Opinion
No. 66639-8-I.
Filed: April 25, 2011.
Appeal from a judgment of the Superior Court for Pierce County, No. 08-2-09676-4, John A. McCarthy, J., entered February 24, 2010.
Affirmed by unpublished opinion per Leach, A.C.J., concurred in by Cox and Spearman, JJ.
Home Depot appeals a superior court judgment reversing the decision of both the Department of Labor and Industries (Department) and the Board of Industrial Insurance Appeals (Board) on Robert Tschabold's workers' compensation claim, contending that the evidence upon which the trial court relied was not credible. Because substantial evidence in the record supports the trial court's written findings of fact and the conclusions of law flow from the findings, we affirm. We also grant Tschabold's request for attorney fees on appeal.
FACTS
On April 9, 2005, while employed part-time at Home Depot, Robert Tschabold assisted other employees unloading a garden tractor from a truck. Tschabold was standing behind the truck when the tractor broke loose and fell to the ground. Co-workers found Tschabold pinned at the knees by the tractor, lying on his back and bleeding from the head. At the hospital, doctors discovered bleeding in Tschabold's brain, particularly, a basal ganglion hemorrhage. Tschabold was released from the hospital on April 29, 2005.
During a May 10, 2005, exam, Tschabold's neurologist, Dr. Peter Brown, discovered an unruptured brain aneurism and referred Tschabold to Dr. Laligam Sekhar, a neurosurgeon. Dr. Sekhar performed surgery to treat the aneurism on May 24, 2005.
Tschabold filed a workers' compensation claim, and Home Depot paid temporary disability benefits through November 19, 2006. On March 16, 2007, the Department closed Tschabold's claim with time loss compensation as paid through November 19, 2006, without further award for time loss or permanent partial disability.
Tschabold appealed the Department's order to the Board. In a proposed decision and order affirming the Department's order, an industrial appeals judge (IAJ) noted that Dr. Sekhar testified in his deposition that when he examined Tschabold in August 2006, he found significant memory and cognitive difficulties, weakness on the left side, and an inability to walk without help, all of which were the same problems he observed in his examination on May 18, 2005, prior to the surgery. But the IAJ rejected Dr. Sekhar's opinion that on a more probable than not basis Tschabold's inability to work was caused by the April 9, 2005, industrial injury and related hemorrhage because on November 30, 2005, Dr. Sekhar signed an opinion letter stating that he agreed that, had it not been for the complications from the aneurism surgery, Mr. Tschabold would have been able to return to work. This draws into question the opinion offered by Dr. Sekhar in his deposition. Dr. Sekhar did not testify as to why his opinion had changed so drastically.
Both parties appealed. Two members of the Board signed a decision and order affirming the Department's order based on a finding that as of November 20, 2006, Tschabold's conditions proximately caused by the industrial injury did not prevent him from working. The dissenting Board member stated that the majority reached its holding "only by ignoring the testimony of the witnesses who were present with [Tschabold] after the injury."
Tschabold appealed to the superior court. After trial, the trial court signed written findings of fact stating that Tschabold's April 9, 2005, injury was the proximate cause of "permanent cognitive and physical impairments" that "prevented him from obtaining and performing reasonably continuous gainful employment" as of November 20, 2006, and thereafter. The trial court concluded that Tschabold was entitled to time loss compensation through March 16, 2007, and to pension benefits as a permanent totally disabled worker thereafter.
Home Depot now appeals from the judgment of the superior court.
STANDARD OF REVIEW
On review to the superior court, the Board's decision is prima facie correct, and the burden of proof is on the party challenging the decision. The superior court reviews the Board's decision de novo and may substitute its own findings and decision for the Board's if it finds from a "`fair preponderance of credible evidence'" that the Board's findings and decision were incorrect. Our review is governed by RCW 51.52.140 which provides that an "[a]ppeal shall lie from the judgment of the superior court as in other civil cases." Because we do not sit in the same position as the superior court, we review only "`whether substantial evidence supports the trial court's factual findings and then review, de novo, whether the trial court's conclusions of law flow from the findings.'" In carrying out this review, we view the record in the light most favorable to the party who prevailed in superior court and do not reweigh or rebalance the competing testimony and inferences or apply anew the burden of persuasion. Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the matter asserted. "Credibility determinations are solely for the trier of fact and cannot be reviewed on appeal."
RCW 51.52.115; Ruse v. Dep't of Labor Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999).
Sepich v. Dep't of Labor Indus., 75 Wn.2d 312, 316, 450 P.2d 940 (1969); Ruse, 138 Wn.2d at 5-6 (internal quotation marks omitted) (quoting McClelland v. ITT Rayonier, Inc., 65 Wn. App. 386, 390, 828 P.2d 1138 (1992)).
Rogers v. Dep't of Labor Indus., 151 Wn. App. 174, 180, 210 P.3d 355 (2009) (quoting Watson v. Dep't of Labor Indus., 133 Wn. App. 903, 909, 138 P.3d 177 (2006)); Ruse, 138 Wash.2d at 5.
Harrison Mem'l Hosp. v. Gagnon, 110 Wn. App. 475, 485, 40 P.3d 1221 (2002).
Ferencak v. Dep't of Labor Indus., 142 Wn. App. 713, 719-20, 175 P.3d 1109 (2008).
Watson, 133 Wn. App. at 909.
ANALYSIS
Home Depot does not assign error to the trial court's written findings of fact. Instead, without citation to authority, Home Depot argues that, as a matter of law, Dr. Sekhar's deposition testimony regarding causation and disability cannot be considered "a fair preponderance of credible evidence" justifying the trial court's determination that the Board's findings and decision were incorrect because the doctor offered "two contradictory opinions on an issue without providing a basis to choose between them." Home Depot also argues that the trial court's comment in its oral ruling that Dr. Sekhar "explained why" his testimony conflicted with his earlier response on the form is not supported by sufficient evidence.
Because we do not conduct an independent review of the trial court's credibility determinations and error cannot be predicated on the trial court's oral ruling, our review is limited solely to determining whether the written findings of fact are supported by substantial evidence. And here, the certified appeals board record contains substantial evidence to support the trial court's written findings.
Mairs v. Dep't of Licensing, 70 Wn. App. 541, 545, 854 P.2d 665 (1993).
Dr. Sekhar testified that Tschabold's hemorrhage on April 9, 2005, involved areas of the brain "concerning sensation, level of consciousness, as well as control of the left side of the body." During an examination on May 18, 2005, Dr. Sekhar observed that Tschabold had significant memory and cognitive difficulties, had a "left-sided hemiparesis," that is, weakness on the left side of his body and face, and could not walk independently.
Dr. Sekhar also testified that the aneurism was discovered during tests following the hemorrhage, was completely unrelated to the hemorrhage, and was not causing any symptoms before surgery. According to Dr. Sekhar, the aneurism ruptured during the surgery, which "happens not uncommonly," and he was able to seal off the aneurism completely with additional treatment following surgery. Dr. Sekhar testified that he continued to see Tschabold and monitor his progress through August 16, 2006, when he observed that Tschabold continued to have the same problems as before surgery, specifically, memory and cognitive difficulties and paralysis on his left side.
Dr. Sekhar testified that it is rare for people to recover completely without any residual deficits from a basal ganglion hemorrhage because it involves bleeding into the brain. Because bleeding around the brain or between the lobes, as occurred during Tschabold's surgery, can be completely resolved, as Dr. Sekhar observed in this case, he testified that the aneurism surgery did not cause any permanent physical or cognitive problems.
Dr. Jessy Ang, Tschabold's psychiatrist, testified that he began treating Tschabold in April 2004, and that Tschabold was stable and responding well to treatment for depression and attention deficit disorder before the April 9, 2005, incident. At an appointment on May 2, 2005, Dr. Ang observed that Tschabold had problems with direction and performance. Dr. Ang received a call from Tschabold's wife on May 13, 2005, indicating that Tschabold had been feeling depressed, tearful, dizzy, and lightheaded. Dr. Ang testified that Tschabold had not regained the stability he exhibited prior to April 9, 2005.
Tschabold's wife, Evon Tschabold, testified that before the accident, Tschabold had been a Washington State Patrol officer and a security guard, was continuing his education to become a teacher, rode motorcycles and walked a lot, and was an avid reader. Evon testified that after Tschabold's release from the hospital on April 29, 2005, he had trouble with balance and short-term memory, he wasn't able to read more than five pages without becoming frustrated, he would forget to eat and use the bathroom, and he could not be left alone. Evon also testified that after his recovery from the aneurism surgery, she continued to observe the same impairments that Tschabold had before the surgery.
Tschabold's brother Brian testified that he arranged to work remotely so that he could stay with Tschabold while Evon was working. Brian testified that after his initial release from the hospital following the accident, Tschabold required assistance with eating and using the bathroom, had trouble with balance, and would not initiate conversations. Brian also testified that after the aneurism surgery, Tschabold continued to have trouble with balance and needed the same assistance that he had before the surgery.
Given the evidence corroborating Dr. Sekhar's detailed deposition testimony regarding Tschabold's condition before and after surgery, as well as his description of the surgery he performed and his continuing treatment and observation of Tschabold for over a year, a fair-minded, rational person could be persuaded that the April 9, 2005, accident proximately caused Tschabold's disabilities. Although Home Depot presented testimony from two doctors with different theories regarding the causes of Tschabold's impairments, only one examined Tschabold (one time over a year after the surgery), neither spoke to Evon or Brian Tschabold, and both tended to minimize Tschabold's impairments prior to surgery. The trial court was in the position to assess the credibility of the witnesses and weigh and balance the competing evidence and could legitimately determine (1) that Dr. Sekhar's deposition testimony was credible despite his admission that he checked a box on a form indicating a conflicting opinion on a previous occasion and (2) that Dr. Sekhar was better qualified than Home Depot's witnesses to give an opinion on the cause and extent of Tschabold's disability.
See Ruse, 138 Wn.2d at 6 (attending physician is better qualified to give opinion on patient's disability than doctor who examined patient only once).
Regarding conclusions of law, the trial court determined that Tschabold was a temporarily disabled worker under RCW 51.32.090 and entitled to time loss compensation, until his conditions proximately caused by the industrial injury had reached maximum medical improvement under RCW 51.32.010 as of March 16, 2007, at which time he was a permanent totally disabled worker entitled to pension benefits under RCW 51.08.160. This flows logically from the trial court's findings of fact.
CONCLUSION
Because Home Depot has failed to show either a lack of substantial evidence to support the trial court's findings of fact or that the findings do not support the court's conclusions of law, we affirm.
Tschabold requests an award of attorney fees on appeal under RCW 51.52.130 and RAP 18.1. Because Tschabold's "right to relief is sustained" by this court, we grant his request and award fees on appeal upon compliance with RAP 18.1(d).
Affirmed.