Opinion
No. 40316-8-I.
Filed: January 25, 1999.
Appeal from Superior Court of King County, No. 96-2-20447-1 Hon. Peter Jarvis February 06, 1997, Judgment or order under review
Stephen R. Powell, Attorney At Law, W. S. Hirschfeld, Wash St Aty General Appellant.
Gary D. Keehn, Attorney At Law, Respondent.
To prevail on a motion for summary judgment in superior court, on appeal from a Board of Industrial Insurance Appeals decision, a plaintiff must establish more than a mere prima facie case. The plaintiff must show, viewing the evidence before the Board of Industrial Insurance Appeals in light most favorable to the non-moving party, that it is entitled to judgment as a matter of law. Under this standard, The Boeing Company's medical expert's testimony that Michael Hansen suffered from a preexisting category 3 permanent partial disability is insufficient to require segregation of that disability as a preexisting impairment as a matter of law. The doctor's testimony must be considered in light of lay testimony that Hansen was not impaired before his industrial accident. The weight of the conflicting testimony is for the trier of fact. We reverse and remand for further proceedings.
FACTS
Michael Hansen was a Boeing employee in 1990 when he sustained a low back injury in the course of his employment. He underwent surgery to repair a herniated disk and returned to work with daily back pain. The Department of Labor Industries (the Department) issued an order granting Hansen a permanent partial disability award for a category 3 permanent dorso-lumbar and/or lumbosacral impairment. Boeing appealed the order to the Board of Industrial Insurance Appeals (the Board).
At the hearing before the Board, Boeing admitted that Hansen had a category 3 impairment but argued that the award should be reduced based on Hansen's impairment resulting from a preexisting, non-work related injury. Boeing presented testimony from a neurologist, Dr. Lawrence Murphy, who stated that Hansen's 1986 lumbar spinal injury was a category 3 permanent partial disability because he underwent a surgical procedure known as a laminectomy for that condition. The Board ruled that Dr. Murphy erroneously concluded that a worker has category 3 impairment for simply having undergone a surgery, and held there was insufficient evidence to conclude that Hansen had a disability either before or after the 1990 accident. The Board ruled in Hansen's favor.
Boeing appealed the decision to King County Superior Court. Boeing filed a motion for summary judgment, arguing under Willis v. Simpson Investment Co., that a physician's expert opinion regarding a category of permanent partial disability, by itself, constitutes a prima facie case. The court granted the motion and directed the Department to close the claim with a category 3 permanent partial disability award, with a deduction equal to a category 3 for the preexisting disability. Hansen and the Department appeal.
Willis v. Simpson Inv. Co., 79 Wn. App. 405, 902 P.2d 1263 (1995).
DISCUSSION
Hansen and the Department contend that Boeing's medical expert's opinion does not establish a prima facie case because the doctor's categorization was not supported by objective medical findings. Boeing asserts that Division Two's decision in Willis allows a doctor to place a claimant within a category even though the claimant does not satisfy all of the criteria for that category. This case turns, however, not on whether Boeing established a prima facie case through the testimony of its medical expert, but instead whether Boeing established, viewing the evidence in light most favorable to Hansen, that it is entitled to judgment as a matter of law. Because the status of Hansen's pre-accident condition remained a question of fact, the superior court's order granting Boeing's motion for summary judgment was improper.
Boeing relies on Willis for the proposition that Dr. Murphy's testimony was sufficient to establish a prima facie case. In Willis, the court held that "it is not necessary that an individual satisfy all of the criteria of a particular category in order to be included in that category." Willis's medical expert had performed the surgical procedure on Willis following the industrial accident and was Willis's physician for four years prior to giving his testimony. He testified that Willis had specific and significant low back impairment, with objective clinical findings of that impairment, coupled with marked x-ray findings. The doctor concluded that Willis could not do work that he had regularly done in the past. The doctor's opinion met all of the criteria for a category 6 impairment except that the doctor did not pinpoint atrophy and weakness of a specific muscle group.
Willis, 79 Wn. App. at 411.
See generally Judd v. Department of Labor Indus., 63 Wn. App. 471, 474-75, 820 P.2d 62 (1991) (holding, "`While we do not desire to be understood as laying down any hard and fast rule, it is our opinion that an attending physician, assuming of course that he shows himself to be qualified, who has attended a patient for a considerable period of time for the purpose of treatment, and who has treated the patient, is better qualified to give an opinion as to the patient's disability than a doctor who has seen and examined the patient once.'" (quoting Spalding v. Department of Labor Indus., 29 Wn.2d 115, 128-29, 186 P.2d 76 (1947))).
In reversing the superior court's grant of dismissal, the Willis court held that the categories in WAC 296-20-280 "must be considered in light of WAC 296-20-220(1)(g), which allows an examining physician to select the category that most accurately describes the overall degree of impairment." The court concluded that the physician's "testimony that Willis suffered a category six impairment was sufficient to create a jury question as to the degree of Willis's impairment."
Willis, 79 Wn. App. at 411.
Willis, 79 Wn. App. at 411.
Here, whether Dr. Murphy's testimony was sufficient to establish a prima facie case is not the issue upon which Boeing's motion for summary judgment turns. In Willis, the employer, who prevailed at the Board level, moved for dismissal following Willis's case in chief. As a result, Willis only had to make a prima facie showing to avoid dismissal. Conversely, Boeing moved for summary judgment prior to trial following an appeal from a Board decision in Hansen's favor. As a result, to prevail Boeing must establish more than a prima facie case of a preexisting category 3 permanent partial disability. Boeing must show as a matter of law, and after consideration of all the testimony before the Board in light most favorable to Hansen, that Hansen was impaired before the accident to such an extent as to require segregation of his preexisting condition under RCW 51.32.080(3). The evidence in this case is such that the determination as to the extent of Hansen's preexisting impairment must be left to the trier of fact.
See Orr v. Department of Labor Indus., 10 Wn. App. 697, 700, 519 P.2d 1334 (1974), where we stated: "If this is a congenital anomaly and its resulting degenerative changes, or any other condition in his low back, did not permanently and manifestly diminish the claimant's utilization of his natural faculties, which may of course include interference with his working capacity, prior to the {industrial} injury, it would not have been proper to require a segregation of that preexisting condition as a prior `permanent partial disability' within the contemplation of RCW 51.32.080(3)."
Dr. Murphy specifically stated that Hansen did not have any objective clinical findings of impairment and that Hansen told him that he did not have subjective difficulties following the 1986 surgery. He acknowledged that Hansen had not seen a chiropractor for over a year before the accident. He further acknowledged that he was unaware as to whether Hansen missed work as a result of the prior injury, and that he did not know anything about Hansen's chiropractic visits other than the fact that Hansen saw a chiropractor. Based on the fact that Hansen complained of pain at the time of the doctor's examination (nine years after the 1986 accident), and the fact that Hansen had undergone a laminectomy in 1986 and had visited a chiropractor following the surgery, Dr. Murphy concluded that Hansen suffered from a degenerative disk disease, which was the cause of his current pain. Dr. Murphy characterized this disease as preexisting category 3 permanent partial disability.
In contrast to Dr. Murphy's testimony, Hansen testified that he saw a chiropractor for a variety of reasons, including kinks in his neck, sore shoulders, adjustments, and for an occasional massage. He acknowledged that he also saw the chiropractor for low back pain and pain in his left buttock and thigh. But he further stated that he returned to his full range of duties following his 1986 surgery, and the residual problems he experienced following that surgery were not similar to the problems he experienced following the 1990 surgery.
Testimony by a physician concerning a claimant's physical condition in many cases is almost conclusive. But the testimony of a lay witness can be sufficient to make a case for the trier of fact, even though the claimant does not present expert testimony, and even though some of the injuries claimed and their symptoms may be said to be subjective. Where, as here, the strength of the evidence is such that reasonable minds could differ as to the degree of a claimant's impairment, a question of fact is presented. The weight of the conflicting testimony must be left to the trier of fact.
Spalding v. Department of Labor Indus., 29 Wn.2d 115, 121, 186 P.2d 76 (1947).
See Carr v. Martin, 35 Wn.2d 753, 760, 215 P.2d 411 (1950); see also Spalding, 29 Wn.2d at 121-22.
See Fochtman v. Department of Labor Indus., 7 Wn. App. 286, 289, 499 P.2d 255 (1972).
Even if Dr. Murphy's testimony is sufficient to establish a prima facie case of a preexisting category 3 disability, it is not sufficient, when all the evidence is viewed in light most favorable to Hansen, to establish a preexisting impairment as a matter of law. Therefore, we reverse and remand for further proceedings.