No. 26602-8-III.The Court of Appeals of Washington, Division Three.
October 2, 2008.
Appeal from a judgment of the Superior Court for Yakima County, No. 02-2-03181-1, Michael E. Schwab, J., entered October 26, 2007.
UNPUBLISHED OPINION
SCHULTHEIS, C.J.
Jose Cruz appeals a superior court order affirming a Board of Industrial Insurance Appeals (BIIA) determination that his industrial injuries did not worsen between January 1998 and August 2000. Mr. Cruz claims the superior court (1) failed to conduct a de novo review of the evidence and (2) applied the wrong test in evaluating the issue of aggravation. We reject his contentions and affirm.
FACTS
On June 26, 1997, Mr. Cruz, who was then 55 years old, fell six feet from a ladder while working in an apple orchard. The next day, he went to Dr. Theodore Palmatier, a specialist in occupational medicine, complaining of neck and back pain and intermittent numbness and pain in his leg. Dr. Palmatier ordered x-rays and diagnosed Mr. Cruz with cervical, thoracic, and lumbar spine sprain and referred him to physical therapy. On July 10, 1997, Mr. Cruz applied for benefits with the Department of Labor and Industries (DLI).
On December 19, 1997, Dr. Lewis Almaraz, a neurologist, and Dr. Ray Fenner, an orthopedist, conducted independent medical examinations (IME) of Mr. Cruz at DLI’s request. Dr. Fenner concluded that Mr. Cruz’s muscular strains had resolved by the time of the examination and believed Mr. Cruz was exaggerating his symptoms. Dr. Almaraz reported that Mr. Cruz’s neurological examination was “essentially normal” and that he could not correlate his objective findings with Mr. Cruz’s subjective complaints. Almaraz Depo. at 15. Like Dr. Fenner, he believed that Mr. Cruz’s muscular strains had resolved by the date of the examination and no further treatment was needed. DLI closed Mr. Cruz’s claim in January 1998 without awarding him permanent partial disability benefits. Mr. Cruz did not appeal that decision.
After January 1998, Mr. Cruz reported increased back pain and pain and numbness in both legs. On April 4, 2000, Dr. Palmatier evaluated Mr. Cruz again. Dr. Palmatier measured a five-inch decrease in Mr. Cruz’s lumbosacral range of motion and observed bilateral parastasis (pain and numbness) in Mr. Cruz’s legs. After reviewing the 1997 IMEs, he recommended that Mr. Cruz reopen his DLI claim.
On April 12, 2000, Mr. Cruz filed an application to reopen his claim based on aggravation of symptoms, which DLI denied. Mr. Cruz appealed to the BIIA on October 9, 2000. The BIIA reopened the claim and held a hearing on the matter on May 9, 2002.
At the hearing, Mr. Cruz testified that before his claim closed in January 1998, he could play instruments in his mariachi band for up to two to three hours at a time and play sports with his children. However, after that date, due to increased leg and back pain, he could no longer play sports and the length of time he could play in his band was significantly reduced.
Alexander Cruz, Mr. Cruz’s son, stated that before the accident his father had no physical limitations, stating “he did everything.” Alexander Cruz Depo. at 28. He testified that after January 1998, his father could no longer play in his band for long stretches of time, his back bothered him, and he could no longer perform yard work or car repairs.
The medical experts disagreed as to whether Mr. Cruz’s condition worsened between the terminal dates of January 28, 1998 and August 30, 2000. Dr. Palmatier opined that it was more probable than not that Mr. Cruz’s condition had worsened between the terminal dates. He also noted that although he believed Mr. Cruz may have exaggerated symptoms, such exaggeration did not rule out worsening of Mr. Cruz’s condition.
Dr. Thomas Gritzka, an orthopedic surgeon with a specialty in lumbar back problems, evaluated Mr. Cruz in April 2002 and concluded that Mr. Cruz’s condition had worsened between the terminal dates. Dr. Gritzka reviewed the previous medical evaluations and noted that Mr. Cruz’s lumbar range of motion was significantly impaired. He also reviewed a July 2001 MRI (magnetic resonance imaging) and concluded that Mr. Cruz had a herniated disc caused by the accident, which correlated with the pain and loss of sensation in Mr. Cruz’s legs.
On August 9, 2000, Dr. Scott Linder, an orthopedic surgeon with a specialty in spinal problems, conducted an IME. In his deposition, he stated that Mr. Cruz’s major complaint was “lack of energy more than pain.” Linder Depo. at 10. Dr. Linder concluded that the examination was “entirely normal” with no indications of residual injury. Id. at 12-13.
On the same date, Dr. Almaraz conducted the neurological portion of the IME. In his deposition, he stated that Mr. Cruz reported chronic neck and right shoulder pain, but that his chief complaint was extreme fatigue. He concluded that Mr. Cruz’s examination was normal, any muscle strains had resolved, and there was no objective basis for any of Mr. Cruz’s complaints. He did not believe Mr. Cruz’s condition had worsened.
On August 7, 2002, the BIIA concluded that Mr. Cruz’s condition had not become aggravated between the terminal dates. Mr. Cruz appealed the decision to the superior court, which affirmed the BIIA, concluding:
The testimony of the Department’s medical witnesses relate to examinations from December 19, 1997, and August 9, 2000. These dates are well within or contemporaneous to the period in question. There is sufficient credible evidence from these expert witnesses from which a rational tribunal could conclude that there was no worsening of the claimant’s condition during the period in question.
The burden is on the claimant to demonstrate by a fair preponderance of credible evidence that the Board’s findings and decisions are incorrect. After a careful review of the record in this case, this Court does not find that the claimant has met that burden. The decision of the Board of Industrial Appeals is affirmed.
Clerk’s Papers (CP) at 85-86. The court later adopted the BIIA’s findings of fact and conclusions of law. Mr. Cruz appeals.
ANALYSIS
Mr. Cruz first argues that the superior court deferred to the BIIA’s findings, rather than conducting a true de novo review as required under the Washington Industrial Insurance Act, Title 51
RCW. To support this position, he points to the memorandum decision, in which the court stated, “There is sufficient credible evidence . . . from which a rational tribunal could conclude that there was no worsening of the claimant’s condition during the period in question.” CP at 85.
RCW 51.52.115 provides in part that in appeals from the BIIA:
The hearing in the superior court shall be de novo, but the court shall not receive evidence or testimony other than . . . that offered before the board . . . In all court proceedings under or pursuant to this title the findings and decision of the board shall be prima facie correct and the burden of proof shall be on the party attacking the same.
“Prima facie” means that the reviewing court presumes the findings and conclusions of the BIIA are correct unless a preponderance of credible evidence indicates otherwise Allison v. Dep’t of Labor Indus., 66 Wn.2d 263, 268, 401 P.2d 982 (1965).
Contrary to Mr. Cruz’s assertion, the superior court correctly identified and applied this standard. Its detailed decision indicates that it conducted a careful de novo review, closely scrutinized the experts’ conflicting opinions, and ultimately concluded that Mr. Cruz failed to show that the previous decision was incorrect by a preponderance of the evidence. The court explicitly notes that it reviewed the record and then devotes almost five pages of its decision to summarize and assess the witnesses’ testimony and credibility, explaining that it found Mr. Cruz’s experts less persuasive because they did not see Mr. Cruz during the relevant time period.
The superior court also addressed Mr. Cruz’s contention that DLI’s medical witnesses failed to express opinions about whether Mr. Cruz’s condition worsened. It was in this context that the court concluded that the BIIA’s experts provided sufficient credible evidence “from which a rational tribunal could conclude that there was no worsening of the claimant’s condition.” CP at 85. Evaluating the language in this context, Mr. Cruz’s assertion that the superior court abandoned de novo review is not persuasive.
Next, Mr. Cruz asserts that the superior court applied the wrong test in evaluating the issue of aggravation. In industrial insurance appeals, our review is limited to examination of the record to see whether substantial evidence supports the court’s findings and whether the court’s conclusions of law flow from the findings. Dep’t of Labor Indus. v. Moser, 35 Wn. App. 204, 208-09, 665 P.2d 926 (1983). Division Two of this court has emphasized our limited role in these appeals, noting, “Our function is to review for sufficient or substantial evidence, taking the record in the light most favorable to the party who prevailed in superior court. We are not to reweigh or rebalance the competing testimony and inferences, or to apply anew the burden of persuasion.” Harrison Mem. Hosp. v. Gagnon, 110 Wn. App. 475, 485, 40 P.3d 1221 (2002) (footnote omitted).
Washington’s Industrial Insurance Act authorizes the reopening of a claim if an aggravation of an injury occurs after the claim is closed. RCW 51.32.160. “To prevail on an aggravation claim, a claimant must prove through medical evidence that (1) the industrial injury caused the aggravation, and (2) his condition became aggravated during the time between the first and second terminal dates.” Grimes v. Lakeside Indus., 78 Wn. App. 554, 561, 897 P.2d 431 (1995) (emphasis omitted). The injured worker bears the burden of producing some objective medical evidence verified by a physician that his or her injury has worsened since the closure of the claim. Phillips v. Dep’t of Labor Indus., 49 Wn.2d 195, 197, 298 P.2d 1117
(1956); White v. Dep’t of Labor Indus., 48 Wn.2d 413, 293 P.2d 764 (1956).
Noting the claimant’s burden to establish aggravation, Mr. Cruz contends that “a defense against aggravation must be proven by the same standard and supported by medical testimony that aggravation did not occur during the terminal dates.” Br. of Appellant at 12. He claims that DLI failed to produce any medical evidence to disprove that his condition worsened. He argues that Dr. Linder and Dr. Almaraz simply stated that Mr. Cruz’s condition did not worsen after August 9, 2000, a period that represents only 21 days of the entire aggravation period, and that Dr. Fenner provided no opinion at all.
Mr. Cruz’s arguments fail. First, he provides no authority for his proposition that DLI is held to the same standard as a claimant under the Industrial Insurance Act. Further, contrary to his claim, medical experts for DLI did opine that Mr. Cruz’s industrial injuries did not worsen between the terminal dates. Both Dr. Linder and Dr. Almaraz testified that Mr. Cruz’s injuries had resolved by August 9, 2000, a date close to the final terminal date of August 30. Dr. Almaraz testified that the only difference in Mr. Cruz’s condition between December 19, 1997 and August 9, 2000 was some give-way weakness in Mr. Cruz’s right arm and leg — a weakness without an objective basis.
Dr. Linder also concluded that Mr. Cruz’s conditions had resolved by August 9, 2000. Although he was not explicitly asked whether Mr. Cruz’s injuries were aggravated between the terminal dates, the only inference from his testimony is that they were not aggravated. See Edwards v. Dep’t of Labor Indus., 43 Wn. App. 480, 717 P.2d 1377 (1986) (permitting an inference that a medical condition remained unchanged despite failure to ask expert his opinion on the issue).
CONCLUSION
We conclude that substantial evidence supports the court’s finding that Mr. Cruz failed to establish that his industrial injuries were aggravated between the terminal dates of January 21, 1998 and August 30, 2000. Although some medical experts testified that Mr. Cruz’s injuries worsened between these dates, DLI produced sufficient evidence that his condition did not worsen. We do not reweigh the competing evidence or substitute our judgment for the court below. The trial court was allowed to accept the testimony of DLI’s witnesses over Mr. Cruz’s experts. Bryant v. Dep’t of Labor Indus., 173 Wash. 240, 246, 22 P.2d 667 (1933). We affirm.
ATTORNEY FEES
Mr. Cruz asks for attorney fees under RAP 18 and RCW 51.52.130. The award of attorney fees in a worker’s compensation case is controlled by RCW 51.52.130. Flanigan v. Dep’t of Labor Indus., 123 Wn.2d 418, 427, 869 P.2d 14 (1994). Attorney fees are awarded to the worker whose appeal to the superior or appellate court results in a reversal or modification of the BIIA decision. RCW 51.52.130. Because we affirm the superior court’s decision, Mr. Cruz is not entitled to attorney fees.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Sweeney, J., Brown, J., concur.