The opinion
FILED
FEB 12,2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
ANA ZAVALA. )
) No. 31854-1-III
Appellant, )
)
v. )
)
TWIN CITY FOODS. ) PUBLISHED OPINION
)
Respondent. )
FEARING, J. - The Board of Industrial Insurance Appeals closed Ana Zavala's
industrial insurance claim, which ruling the Franklin County Superior Court affirmed.
Zavala appeals and asks this court to reopen her claim or, in the alternative, to increase
her disability rating. The appeal requires discussion of the "lit up" doctrine under
workers' compensation law. Zavala primarily argues that her testimony and the
testimony of friends and family that she experienced no pain before her work injury
requires the trial court to find that she suffered from no preexisting condition, despite
medical testimony to the contrary. Because the trial court has the discretion to believe
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No. 31854-1-III
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the testimony of physicians over lay witnesses and because we defer to the trial court's
findings, we affinn the superior court.
FACTS
On September 17, 2007, Ana Zavala, then age 52, injured her left knee in the
course of employment with Twin City Foods. Zavala testified concerning the
circumstances of the injury:
I was cleaning an area, and my supervisor said, "This area needs to
be clean in 15 minutes, it has to be very clean," and I was hurrying up. I
was putting chlorine and soap and I was washing the area quickly, and I hit
my knee, and ever since then I have not been able to walk.
Administrative Record (AR) at 461. Zavala hit her knee against the flat edge of a tub.
Zavala finished her work on September 17, but then went to Lourdes Occupational Clinic
for an assessment.
In October 2007, orthopedic surgeon Christopher Kontogianis e~amined Ana
Zavala. An October 3, 2007, magnetic resonance imaging (MRI) showed fluid in her left
knee, a tear of the posterior hom of the medial meniscus, and a complete tear of the
medial collateral ligament from the tibial insertion. A meniscus is a "c"-shaped cartilage
disk found in the knee. The medial meniscus lies on the inner side of the knee, and the
lateral meniscus rests on the outer side of the knee. The menisci serve a critical function
in the knee as a shock absorber or cushion, thereby minimizing the stress on the articular
cartilage. The posterior horn is in the back ridge or bend of the meniscus. The medial
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collateral ligament is one of four major ligaments critical to the stability of the knee joint.
This ligament spans the distance from the end of the femur to the top of the tibia and lies
inside the knee joint.
On November 19,2007, Ana Zavala applied for workers' compensation benefits
with the Department of Labor and Industries. The department approved Zavala's claim
and ordered Twin City Foods to pay all medical and time-loss compensation benefits for
the industrial injury.
Dr. Christopher Kontogianis performed arthroscopic surgery to repair Zavala's left
knee on November 21, 2007. The arthroscopy revealed significant degenerative change
in the knee, diagnosed as osteoarthritis. Kontogianis injected Synvisc, an artificial
lubricant, into Zavala's knee to treat her osteoarthritis.
Ana Zavala received time-loss compensation through April 27, 2008. On June 16,
2008, the department closed Zavala's claim because the covered medical condition was
stable. The department then ordered Twin City Foods to pay Zavala a permanent partial
disability (PPD) award often percent of the amputation value of the left leg above the
knee joint.
On July 18,2008, Ana Zavala protested the closing of her claim by the
Department of Labor & Industries. The department held its June 16 order in abeyance
beginning November 7, 2008. The department cancelled this abeyance and reopened
Zavala's claim on December 5,2008.
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PROCEDURE
The department again closed Ana Zavala's claim on August 21,2009. This
closure recognized the same time-loss compensation, paid through April 27, 2008, and
the same ten percent permanent partial disability award. Zavala again protested the
closure, and the department cancelled the August 21 closure on October 30, 2009. Twin
City Foods appealed the cancellation of the closure.
The Board of Industrial Insurance Appeals conducted a hearing on Twin City
Foods' appeal on September 30 and November 1,2010. At the hearing, Ana Zavala, her
son Jose Zavala, her coworkers Maria Martinez and Josefina Vargas, her friend from
childhood Floretino Ledesma, and friend from church Irma Mendoza testified. All
testified that Zavala showed no signs of pain or injury prior to her September 17, 2007
injury. All testified that following her September 17,2007 injury, Zavala limped and her
knee visibly caused her pain.
The board considered testimony from four orthopedic surgeons. Twin City Foods
called Christopher Kontogianis, Patrick Bays, and Larry Iversen to testify. Ana Zavala
called Thomas Gritzka to testify.
Dr. Christopher Kontogianis testified that the November 21,2007, arthroscopy
revealed "significant degenerative change in her knee, as well as a tom medial
meniscus." AR at 507. Kontogianis attributed the medial meniscal tear to Zavala's
September 17 injury. Kontogianis diagnosed the significant degenerative change as
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arthritis and near grade 4 chondromalacia, meaning near bone on bone contact on one
side of Zavala's knee joint. Kontogianis believed the degenerative arthritis and
chondromalacia existed prior to the September 17,2007, industrial injury. Kontogianis
continued:
Q. Based on the surgery you did in November 2007, would
someone with those type of degenerative findings have what we term a
symptomatic knee prior to her September industrial injury?
A. Most likely.
Q. And why is that?
A. Why would somebody have symptoms from having severe
degenerative arthritis of the knee?
Q. Yeah.
A. Because it hurts.
AR at 512.
Christopher Kontogianis testified that the industrial injury temporarily aggravated
the preexisting arthritis, but Zavala became "mostly fixed and stable" as of March 2008.
AR at 510. Dr. Kontogianis reviewed a June 4,2009, independent medical exam report
and agreed that no further medical intervention for her industrial condition was needed.
Kontogianis rated Zavala's knee as ten percent disabled. Kontogianis and Zavala
discussed the possibility of a total knee replacement, but Kontogianis believed any need
for such replacement was not related to Zavala's industrial injury.
Dr. Patrick Bays examined Ana Zavala on April 17,2009, and he reviewed reports
from doctors who treated Zavala. Zavala reported, to Dr. Bays, pain and numbness
throughout her leg. On a scale of one to ten, Zavala rated her pain at ten. Bays assessed
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Zavala's major nerves to the brain as normal, Zavala's motor strength in the left leg as
five out of five, and Zavala's deep tendon reflexes as normal. Zavala complained of
global sensory deficit, yet told Bays that her entire leg was sensitive to touch. AR at 541,
549. Bays found this symptom strange, testifying:
Now, that can happen with certain types of conditions, such as an
amputation or a severe circumferential nerve injury, where you've
traumatized all of the nerves around an entire limb, but it is completely
nonanatomic or it does not fit a normal known anatomic pathway if
somebody doesn't have that type of an injury and yet they complain of
global sensory deficit. So for us that's another red flag. That means that
what the patient is experiencing and telling us does not fit with any known
normal anatomic pathway. It doesn't fit with science. It doesn't fit with
medical documentation and acumen that we know of.
ARat 542.
Dr. Bays testified that, during the examination, Zavala walked with a limp when
aware that Bays observed her but without a limp when unaware of being watched. Bays
believed that Zavala's "obvious symptom magnification would be completely and wholly
unrelated to the subject injury of September 17th of 2007, on a more-probable-than-not
basis." AR at 552.
According to Patrick Bays, an earlier MRI showed swelling in Zavala's left knee.
But at the April 17, 2009 examination, Bays found "no evidence of an effusion or
swelling anywhere around the left knee joint." AR at 547. Dr. Bays reviewed a
September 27,2007 x-ray, an October 3,2007 MRI, September 30,2008 x-ray, and Dr.
Kontogianis's report. Bays opined:
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No. 31854-1-III
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It would be a virtual impossibility to develop the arthritic changes
that were identified on the imaging studies within that timeframe.
Degenerative changes such as those that were displayed by Ms. Zavala
would have taken years and years to have developed. And so it would have
been an impossibility for those imaging studies to have been caused by a
work injury of 9-17 -2007.
Typically, wear-and-tear arthritis, that has happened over a long
period of time, typically one's lifetime, will affect all three compartments.
And that's exactly what happened in this case. There was grade three to
four chondromalacia to all three of those compartments. Again, this is a
wear-and-tear arthritis, age related, nontraumatic in nature. These arthritic
changes were occurring over many, many years and had absolutely nothing
to do with bumping the knee at the time of injury.
My final diagnosis was that of a left knee medial and lateral
meniscus tear, status post left knee arthroscopic partial medial and partial
lateral menisectomy.
ARat 552.
Dr. Bays testified that neither the industrial injury nor Dr. Kontogianis' surgery
worsened or accelerated Ana Zavala's arthritis. Bays continued:
Q. If the Judge or board in this case finds that the September 17,
[2007] injury lit up a prior asymptomatic knee joint and there was some
aggravation in this case, would you think that that aggregation [sic] was
temporary or permanent, as it relates to Ms. Zavala?
A. Well, in my opinion, there was no aggravation, first of all, of
the preexisting arthritic process. I don't even think that the, in my opinion,
that the meniscus tears were caused by the subject mechanism of injury.
Having said that, I would say that if in fact it is confirmed that there was an
aggravation of a preexisting left knee condition, in my opinion that
aggravation would be reflective only of the meniscus tears, which in my
opinion were preexisting, and not of the arthritic condition. The meniscus
tears, the aggravation was dealt with arthroscopically. The torn portion of
the menisci was removed. The remainder of the menisci was entirely
normal. And so at that point the temporary aggravation would have abated
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and she was left with an impairment that involved only the meniscus that
was taken out. That would be a 10 percent impairment. There was no
impairment related to the preexisting arthritis, in my opinion.
AR at 562-63. Dr. Bays added:
A. . .. Degenerative arthritis is more of a wear-and-tear arthritis
that happens over the course of time throughout one's natural life, where as
a true inflammatory arthritis would be more consistent with a rheumatoid
arthritis, would be more consistent with a gouty arthritis, arid not as
consistent with a degenerative arthritis.
Q. Is it possible that an injury, such as-that Ms. Zavala
experienced, could aggravate or exacerbate osteoarthritis or at least the
symptoms of osteoarthritis?
A. No.
Q. Is it possible for a person with osteoarthritis to be completely
asymptomatic one day and then the very next day experience major adverse
outcomes or adverse status with respect to activities of daily living?
A. No.
Q. Is it possible for a person with osteoarthritis to one day be
completely asymptomatic, with respect to pain, and then the next day
experience great levels of pain?
A. No.
AR at 574-76.
Dr. Patrick Bays refrained from commenting on whether Zavala was symptomatic
prior to her industrial injury pointing to the lack of a "paper trail." AR at 563. Bays
testified, however, that someone with Zavala's arthritic degradation could be without
symptoms. Dr. Bays further declared that less than ten to fifteen percent of patients go
from completely asymptomatic to requiring a total knee replacement within two to three
years. Bays believed Zavala's industrial injury was fixed and stable when he examined
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No. 31854-1-111
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her.
Dr. Bays testified to Ana Zavala's permanent impairment by reason of her work
injury. He stated: "Using the American Medical Association Guidelines, 5th edition, and
citing the specific tables, if one undergoes a partial medial and a partial lateral
menisectomy, it is automatical1y a 10 percent impairment to the left lower extremity."
AR at 564. Bays opined that Zavala does not need a total knee replacement, nor any
other treatment According to Dr. Bays, Zavala needs no treatment because her
complaints are unrelated to "a normal scientific arthritis problem." AR at 566.
Dr. Larry Iversen evaluated Ana Zavala on December 29,2009. As part of that
evaluation, Iversen reviewed a plethora of records related to Zavala's injury, including
medical chart notes, other physicians' independent evaluations, and x-rays. Based on
those records, Iversen believed that Zavala suffered from severe osteoarthritis prior to her
September 17,2007 industrial injury. "In her case, it's the degenerative arthritis that
occurs as one gets older. And, in lay terms, it is a wear-and-tear type of the cartilage in
the knee joint" AR at 710. Dr. Iversen testified that this arthritis and Zavala's work
injury were not related, in part, because of a lack of bruising from the industrial injury.
Dr. Larry Iversen testified to a belief that Ana Zavala failed to report a previous
lllJUry:
The MRI that was done in October 2007, showed that this ligament
had been pulled off or stripped off or completely ruptured off the tibia.
This is a significant injury. This requires a violent force, usually from the
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No. 31854-1-II1
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lateral side of the knee, pushing the knee towards the other side to cause
that to get pulled loose. Interestingly, is usually we don't have to operate
on those, because they reattach themselves with time. In her case, the
injury and the violence was enough that it never did reattach, so I'm
convinced there is something that happened in the past that we don't know
about that's injured that knee.
AR at 711-12.
Dr. Iversen further testified:
Q. Now, have you formed an opinion, based on a more-probable
than-not basis, as to whether the industrial injury of September 17, 2007,
somehow aggravated or lit up the underlying degenerative condition in the
knee, the left knee?
A. I have.
Q. What is that opinion?
A. I'm trying to give her the benefit of the doubt. I will opine
that the industrial incident of September 2007, caused a temporary
subjective exacerbation of her preexisting arthritis, but did not cause a
permanent aggravation of her preexisting knee arthritis.
Q. Why do you make that distinction between temporary and
permanent?
A. It's certainly possible that banging her knee on the edge of
this apparatus could have stirred up her arthritis on a temporary basis, but I
don't think we have any even objective evidence that this accident has
caused a permanent aggravation. For example, comparing the x-rays from
2007 to 2008, even though one is weight bearing and one is not, there's
essentially the same degree of arthritis a year later. So there's no objective
evidence of acceleration or aggravation of her knee arthritis by this episode.
Q. Have you formed an opinion, based on a more-probable-than
not basis, whether Ms. Zavala would have required additional medical
treatment as a result of the industrial injury as of August 21, 2009?
A. I have.
Q. What is that opinion?
A. In my orthopedic opinion, she would not require additional
medical or surgical treatment for residuals of her September 2007 industrial
incident.
Q. Why do you say that?
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A. Her accepted conditions of tom menisci in her knee would
have reached maximum medical improvement within two or three months
of her surgery. Any temporary exacerbation of her knee arthritis would
have settled down the same length of time. Any persisting problems after
that, in my opinion, relate to her preexisting knee osteoarthritis and
probably to some unreported prior trauma.
Q. And would that opinion also be true as of October 30, 2009?
A. Yes.
Q. Have you formed an opinion, based on a more-probable-than
not basis, as to the permanent impairment due to the industrial injury as of
August 21, 2009?
A. I have.
Q. And what would your opinion be as to the permanent
impairment due to the industrial injury as of August 21, 2009?
A. Using the AMA Guides to the Evaluation of Permanent
Impairment, 5th edition, she rates a 10 percent permanent partial
impairment of her left lower extremity, as compared to the amputation
value at or above the knee level.
Q. How do you arrive at that 10 percent?
A. That is what the guidelines recommend for somebody who
has had partial menisectomies of the medial and lateral meniscus of the
same knee.
Q. Would that opinion, with regard to permanent impairment, be
true as of October 30, 2009?
A. Yes.
Q. Assuming Ms. Zavala needs treatment in the future with
namely a total knee replacement or further surgery on the left knee, in your
opinion, would that be related in any way to the industrial injury, dated
September 17, 2007, on a more-probable-than-not basis?
A. No.
Q. Why not?
A. Again, it's my opinion that she did not suffer any permanent
aggravation or acceleration of her preexisting left knee degenerative
osteoarthritis by this industrial incident; therefore, any surgery for the
arthritis in her knee, such as a total knee replacement, in the future would
not be related to the industrial claim.
AR at 692-95.
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Dr. Larry Iversen believed that Zavala exaggerated her symptoms. Zavala
reported pain in her back and right knee, which she attributed to her industrial injury.
Zavala was very sensitive to touch from her lower back to her left foot. Dr. Iversen
testified that Zavala exaggerated lurching. Iversen believed that many of Zavala's
reported symptoms did not comport with her physical state. Iversen stated: "She had so
much weakness that she was trying to demonstrate to me." AR at 681. Dr. Iversen found
no swelling and very little tenderness in her knees.
Dr. Iversen reported:
And then after she left the exam room, I watched her walk down the
hallway, at the Richland Medical Consultants Network office, and she
walked with much more speed, bounce, and alacrity than I observed her
during the course of her actual directed physical examination.
AR at 685-86.
Dr. Thomas Gritzka examined Ana Zavala on August 6,2009. Gritzka reviewed
Zavala's medical records to date. During the examination, Zavala complained of a
numbness in her left leg. Beyond the tearing in her left knee, Dr. Gritzka agreed that
Zavala suffered from osteoarthritis. Gritzka described how tearing might contribute to
arthritis:
Well, if you tear your meniscus and you have to--first of all, if you
don't do anything, you tear it and you leave it there, then these tom parts of
the meniscus grind around inside the knee and they tend to abrade and
destroy the articular cartilage or the gristle on the knee, so you don't want
to leave a torn meniscus untreated.
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No. 31854-1-III
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On the other hand, if you take the whole meniscus out, then you lose
all these protective functions, and removing the meniscus totally may lead,
typically did lead when this was a common procedure, to arthritis of the
knee joint over time. So the current practice is to take out the tom part and
leave as much as you can, but what you end up with is sort of a partial
solution in that you don't lose all the function of the meniscus but you lose
some of it, and you lose some of the protective shock absorbing function,
some of the stabilizing function, some of the lubricant function, and so the
knee is then at risk to either develop and accelerate osteoarthritis ifthere is
already arthritic changes in the knee before the partial meniscectomy was
done, or in some cases even if there is no arthritis, after a partial
meniscectomy, a patient progresses to develop arthritis over time.
So that's the situation with Ms. Zavala. She had not just one but
both menisci removed, so this created an increased risk factor to develop
osteoarthritis of the knee.
AR at 611-12.
Dr. Thomas Gritzka agreed that Ana Zavala's osteoarthritis preexisted her
industrial industry, but opined that Zavala's surgery accelerated the need for a total knee
replacement:
Well, if there is already an osteoarthritic process there, it accelerates,
it hastens the end result of bone on bone. It brings it on sooner than it
would have happened or maybe never would have happened, but sooner
than it would have had happened if no meniscectomy had been done.
In any case, the meniscectomy accelerated the degenerative process
and caused this bone-on-bone phenomenon to occur sooner than it would
have if she would not have had the meniscectomy.
AR at 615-16.
Dr. Gritzka testified that often someone suffers from severe arthritis without
symptoms before a traumatic injury. Gritzka testified:
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No.31854-1-III
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Q. Is it possible to look at such an image and predict how well
the patient is functioning with that knee, for example?
A. No. Sometimes people do function surprisingly well even
with terrible looking images.
AR at 621-22. Dr. Gritzka declared: "Regardless of causation, she needs a left total knee
arthroplasty. She needs to have a left knee replacement done on her left knee,"
concluding that Zavala is not fixed and stable. AR at 630.
Based on bone-on-bone contact in Ana Zavala's left knee, Dr. Gritzka rated her
impairment at 50 percent:
Well, based on the report that she has bone-on-bone contact in her
left lower extremity according to the standard impairments of the
"American Medical Association Guides to the Evaluation of Permanent
Impairment, Fifth Edition," which is the version that the Washington
Department of Labor and Industries uses, bone-on-bone contact in the knee
is equal to 50 percent impairment of the lower extremity, so based on that
report, she has a significant impairment of her left lower extremity.
AR at 632. Gritzka conceded that some of Zavala's symptoms did not "correlate well
with the objective data, such as her x-rays and so forth there." AR at 642.
On January 14, 2011 Judge James Rickman entered a proposed decision and order
which affirmed the reopening of Ana Zavala's claim. On March 2, Twin City Foods
petitioned the board to review Judge Rickman's proposed decision. The board granted
this review on March 15,2011. On March 31,2011 the board reinstated the department's
August 21, 2009 closure of Zavala's claim.
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Ana Zavala appealed the board's decision to Franklin County Superior Court. On
July 24,2013, the trial court sent a letter ruling to the parties, which reads, in part:
Here, I am mindful that the Board's decision is prima facie correct
under RCW 51.52.115 and Ms. Zavala, as the party attacking the decision,
must support her challenge by a preponderance of the evidence. See Ruse
vs. Dept. of Labor & Industries, 13 8 Wn.2d 1, 977 P .2d 570(1999).
However, I also recognize that my review is de novo. RCW 51.52.115. As
I understand this case, boiled down to the bottom line, Ms. Zavala wants
her employer to pay for a total knee replacement. In support of this request,
Ms. Zavala claims that her industrial injury lit up her pre-existing though
latent/asymptomatic osteoarthritis and/or the industrial injury proximately
caused her to need a knee replacement.
First, has Ms. Zavala established that her arthritis was lit up?
McDonagh and Wendt provide that where there is substantial evidence to
support the doctrine/ theory, the jury should be instructed on it (or in this
case, I should consider it). See McDonagh vs. Dept. of Labor & Industries,
68 Wn. App. 749, 754, 845 P.2d 1030(1993); Wendt vs. Dept. of Labor &
Industries, 18 Wn. App. 674, 676, 571 P.2d 229(1977). My job then is to
review the record and determine whether or not Ms. Zavala presented
substantial evidence such that the doctrine/theory should have been
considered by the Board. Here, the Board apparently did not believe Ms.
Zavala's arthritic knee condition was lit up by her industrial injury.
As pointed out, a pre-existing condition is not lit up if the weight of
the evidence reveals the following: 1) that the condition was symptomatic
before the workplace event, or 2) the condition was a naturally progressing
condition that would have progressed to symptoms without the injury.
Austin vs. Dept. of Labor & Indus., 6 Wn. App. 394,492 P.2d 138[2],
1384-5(1971).
From my perspective, after carefully reviewing the record, it is my
opinion that Ms. Zavala did not establish that her condition was latent,
quiescent or asymptomatic before the workplace event/industrial injury.
Ms. Zavala relies on several many lay witnesses to make her case. These
lay witnesses essentially testified that Ms. Zavala did not appear to be in
pain or limp prior to the industrial injury and after the industrial injury, she
appeared to be in pain and walked with a limp. However, a careful review
of the record shows that the witnesses had limited observations of Ms.
Zavala. Those with more detailed observations include Ms. Zavala's son,
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No. 31854-1-111
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who might be expected to testify favorably on his mother's behalf. See
discussion in Defendant's Response to Plaintiffs Brief at pages 24 - 27.
Additionally, the weight of the medical testimony does not support
Ms. Zavala. The preponderance of the medical testimony is that Ms.
Zavala's knee was symptomatic before the industrial injury. While it is
true that there were no lay witness who testified that Ms. Zavala's arthritis
was symptomatic before the industrial injury, it was not up to the employer
to produce such testimony as was argued by Ms. Zavala at her trial. Ms.
Zavala had the burden to produce substantial evidence before the Board that
her lighting up theory should be considered by the Board and thus by this
court. Ms. Zavala did not sustain her burden of proof on this issue before
the Board and I agree.
Dr. Kontogianis was Ms. Zavala's treating physician. As such, I am
mindful that he is entitled to special consideration by me. Additionally, I
am mindful, that he had a unique perspective, in that he actually operated
on Ms. Zavala's knee. It was Dr. Kontogianis' opinion that given the
degree of her pre-existing arthritis, more probably than not, based on his
observations and clinical experience, Ms. Zavala had symptoms prior to her
industrial injury. Likewise, Dr. Iverson and Bays testified to the same. The
weight of the medical experts testimony establishes that Ms. Zavala's left
knee was symptomatic prior to her industrial injury of September 17, 2007.
Another point noted with regards to the medical testimony is that
Drs. Iverson, Bays and Gritzka all questioned to some extent Ms. Zavala's
presentation during examination providing the doctors with concern as to
whether or not she was an accurate historian. Also, the medical experts
noted a previous knee injury not disclosed by Ms. Zavala, a torn MeL and
a tibial bone contusion. All of the medical experts agreed that such injuries
would only occur through a violent force, not the mild force Ms. Zavala
described as occurring on September 17, 2007, the date of her industrial
InJury.
Despite the fact that I have rejected Ms. Zavala's theory that the
workplace injury "lit up" her arthritis, the next issue for me to decide is
whether or not Ms. Zavala establishes that the industrial injury/workplace
event caused a temporary and/or permanent effect on her preexisting
osteoarthritis such that she needs to have her knee replaced?
With regards to the medical experts, of the four who testified, only
two believed that Ms. Zavala needed her left knee replaced. Both Drs.
Kontogianis and Gritzka testified that Ms. Zavala needed her left knee
replaced. However, Dr. Kontogianis concluded that the industrial event did
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No. 31854-1-111
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not cause the need for Ms. Zavala to replace her knee. Dr. Gritzka, while
testifying that Ms. Zavala needed to have her left knee replaced, did not
testify that this procedure is needed as a result of the industrial injury,
rather, he testified that regardless of causation, Ms. Zavala needed her left
knee replaced. Regardless of whether or not I accept Ms. Zavala's
argument that Dr. Gritzka was testifying as a whole to a reasonable degree
of medical certainty, I am still not persuaded and I do not find that Ms.
Zavala establishes by a preponderance of the evidence that the industrial
injury proximately caused the need for a total knee replacement on Dr.
Gritzka's testimony alone.
Drs. Kontogianis, Bays, and Iverson all testified that the industrial
injury only temporarily aggravated her pre-existing osteoarthritis. Only Dr.
Gritzka testified to the contrary. From this medical testimony it is clear that
Ms. Zavala does not establish that the industrial injury proximately caused
the need for her knee to be replaced.
From my perspective, I am also most concerned with the medical
testimony that establishes that Ms. Zavala had a medial collateral ligament
in her left knee that was torn from her tibia by a violent trauma and a tibial
bone contusion that occurred prior to her workplace injury. Further the
medical testimony establishes that these observations could not have
occurred absent a violent trauma. Ms. Zavala did not provide any history to
the doctors to support these findings. Clearly, there is a basis to conclude
that Ms. Zavala is not an accurate historian.
For all of the above reasons, I am upholding the [B]oard decision.
Clerk's Papers (CP) at 11-13 (italics omitted).
The trial court entered a judgment and order affirming the board. The court also
entered findings of fact and conclusions oflaw. Zavala challenges the following findings
and conclusions:
FINDINGS OF FACT
2. On September 17,2007, while in the course of her employment
with Twin City Foods, Inc., Ms. Zavala experienced a sudden and tangible
happening when, while cleaning and washing a work area, she struck her
left knee. The event produced immediate pain in her left knee. This
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No. 31854-1-II1
Zavala v. Twin City Foods
condition was diagnosed as a partial tear of the left medial meniscus, and
was surgically repaired in an arthroscopic procedure on November 21,
2007, by Christopher Kontogianis, M.D.
3. Ana Zavala, prior to her industrial injury of September 17,2007,
had extensive preexisting degenerative or arthritic conditions in her left
knee described as left knee osteoarthritis and grade 4 chondromalacia of the
left femoral condyle.
4. Ana Zavala's pre-existing left knee osteoarthritis and
chondromalacia of the left femoral condyle were not caused by her
industrial injury of September 17,2007, and the industrial injury did not
aggravate or accelerate these extensive pre-existing left knee conditions.
5. Ana Zavala's partial tear of the medial meniscus of the left knee
was not in need of further proper and necessary medical treatment as of the
date of the Department order on appeal, October 20, 2009.
6. Ana Zavala sustained a permanent partial disability proximately
caused by the industrial injury of September 17, 2007, described as 10
percent of the amputation value of the left leg above the knee joint with
short thigh stump (3 inches or below the tuberosity of the ischium).
CONCLUSIONS OF LAW
1. The Board of Industrial Insurance Appeals has jurisdiction over
the parties to and the subject matter of this appeal.
2. The condition caused by the industrial injury of September 17
2007, did not require further proper and necessary medical treatment within
the meaning ofRCW 51.36.10, as of October 30,2009,
3. Ana Zavala sustained a permanent partial disability within the
meaning ofRCW 51.32.080, equal to 10 percent of the amputation value of
the left leg above the knee joint with short thigh stump (3 inches or below
the tuberosity of the ischium).
4. The Department order dated October 30,2009, is incorrect. This
matter is remanded to the Department with directions to issue an order in
which it denies responsibility for the conditions described as left knee
osteoarthritis and Grade 4 chondromalacia of the left femoral condyle and
to close the claim as otherwise set forth on the order of August 21,2009,
with time loss compensation benefits paid through April 27, 2008, and with
an award of permanent partial disability of 10 percent of the amputation
value of the left leg above the knee joint with short thigh stump (3 inches or
below the tuberosity of the ischium.)
18
No. 31854w1wIll
Zavala v. Twin City Foods
CP at 6 7.
w
LA W AND ANALYSIS
Standard ofReview
Ana Zavala argues that this court should not defer to the trial court's findings of
fact since the trial court heard no live witnesses. The trial court instead reviewed the
record before the board.
In other settings, Washington courts have held that a reviewing court need not
defer to the trial court's factual findings, when the lower court does not conduct an
evidentiary hearing. In an early decision, the Supreme Court noted the earlier workers'
compensation board was in no better position to weigh and consider the testimony than
was the superior court or the appellate court, since the board also reviewed a transcript of
the testimony. Cheney v. Dep't ofLabor & Indus., 175 Wash. 60, 62, 26 P.2d 393
(1933). Nevertheless, the rule is the opposite in the setting of appeals from the superior
court in industrial insurance claims.
This court previously addressed Ana Zavala's contention in Weatherspoon v.
Department ofLabor and Industries, 55 Wn. App. 439, 777 P .2d 1084 (1989). The
employer argued that, since the court reviews an administrative action and the findings of
the trial court are based solely on the transcript of the administrative hearing and other
exhibits, the appellate court is not bound by the trial court findings and is as competent as
the superior court to weigh and consider the evidence. This court rejected the argument
19
No. 31854-1-111
Zavala v. Twin City Foods
based on Supreme Court precedent and RCW 51.52.140. The statute directs that such
appeals lay from the judgment of the superior court as in other civil cases.
In the superior court, Ana Zavala had the burden of proving the board's findings
and decision were not prima facie correct. Potter v. Dep't ofLabor & Indus., 172 Wn.
App. 301, 310, 289 P.3d 727 (2012), review denied, 177 Wn.2d 1017 (2013). In
reviewing the superior court's decision, the role of the court of appeals is to determine
whether the trial court's findings are supported by substantial evidence and whether those
findings support the conclusions oflaw. Eastwood v. Dep't ofLabor & Indus., 152 Wn.
App. 652, 657,219 P.3d 711 (2009); Tomlinson v. Puget Sound Freight Lines, Inc., 166
Wn.2d 105, 109,206 P.3d 657 (2009). Substantial evidence exists ifthere is a sufficient
quantity of evidence in the record to persuade a fair-minded, rational person of the truth
of the stated premise. Eastwood, 152 Wn. App. at 657. We must review the record in the
light most favorable to the party who prevailed in superior court. Harrison Mem 'I Hosp.
v. Gagnon, 110 Wn. App. 475, 485, 40 P.3d 1221 (2002). We do not weigh or balance
the competing testimony and inferences, or apply anew the burden of persuasion.
Gagnon, 110 Wn. App. at 485.
A memorandum opinion may be considered as supplementation of formal findings
of fact and conclusions of law. Ellerman v. Centerpoint Prepress, Inc., 143 Wn.2d 514,
523 n.3, 22 P.3d 795 (2001). In such cases, this court reviews the trial court's letter
opinion, findings and conclusions, and judgment as a whole. See, e.g., Mestrovac v.
20
No. 31854-1-111
Zavala v. Twin City Foods
Dep 't ofLabor & Indus., 142 Wn. App. 693, 702, 176 P.3d 536 (2008), affirmed on other
grounds by, Kustura v. Dep't ofLabor & Indus., 169 Wn.2d 81, 233 P.3d 853 (2010); see
also, Tae T. Choi v. Samuel 1': Sung, 154 Wn. App. 303, 317,225 P.3d 425 (2010).
The Lit Up Doctrine
Ana Zavala argues that the trial court erroneously applied Washington's workers'
compensation "lit up" doctrine. Since the response to this assignment of error influences
our review of Zavala's assignments with regard to discrete findings of fact and
conclusions of law, we now discuss the doctrine based on the Christmas tree metaphor.
We will examine the findings and conclusions later.
The Industrial Insurance Act (Act), Title 51 RCW, was the result of a compromise
between employers and workers. In exchange for limited liability the employer would
pay on some claims for which there had been no common law liability. The worker gave
up common law remedies and would receive less, in most cases, than he would have
received had he won in court in a civil action, and in exchange would be sure of receiving
that lesser amount without having to fight for it. Dennis v. Dep't ofLabor & Indus., 109
Wn.2d 467, 470, 745 P.2d 1295 (1987).
RCW 51.04.010 embodies these principles, and declares, among other things, that
"sure and certain relief for workers, injured in their work, and their families and
dependents is hereby provided [by the Act] regardless of questions of fault and to the
exclusion of every other remedy." To this end, the guiding principle in construing
21
No. 31854-1-II1
Zavala v. Twin City Foods
provisions of the Industrial Insurance Act is that the Act is remedial in nature and is to be
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. RCW 51.12.010; Sacred Heart Med. Ctr. v. Carrado, 92 Wn.2d 631,635,600
P.2d 1015 (1979).
Washington courts have held in an unbroken line of decisions that if an industrial
injury lights up or makes active a latent or quiescent infirmity or weakened physical
condition occasioned by disease, then the reSUlting disability is to be attributed to the
injury, and not to the preexisting physical condition. Dennis v. Dep't ofLabor & Indus.,
109 Wn.2d at 471; Miller v. Dep't ofLabor & Indus., 200 Wash. 674, 682, 94 P.2d 764
(1939); Austin v. Dep't ofLabor & Indus., 6 Wn. App. 394, 395,492 P.2d 1382 (1971).
Washington courts have restated this principle of law in other language. Ordinarily the
previous physical condition of the worker is immaterial and recovery may be had for the
full disability independent of any preexisting or congenital weakness if the worker's prior
physical condition is not deemed the cause of the injury but merely a condition on which
the real cause operated. Tomlinson v. Puget Sound Freight Lines, Inc., 166 Wn.2d at
117; Bennett v. Dep't ofLabor & Indus., 95 Wn.2d 531, 533, 627 P.2d 104 (1981).
The worker whose work injury acts upon a preexisting disease to produce
disability where none existed before is just as injured in his or her employment as is the
worker who contracts a disease as a result of employment conditions. Dennis, 109
22
No. 31854-1-III
Zavala v. Twin City Foods
Wn.2d at 471. Benefits are not limited to those workers previously in perfect health.
Groffv. Dep't ofLabor & Indus., 65 Wn.2d 35, 44,395 P.2d 633 (1964). The worker is
to be taken as he or she is, with all his or her preexisting frailties and bodily infirmities.
Dennis, 109 Wn.2d at 471; ,Wendt v. Dep't ofLabor & Indus., 18 Wn. App. 674, 682-83,
571 P.2d 229 (1977).
Ana Zavala contends that, if she had no symptoms in her knee before the industrial
injury, she is entitled as a matter of law to recovery for all symptoms thereafter and all
medical treatment needed thereafter even ifher preexisting condition contributed to the
symptoms. The law is not that helpful.
There remain limits to recovery. In order for a claimant to recover under the
workers' compensation act, she must establish a causal connection between the work
injury and the subsequent physical condition. Jacobson v. Dep't ofLabor & Indus., 37
Wn.2d 444, 448, 224 P .2d 338 (1950). A given disability must be the result of injury
rather than solely of a preexisting infirmity. Jacobson, 37 Wn.2d at 448. The employee
must minimally show that the employment was more likely than not a contributing factor
to the injury. Harbor Plywood Corp. v. Dep 't ofLabor & Indus., 48 Wn.2d 553, 557,
295 P.2d 310 (1956). A preexisting condition is not lit up if the weight of the evidence
reveals that the condition was a naturally progressing condition that would have
progressed to the same symptoms without the injury. Matson v. Dep't ofLabor & Indus.,
198 Wash. 507,516,88 P.2d 825 (1939); Austin, 6 Wn. App. at 398.
23
No. 31854-1-111
Zavala v. Twin City Foods
In many decisions, Washington appellate courts affirm trial court decisions and
jury verdicts in favor of the employee to the effect that the work injury caused the
employee's entire disability, despite the injury triggering a preexisting condition. Dennis,
109 Wn.2d at 471; Bennett, 95 Wn.2d at 533; Harbor Plywood Corp., 48 Wn.2d 553;
Jacobson, 37 Wn.2d 444; Rayv. Dep'tofLabor & Indus., 177 Wash. 687, 688, 33 P.2d
375 (1934); Bryant v. Dep't ofLabor & Indus., 173 Wash. 240, 22 P.2d 667 (1933);
Cantu v. Dep'tofLabor & Indus., 168 Wn. App. 14,277 P.3d 685 (2012). Some of the
decisions entailed a worker with a preexisting degenerative spine or arthritis. Ana Zavala
cites these cases, but fails to recognize the factual nature of each decision. The trial court
could have ruled in favor of Zavala, but we do not agree the trial court necessarily needed
to rule for Zavala. Whether a given disability is the result of injury or solely of a
preexisting infirmity is normally a question of fact. Jacobson v. Dep 't ofLabor & Indus.,
37 Wn.2d 444,448,224 P.2d 338 (1950); Brittain v. Dep 't ofLabor & Indus., 178 Wash.
499,504,35 P.2d 49 (1934); Ray v. Dep 't ofLabor & Indus., 177 Wash. at 688.
The trial court cited Austin v. Department ofLabor and Industries, 6 Wn. App.
394, 398, 492 P .2d 1382 (1971) for the proposition that a preexisting condition is not "lit
up" if the weight of the evidence reveals: 1) that the condition was symptomatic before
the workplace event, or 2) the condition was a naturally progressing condition that would
have progressed to symptoms without the injury. Zavala contends the court misapplied
24
No. 31854-I-II1
Zavala v. Twin City Foods
Austin because Washington law does not preclude coverage for naturally progressing
conditions.
In Austin, the workers' compensation claimant appealed a jury verdict affirming
the Department of Labor & Industries' closure of his claim and minimal award of a
disability. Clinton Austin injured his back while lifting sacks of calcium phosphate at
work. Austin's treating physician diagnosed a preexisting rheumatoid arthritis ofthe
spine that the work injury aggravated. On appeal, Austin argued that the condition was
latent because he had no back trouble prior to the injury and was able to carry on his
work lifting IOO-pound bags of calcium phosphate. Following the injury he had not been
able to do so. The treating physician first testified that Austin was asymptomatic before
the work injury and the injury triggered a sustained exacerbation of the arthritis.
Unlike the evidence in this appeal, Clinton Austin's employer successfully
impeached Austin. On cross-examination, Austin admitted to stiffness in his back and
muscles and two days' lost work from back aches before the work injury. The
employer's manager testified that Austin, before the injury, walked with a stiff gait. In
tum, when the employer questioned the treating physician, the physician testified that
Austin reported no previous back problems. The physician then admitted that, even
without the work injury, Austin's condition, from the rheumatoid arthritis, would have
naturally progressed to the condition in which the physician found Austin.
25
No. 31854-1-III
Zavala v. Twin City Foods
Ana Zavala's position in this appeal is more difficult than Clinton Austin's
position on appeaL In Austin, the trial court refused to give a jury instruction allowing
the jury to find that the work injury "lit up" the preexisting condition. In other words, the
trial court ruled as a matter of law there was insufficient evidence for a jury to conclude
that the employee continued to suffer as a result of the work injury. This court affirmed
that there was no evidence for a jury to weigh. Unlike in A ustin, Zavala's trial court
ruled against Zavala on the facts. We do not reweigh the facts.
In Matson v. Department ofLabor and Industries, 198 Wash. 507, 88 P.2d 825
(1939), the trial court raised the disability rating given by the workers' compensation
board. The trial court believed that a work injury contributed to the employee's heart
condition. Coworkers testified that before the injury the employee was a good worker,
who had never been sick, and who never complained of illness. Despite testimony that
the fall at work may have temporarily aggravated the heart condition, the medical
testimony established that the employee had a prior heart condition that went unnoticed
before the industrial injury. The preexisting condition would have eventually caused the
same disability. Therefore, the Supreme Court reversed the jury verdict in favor ofthe
employee.
Even in Miller v. Department ofLabor and Industries, 200 Wash. 674, 94 P.2d
764 (1939), the seminal case on the "lit up" doctrine, the Supreme Court did not rule in
favor of the claimant. The Supreme Court remanded for a determination of what portion
26
No. 31854-1-III
Zavala v. Twin City Foods
of the disability would have appeared without the work injury and as a result of the
preexisting condition.
Given the testimony before it, our trial court correctly relied on Austin and
properly exercised its fact finding discretion in denying further recovery to Ana Zavala.
Whether a condition is naturally progressing informs whether that condition was latent or
quiescent before the industrial injury. The testimony of physicians in this case echoed
the testimony of the treating physician in Austin.
Testimony in this case demonstrated that Ana Zavala's arthritis was naturally
progressing. Dr. Bays described her condition as "wear-and-tear arthritis, that has
happened over a long period of time." AR at 555. Dr. Iversen testified: "Any persisting
problems after [surgery], in my opinion, relate to her preexisting knee osteoarthritis and
probably to some unreported prior trauma." AR at 694. Physicians also testified that
Ana Zavala must have suffered symptoms before the work injury.
Challenged Findings ofFact
We next review Ana Zavala's challenges to the trial court's findings of fact and
determine whether substantial evidence supports the respective findings. Zavala
challenged finding of fact 2, which describes the work injury:
On September 17,2007, while in the course of her employment with
Twin City Foods, Inc., Ms. Zavala experienced a sudden and tangible
happening when, while cleaning and washing a work area, she struck her
left knee. The event produced immediate pain in her left knee. This
condition was diagnosed as a partial tear ofthe left medial meniscus.
. 27
No. 31854-1-II1
Zavala v. Twin City Foods
CP at 6 (emphasis added).
Dr. Christopher Kontogianis' testimony supported all propositions within finding
of fact 2. Ana Zavala's challenge to this finding may be self-defeating, since the finding
recognized a work injury separate from the degenerative change in the knee. Ana Zavala
argues the trial court downplayed the work injury and erroneously considered an earlier
degenerative condition as the sufficient cause of any continuing pain and treatment.
These contentions are best addressed when reviewing other findings of fact.
Finding of fact 2 further read:
This condition [the work injury] was diagnosed as a partial tear of
the left medial meniscus, and was surgically repaired in an arthroscopic
procedure on November 21,2007, by Christopher Kontogianis, M.D.
CP at 6. Ana Zavala argues that the 2007 surgery did not repair her injury. but she may
confuse the issue by characterizing all problems with her knee as a single injury without
distinguishing between the degeneration and tearing. Zavala's industrial injury was the
"partial tear of the left medial meniscus." CP at 6. Dr. Kontogianis, Dr. Bays, and Dr.
Gritzka all testified that Kontogianis repaired the tearing in Ana Zavala's left knee via
arthroscopic surgery. This testimony is sufficient evidence to persuade a fair-minded,
rational person of the soundness of the finding of fact.
Finding of fact 3 describes the preexisting condition in Ana Zavala's left knee:
Ana Zavala, prior to her industrial injury of September 17, 2007, had
extensive preexisting degenerative or arthritic conditions in her left knee
28
No. 31854-1-III
Zavala v. Twin City Foods
described as left knee osteoarthritis and grade 4 chondromalacia of the left
femoral condyle.
CP at 6. Ana Zavala challenges finding of fact 3, but adequate evidence supports the
finding. All four orthopedists testified that Ana Zavala suffered from preexisting arthritis
and chondromalacia. Dr. Kontogianis diagnosed the "significant degenerative change" in
Zavala's knee as grade 4 chondromalacia given the near bone-on-bone contact on one
side of Zavala's knee joint. AR at 507. Dr. Bays diagnosed the chondromalacia as grade
3 to 4 throughout her knee.
In finding of fact 4, the trial court wrote:
Ana Zavala's pre-existing left knee osteoarthritis and
chondromalacia of the left femoral condyle were not caused by her
industrial injury of September 17,2007, and the industrial injury did not
aggravate or accelerate these extensive pre-existing left knee conditions.
CP at 6. Ana Zavala argues that the evidence does not support a finding that her work
injury did not aggravate or accelerate her preexisting condition. She goes further and
contends that she, in essence, had no preexisting condition, because any arthritis was
asymptomatic prior to her industrial injury. She maintains that Twin City Foods offered
no direct evidence that her arthritis was symptomatic prior to her industrial injury and, in
the absence of such evidence, the trial court needed to accept the testimony of her family
and friends that she exhibited no symptoms before her industrial injury.
Some evidence supported Ana Zavala's arguments, but Twin City Foods presented
contrary evidence. In tum, substantial evidence supported the trial court's finding that
29
No. 31854-1-111
Zavala v. Twin City Foods
Ana Zavala's arthritis was symptomatic prior to her industrial injury. Dr. Kontogianis
opined that Zavala was likely symptomatic before her work injury. Dr. Bays testified that
probably less than ten to fifteen percent of patients go from completely asymptomatic to
requiring a total knee replacement within two to three years. Dr. Iversen testified that
Zavala's arthritis did not worsen between the September 27,2007 x-ray and September
30,2008 x-ray. This lack of subsequent degeneration further increases the likelihood that
Zavala almost needed a total knee replacement prior to her industrial industry and was
likewise symptomatic. When a trial court bases its findings of fact on conflicting
evidence and there is substantial evidence to support the findings entered, we do not
reweigh the evidence and substitute our judgment even though we might have resolved
the factual dispute differently. Dave Johnson Ins. Inc. v. Wright, 167 Wn. App. 758, 778,
275 P.3d 339 (2012).
Substantial evidence also supported the trial court's finding that the work injury
did not aggravate the preexisting condition of arthritis. Dr. Bays opined that Zavala's
industrial injury could not physically aggravate her osteoarthritis, pointing to the
difference between inflammatory arthritis and osteoarthritis. Dr. Iversen testified that the
arthritis and Zavala's industrial injury were not related based on a lack of bruising.
Iversen opined that the industrial injury "caused a temporary subjective exacerbation of
her preexisting arthritis," but qualified that "there's no objective evidence of acceleration
or aggravation of her knee arthritis by this episode." AR at 692-93 (emphasis added).
30
No.31854-1-II1
Zavala v. Twin City Foods
Ana Zavala challenges finding of fact 4 by promoting Dr. Thomas Gritzka's
conflicting opinions. But again, this court does not reweigh the evidence. Dr.
Kontogianis' testimony harmed Ana Zavala's legal arguments. Kontogianis was
Zavala's treating physician and his testimony is entitled to more weight than Dr.
Gritzka's opinions. It is settled in this state that, in a worker compensation case, special
consideration should be given to the opinion of the attending physician. Hamilton v.
Dep'tofLabor & Indus., 111 Wn.2d 569,571,761 P.2d 618 (1988); Groflv. Dep'tof
Labor & Indus., 65 Wn.2d 35, 45,395 P.2d 633 (1964); Spalding v. Dep 'f ofLabor &
Indus., 29 Wn.2d 115, 129, 186 P.2d 76 (1947).
Ana Zavala also assigns error to finding of fact 5:
Ana Zavala's partial tear of the medial meniscus of the left knee was
not in need of further proper and necessary medical treatment as of the date
of the Department order on appeal, October 20,2009.
CP at 6. All physicians, except Thomas Gritzka, testified consistently with this finding.
Dr. Kontogianis testified that the industrial injury temporarily aggravated the preexisting
arthritis, but Zavala became "mostly fixed and stable" as of March 2008. AR at 510.
While an earlier MRI showed swelling in Zavala's left knee, Dr. Bays found "no
evidence of an effusion or swelling anywhere around the left knee joint" during his April
17,2009 examination. AR at 547.
Dr. Larry Iversen testified that Zavala's "accepted conditions of tom menisci in
her knee would have reached maximum medical improvement within two or three
31
No. 31854-1-111
Zavala v. Twin City Foods
months of her surgery. Any temporary exacerbation of her knee arthritis would have
settled down the same length of time." AR at 693-94. Iversen considered Zavala to be at
maximum medical improvement as of October 30, 2009. Iversen commented that any
persisting problems thereafter related to her preexisting knee osteoarthritis or some
unreported prior trauma. Substantial evidence supports the trial court's finding that
Zavala needed no further medical treatment as of October 20,2009.
In finding of fact 6, the court resolved:
Ana Zavala sustained a permanent partial disability proximately
caused by the industrial injury of September 17, 2007, described as 10
percent of the amputation value of the left leg above the knee joint with
short thigh stump (3 inches or below the tuberosity of the ischium).
CP at 6. Based on Dr. Thomas Gritzka's testimony, Zavala asks this court to increase her
disability rating from 10 to 50 percent. We decline. Dr. Gritzka's rating of 50 percent
was based on "bone-on-bone contact in the knee." AR at 632. But Zavala's industrial
injury did not cause the bone-on-bone contact. Dr. Kontogianis, Dr. Bays, and Dr.
Iversen, each rated Zavala's disability at 10 percent. Sufficient evidence supports the
court's finding.
Ana Zavala forwards arguments that attack indirectly all of the trial court's
findings of fact. Zavala contends that the trial court employed evidentiary standards that
are ambiguous, vague, and contradictory to the point of violating due process, because
the court rejected the testimony from her family and friends in favor of testimony from
32
No. 31854-1-III
Zavala v. Twin City Foods
medical experts. Zavala cites no legal authority to support this contention. This court
need not address it. RAP 10.3(a)(6); In re Marriage ofFahey, 164 Wn. App. 42,59,262
P.3d 128 (2011).
Zavala may be frustrated with the trial court's rejection of the testimony of her
many lay witnesses. Nevertheless, in an industrial insurance case, credibility
determinations are solely for the trier of fact and cannot be overturned on appeal. Morse
v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003); Watson v. Dep 't ofLabor &
Indus., 133 Wn. App. 903,909, 138 P.3d 177 (2006). The causal connection between a
claimant's physical condition and her employment must be established by medical
testimony. Parr v. Dep 't ofLabor & Indus., 46 Wn.2d 144, 145, 278 P.2d 666 (1955).
Ana Zavala questions why this reviewing court should defer to the trial court's
findings with regard to credibility of witnesses, when the trial court read a transcript
rather than watched and heard the witnesses. This questioning is legitimate.
Nevertheless, under precedent, credibility determinations remain solely for the trier of
fact in a workers' compensation claim. Cantu v. Dep 't ofLabor & Indus., 168 Wn. App.
14,22,277 PJd 685 (2012). The law may assume that the superior court will devote
more attention and time to review the transcript than the appellate court and thereby be
able to better weigh the believability of a witness' testimony when juxtaposed with other
witness testimony. A reviewing court focuses only on those portions of the record
highlighted by the parties. A trial court has more experience in evaluating conflicting
33
No. 31854~1-II1
Zavala v. Twin City Foods
testimony.
Ana Zavala contends the trial court cannot rely solely on images taken after the
industrial injury to support a finding that she was symptomatic before the injury. In
support of this assertion, Zavala cites Harper v. Department ofLabor and Industries, 46
Wn.2d 404,405-07,281 P.2d 859 (1955).
In Harper, on July 26, 1949, Russell Harper fell eight feet from a truck and landed
on his head. An x~ray taken that day disclosed: "a remarkable amount of osteoarthritis of
all of the seven vertebrae making up the cervical spine." The court commented: "The
present case makes clear that, even though the X ray discloses a marked arthritic
condition, it does not, of itself, establish a disabling condition." 46 Wn.2d at 404-05.
From this remark, Zavala argues that x-rays of her knee cannot be used to establish a
preexisting condition.
We question whether the Supreme Court, in the quote from Harper, meant to rule
as a matter of law that an x~ray can never verify a disabling preexisting condition.
Nevertheless, the decision does not prevent the use of an x-ray to establish a preexisting
condition that was not necessarily disabling. We also consider the passage dicta, because
the sentence had little relevance to the holding in Harper. The board granted Harper a 20
percent partial permanent disability and the trial court increased the award to a 40
percent. The Supreme Court reversed the trial court and reinstated the board's award
because evidence supported the board's decision.
34
No. 31854-1-III
Zavala v. Twin City Foods
In Tomlinson v. Puget Sound Freight Lines, Inc., 166 Wn.2d 105, 117,206 P.3d
657 (2009), our Supreme Court discussed the use of x-rays to show a preexisting
condition. The court agreed that x-rays alone could not establish a disabling condition
present before the work injury. Nevertheless, physician testimony and a claimant's lack
of candor, combined with x-rays, may bring the necessary proof. The court wrote:
Tomlinson's principle argument is that x-ray findings, while
objective in that they can be seen, are not, solely by themselves, proof of a
loss of physical function. Cf In re Johnston, No. 97 4529, 1999 WL
190864 (Wash. Bd. ofIndus. Ins. Appeals Mar. 2, 1999). We emphatically
agree that x-ray findings alone would be insufficient, but that is not the case
before us. The industrial insurance judge concluded that all three
physicians who testified, including his treating doctor, agreed that at the
time of the industrial injury, Tomlinson's preexisting condition was bone
on bone in his weight bearing knee joint. He also found that all three
physicians agreed that he had a preexisting 50 percent [permanent partial
disability] PPD. In addition, the industrial appeals judge heard
Tomlinson's own testimony, which the judge found evasive. He showed
"lack of candor" about his past medical treatment and did not remember
injuring his knee and discussing the possible need for a bilateral total knee
replacement seven years before his industrial injury. ... In short,
Tomlinson's own testimony supported the conclusion that he had loss of
function before his 1999 industrial injury. We find there was substantial
evidence to support the finding of a preexisting PPD.
166 Wn.2d 105, 118-19,206 P.3d 657 (2009).
Ana Zavala's appeal is like Tomlinson. Zavala's medical records included a
September 27,2007 x-ray, September 30,2008 x-ray, and October 3,2007 MRl. Like
Tomlinson, all examining doctors concluded, based in part on the images, that Zavala had
preexisting degeneration in her knee. Other evidence supported that Zavala was not an
35
No. 31854-1-111
Zavala v. Twin City Foods
accurate historian. Dr. Bays testified that Zavala's reported symptoms did not match her
physical conditions. Dr. Iversen believed that Zavala failed to report a previous injury,
reasoning that the September 17, 2007 bump to her knee could not have caused the
severity of tearing observed.
Conclusions ofLaw
Ana Zavala challenges the trial court's conclusions oflaw. Our role is to
determine whether the findings of fact support the trial court's conclusions of law.
Tomlinson v. Puget Sound Freight Lines, Inc., 166 Wn.2d 105, 109,206 P.3d 657 (2009);
Eastwood v. Dep 't ofLabor & Indus., 152 Wn. App. 652, 657, 219 P.3d 711 (2009).
In conclusion oflaw 2, the trial court ruled that Ana Zavala's work injury did not
demand "further proper and necessary medical treatment within the meaning ofRCW
51.36.10." CP at 7; Under former RCW 51.36.010 (2007):
Upon the occurrence of any injury to a worker entitled to
compensation under the provisions of this title, he or she shall receive
proper and necessary medical and surgical services at the hands of a
physician or licensed advanced registered nurse practitioner of his or her
own choice, if conveniently located, except as provided in (b) of this
subsection, and proper and necessary hospital care and services during the
period of his or her disability from such injury.
(Emphasis added) (now codified at RCW 51.36.010(2)(a)). The Department of Labor
and Industries defined "proper and necessary" in WAC 296-20-01002. Subsection (3) of
the regulation describes when the department, or a self-insured employer, may stop
paying for medical services:
36
No. 31854-I-II1
Zavala v. Twin City Foods
The department or self-insurer stops payment for health care services
once a worker reaches a state of maximum medical improvement.
Maximum medical improvement occurs when no fundamental or marked
change in an accepted condition can be expected, with or without
treatment. Maximum medical improvement may be present though there
may be fluctuations in levels of pain and function. A worker's condition
may have reached maximum medical improvement though it might be
expected to improve or deteriorate with the passage of time. Once a
worker's condition has reached maximum medical improvement, treatment
that results only in temporary or transient changes is not proper and
necessary. "Maximum medical improvement" is equivalent to "fixed and
stable."
WAC 296-20-01002(3) (emphasis added). The definition for maximum medical
improvement in WAC 296-20-0 lO02 "applies to arthritis." Tomlinson, 166 Wn.2d at
113.
Substantial evidence supported the trial court's findings that (1) the arthroscopy
repaired Ana Zavala's industrial injury, (2) her industrial injury did not aggravate or
accelerate her preexisting arthritis, and (3) the industrial injury had stabilized, requiring
no further care, as of October 20,2009. In turn, these findings of fact supported the trial
court's conclusion that Zavala needed no further treatment as a result of the industrial
JUry.
Ana Zavala, seeks at Twin City Foods' expense, a total knee replacement. The
same findings of fact and conclusions of law support the trial court's ruling that a knee
replacement is not needed because of the work injury.
Ana Zavala challenges conclusion of law 3, by which the trial court ruled that
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No. 31854-1-II1
Zavala v. Twin City Foods
Zavala's permanent partial disability was ten percent. The compensation afforded an
injured worker under Title 51 RCW includes a singular payment for a permanent partial
disability, according to the schedule in RCW 51.32.080. The administrative code
clarifies a permanent partial disability:
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 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.
WAC 296-20-19000.
We previously upheld the trial court's finding of fact 6, which determined that
Ana Zavala sustained a permanent partial disability proximately caused by the industrial
injury of 10 percent of the amputation value of the left leg above the knee joint. This
finding of fact directly confirms conclusion of law 3.
By conclusion of law 4, the trial court remanded the case to the Department of
Labor & Industries with directions to issue an order in which it denies responsibility for
38
No. 31854-1-III
Zavala v. Twin City Foods
the conditions described as left knee osteoarthritis and grade 4 chondromalacia of the left
femoral condyle and to close the claim. This conclusion of law necessarily followed
from the other findings of fact and conclusions of law entered by the trial court.
Attorney Fees
Ana Zavala requests costs and fees under RCW 51.52.130. Zavala did not brief
her request for costs and fees in her brief. The court rule requires more than a bald
request for attorney expenses on appeal. The party seeking costs and attorney fees must
provide argument and citation to authority to establish that such expenses are warranted.
Henne v. City a/Yakima, 177 Wn. App. 583, 590, 313 P.3d 1188 (2013), reversed on
other grounds by, No. 89674-7 (Wash. Jan. 22,2015); RAP 18.1. Therefore, we deny an
1
1
l
award of fees and costs.
J
I CONCLUSION
J We affirm the trial court's rulings and deny Ana Zavala an award of reasonable
~;
1
i attorney fees and costs.
j
WE CONCUR:
Lawrence-Berrey, J.
39