No. 61237-9-I.The Court of Appeals of Washington, Division One.
October 19, 2009.
Appeal from the Superior Court, King County, No. 07-2-14593-1, Richard D. Eadie, J., entered January 14, 2008.
Affirmed in part, reversed in part, an remanded by unpublished opinion per Cox, J., concurred in by Becker and Ellington, JJ .
COX, J.
The common issue in these consolidated appeals from the superior court is whether either of Chad Eaton’s knee injuries while playing for the Seattle Seahawks was a proximate cause supporting his aggravation application to reopen either of his two closed workers’ compensation claims. Because the superior court’s findings and conclusions for the appeal based on the alleged aggravation of his April 3, 2003 knee injury are unclear, we vacate and remand them for reconsideration. In contrast, the trial court’s findings for the appeal based on his August 12, 2002 knee injury are supported by substantial evidence. Moreover, those findings support the court’s conclusions of law. We affirm in part, vacate in part, and remand with instructions.
Chad Eaton played professional football in the National Football League (NFL) for 10 years. Eaton played defensive end and defensive tackle with the New England Patriots for six years, beginning in 1995. He sustained an injury to his right knee in 2000 and underwent surgery to address the problem. During the surgery a portion of his right lateral meniscus was removed.
Eaton then joined the Seattle Seahawks in 2001. He played defensive tackle for two seasons and then sat out the 2003 season on the injured reserve list. While playing for the Seahawks, Eaton filed two workers’ compensation claims for injuries to his right knee. The claims were filed with the Seahawks, a self-insured employer under RCW 51.14.010.[1] The first claim, W-511887, was for an injury to his right iliotibial band that he sustained during practice on August 12, 2002. The claim was allowed and benefits were paid. The Department of Labor and Industries closed the claim on September 18, 2003. It appears that the closing order directed the Seahawks to pay a permanent partial disability award equal to five percent of the amputation value of the right leg above the knee.
Eaton filed a second claim, W-661424, for an injury he sustained during practice on April 2, 2003. The claim was allowed and benefits were paid. It does not appear that there was any disability award for this claim.
Following this second injury Eaton had a series of five surgeries on his right knee. Dr. Steven Bramwell performed surgery on Eaton’s right knee on April 29, 2003, identifying a torn lateral meniscus, thinning of the articulate cartilage under the patella, and a cyst. Dr. Merritt Auld, one of two medical experts providing evidence during the administrative proceedings below, testified that the only injury identified by Dr. Bramwell’s surgery that was proximately caused by Eaton’s August 2, 2003 practice activity was the torn meniscus. A portion of Dr. Auld’s practice is as the head team physician for the Seahawks. He performed another surgery on Eaton’s right knee on August 8, 2003. During that surgery, Dr. Auld removed a further portion of the torn meniscus and attempted to repair the cyst. At the end of August 2003, Eaton’s knee developed an infection. Dr. Auld operated on the knee again on September 3, 2003, to treat the infection. In early 2004, Eaton elected to seek treatment by Dr. Richard J. Steadman, another orthopedic specialist. Dr. Steadman performed arthroscopic surgery on February 11, 2004. As previously noted, it appears that after this fourth surgery the Department closed claim W-661424 on July 23, 2004, without a permanent disability award.
Eaton then tried out for the Dallas Cowboys in August 2004. He made the team and played defensive tackle for nine weeks before being released due to a roster change. This ended his career as a professional football player.
On March 18, 2005, Eaton filed an aggravation application to reopen either of his previously allowed workers’ compensation claims, seeking additional treatment of his right knee. He then underwent another right knee surgery with Dr. Steadman on July 22, 2005.
The Department denied the aggravation application on August 12, 2005. Eaton protested this order, and on October 12, 2005, the Department issued an order reopening claim W-511887. The Department denied Eaton’s request to reopen claim W-661424 on October 26, 2005.
The Seahawks appealed the Department’s order reopening claim W-511887 to the Board of Industrial Insurance Appeals. Eaton appealed the Department’s order denying the reopening of claim W-661424.
The Board did not consolidate the appeals, but tried them together. The Industrial Appeals Judge issued a proposed decision and order reversing the Department’s order reopening W-511887. The IAJ issued a separate proposed decision and order reversing the Department’s order denying the reopening of W-661424. The respective proposed decisions and orders became the decisions and orders of the Board on April 5, 2007.
Thereafter, Eaton appealed the Board’s order denying the reopening of claim W-511887 to King County Superior Court, and the Seahawks appealed the Board’s order reopening claim W-661424. The court consolidated the appeals for a bench trial. At the conclusion of the trial, the court entered findings of fact and conclusions of law on each appeal. The court granted the Seahawks’ appeal, vacating the Board’s order reopening claim W-661424. The court denied Eaton’s appeal, affirming the Board’s order closing claim W-511887.
Eaton timely appeals both decisions.
REOPENING OF CLAIMS The April 2, 2003 Injury
Eaton argues that the superior court erred in granting the Seahawks’ appeal and vacating the Board’s order that reopened claim W-661424, the claim for his April 2, 2003 injury. Because the trial court’s findings and conclusions on this reopening claim are unclear, we vacate and remand them for reconsideration on the existing record.
RCW 51.32.160(1)(a) allows a claim to be reopened for aggravation of a condition proximately caused by an industrial injury.[2] To prove aggravation, the claimant must produce medical evidence based at least in part on the objective medical findings of a physician that the industrial injury was aggravated and was greater on the last terminal date (the date of the Department order reopening or refusing to reopen the claim) than the first terminal date (the date the claim was closed).[3] This medical evidence must show three things: (1) That there was a causal relationship between the injury and the subsequent disability; (2) that, based at least in part on objective symptoms, there was an aggravation of the injury resulting in increased disability; and (3) that the aggravation occurred between the terminal dates.[4]
On review to the superior court, the Board’s decision is prima facie correct and the burden of proof is on the party challenging the decision.[5] The superior court acts in an appellate capacity, reviewing the Board’s decision de novo.[6] The superior court 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.[7]
Judicial review in this court is governed by RCW 51.52.140
which provides that an “[a]ppeal shall lie from the judgment of the superior court as in other civil cases.”[8] This statutory scheme results in a different role for this court than is typical for appeals from administrative decisions.[9]
Rather than sitting in the same position as the superior court, under the Industrial Insurance Act, this court reviews only “whether substantial evidence supports the trial court’s factual findings and then review[s], de novo, whether the trial court’s conclusions of law flow from the findings.”[10] In carrying out this review, we take the record in the light most favorable to the party who prevailed in superior court and do not reweigh or rebalance the competing testimony and inferences, or apply anew the burden of persuasion.[11]
Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the matter asserted.[12]
Eaton assigns error to the following portions of the findings of fact for the April 3, 2003, claim:
Finding 3: Eaton . . . sustained a right knee lateral meniscus tear on April 2, 2003 . . . such physical condition was a recurrence of the lateral meniscus tear that arose out of his professional football playing with the New England Patriots for which the first surgical repair was done in October 2000.[13]
Finding 5: The arthroscopic surgery performed by Dr. Steadman on July 22, 2005 disclosed a new tear in the lateral meniscus cartilage.[14]
Finding 6: The right knee conditions disclosed by the July 2005 arthroscopic surgery . . . represented a continuum of his professional football playing and would not have existed without such physical activity performed under his 2004 contract with the Dallas Cowboys. . . . The last injurious exposure for Eatons’ [sic] right knee occurred during the August through October 2004 professional football playing as a defensive tackle. The April 2, 2003 practice drill injurious exposure and recurrent right lateral meniscal tear did not directly cause the right knee conditions for which Eaton seeks to reopen his Washington workers’ compensation claim.[15]
Finding 7: The right knee conditions disclosed by the July 2005 arthroscopic surgery . . . would have existed without the treatment, and infection arising therefrom, provided for the April 2, 2003 recurrent right lateral meniscal tear. Such infection and treatment did not directly cause the right knee conditions for which Eaton seeks to reopen his April 2, 2003 workers’ compensation claim.[16]
While Eaton assigns error to the above findings of the trial court, he fails to argue on the basis of the controlling review standard: whether those findings are supported by substantial evidence. This failure casts substantial doubt on the viability of his appeal.
Nevertheless, we note that some of the challenged portions of the trial court’s findings of fact do present problems. First, Finding 6 characterizes the July 2005 condition of Eaton’s knee as representing “a continuum of his professional football playing.”[17] Second, another challenged portion of the same finding states that “[t]he last injurious exposure for Eatons’ [sic] right knee occurred during the August through October 2004 professional football playing as a defensive tackle [for the Dallas Cowboys].”[18] Based on the arguments in the briefs, we have several concerns about the terminology that Eaton challenges in his assignments of error.
First, while the initial quoted statement from Finding 6 appears to come from testimony of one of the two medical experts whose testimony was before the Board, the context in which the wording is used in Finding 6 indicates that the trial court decided that the April 2003 knee injury was an occupational disease rather than an industrial injury. Under the Industrial Insurance Act, an “industrial injury” is defined as a “sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without, and such physical conditions as result therefrom.”[19] An industrial injury may be found under the act if there is a relationship between the injury and some identifiable happening, event, cause, or occurrence capable of being fixed at some point in time and connected with the claimant’s employment.[20] In contrast, an “occupational disease,” under the act is defined as “such disease or infection as arises naturally and proximately out of employment.”[21]
Our concern is reinforced by the Department’s brief in which it consistently characterizes that injury as an “occupational disease.”[22]
The classification of the April 2, 2003 injury as an occupational disease is problematic on this record. Specifically, this record does not show whether either the Department or the self-insured employer considered whether that injury was an occupational disease. There is no order, or anything else in the administrative record, to indicate whether this issue was considered. Moreover, the proposed decision and order of the IAJ explicitly characterized the August 2, 2003 claim as an industrial injury, not an occupational disease.[23] The absence of any mention in the administrative record of the injury being classified as an occupational disease and the Board’s characterization of the claim as an industrial injury suggest that the issue was not before the Department or the self-insured employer.
Both the Board and the superior court are limited to consideration of those issues that the Department decided.[24] Here, there is nothing in the record to show that the Department or the self-insured employer considered the issue, despite the Department’s consistent characterization of the injury in its brief on appeal as an occupational disease. Absent a showing that the proper authority considered the issue, it would have been improper for the superior court to consider it and the related issue of the last injurious exposure rule.[25] Yet Finding 6 indicates that the court considered both.
Second, assuming without deciding that the trial court properly considered the last injurious exposure rule in this case, it is unclear that this rule would relieve the Seahawks from liability on the reopening claim. While the parties have not fully briefed the point, the supreme court’s decision i Department of Labor and Industries v. Fankhauser[26]
suggests the Seahawks might not be relieved of liability. That is because the last injurious exposure occurred, if at all, while Eaton was employed in Texas by an employer not covered by the Washington Industrial Insurance Act.[27] I Fankhauser, the court noted that a number of other state courts that have considered the issue have held that where the last employer is located in a different state from that in which the initial claim was brought, the last employer covered in the state where the initial claim was brought is fully liable regardless of whether the claimant was subsequently exposed to dangerous conditions in out-of-state employment.[28]
While we do not decide whether the last injurious exposure rule applies to this case, the language in the findings creates an additional problem that the trial court may not have considered when it entered the findings.
For the above reasons, the current findings and conclusions are unclear. We vacate them and remand to the trial court for reconsideration based on the existing record. As part of the entry of new findings on the existing record, the trial court should consider the following questions. First, did the Department or self-insured employer consider the issue of occupational disease for the April 2, 2003 injury to Eaton’s right knee? Second, assuming that a proper authority did consider the issue, is that injury properly considered an occupational disease under governing law? Third, to what extent, if any, does the last injurious exposure rule affect Eaton’s aggravation claim? And fourth, regardless of the answers to the previous questions, was the April 2, 2003 injury or the subsequent infection of the knee a proximate cause of the later condition of Eaton’s knee for the relevant terminal dates?
Eaton also argues that the final and unappealed order that allowed claim W-661424 makes it res judicata that all medical conditions that were discovered and addressed during treatment for the lateral meniscus tear are part of that claim. We need not reach this issue in light of the fact that we have vacated the trial court’s findings and remanded them for further consideration.
Finally, Eaton also argues that he should be allowed to reopen his claims under McDougle v. Dep’t of Labor and Industries[29] even if his nine week tenure with the Cowboys constitutes an intervening cause that contributed to the aggravation of his right knee condition. We need not address that argument now given our vacation of the findings and remand for reconsideration.
The August 12, 2002 Injury
Eaton next argues that the superior court erred in denying his appeal and affirming the Board’s order closing claim W-511887, which is based on his August 12, 2002 injury. We disagree.
The same legal principles and standards of review apply to this claim as to claim W-661424 above. This court may only overturn the superior court’s findings of fact if it concludes that they are not supported by substantial evidence.[30] The superior court’s conclusions of law are reviewed de novo to determine whether they flow from the findings of fact.[31]
As we previously noted, Eaton fails to argue that the superior court’s findings are not supported by substantial evidence. Instead he argues that there is substantial evidence in the record to support his aggravation application. This position is fatal to his claim on appeal.
Eaton assigns error to the following portions of the findings for reopening the August 12, 2002 knee injury claim:
Finding 3: Eaton . . . sustained a right iliotibial band tendinitis arising from August 12, 2002 practice drill activity while playing professional football for the Seahawks.[32]
Finding 4: By September 18, 2003, the right iliotibial band tendinitis had reached maximum medical improvement and left Eaton with a permanent impairment equal to five percent of the amputation value of the right leg above the knee joint.[33]
Finding 5: There are no objective medical findings and medical opinions establishing as of October 5, 2005 when the Eaton’s application to reopen claim No. W-511887 was denied . . . that the right iliotibial band condition arising from the August 12, 2002 practice drill activity had worsened since September 18, 2003 when the claim was closed with an award for permanent partial disability.[34]
The Certified Appeals Board Record contains substantial evidence to support these findings. Accordingly, we hold that the trial court properly found these facts. We also hold that the findings support the court’s conclusions of law.
First, Dr. Auld, one of two medical experts giving evidence at the Board’s administrative proceeding, testified that he evaluated Eaton’s right knee for symptoms that arose after practice on August 12, 2002 and detected an irritation of the right iliotibial (IT) band. Dr. Auld testified that an MRI on September 16, 2002 confirmed this diagnosis. Dr. Auld further testified that he assisted Eaton in completing a workers’ compensation claim for right IT band tendinitis for symptoms arising out of the August 2002 practice injury. Dr. Auld then testified that Eaton’s 2002 end of year physical showed that the IT band tendinitis had improved and that Eaton was symptom free. The claim was closed on September 18, 2003 with a five percent permanent partial disability rating. Dr. Auld testified that there was no evidence that the right IT band tendinitis continued to be a problem after the claim was closed. In short, there was no causal connection between this injury and the claimed later aggravation. Eaton argues that the testimony of Dr. Steadman shows a causal relationship between the 2002 injury and the subsequent aggravation, and that the injury worsened after claim W-511887 was closed. Dr. Steadman’s testimony is insufficient to overcome the existence of substantial evidence to support the trial court’s finding.
Dr. Steadman did not examine or treat Eaton until after claim W-511887 was closed. While he opined on a more probable than not basis that Eaton’s knee condition worsened between the terminal dates for claim W-511887, he did not have any first-hand knowledge of that injury. Rather, his opinion was based on what he described as a “theoretical situation.” Dr. Steadman acknowledged that he did not have a clear understanding of the 2002 injury and that he did not know what structures within the right knee were actually damaged by the 2002 injury.
The second prong of this court’s analysis is to determine whether the superior court’s conclusions of law flow logically from its findings of fact. They do.
The superior court determined that Eaton’s right IT band tendonitis did not worsen between the terminal dates for claim W-511887 within the meaning of RCW 51.32.160. This flows logically from the superior court’s findings of fact. Eaton has failed in his burden to show either the lack of substantial evidence to support the court’s findings or that the findings do not support the court’s conclusion of law.
ATTORNEY FEES AND COSTS
Eaton requests his attorney fees and costs pursuant to RAP 18.1 and RCW 51.52.130. We deny this request because it is not warranted.
We affirm the judgment of the trial court affirming the Board’s decision to deny reopening of the claim based on the August 12, 2002 injury. We vacate the findings and conclusions reversing the Board’s decision to reopen the claim based on the April 2, 2003 injury and remand with instructions.
WE CONCUR.