Opinion
No. 34499-8-II.
May 30, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 03-2-06530-2, Linda CJ Lee, J., entered January 6, 2006.
Marvin Poindexter was employed as a custodian at Clover Park School District. He was injured on the job in 1997 and received workers' compensation benefits for his injury at that time. The Department of Labor and Industries (the Department) closed his case in 1998 without awarding him permanent partial disability. The Department reopened his claim in 2001 because his condition worsened, but did not further compensate him. The Board of Industrial Insurance Appeals (the Board) ordered the Department to pay for Poindexter's shoulder surgery, medical treatment, and to compensate him for time lost from his employment due to the 1997 injury. Poindexter argued that he suffered from chronic pain syndrome from his 1997 injury, but the Board disagreed and denied a partial permanent disability benefit award. Poindexter appealed to the superior court. The superior court affirmed and he then appealed to this court. Because there is sufficient evidence to support the finding that he did not have chronic pain syndrome, we affirm.
FACTS
Poindexter was a full-time employee at Clover Park School District. He was a custodian and performed normal custodial duties. On September 16, 1997, he injured his back and shoulder at work when he slipped and fell. Following the 1997 injury, Poindexter was unable to work and was treated with physical therapy, but he continued to have pain and numbness in his lower back and shoulder. Poindexter had a previous problem with his left shoulder in 1996 and complained of shoulder pain whenever he lifted an object. He also had problems with chest pain and wore a nitroglycerin patch.
Dr. Wyman, an orthopedic surgeon, treated Poindexter for several years for his injuries and his left shoulder pain. Dr. Wyman took x-rays and noticed mild degeneration of Poindexter's glenohumeral joint and diagnosed him with chronic left rotator cuff tendonpathy. Dr. Furrer, an orthopedic surgeon, also evaluated Poindexter twice and diagnosed him with a "contusion of the left shoulder with mild impingement syndrome and a lumbosacral strain" resulting from the 1997 injury. Administrative Record (AR) at 15. Dr. Furrer also diagnosed Poindexter with "chronic bursitis/tendonitis of [his] left shoulder," but opined that it did not relate to the 1997 injury. AR at 15.
In 2002, Dr. Johnson, another orthopedic surgeon, evaluated Poindexter and diagnosed him with a "contusion of the left shoulder and a lumbosacral strain/sprain; chronic inflammatory changes of [his] left shoulder; chronic impingement syndrome of the left shoulder with tendonitis and bursitis; mild degenerative disk disease" that was "lit up" by the 1997 injury; and " chronic pain syndrome." AR at 15 (emphasis added). Dr. Johnson believed that all Poindexter's conditions stemmed from his 1997 injury.
The lighting-up theory provides that if a preexisting dormant or latent condition is activated or "lighted up" by an industrial injury or occupational disease, the worker is entitled to benefits for the disability resulting therefrom. McDonagh v. Dep't of Labor Indus., 68 Wn. App. 749, 751 n. 1, 845 P.2d 1030 (1993).
Poindexter first filed a claim with the Department for workers' compensation benefits in 1997 and received time-loss compensation benefits for his injury at that time. The Department closed his case in 1998 without awarding him permanent partial disability. Poindexter filed several applications to reopen his claim and, in 2001, the Department reopened it.
After hearing testimony, the Board found that as a proximate result of the 1997 injury, Poindexter sustained a "lumbosacral strain/sprain, and a contusion to his left shoulder that left him with an impingement syndrome, tendonitis, and bursitis." AR at 10. It found that Poindexter's injuries had worsened since 1997 and that Poindexter needed further treatment, including surgery on his left shoulder. The Board found that Poindexter was not able to obtain and maintain employment due to his injuries. The Board ordered the Department to pay for Poindexter's surgery and explained that, depending on the surgery outcome, Poindexter may need a chronic pain management program, but that should be assessed after surgery. It did not find that Poindexter suffered from chronic pain syndrome and explained that his pain might be resolved after surgery. The Board ordered the Department to provide Poindexter the treatment necessary, including surgery on his left shoulder, to pay him for time-loss compensation, and to take further action as indicated.
Poindexter appealed the Board's decision to superior court, arguing that the Board erred in finding that he did not suffer from chronic pain syndrome. After the jury was read the testimony taken before the Board, Poindexter moved for judgment as a matter of law under Civil Rules (CR) 50(a). He argued that, as a matter of law, his 1997 injury caused chronic pain syndrome. The court denied the motion, explaining that only one doctor diagnosed Poindexter with chronic pain syndrome and that a reasonable juror could find that Poindexter did not have chronic pain syndrome. The jury then affirmed the finding that Poindexter did not suffer from chronic pain syndrome from the 1997 injury. The trial court required Poindexter to pay attorney fees.
Poindexter now appeals to this court, arguing that the trial court erred in finding that chronic pain syndrome was not proximately caused by his 1997 injury and that his CR 50(b) motion for judgment as a matter of law and CR 59 motion for a new trial should have been granted.
ANALYSIS
I. Sufficiency of the Evidence
Poindexter asserts that insufficient evidence supports the Board's finding that he did not develop chronic pain syndrome from his 1997 injury. He asserts that Dr. Johnson's testimony that he suffered from chronic pain syndrome is undisputed because the other doctors failed to address chronic pain syndrome in their diagnoses. The Department counters that substantial evidence supports the Board's finding because two doctors gave diagnoses that did not include chronic pain syndrome. The Department is correct.
Appellate review of the Board's decision is limited to record examination to see whether substantial evidence supports findings made after the superior court's de novo review, and whether the court's conclusions of law flow from the findings. Ruse v. Dep't of Labor Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999) (quoting Young v. Dep't of Labor Indus., 81 Wn. App. 123, 128, 913 P.2d 402 (1996)). Under RCW 51.52.115 provisions, the Board's findings and decisions are prima facie correct and the burden of proof is on the party attacking them. Ravnsten v. Dep't of Labor Indus., 108 Wn.2d 143, 146, 736 P.2d 265 (1987). It is the claimant's burden, here Poindexter, to establish that the board's findings are not supported by sufficient evidence. Ravnsten, 108 Wn.2d at 146.
In challenging the sufficiency of the evidence, the moving party must admit the truth of the nonmoving party's evidence and all inferences that can reasonably be drawn therefrom. Spino v. Dep't of Labor Indus., 1 Wn. App. 730, 731, 463 P.2d 256 (1969); see also Sepich v. Dep't of Labor Indus., 75 Wn.2d 312, 321, 450 P.2d 940 (1969). We interpret the evidence in favor of the nonmoving party, the Department, and against the moving party, Poindexter. Spino, 1 Wn. App. at 731. A jury's verdict upholding the Board's findings and decision must also be presumed correct. Sacred Heart Med. Ctr. v. Carrado, 92 Wn.2d 631, 635, 600 P.2d 1015 (1979).
The factfinder is given wide latitude in the weight to give expert opinion. Taylor v. Balch Land Dev. Corp., 6 Wn. App. 626, 632, 495 P.2d 1047 (1972). An expert cannot usurp the jury's duty of deciding facts because the jury may always accept or reject the expert's evidence or opinion, in whole or in part. State v. Moon, 45 Wn. App. 692, 698, 726 P.2d 1263 (1986). The determination of the witnesses' credibility and the weight given to their testimony is within the trial court's discretion and is not disturbed on appeal. In the Welfare of Watson, 25 Wn. App. 508, 511, 610 P.2d 367 (1979); Rognrust v. Seto, 2 Wn. App. 215, 222, 467 P.2d 204 (1970). The trial court may refuse to accept uncontradicted expert testimony as long as it does not act in an arbitrary or capricious manner. Brewer v. Copeland, 86 Wn.2d 58, 74, 542 P.2d 445 (1975); Swenson v. Lowe, 5 Wn. App. 186, 191, 486 P.2d 1120 (1971).
In workers' compensation cases, the court must give special consideration to the attending physician's opinion because an attending physician is not an expert hired to give a particular opinion consistent with one party's view of the case. Intalco Aluminum Corp. v. Dep't of Labor Indus., 66 Wn. App. 644, 654, 833 P.2d 390 (1992) (citing Hamilton v. Dep't of Labor Indus., 111 Wn.2d 569, 571, 761 P.2d 618 (1988).
Sufficient evidence supports the Board's finding that Poindexter did not suffer from chronic pain syndrome as a result of his 1997 injury. The Board found that the industrial injury caused Poindexter to sustain "a lumbosacral strain/sprain, and a contusion to his left shoulder that left him with an impingement syndrome, tendonitis, and bursitis." AR at 20. The Board went on to find that the industrial injury did not cause chronic pain syndrome.
A disease is "proximately" caused by employment conditions when "there [is] no intervening independent and sufficient cause for the disease, so that the disease would not have been contracted but for the condition existing in the . . . employment." Simpson Logging Co. v. Dep't of Labor Indus., 32 Wn.2d 472, 479, 202 P.2d 448 (1949).
It was reasonable to believe that Poindexter suffered from impingement syndrome, tendonitis, and bursitis in his left shoulder, not from chronic pain syndrome. Dr. Wyman treated Poindexter for several years and gave a diagnosis consistent with the Board's finding and Dr. Furrer treated Poindexter twice in 1999 and 2002 and also gave a diagnosis consistent with the Board's finding. Neither Dr. Furrer nor Dr. Wyman diagnosed Poindexter with chronic pain syndrome. Both doctors diagnosed him with alternate conditions that were causing pain in his left shoulder and it was reasonable for the Board to accept these diagnoses and reject Dr. Johnson's.
Dr. Furrer and Dr. Wyman need not explicitly indicate that Poindexter did not suffer from chronic pain syndrome; it is implicit that he did not have chronic pain syndrome from their diagnoses. If a doctor does not diagnose a patient with a condition, it follows that the doctor did not believe the patient had that condition. If Dr. Furrer believed that Poindexter had chronic pain syndrome, he would have included chronic pain syndrome in his diagnosis. Therefore, it was not uncontroverted that Poindexter had chronic pain syndrome and Poindexter has failed to establish that he has this condition.
Further, even if Poindexter was able to establish that he indeed suffers from chronic pain syndrome, he has failed to establish that there was no independent and sufficient cause for the disease, absent the 1997 injury. He had a problem with his left shoulder in 1996, before his accident, and had other medical problems, unrelated to his 1997 injury. It was reasonable for the Board to find that Poindexter did not develop chronic pain syndrome as a proximate cause of his 1997 injury.
II. Judgment as a Matter of Law and Motion for New Trial
Poindexter also assigns error to the trial court's denial of his motion for judgment as a matter of law, or in the alternative for a new trial, because insufficient evidence supports the finding that he did not develop chronic pain syndrome as a result of the 1997 injury.
A motion for judgment notwithstanding the verdict under CR 50 or in the alternative for a new trial under CR 59 admits the truth of the party's evidence against whom the challenge or motion is made, and all inferences that can reasonably be drawn therefrom, and requires that the evidence be interpreted most strongly against the challenger or moving party. Rawlins v. Nelson, 38 Wn.2d 570, 579, 231 P.2d 281 (1951); Pearsall v. Paltas, 48 Wn.2d 78, 80, 291 P.2d 414 (1955). A judgment as a matter of law is proper only when the court can find that there is neither evidence nor reasonable inference therefrom sufficient to sustain the verdict. Brashear v. Puget Sound Power Light Co., 100 Wn.2d 204, 208-09, 667 P.2d 78 (1983) (quoting Hojem v. Kelly, 93 Wn.2d 143, 145, 606 P.2d 275 (1980)). And under CR 59(a)(7) a new trial may be granted if there is no evidence or reasonable inference from the evidence to justify the verdict. We review a trial court's denial of a motion for a new trial for abuse of discretion. Alcoa v. Aetna Cas. Sur., 140 Wn.2d 517, 537, 998 P.2d 856 (2000).
As discussed above, substantial evidence supports the finding that Poindexter did not suffer chronic pain syndrome as a result of his 1997 injury. Therefore, the trial court did not err in denying his motion for judgment as a matter of law or motion for a new trial.
ATTORNEY FEES
Poindexter's request for attorney's fees is denied as he has not prevailed.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, P.J. and QUINN-BRINTNALL, J. concur