Street v. Weyerhaeuser Co. ( 2017 )

This opinion was filed for record
at &:OOaJ\A on -Altff LL\ 2Pl1
. :(\Q[
\.'MY" .SUSAN L. CARLSON
-~ SUPREMiCOURTCLERK
IN TI-IE SUPREME COURT OF THE STATE OF WASHINGTON
ROGER A. STREET,
Respondent, NO. 93984-5
v.
ENBANC
WEYERHAEUSER COMPANY,
Petitioner. AUG 1 0 2017
Filed ----'-----=..:::__:_:_-
STEPHENS, J.-Weyerhaeuser Company, Roger A. Street's former employer,
challenges Street's award of industrial insurance benefits for his low back condition, a
claimed occupational disease. An "occupational disease" is a disease that "arises
naturally and proximately out of employment." RCW 51.08.140. In Dennis v.
Department of Labor & Industries, 109 Wash. 2d 467, 477, 745 P.2d 1295 (1987), this
court held that a worker seeking benefits for an occupational disease must present expert
medical testimony that the disease "arise[s] 'proximately"' out of employment.
Weyerhaeuser argues that in light of Dennis, such a worker must also present expert
medical testimony that the disease "arises naturally" out of employment.
Street v. Weyerhaeuser Company, 93984-5
The Court of Appeals rejected Weyerhaeuser's argument, holding that neither
Dennis nor any other appellate decision requires Street to present expert medical
testimony to show that his back condition "arose naturally" from employment. Because
there was medical testimony supporting the "arises proximately" requirement and lay
testimony supporting the "arises naturally" requirement, the appeals court held that
Street proved his low back condition is an occupational disease and affirmed the jury
award of benefits. We affirm the Court of Appeals.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Street worked for Weyerhaeuser or its subsidiary (Norpac) his entire career. In
1991, Street began working in one of Norpac's paper mills, where he held various
positions for the next 20 years. Although Street had back problems prior to working in
the paper mill, he did not find the problems disabling until he was injured at the mill in
2011. More than one year later, Street applied for workers' compensation benefits due
to that injury. The Department of Labor and Industries (Department) treated the
application as an injury claim and denied it as untimely.
Later that year, the Department affirmed the denial and sent Street a separate
letter stating that the claim was for an injury, not an occupational disease. Compare
RCW 51.28.050 (worker must file injury claim within one year of the date on which
the injury occurred), with RCW 51.28.055(1) (worker must file occupational disease
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Street v. Weyerhaeuser Company, 93984-5
claim within two years of the date the worker had notice of the occupational disease or
of the ability to file a claim for disability benefits). Street appealed the Department's
order and letter to the Board of Industrial Insurance Appeals (Board), clarifying that he
intended to file an occupational disease claim. Weyerhaeuser moved for an order
granting summary judgment and dismissing Street's appeal. An industrial appeals
judge granted Weyerhaeuser partial summary judgment, dismissing Street's claim as
untimely to the extent he alleged an injury, but directing the case to go forward on an
occupational disease theory.
The industrial appeals judge conducted hearings, at which Street, his family
members, his supervisor, and three medical experts testified.
Street testified that his duties as an assistant winder operator included placing
cores-dense cardboard at the center of a paper roll-into the winder of the paper
machine so that the machine could produce individual paper rolls. His duties also
included monitoring paper machines, repairing broken machines, "manhandling" paper
rolls by grabbing and pushing the core of the roll, bending over to sand cores, and
tacking bar codes onto the finished paper rolls. The paper rolls were approximately 40
to 50 inches in diameter and weighed on average 1,000 pounds. The cores, on which
the rolls were placed, weighed on average 2 to 10 pounds. Street worked 12-hour shifts
with few breaks, if any. Some of Street's work became automated over the last 10
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years, and during the last couple of years, Street worked in a less demanding monitoring
role about 30 percent of the time.
Richard T. Moore, Street's supervisor of two to five years, gave slightly different
testimony regarding Street's role. Moore testified that Street held the less demanding
monitoring role about 75 percent of the time, that Street sat approximately 20 percent
of the time as an assistant winder operator, and that workers typically had help
manhandling the paper rolls, which might happen Oto 12 times a day.
Dr. Patricia Peterson, Street's primary care physician of 20 years, testified that
she was familiar with the nature of Street's work "[t]o some degree" and described his
role in the paper mill as a "very heavy job, ... a moving job, ... [not] just a sit around
and watch things go job." Clerk's Papers (CP) at 313,315,319,321. She testified that
she diagnosed Street with chronic low back pain related to degenerative arthritis and
degenerative disease of the spine, which can occur over time from repetitive use.
Although on Street's short-term disability claim form she had checked a box indicating
that the condition was not work related, she later testified on a more probable than not
basis that the kind of work Street did, as opposed to everyday wear and tear of daily
living, at least in part caused Street's low back condition because he used "a lot of his
body weight" and his "abdominal muscles" in manhandling paper rolls. Id at 322-23,
326. Dr. Peterson acknowledged that even though Street had come in with complaints
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Street v. Weyerhaeuser Company, 93984-5
of low back pain unrelated to work (e.g., moving furniture, doing yard work), the
repetition of handling paper rolls was a factor contributing to Street's low back
condition.
Dr. Yuri Tsirulnikov, an osteopathic physician who treated Street five to six
times, testified that Street's work more probably than not contributed to his low back
condition, though he could not say to "what extent" it contributed. Id. at 362,364, 367-
68, 371. He indicated that Street's weight, genetics, and "probably some other physical
activities that he did at home" also contributed to Street's low back condition. Id. at
384.
Dr. Thomas Rosenbaum, a neurosurgeon who examined Street at
Weyerhaeuser's request, opined that Street's work did not proximately cause his low
back condition. He diagnosed Street with lumbar spondylosis and degenerative disc
disease, and testified that genetics and age are the main factors contributing to these
conditions. In his opinion, Street's physical exertion at work contributed to his low
back condition "maybe ... two or three percent," if at all. Id. at 431-32.
At the conclusion of the proceedings, the industrial appeals judge issued a
proposed order and decision reversing the Department's denial of benefits.
Weyerhaeuser petitioned the full Board for review. The full Board affirmed the
Department's denial of benefits, but directed the Department to find that Street filed an
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Street v. Weyerhaeuser Company, 93984-5
occupational disease claim that was rejected because he failed to prove his low back
condition arose "naturally and proximately" out of distinctive conditions of his
employment. Id. at 49, 54-55.
Street appealed the Board's order to Cowlitz County Superior Court.
Weyerhaeuser moved for judgment as a matter of law on the ground that Street failed
to present expert medical testimony that his low back condition "arose naturally" out of
distinctive conditions of his employment. The superior court denied the motion and
sent the case to trial. The jury found that Street's back condition is an occupational
disease that arose "naturally and proximately" out of the distinctive conditions of his
employment. Id. at 532. Based on the verdict, the superior court reversed the Board's
order and remanded to the Department with directions to accept Street's occupational
disease claim. Id. at 534-35.
Weyerhaeuser appealed to Division Two of the Court of Appeals, which
transferred the matter to Division One of the Court of Appeals. Order Transferring
Cases, Street v. Weyerhaeuser Co., No. 48559-1-II (Wash. Ct. App. Aug. 16, 2016). In
an unpublished decision, the Court of Appeals affirmed, holding that Street was not
required to present medical testimony to satisfy the "arises naturally" requirement, and
that the evidence was sufficient to support a finding that Street's back condition
qualifies as an occupational disease. Street v. Weyerhaeuser Co., No. 75644-3-1, slip
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op. at 1, 4, 7 (Wash. Ct. App. Nov. 28, 2016) (unpublished), http://www.courts.
wa.gov/opinions/pdf/756443.pdf.
Weyerhaeuser then filed a petition for review in this court, which we granted.
Street v. Weyerhaeuser Co., 187 Wash. 2d 1025, 391 P.3d 457 (2017).
ANALYSIS
The Industrial Insurance Act (IIA), Title 51 RCW, provides "sure and certain
relief for workers, injured in their work." RCW 51.04.010. Workers "who suffer[]
disability from an occupational disease in the course of employment" are entitled to
"the same compensation benefits" as injured workers. RCW 51.32.180. In the present
case, Street alleges that his chronic low back condition is an occupational disease. CP
at 57.
"'Occupational disease' means such disease . . . as anses naturally and
proximately out of employment." RCW 51.08.140. In Dennis, 109 Wash. 2d 467, this
court discussed the requirements for such a claim. "Arises proximately" means that
employment conditions "'must be the proximate cause of the disease ... so that the
disease would not have been contracted but for the [employment] condition.'" Id. at
477 (footnote omitted) (quoting Simpson Logging Co. v. Dep 't of Labor & Indus., 32
Wn.2d 472,479,202 P.2d 448 (1949)). This "causal connection ... must be established
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by competent medical testimony which shows that the disease is probably, as opposed
to possibly, caused by the employment." Id.
"Arises naturally" requires a worker to
establish that his or her occupational disease came about as a matter of course
as a natural consequence or incident of distinctive conditions of his or her
patiicular employment. The conditions need not be peculiar to, nor unique to,
the worker's particular employment. Moreover, the focus is upon conditions
giving rise to the occupational disease ... and not upon whether the disease
itself is common to that particular employment. The worker, in attempting to
satisfy the "naturally" requirement, must show that his or her particular work
conditions more probably caused his or her disease ... than conditions in
everyday life or all employments in general; the disease ... must be a natural
incident of conditions of that worker's particular employment. Finally, the
conditions causing the disease ... must be conditions of employment, that is,
conditions of the worker's particular occupation as opposed to conditions
coincidentally occurring in his or her workplace.
Id. at 481. Although the court in Dennis discussed what a worker must prove to
demonstrate a disease "arises naturally" out of employment conditions, it did not
specifically address whether expert medical testimony is required to prove it. That issue
is now before us.
I. The "Arises Naturally" Requirement Need Not Be Established by
Expert Medical Testimony
As noted, to satisfy the "arises naturally" requirement, a worker must prove
that his or her occupational disease came about as a natural consequence of
distinctive employment conditions. Id. Weyerhaeuser contends that whether a
disease "arises naturally" from distinctive conditions of employment constitutes an
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issue of medical causation that must be proved through expert medical testimony.
Pet. for Review at 8, 19. Street counters that while the "arises naturally" requirement
presents an issue of general causation, it does not present an issue of medical
causation requiring expert testimony. Suppl. Br. of Resp't at 2. Rather, it is a
causation issue pure and simple; as with most factual causation determinations, it
does not require expert opinion. Id. at 5; Br. ofResp't at 12-13.
We believe the remedial nature of the IIA, the standard governing the need
for expert testimony, and our case law all support Street's argument. We discuss
each of these reasons more fully below.
a. The IIA Is Broadly Construed in Favor of Workers
This court has consistently held that because the IIA "is remedial in nature,"
it must 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." Dennis, 109 Wash. 2d at 470. "With this principle
in mind," id., both the legislature and this court have expanded occupational disease
coverage under the IIA. The trend toward liberal coverage supports Street's
argument that a worker need not present expert medical testimony to prove an
occupational disease "arises naturally" from employment.
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Dennis is the leading case on occupational disease. There, this court held that
the "historical development of occupational disease coverage in Washington"
supports the conclusion that a preexisting condition exacerbated by work comes
within the definition of an "occupational disease." Id. at 472. This court explained
that at the time the IIA was enacted, there was "no coverage for disability resulting
from occupational disease[,] only injuries sustained performing certain
extrahazardous work." Id. The legislature subsequently "passed the first law
providing compensation for disability resulting from certain enumerated diseases,"
including "specific conditions resulting from repetitive work activities." Id. at 473.
Eventually, the legislature "again broadened coverage by eliminating the list of
enumerated compensable diseases, and enacting the present definition of
occupational disease," although compensation was available only for extrahazardous
employment. Id. Finally, the legislature eliminated the extrahazardous employment
requirement and "provided coverage for disability resulting from occupational
disease in all employment." Id. This court summarized, "From 'no coverage' to the
present broad definition of occupational disease, the Legislature has repeatedly and
consistently provided expanded coverage for disability resulting from occupational
disease." Id. at473-74. This court concluded that it was a natural next step to expand
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coverage to disabilities resulting from "work-related aggravation of ... preexisting
nonwork-related diseases." Id. at 474.
In addition to expanding coverage, this court has at least in two instances
relaxed the worker's burden of proof for an occupational disease claim. First, in
Sacred Heart Medical Center v. Carrado, 92 Wash. 2d 631, 632-33, 600 P.2d 1015
(1979), this court held that the medical testimony was sufficient to support the jury's
finding that a nurse had contracted hepatitis as a result of her employment even
though the medical testimony indicated that it is nearly impossible to pinpoint the
source of the disease. In so holding, this court stated that while "the causal
connection between a [worker's] physical condition and his employment must be
established by" medical testimony, our cases do not require a medical opinion on
"the ultimate issue" in every instance. Id. at 636. Rather, "[i]t is sufficient if the
medical testimony shows the causal connection." Id. In other words, it is sufficient
if "a reasonable person can infer" from the medical testimony, in conjunction with
lay testimony, "that the causal connection exists." Id. at 637. This suggests there
are no "magic words" for proving the issue of medical causation. Indeed, in later
describing its holding, this court stated, "Sacred Heart does not require each [worker
claiming] occupational disease coverage to prove an increased risk of disease-based
disability due to conditions of his or her particular employment, but instead eases
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the burden of proof requirement." Dennis, 109 Wash. 2d at 482 (second emphasis
added).
Second, m interpreting the "arises naturally" requirement, this court
specifically rejected a lower court's more stringent definition. Id. at 478-79
(rejecting Dep't of Labor & Indus. v. Kinville, 35 Wash. App. 80, 664 P.2d 1311
(1983)). "Dennis relaxed the requirements of' Kinville, "which required the worker
to prove 'that the conditions producing his disease are peculiar to, or inherent in, his
particular occupation."' Kaiser Alum. & Chem. Corp. v. McDowell, 58 Wash. App.
283, 286-87, 792 P.2d 1269 (1990) (quoting Kinville, 35 Wash. App. at 87). In Dennis,
this court held that "[t]he conditions need not be peculiar to, nor unique to, the
worker's particular employment." 109 Wash. 2d at 481. Instead, they need only be
"distinctive" conditions "of the worker's particular occupation as opposed to
conditions coincidentally occurring" in the workplace. Id.
Both the legislature's amendments to and this court's decisions interpreting
the occupational disease statute evidence a trend toward expanded coverage and a
more relaxed burden of proof. Allowing a worker to prove the "arises naturally"
requirement without the necessity of medical testimony aligns with this trend.
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b. Expert Medical Testimony Is Necessary Only for Issues of Medical
Causation, and the "Arises Naturally" Requirement Is Not Such an
Issue
In determining whether the "arises naturally" requirement must be proved
through expert medical testimony, it is helpful to consider in what circumstances
expert testimony is generally useful. "The admissibility of expert testimony in
Washington is governed by" Evidence Rule (ER) 702. Reese v. Stroh, 128 Wash. 2d
300, 305, 907 P.2d 282 (1995). That rule provides that "[i]f scientific, technical, or
other specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue," a qualified expert "may testify thereto in the form of
an opinion." ER 702. With regard to expert medical testimony, the "general rule"
is that
expert medical testimony is required on only those matters "strictly
involving medical science". The basic question is whether the particular fact
sought to be proved is such as is "observable by [a layperson's] senses and
describable without medical training".
Smith v. Shannon, 100 Wash. 2d 26, 33, 666 P.2d 351 (1983) (matters involving
medical science include "the nature of the harm which may result and the probability
of its occurrence" because "[o]nly a physician ... is capable of judging what risks
exist and their likelihood of occurrence" (alteration in original) (citation omitted)
(quoting 2 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW§ 568, at
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779 (rev. 1979); Bennett v. Dep 't of Labor & Indus., 95 Wash. 2d 531, 533, 627 P.2d
104 (1981))).
In the context of occupational disease claims, matters involving medical
science include the "'cause and extent"' of the disability. Eyer v. Dep't ofLabor &
Indus., l Wn.2d 553, 555, 96 P.2d 1115 (1939) (quotingAtl. Ref Co. v. Allen, 1939
OK 116, 185 Okla. 194, 195, 90 P .2d 659); see also Hoff v. Dep 't ofLabor & Indus.,
198 Wash. 257,266, 88 P.2d 419 (1939) ("[U]pon a medical question regarding the
nature and effect of a particular ailment ... those who are versed in the science of
medicine are better able than are we to form a true and accurate opinion.").
Weyerhaeuser contends that the "arises naturally" requirement is an issue of
medical causation requiring expert medical testimony that "the work activities at
Weyerhaeuser were distinctive, compared to activities that are common to
employment generally and daily life, when viewed as a cause of lumbar
spondylosis." Br. of Appellant at 19. We find this argument unavailing. "Arises
proximately" means that the employment conditions must be the proximate cause of
the disease. Dennis, l 09 Wn.2d at 477. "Arises naturally" means that the conditions
of a worker's particular employment are distinctive, i.e., different from,
employments in general or activities of daily living. Id. at 481. The first requirement
involves an issue of medical causation, but the second requirement pertains to
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observable job activities. See, e.g., City ofBremerton v. Shreeve, 55 Wash. App. 334,
340 n.5, 777 P.2d 568 (1989) ("The 'naturally' requirement ... addresses the work
connection ... , while the 'proximately' requirement is addressed by the 'but for'
test.").
Viewing the requirements this way explains why the court in Dennis explicitly
stated only that expert medical testimony is necessary for the "arises proximately"
requirement. See 109 Wash. 2d at 4 77. Medical professionals specialize in diagnosing
patients' conditions, not in familiarizing themselves with various job duties. Street
aptly notes that many treating physicians would balk at any requirement that they
"become experts as to job duties that exist in all employments in general, or testify
as to what constitutes activities of daily living, versus distinctive job duties." Suppl.
Br. of Resp't at 5. Amicus Washington State Association for Justice Foundation
further observes, "[A] medical professional has no particular qualifications that
would help the trier of fact to determine whether the conditions of a worker's
particular employment are distinctive." Br. of Amicus Curiae Wash. State Ass'n for
Justice Found. at 13; see also Wash. Supreme Court oral argument, Street v.
Weyerhaeuser Co., No. 93984-5 (June 13, 2017), at 5 min., 07 sec. through 6 min.,
00 sec., video recording by TVW, Washington State's Public Affairs Network,
http://www.tvw.org (Weyerhaeuser's counsel noting that medical professionals
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Street v. Weyerhaeuser Company, 93984-5
become familiar with employment conditions in part through patients' explanations
of their job duties). Instead, "[a] witness familiar with the worker's job requirements
and the particular manner in which the worker performed those job requirements can
provide evidence to assist the trier of fact to determine whether job conditions are
distinctive." Br. of Amicus Curiae Wash. State Ass'n for Justice Found. at 13-14;
see also Bennett, 95 Wash. 2d at 533 ("[L]ay witnesses may testify to such aspects of
physical disability of an injured person as are observable by their senses and
describable without medical training.").
Given that the "arises naturally" requirement presents the nonscientific
question of whether the conditions of a worker's particular employment are
distinctive, it stands to reason that it can be established by lay testimony without the
need for expert medical opinion.
c. Washington Case Law Does Not Suggest the "Arises Naturally"
Requirement Must Be Proved Through Expert Medical Testimony
No Washington case holds that expert medical testimony is necessary to
satisfy the "arises naturally" requirement. Weyerhaeuser argues, however, that
language in several cases suggests a worker must prove a "distinctive employment
cause" through expert medical testimony. Br. of Appellant at 15-18 (emphasis
added).
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As an initial matter, Weyerhaeuser is mistaken to the extent it argues a worker
must show a "distinctive risk" or "distinctive cause" to meet the "arises naturally"
requirement. See, e.g., Pet. for Review at 5 ("Neither doctor addressed whether
claimant's work activities presented a distinct risk of causing lumbar spondylosis."
(emphasis added)); Br. of Appellant at 19 ("The issue whether particular work
conditions constituted a 'distinctive' cause of a medical condition presents a medical
question." (emphasis added)). As Street and supporting amicus point out, this "is no
different than the argument that a worker must show that the particular employment
exposed him or her to a greater risk of contracting the occupational disease than
would other employments or everyday life." Br. of Amicus Curiae Wash. State
Ass'n for Justice Found. at 15; see also Suppl. Br. of Resp't at 11-12. Because we
previously rejected this "greater risk" requirement in Dennis, l 09 Wn.2d at 482,
Weyerhaeuser is mistaken to the extent it advocates for adoption of this
requirement. 1 A worker need only show "distinctive conditions" of employment to
meet the "arises naturally" requirement.
1
As Street's counsel articulated at oral argument, requiring a worker to prove a
distinctive cause or a distinctive risk of employment is inconsistent with the legislative
history of the IIA, which now allows occupational disease claims for all employment, not
just extrahazardous employment. Wash. Supreme Court oral argument, supra, at 19 min.,
16 sec. through 20 min., 41 sec.; see also Dennis, 109 Wash. 2d at 473-74.
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Weyerhaeuser's argument is also unpersuasive because the cases on which it
relies do not support its position. In Dennis, a sheet metal worker filed an
occupational disease claim for osteoarthritis localized in his wrists. 109 Wash. 2d at
468-69. This court reaffirmed that the "arises proximately" requirement "must be
established by competent medical testimony which shows that the disease is
probably, as opposed to possibly, caused by the employment." Id. at 477. Because
the worker's attending physician testified that "more probably than not, the
osteoarthritis . . . was made symptomatic and disabling by . . . repetitive tin
snipping," this court held that there was "sufficient medical evidence in the record
from which a trier of fact could infer" the "arises proximately" requirement. Id.
Although the court discussed the "arises naturally" requirement, it neither stated that
the requirement must be established by expert medical testimony nor focused on
whether that requirement was satisfied. Instead, the court concluded merely that
there was sufficient evidence to support the inference that the disabling wrist
condition "arose naturally and proximately" out of employment. Id. at 483. Dennis
therefore does not support Weyerhaeuser' s argument. Had the court intended to
require expert medical testimony for the "arises naturally" requirement, it could have
stated so explicitly.
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In Potter v. Department ofLabor & Industries, 172 Wash. App. 301, 304, 306-
07, 289 P.3d 727 (2012), a lawyer filed an occupational disease claim after noticing
strong odors in her newly remodeled office, experiencing bloody noses and fatigue,
and being diagnosed with multiple chemical sensitivity disorder. The court found
the lawyer failed to satisfy the "arises proximately" requirement because the medical
testimony established only a possibility, not a probability, that she was exposed to
chemicals in the remodeled office that made her sick. Id. at 311. The court similarly
found that the lawyer failed to satisfy the "arises naturally" requirement because, as
the Board had found below, "'[r]emodels are everywhere, and by no means limited
to law offices, or to work for that matter."' Id. at 316. The court therefore upheld
the denial of benefits. Id. at 304. Nowhere in Potter did the court state it was
upholding the denial of benefits because the lawyer failed to present medical
testimony that remodels were a distinctive condition of her employment. To the
contrary, the decision suggests that medical testimony is not necessary to make such
a showing, as the Board made that determination on its own.
In Gastv. Department ofLabor & Industries, 70 Wn. App. 239,241,852 P.2d
319 (1993 ), a maintenance worker filed an occupational disease claim for a stress-
related disease allegedly caused by being the subject of workplace rumors. On
appeal, she challenged the trial court's jury instruction, which read:
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"If you find that Vickie Gast suffered a disease which was
proximately caused by occurrences in her workplace, then you must consider
whether or not such occurrences are distinctive conditions of her particular
employment. This court has already ruled, as a matter oflaw, as follows:
"(1) Rumors . . . by one's co-workers, are not, by themselves,
distinctive conditions of employment."
Id. at 242. The appeals court affirmed the denial of benefits and held that the trial
court "correctly determined as a matter of law that rumors . . . are not distinctive
conditions of employment." Id. at 243. "Such conditions are unfortunate
occurrences in everyday life or all employments in general. Their occurrence at a
specific workplace is coincidental." Id. As in Potter, 172 Wash. App. at 316, where
the Board determined on its own that the lawyer's conditions of employment were
not distinctive, the lower court in Gast found on its own that the maintenance
worker's conditions of employment were not distinctive, 70 Wash. App. at 243. This
suggests that expert medical testimony is not necessary to satisfy the "arises
naturally" requirement.
As in Gast, id. at 243-44, where the court held that rumors were not distinctive
conditions of employment, the crux of the reasoning in Witherspoon v. Department
of Labor & Industries, 72 Wash. App. 847, 851, 866 P.2d 78 (1994), was that a
coughing incident was merely coincidental with employment and could have
happened anywhere. In Witherspoon, id. at 848-49, a slaughterhouse worker filed
an occupational disease claim for meningitis he allegedly contracted from a
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Street v. Weyerhaeuser Company, 93984-5
coworker who had coughed in his face in the locker room. In reversing the jury's
award of benefits, the appeals court stated the "meningitis did not come about"
naturally because "the medical testimony was that meningitis is spread" through the
mouth and nose, and occurs almost everywhere. Id. at 851. The worker's exposure
to meningitis in the workplace "was merely coincidental and not a result of any
distinctive conditions of his employment." Id. Although the court relied on medical
testimony to find the worker did not satisfy the "arises naturally" requirement,
nowhere in the decision did the court say that such testimony is necessary. We do
not read the decision as requiring expert medical testimony.
Similarly, in Wheeler v. Catholic Archdiocese of Seattle, 65 Wash. App. 552,
567, 829 P.2d 196 (1992), rev 'din part on other grounds, 124 Wash. 2d 634, 642-43,
880 P.2d 29 (1994), the court focused on the coincidental nature of the employment
conditions. There, a worker filed a negligent supervision claim against her
employer, which argued the claim should have been dismissed under the IIA's
exclusive remedy provision. Id. at 565. On appeal, the court found the trial court
did not err in refusing to dismiss the negligent supervision claim because it did not
fall within the basic coverage of the IIA. Id. at 566, 568. The worker's claim was
for a mental disability allegedly resulting from her supervisor's harassment. Id. at
566. Without mentioning any medical testimony, the court found that "[t]he
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conditions ... were not particular to her occupation, but only coincidentally occurred
in her workplace." Id. at 567-68. Wheeler thus does not suggest that the "arises
naturally" requirement must be established by medical testimony.
As these cases illustrate, Washington case law does not support
Weyerhaeuser's argument that a worker must prove the "arises naturally"
requirement through expert medical testimony. See also Ruse v. Dep 't of Labor &
Indus., 138 Wash. 2d 1, 7-8, 977 P.2d 570 (1999) (affirming the denial of benefits
without reaching the "arises naturally" requirement because the medical testimony
did not support the "arises proximately" requirement); Shreeve, 55 Wash. App. at 335-
36 (upholding the award of benefits in part because the worker "presented the
testimony of three doctors to support her contention that her kidney disease arose
'proximately' out of her employment," but not stating whether such testimony
supported the requirement that the disease arose "naturally" out of employment
(emphasis added)); McClelland v. ITT Rayonier, Inc., 65 Wash. App. 386, 387, 393,
828 P.2d 1138 (1992) (rejecting the worker's occupational disease claim because he
conceded that "his job was not unusually stressful" and the evidence therefore
showed his depression was "caused simply by his own subjective but unrealistic
view of the situation at" work rather than distinctive conditions of his employment).
Rather, the remedial purpose of the IIA, the standard governing the admissibility of
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Street v. Weyerhaeuser Company, 93984-5
expert testimony, and the cases all indicate expert medical testimony is not required
to prove a condition arises naturally out of employment.
IL The Evidence Was Sufficient To Support the Jury's Finding That
Street's Chronic Low Back Condition "Arose Naturally and
Proximately" Out of Distinctive Conditions of His Employment
The remaining issue is whether sufficient evidence supported the jury's
verdict that Street's low back condition is an occupational disease. At the superior
court, the "party attacking the [Board's] decision" has the burden of proving it is not
"prima facie correct." Ruse, 138 Wash. 2d at 5; RCW 51.52.115. At the appellate
court, however, "'review is limited to examination of the record to see whether
substantial evidence supports the findings made after the superior court's de novo
review, and whether the [superior] court's conclusions of law flow from the
findings."' Ruse, 138 Wash. 2d at 5 (quoting Young v. Dep't of Labor & Indus., 81
Wash. App. 123, 128, 913 P.2d 402 (1996)). Substantial evidence exists if it
"convince[s] an unprejudiced, thinking mind of the truth of that to which the
evidence is directed." Ehman v. Dep 't of Labor & Indus., 33 Wash. 2d 584, 597, 206
P .2d 787 (1949). The appellate court views the evidence "in the light most
favorable" to the party who prevailed at the superior court. Bennett, 95 Wash. 2d at
534.
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Street v. Weyerhaeuser Company, 93984-5
As noted, to succeed on an occupational disease claim, a worker must prove
that the disease "arose naturally and proximately" out of employment. See Dennis,
109 Wash. 2d at 481-82. The "arises proximately" requirement "must be established
by competent medical testimony which shows that the disease is probably, as
opposed to possibly, caused by the employment." Id. at 477. "If, from the facts and
circumstances and the medical testimony given, a reasonable person can infer that
the causal connection exists, the evidence is sufficient." Bennett, 95 Wash. 2d at 533.
In reviewing the medical testimony on this issue, the "long-standing rule of law in
workers' compensation cases [is] that special consideration should be given to the
opinion of a [worker's] attending physician." Hamilton v. Dep 't ofLabor & Indus.,
111 Wash. 2d 569, 571, 761 P.2d 618 (1988). As established above, the "arises
naturally" requirement need not be established by medical testimony. Rather, lay
testimony may establish that the "occupational disease came about as a matter of
course as a natural consequence or incident of distinctive conditions of''
employment. Dennis, 109 Wash. 2d at 481.
Weyerhaeuser contends that Street's occupational disease claim fails because
he "presented no expert testimony that addressed, directly or indirectly, the question
whether his work activities were distinctive, compared to other employments and
the activities of daily living." Br. of Appellant at 21. Weyerhaeuser emphasizes that
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Street v. Weyerhaeuser Company, 93984-5
neither Dr. Peterson nor Dr. Tsirulnikov compared Street's work activities to
activities of daily living, and Dr. Rosenbaum testified that Street's work conditions
were not distinctive. Id. Street counters that Dr. Peterson's testimony was sufficient
to prove that his low back condition "arose naturally and proximately" out of
distinctive conditions of his employment because Dr. Peterson accurately described
Street's work duties and opined that Street's employment more probably than not
caused his low back condition. Suppl. Br. ofResp't at 7-9.
While the evidentiary question presents a close call, we uphold the jury's
verdict. Viewing the evidence in the light most favorable to Street and giving special
consideration to Dr. Peterson's testimony, we hold there was sufficient evidence to
support the jury's finding that Street's low back condition is an occupational disease.
Dr. Peterson's testimony and Dr. Tsirulnikov's testimony were sufficient to
establish that Street's low back condition "arose proximately" out of his
employment. Dr. Peterson testified that Street's work more probably than not caused
his low back condition, as opposed to everyday wear and tear. CP at 322-23, 326.
Similarly, Dr. Tsirulnikov testified that Street's work more probably than not
contributed to his low back condition, but he could not say to what extent. Id. at
367-68, 371. Although Dr. Rosenbaum testified that Street's work did not
proximately cause his low back condition, id. at 411, the evidence must be viewed
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in the light most favorable to Street and need only reasonably suggest a causal
connection. See Bennett, 95 Wash. 2d at 533-34. Nor was the jury obligated to credit
Dr. Rosenbaum's opinion. From the evidence, a rational trier of fact could infer the
required causal connection between Street's employment and his low back
condition.
Street's testimony and his supervisor's testimony were sufficient to establish
that Street's low back condition "arose naturally" out of distinctive conditions of his
employment. Both Street and his supervisor testified that Street's duties included
manhandling paper rolls that weighed on average 1,000 pounds. CP at 236-37, 261,
288, 300-01. Street further testified that the paper machines he worked on are the
world's biggest and fastest paper machines. Id. at 230. "The weight of ... testimony
is for the jury." Bennett, 95 Wash. 2d at 534. A jury could conclude that manhandling
paper rolls on the world's biggest and fastest machines was a distinctive condition
of employment, as it does not occur in everyday life nor in all employments.
Although we hold expert medical testimony is not required to establish Street's
distinctive conditions of employment, Dr. Peterson's testimony is also helpful in
resolving this issue. Dr. Peterson testified that Street used "a lot of his body weight"
and his "abdominal muscles" in his employment, and she compared Street's job to
her sedentary job. CP at 322-23. She testified that "people who use the body parts
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Street v. Weyerhaeuser Company, 93984-5
that are required in their job tend to wear those parts out." Id. at 323. From this
testimony, a jury could conclude that Street's job required more physical rigor than
everyday life and work in general.
Considering all the testimony, we hold that substantial evidence supported the
jury's finding that Street's low back condition is an occupational disease.
III. Street Is Entitled to Attorney Fees on Appeal
Street requests attorney fees on appeal. Both the superior court and the Court
of Appeals awarded Street attorney fees pursuant to RCW 51.52.130. CP at 535;
Street, slip op. at 13. That provision states,
If, on appeal to the superior or appellate court from the decision and order of
the board, said decision and order is reversed or modified and additional
relief is granted to a worker ... or in cases where a party other than the
worker ... is the appealing party and the worker's . . . right to relief is
sustained, a reasonable fee for the services of the worker's ... attorney shall
be fixed by the court.
RCW 51.52.130(1).
Because we affirm the lower courts' determination that Street's low back
condition is an occupational disease, Street's right to relief is sustained on
Weyerhaeuser's appeal and he is entitled to attorney fees.
CONCLUSION
We affirm the Court of Appeals. The remedial nature of the IIA, the standard
governing the use of expert testimony, and our precedent all support the conclusion
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that a worker seeking industrial insurance benefits need not present expert medical
testimony to satisfy the "arises naturally" requirement of an occupational disease
claim. A worker need only present expert medical testimony to satisfy the "arises
proximately" requirement. Given that Street's attending physician testified that his
low back condition was more probably than not caused by his work, and given that
Street and his supervisor testified as to Street's duties working in the paper mill,
substantial evidence supported the jury's finding that Street's low back condition
constitutes an occupational disease.
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Street v. Weyerhaeuser Company, 93984-5
WE CONCUR:
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