469.
11 Id,
12 Id, at 478.
13 Id at 477 (emphasis added); see also Sacred Heart Med. Ctr. v. Dep't
of Labor & Indus.. 92 Wash. 2d 631, 636-37, 600 P.2d 1015 (1979).
No. 75644-3-1/5
by repetitive tin snipping.14 The court further stated that the "proximately"
requirement was not seriously in dispute in that case.15
Similarly, here, we do not perceive any serious dispute whether there was
sufficient evidence tying Street's back condition to his work. Street testified at
the hearings, along with his former supervisor, his primary care physician, and
the osteopathic physician for Street's pain management.
Street's primary care physician, whose testimony is to be given special
consideration under the circumstances, testified that she diagnosed Street with
"chronic low back pain related to degenerative arthritis" and "[degenerative
disease of the spine."16 She opined, on a more probable than not basis, that
Street's heavy work generated mechanical loading that caused his degenerative
disc condition.
There was testimony on behalf of Weyerhaeuser that was designed to
refute this and other testimony on behalf of Street. The evaluation of witness
credibility is the province of the jury and is not reviewable by this court.17 We see
no reason to depart from the rule that we review the sufficiency of the evidence in
the light most favorable to the party who prevailed in superior court: Street.
14 Id,
15 Id, at 478.
16 Potter. 172 Wash. App. at 312.
17 See State v. Andy. 182 Wash. 2d 294, 303, 340 P.3d 840 (2014).
No. 75644-3-1/6
We move to consideration of the real dispute: whether medical testimony
is required to fulfill the other requirements of an occupational disease. Again, we
turn to Dennis.
The supreme court focused on the "naturally" language of the governing
statute after considering the "proximately" language.18 In the context of the
statute, this word "naturally" is linked to the requirement that the occupational
disease must "arise out of employment."19
After discussing, at length, this requirement, the court held:
[A] worker must establish that his or her occupational disease came
about as a matter of course as a natural consequence or incident of
distinctive conditions of his or her particular employment. The
conditions need not be peculiar to, nor unique to, the worker's
particular employment. Moreover, the focus is upon conditions
giving rise to the occupational disease, . . . and not upon whether
the disease itself is common to that particular employment. The
worker, in attempting to satisfy the "naturally" requirement, must
show that his or her particular work conditions more probably
caused his or her disease or disease-based disability than
conditions in everyday life or all employments in general, the
disease or disease-based disability must be a natural incident of
conditions of that worker's particular employment. Finally, the
conditions causing the disease or disease-based disability must be
conditions of employment, that is, conditions of the worker's
particular occupation as opposed to conditions coincidentally
occurring in his or her workplace.1201
In that case, Dennis and his attending physician testified.21 The physician
testified "that it was reasonable to assume that the localization of pain in
18 Dennis. 109 Wash. 2d at 479.
19 id, at 480.
20 Id at 481 (emphasis added).
21 Id. at 469
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[Dennis's] wrists was related to his occupation."22 The Board found that the
continued use of tin snips for four or five hours per workday "exacerbated
Dennis's preexisting osteoarthritis in his wrists, which became disabling."23 The
supreme court determined that the attending physician presented uncontroverted
medical testimony "that more probably than not[,] Dennis's repetitive use of tin
snips made the osteoarthritis in his wrists symptomatic and disabling."24 Thus,
the supreme court concluded that the medical evidence in the record was
"sufficient to support the inference that Dennis's disabling wrist condition arose
naturally and proximately out of his employment."25
Here, Street's attending physician provided similar testimony. She tied
Street's lower back pain to the job that he was doing, on a more probable than
not basis. She testified that she understood Street's job involved, among other
things, heavy lifting and pushing of heavy rolls.
There was also testimonial evidence by Street and others that described
the bending and pushing nature of Street's jobs in "manhandling" the paper rolls
that he worked with in the paper mill. In other words, sufficient evidence exists in
this record for the jury to have found that such manhandling of paper rolls was a
distinctive condition of employment at the paper mill.
22 jd, at 483.
23 id, at 477.
24 id, at 469, 483.
25 Id. at 477, 483.
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Moreover, there is sufficient evidence to show that Street's chronic back
pain related to degenerative arthritis and degenerative disease of the spine arose
naturally and proximately out of distinctive conditions of his employment with
Weyerhaeuser.
Weyerhaeuser claims that medical testimony is required to fulfill the
requirement of showing the "naturally" part of the statutory definition. It purports
to rely on Dennis for this proposition.
Nowhere in the last passage from that case, quoted earlier in this opinion,
did the court state any such requirement. Nowhere in the jury instructions in this
case is there any statement of such a requirement. The requirement does not, in
our view, exist on the basis of any of the authorities that Weyerhaeuser argues.
For example, in Gast v. Department of Labor & Industries. Vickie Gast
alleged an occupational disease caused by stress arising out of her
employment.26 Gast worked as a maintenance laborer, and rumors developed
about her relationships with male coworkers.27 Gast filed a benefits application
with the Department, claiming that her coworkers' rumors, innuendos, and
inappropriate comments were distinctive conditions of her employment.28 The
Department argued that such rumors or comments "coincidentally exist[ed] in the
26 70 Wash. App. 239, 241, 852 P.2d 319 (1993).
27 id,
28 Id. at 242.
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No. 75644-3-1/9
workplace,... occurred] in everyday life and employment in general, and [were]
not distinctive conditions of employment."29
Division Three of this court concluded that the trial court "correctly
determined as a matter of law that rumors, innuendos, and inappropriate
comments by coworkers are not distinctive conditions of employment."30 The
court further stated that "[s]uch conditions are unfortunate occurrences in
everyday life or all employments in general. Their occurrence at a specific
workplace is coincidental and not a natural consequence or incident of distinctive
employment conditions."31
The opinion does not refer to any requirement of expert medical testimony
or state that Gast's claim failed because she did not present medical testimony
showing that her work conditions were distinctive to her particular employment
and caused her alleged disease.
Similarly, in Woldrich v. Vancouver Police Pension Board.32 Division Two
of this court determined that Albert Woldrich failed to establish that his disability
arose as a natural consequence of distinctive employment conditions.33
The opinion neither references expert medical testimony nor states that
Woldrich's claim failed because he did not present medical testimony showing
29 id,
30 id, at 243.
31 id,
32 84 Wash. App. 387, 391-93, 928 P.2d 423 (1996).
33 Id. at 393.
No. 75644-3-1/10
that his work conditions were distinctive to his particular employment and caused
his disability.
In Potter v. Department of Labor & Industries, the Board concluded that
Jane Potter did not sustain an occupational disease within the meaning of RCW
51.08.140.34 There, Potter worked in a newly remodeled law office and argued
that defective ventilation in the office, combined with the odor emanating from the
new blinds in the office, caused her multiple chemical sensitivity disorder.35 In
rejecting Potter's claim, the Board stated that it had "evidence of use of certain
chemicals in the remodel, some of which can cause neurological symptoms in
certain quantities, but no evidence of exposure to anything other than permissible
limits."36 The Board also noted that "'[r]emodels are everywhere, and by no
means limited to law offices, or to work for that matter.'"37 The trial court affirmed
the Board's decision, and we affirmed the trial court.38
Although Potter did present medical testimony, we concluded that Potter
provided no evidence that her office exposed her to a greater risk of contracting
her disorder than other environments she had encountered.39 Like the previous
two cases discussed above, the opinion does not state that Potter's claim failed
34 172 Wash. App. 301, 308, 289 P.3d 727 (2012).
35 id, at 304, 306, 315-16.
36 id, at 308.
37 id, at 316.
38 id, at 309, 316.
39 Id. at 316.
10
No. 75644-3-1/11
because she did not present expert medical testimony showing that her work
conditions were distinctive to her particular employment and caused her disorder.
In sum, Dennis and opinions that follow do not support the argument that
occupational disease claimants are required to present medical testimony
showing that his or her work conditions are distinctive to his or her particular
employment. Expert medical testimony is, of course, required to show causation
between the disease and the employment. That was done in this case.
We note also that the relevant jury instruction in this case, to which
Weyerhaeuser did not take exception, did not require such medical testimony.
Rather, Instruction Number 14 provided:
Proof that the condition arose naturally and proximately out
of the employment must be established at least in part through
expert testimony. The causal connection must be found to exist as
a matter of probability; that is, more probably true than not true. An
expert opinion that causation is only possible is not sufficient to
prove proximate causation.[40]
In sum, Street was not required to present expert medical testimony to
show that his "job duties and activities working for Weyerhaeuser constitute
distinctive conditions of employment sufficiently different from his activities of
everyday life."41
Weyerhaeuser argues that "whether particular work conditions constitute!]
a 'distinctive' cause of a medical condition presents a medical question."42 It
40 Clerk's Papers at 526.
41 id, at 534.
42 Brief of Appellant at 19.
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No. 75644-3-1/12
relies on Dennis and Zipp v. Seattle School District No. 143 to support this
argument. It specifically states that "issues of medical causation must be proved
through expert testimony."44
We agree that issues of medical causation must be proven with expert
medical testimony. That was done in this case by Street's attending physician,
whose testimony must be given special consideration and tied Street's low back
pain to his employment conditions.
But neither Dennis nor Zipp supports the argument that expert medical
evidence is required for other questions, specifically the one before us.
Weyerhaeuser also argues that the supreme court's discussion in Dennis
about the medical testimony presented in that case "was very limited and did not
purport to provide an exhaustive account of the attending physician's testimony
as to the distinctiveness of the claimant's work exposure."45 Other than implicitly
conceding that this case does not support the proposition that it argues, we do
not find this observation helpful. If anything, the lack of discussion in Dennis
about the attending physician's testimony as to the distinctive work conditions
further supports the conclusion that such expert medical testimony is not
required.
Lastly, Weyerhaeuser argues that the legislature's use of the phrase
"arising out of to define an occupational disease requires medical testimony to
43 36 Wash. App. 598, 601, 676 P.2d 538 (1984).
44 Brief of Appellant at 19 (citing Dennis. 109 Wash. 2d at 477).
45 Reply Brief of Appellant at 14.
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No. 75644-3-1/13
demonstrate the requisite distinctive employment conditions. It specifically
argues that the phrase "arising out of reflects the legislature's intent to require a
causation analysis in determining whether a claimant's condition arose naturally
from his or her employment. We do not read the supreme court's exhaustive
discussion in Dennis to be consistent with this novel argument. Thus, we reject it.
ATTORNEY FEES AND COSTS
At Trial
Weyerhaeuser requests that we reverse the trial court's attorney fees and
costs award to Street. Because we affirm the trial court's judgment in favor of
Street, we decline to reverse the trial court's award of attorney fees and costs.
On Appeal
Street requests attorney fees and costs on appeal as a prevailing party
under RCW 51.52.130. We grant Street's request for attorney fees and costs,
subject to his compliance with RAP 18.1(d).
RCW 51.52.130 authorizes this court to grant reasonable attorney fees
and costs "where a party other than the worker... is the appealing party and the
worker's . . . right to relief is sustained." Here, Street did not appeal, and we
affirm the trial court's judgment in his favor. Thus, we grant Street's request for
attorney fees and costs.
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No. 75644-3-1/14
We affirm the judgment on the jury verdict and award Street fees on
appeal, subject to his compliance with RAP 18.1(d).
*Sax,T.
WE CONCUR:
/*CJ/ W, -w*> a,
14