Leroy Doppenberg v. Wa State Dept. Of L&i ( 2015 )


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    IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
    LEROY DOPPENBERG,
    No. 71346-9-
    Appellant,
    DIVISION ONE
    v.
    WASHINGTON STATE DEPARTMENT
    OF LABOR AND INDUSTRIES AND
    EAGLE HYDRAULICS,                                 UNPUBLISHED OPINION
    Respondents.                 FILED: April 6. 2015
    Spearman, C.J. — Leroy Doppenberg challenges the trial court's finding
    that his industrial injury did not worsen between the date his claim under the
    Industrial Insurance Act, Title 51 RCW (Act) was initially closed and the date his
    application to reopen the claim was denied, approximately two years later. He
    argues that the trial court improperly allowed the Department of Labor and
    Industries (Department) to relitigate the nature and extent of his industrial injury,
    an issue that was definitively established by the Department's final order on his
    claim. He also contends that the trial court's award of statutory attorney fees and
    costs to the Department was improper. We conclude that the Department's final
    order on the claim was res judicata as to the extent of Doppenberg's industrial
    injury at the time of the order, but not as to any subsequent aggravation of the
    injury alleged in his application to reopen the claim. We also find no error in the
    No. 71346-9-1/2
    trial court's award of statutory attorney fees and costs to the Department. We
    affirm.
    FACTS
    On March 16, 2007, Leroy Doppenberg was injured during the course of
    employment when a heavy steel plate fell onto his right calf and rolled around,
    injuring his right ankle and foot. He filed an application for benefits under the Act.
    The Department allowed the claim and Doppenberg received treatment and other
    benefits under the Act. On April 25, 2008, the Department determined:
    The [Department] is not responsible for the condition
    diagnosed as lumbar stenosis, determined by medical
    evidence to be unrelated to the accepted condition under this
    [industrial] injury for which the claim was filed.
    CABR at 46. It does not appear that Doppenberg objected to this finding. The
    Department did accept responsibility for:
    the condition diagnosed as right peroneal nerve injury, determined
    by medical evidence to be related to the accepted condition under
    this [industrial injury] for which this claim is filed.
    CABR at 47. It issued a notice and order to that effect on June 26, 2008. It does
    not appear that either party objected to the order or took steps to modify it in any
    way. The Department issued an order closing Doppenberg's claim, which was
    affirmed by the Department on May 12, 2009.
    Eighteen months later, Doppenberg filed an application to reopen his
    claim on the basis that symptoms related to his industrial injury had worsened.
    The Department issued an order denying his application, finding that "the medical
    record shows the conditions caused by the injury have not worsened since the
    final claim closure, . . ." Certified Appeal Board Record (CABR) at 47. This order
    No. 71346-9-1/3
    was affirmed on June 2, 2011. Doppenberg appealed the order denying his
    application to the Board of Industrial Appeals (Board), which conducted an
    evidentiary hearing.
    At the hearing, Doppenberg testified that he filed the application based on
    new and worsening symptoms. He testified that, shortly after sustaining the
    injury, his right foot "felt like someone was beating on [it] with a sledgehammer"
    but, by the time his initial claim was closed, this feeling had lessened in intensity
    to a "tingling sensation" similar to pin pricks. CABR (Doppenberg) at 7-8.
    Doppenberg testified that after his claim was closed, the unpleasant sensation in
    his foot worsened again. He stated:
    It's really prominent if I stand on it for any length of period of time,
    or walking any distance, it just starts, you know, feeling like you are
    stepping on nails. The longer I walk on it, the farther it feels like it
    jabs into the foot, into the right foot.
    CABR (Doppenberg) at 8. Doppenberg also complained of new
    mechanical difficulties with his right foot. He explained:
    [M]y foot was not working right. It's just not right. I mean, if I walk
    any slope—if I walk on a slope towards the left, my foot just wants
    to fall off from underneath me all the time. If I walk on a hill on the
    right, you know, I can walk on it fairly easily.1
    CABR (Doppenberg) at 9.
    Dr. Wardle, a board certified foot and ankle podiatrist who assisted
    Doppenberg in filing the application, testified at the hearing by deposition.
    1 Doppenberg's testimony describes the condition of ankle weakness causing difficulty in
    clearing the foot from the ground when walking, referred to throughout the Board and trial court
    proceedings, as well as the parties' briefs, as "foot drop" or "drop foot." See, CABR (Soo) at 14.
    No. 71346-9-1/4
    According to Dr. Wardle, he began treating Doppenberg in November of 2010. At
    that time, Doppenberg complained of discomfort in his right foot. On examination,
    Dr. Wardle was able to observe edema around the ankle and mid foot as well as
    diminished sensation over the right foot when compared to the left. A magnetic
    resonance imaging (MRI) revealed "chronic injury to [Doppenberg's] lateral
    ligaments and no bone abnormality and the tendons were intact." CABR (Wardle)
    at 10. Dr. Wardle explained that the collateral ligaments are located on the
    outside of the ankle and are responsible for ankle stability. Based on his
    examination and the MRI findings, Dr. Wardle concluded, on a more probable
    than not basis, that Doppenberg's industrial injury was a nerve contusion that
    caused ongoing ankle and foot pain and that his condition had worsened since
    his claim was closed in 2009. However, Dr. Wardle acknowledged that "[a]lcohol
    intake can aggravate any kind of nerve injury." CABR (Wardle) at 22. And he
    agreed that both nerve injury and foot drop "can be aggravated or caused by a
    lumbar radiculopathy!2]."CABR (Wardle) at 22.
    Two additional doctors testified by deposition on behalf of the Department.
    Dr. Soo, a board certified podiatrist, stated that he had treated Doppenberg for
    sensory disturbances and weakness in his right ankle and foot shortly after he
    sustained his industrial injury in 2007. Dr. Soo explained that there are two
    branches of the peroneal nerve relevant to this case—the common and
    superficial peroneal nerves. The common peroneal nerve is located under the
    knee and controls the muscle and tendons of the foot. The superficial peroneal
    2 Such as Doppenberg's back condition.
    No. 71346-9-1/5
    nerve, which runs along the top of the foot, is a sensory nerve that does not
    control any muscles. Injury to the superficial peroneal nerve can cause a
    "disturbance of sensation," such as a numbing or tingling sensation in the foot,
    but cannot cause mechanical difficulties.
    Based on his knowledge of the mechanics of Doppenberg's industrial
    injury and his understanding of the anatomy of the leg and ankle, Dr. Soo
    diagnosed Doppenberg's industrial injury as a bruised right foot with injury to the
    superficial peroneal nerve "running to the top of the foot." CABR (Soo) at 10. Dr.
    Soo opined, on a more probable than not basis, that Doppenberg's right ankle
    weakness and foot drop was not caused by the industrial injury, which affected
    only the superficial peroneal nerve and its sensory functions. He explained that
    Doppenberg's right ankle weakness and foot drop was likely related to a
    separate condition—peripheral neuropathy—which, based on Dr. Soo's
    examination, was afflicting both of Doppenberg's lower legs. Dr. Soo explained
    that the neuropathy could have been caused by Doppenberg's preexisting low
    back injury3 or by a systemic issue, such as prolonged alcohol abuse, which
    Doppenberg had admittedly struggled with in the past.
    Dr. Almaraz, a board certified neurologist, rendered an opinion based on
    an independent medical evaluation of Doppenberg in 2010 and extensive record
    review. He opined that the only condition accepted under Doppenberg's claim
    was "right foot ankle strain." CABR (Almaraz) at 41. He also acknowledged that
    3 The lumbar stenosis acknowledged by the Department during proceedings on
    Doppenberg's initial claim as a preexisting condition unrelated to the industrial injury.
    No. 71346-9-1/6
    he could not find evidence in the records that Doppenberg suffered from any type
    of neuropathy prior to the industrial injury.
    After considering this testimony, as well as testimony from Doppenberg's
    brother, sister, and ex-wife, the Board issued a proposed decision and order
    denying Doppenberg's application on September 26, 2012. Doppenberg filed a
    petition for review, which requested reversal of the proposed decision and order
    on the grounds that itwas "completely silent regarding the res judicata effect of
    the Department's June 26, 2008 order accepting right peroneal nerve injury
    under the claim." CABR at 6. The Board denied his petition and adopted the
    proposed decision and order as its final decision on November 30, 2012.
    Doppenberg appealed the Board's decision to the King County Superior
    Court. At trial, the depositions of Drs. Wardle, Soo, and Almaraz were read to the
    jury, as were the transcripts of proceedings from the questioning of Doppenberg,
    his brother, sister, and ex-wife. At the close of trial, the jury rendered a verdict
    that the Board had correctly determined Doppenberg's industrial injury did not
    objectively worsen between May 12, 2009 and June 2, 2011. On October 10,
    2013, the trial court entered a judgment and order as the final determination in
    this matter. Doppenberg filed a motion for a new trial and reconsideration
    pursuant to Superior Court Civil Rules 50 and 59. The trial court denied the
    motion. Doppenberg appeals.
    No. 71346-9-1/7
    DISCUSSION
    Res Judicata
    An order or judgment of the Department resting upon findings of fact
    becomes a complete and final adjudication, binding upon both the Department
    and the claimant unless such action is set aside on appeal or is vacated for fraud
    or something of like nature. Marlev v. Dep't of Labor and Indus., 125 Wn.2d. 533,
    537-39, 
    886 P.2d 189
    (1994) (citing Le Bire v. Dep't of L&l, 
    14 Wash. 2d 407
    , 415,
    
    128 P.2d 308
    (1942)). If a party fails to timely object to the Department's order,
    the party is precluded from relitigating any claim subject to the order. 
    Id. at 538.
    However, in the absence of a clear and unmistakable final finding on the cause of
    a worker's worsened condition, the parties are not precluded, on a claim of
    aggravation of an industrial injury, from litigating the causal relationship between
    the industrial injury and the worker's worsened condition. King v. Dep't of Labor
    and Indus., 12Wn.App. 1, 4, 
    528 P.2d 271
    (1974).
    In this case, the Department entered a final order on Doppenberg's claim
    on June 26, 2008, which states:
    The DLI is responsible for the condition diagnosed as right
    peroneal nerve injury, determined by medical evidence to be
    related to the accepted condition under this industrial injury for
    which this claim was filed.4
    CABR at 47 (emphasis added). Doppenberg argues that this unchallenged order
    is res judicata as to the nature and extent of his industrial injury and that the
    Department was, therefore, precluded from presenting evidence related to
    4 The order contains no further detail on the nature or extent of the industrial injury
    subject to the order or its related symptoms.
    No. 71346-9-1/8
    whether his industrial injury caused the new and worsened symptoms alleged in
    his application to reopen the claim. But the June 26 order is only res judicata as
    to the extent of his injury existing at the time of the order; it is not res judicata as
    to any aggravation of the injury occurring subsequent to that date. King, 12 Wn.
    App. at 5 (citing Karness v. Dep't of Labor & Indus., 
    39 Wash. 2d 898
    , 
    239 P.2d 555
    (1952)).
    Contrary to Doppenberg's claims, the Department did not introduce "a
    myriad of evidence designed to call [the] res judicata acceptance of right
    peroneal nerve injury into question." Brief of Appellant at 24. In fact, the
    Department conceded at trial that Doppenberg sustained an injury to his right
    peroneal nerve, as recognized in the June 26 order.5 Instead, the Department
    presented evidence in support of its theory that Doppenberg's industrial injury
    was simply not the cause of his new symptoms. This included evidence of the
    nature and location of the injury to Doppenberg's right peroneal nerve, the new
    symptoms one might expect from a similar injury, and alternative theories of
    causation for the symptoms of which Doppenberg complained, i.e.,
    Doppenberg's alcohol consumption and/or his preexisting low back condition.
    Because the June 26 order did not preclude the admission of this evidence on
    the lack of a causal relationship between Doppenberg's industrial injury and his
    worsened condition, the trial court did not err in allowing the Department to
    present it.
    5 The Department did, however, present evidence that the accident that caused
    Doppenberg's injury could only injure one branch of Doppenberg's right peroneal nerve and that
    his newly maligned symptoms could not be caused by this type of injury.
    8
    No. 71346-9-1/9
    Jury Instruction
    Doppenberg also asserts that the trial court's refusal to give his proposed
    instruction 116 was error. We disagree.
    Jury instructions are sufficient when they allow a party to argue his or her
    theory of the case, are not misleading, and, when read as a whole, properly
    inform the jury of the applicable law. Leeper v. Dep't of Labor & Indus., 
    123 Wash. 2d 803
    , 809, 
    872 P.2d 507
    (1994). We review a trial court's failure to give a
    proposed instruction for abuse of discretion. ]d.
    Doppenberg's proposed instruction 11 advised the jury as follows:
    The Worker's Compensation Act of this state applies
    to all persons engaged in employment, regardless of their
    age or the previous condition of their health.
    In determining the effect of an industrial accident
    upon a worker, such effect must always be determined with
    reference to the particular worker involved, rather than what
    effect, if any, such an accident would have had, if any, upon
    some other person.
    CP at 102. It is undisputed that the proposed instruction is a correct statement of
    the law. See Wendt v. Dep't of Labor & Indus., 18 Wn. App 674, 676, 
    571 P.2d 229
    (1977). The question is whether it was necessary to give the instruction in
    order to permit Doppenberg to argue his theory of the case. Doppenberg
    contends it was because the proposed instruction allowed him to rebut the
    Department's theory that his "prior physical conditions worsened rather than the
    industrially related condition...." Brief of Appellant at 28. But even assuming this
    6 During the colloquy on the parties' proposed jury instruction, both parties and the trial
    court referred to proposed instruction 11 as instruction 3. It is evident from the transcript that the
    court may have renumbered the instructions prior to this colloquy. Regardless, it is clear from the
    discussion that the court was considering Doppenberg's proposed instruction 11.
    No. 71346-9-1/10
    properly characterizes the Department's theory of the case, the theory addresses
    whether the cause of Doppenberg's new symptoms was a worsening of the
    industrial injury or a prior condition unrelated to the industrial injury. Indeed, the
    issue was presented to the jury as whether "the Board of Industrial Insurance
    Appeals [was] correct when it determined that between May 12th, 2009 and June
    2nd, 2011, Mr. Doppenberg's condition proximately caused by the March 16,
    2007 industrial injury did not objectively worsen[.]" CP at 165.
    On that issue, the Department's witness, Dr. Soo, testified that
    Doppenberg's industrial injury had not worsened but that instead, his new
    symptoms were from a different cause, bilateral peripheral neuropathy, which
    was solely the result of his lower back injury and/or prolonged alcohol abuse. In
    contrast, Doppenberg's witness, Dr. Wardle, testified that, while Doppenberg's
    industrial injury—the right peroneal nerve injury—was the most probable cause
    of his ongoing ankle and foot pain and weakness, his back injury and alcohol
    abuse could also have aggravated his nerve injury, contributing to his symptoms.
    The jury was instructed on the issue of proximate cause in instruction 13,
    as follows:
    A cause of a condition is a proximate cause if it is related to
    the condition in two ways: (1) the cause produced the condition in a
    direct sequence, unbroken by any new independent cause, and (2)
    the condition would not have happened in the absence of the
    cause.
    There may be one or more proximate causes of a condition.
    For a worker to recover benefits under the Industrial Insurance Act,
    the incident must be a proximate cause of the alleged condition for
    which entitlement to benefits is sought. The law does not require
    that the incident be the sole proximate cause of such condition.7
    7 See 6A Wash. Prac, Washington Pattern Jury Instr.: Civil WP1155.06.02 (6th ed.
    10
    No. 71346-9-1/11
    CP at 184. This instruction was sufficient to allow Doppenberg and the
    Department to argue their respective theories as to the cause of Doppenberg's
    new symptoms. The trial court did not abuse its discretion when it refused to give
    Doppenberg's proposed instruction 11.
    Statutory Attorney Fees and Costs
    Doppenberg challenges the trial court's award of $200 in statutory
    attorney fees pursuant to RCW 4.84.010(6). We find his argument without merit.
    RCW 51.52.140 addresses attorney fees and costs a workers'
    compensation appeal to superior court. It states, in relevant part, "Except as
    otherwise provided in this chapter, the practice in civil cases shall apply to
    appeals prescribed in this chapter." Accordingly, absent a contrary statute in
    RCW 51.52, the ordinary civil practice, including its cost provisions, applies to
    superior court proceedings.
    Doppenberg argues that the legislature intended for RCW 51.52.130 to be
    the exclusive statutory provision for attorney fees in a workers' compensation
    appeal to superior court. He argues that, "[consistentwith the Act's remedial
    purpose and the legislature's intent that injured workers have access to adequate
    legal representation in appeals to superior court, the Act does not provide
    attorney fees or costs on appeal to superior court to employers or to the
    Department." Br. of Appellant at 18. In his view, application of statutory
    provisions not contained in the Act, such as RCW 4.84.010(6), controverts
    legislative purpose. He further asserts that RCW 51.52.130, which applies
    11
    No. 71346-9-1/12
    specifically to workers' compensation appeals to superior court, prevails over the
    more general provisions of RCW 4.84.010 and 4.84.030.
    But Washington courts have expressly rejected the argument that RCW
    51.52.130 precludes an award of statutory attorney fees to the Department as
    prevailing party in superior court review of a workers' compensation claim.
    Frecenak v. Dep't of Labor & Indus.. 
    142 Wash. App. 713
    , 729-30, 175P.3d 1109
    (2008) (affirming an award of statutory attorney fees on the grounds that the
    nominal fees authorized by the RCW 4.84.030 are different than those governed
    by RCW 51.52.130, which concerns actual attorney fees incurred by an injured
    worker or employer on appeal to the superior or appellate court), affirmed on
    other grounds sub nom, Kustura v. Dep't of Labor & Indus., 
    169 Wash. 2d 81
    , 
    233 P.3d 853
    (2010); see also, Black v. Dep't of Labor & Indus, of the State of Wash.,
    
    131 Wash. 2d 547
    , 557-58, 
    933 P.2d 1025
    , 1031 (1997); Allan v. Dep't of Labor &
    Indus., 
    66 Wash. App. 415
    , 422-23, 
    832 P.2d 489
    (1992). Under this authority, the
    Department, as prevailing party, was plainly entitled to an award of statutory
    attorney fees.8
    Doppenberg also contends that the trial court's award of $691 in
    deposition transcription fees under RCW 4.84.010 was improper. We disagree.
    RCW 4.84.010(7) provides that a prevailing party may recover the cost of
    transcribing depositions as follows:
    To the extent that the court or arbitrator finds that it was necessary
    to achieve the successful result, the reasonable expense of the
    transcription of depositions used at trial or at the mandatory
    Doppenberg does not claim that the amount of the award here-$200—was improper.
    12
    No. 71346-9-1/13
    arbitration hearing: PROVIDED, That the expenses of depositions
    shall be allowed on a pro rata basis for those portions of the
    depositions introduced into evidence or used for purposes of
    impeachment.
    Doppenberg argues that the Department's transcription costs in this case are not
    recoverable under this provision because, since the transcripts were published
    by the Board as part of the CABR, associated transcription costs are a cost of
    litigation before the Board, not the superior court. He notes that "[t]he Department
    incurs these costs in its role as the trustee of Washington State's workers'
    compensation fund. These costs remain whether or not an appeal to superior
    court is ever filed." Brief of Appellant at 21.
    But Doppenberg's focus on when the cost of transcription was incurred is
    misguided. RCW 4.84.010(7) does not distinguish between transcription costs
    incurred during a superior court action and those incurred during proceedings
    before the Board or elsewhere. Rather, the statute conditions an award of
    transcription costs on whether the depositions were "used at trial" and "necessary
    to achieve the successful result." RCW 4.84.010(7).
    Doppenberg cites Tombari v. Blankenship-Dixon Co., 
    19 Wash. App. 145
    ,
    150, 
    754 P.2d 401
    (1978), in support of his position that deposition expenses are
    not recoverable costs unless taken for trial purposes. But the case is not helpful
    for several reasons. First, the case did not interpret the "used at trial" and
    "necessary to achieve the successful result" language of RCW 4.84.010(7).
    Instead, the case interprets RCW 4.84.090, which permits an award of "the
    necessary expenses of taking depositions" to the prevailing party. 
    Id. (citing RCW
    4.84.090). Additionally, Tombari did not hold, as Doppenberg suggests, that a
    13
    No. 71346-9-1/14
    party is only entitled to its deposition costs ifthe depositions were both taken and
    used for trial purposes. ]dL Rather, it merely acknowledged that where a trial
    court's decision was based solely on a pretrial order, exhibits, and transcripts of
    depositions "taken and used for trial purposes," an award of transcription costs
    was appropriate. ]d. Finally, to the extent that Tombari can be interpreted as a
    limitation on the availability of transcription costs to those depositions "taken for"
    trial, the case has been superseded by enactment of RCW 4.84.010(7), which,
    by its plain language, lacks such a restriction. Compare, RCW 4.84.010(7)
    (enacted in 1983), with, 
    Tombari, 19 Wash. App. at 150
    (decided in 1978); see
    also, Laws of 1983, 1st Ex. Sess., ch. 45 § 7.
    In this case, both conditions for an award of transcription costs under
    RCW 4.84.010(7) are met. The depositions of Dr. Soo and Dr. Almaraz were
    read to the jury and were, therefore, "used at trial." See, VRP (9/11/13) at 80-
    114, 126-79. Further, the Department's theory that Doppenberg's new and
    worsening symptoms had a cause independent from the industrial injury
    depended on these doctors' medical causation testimony; thus, their testimony
    was necessary to achieve a successful result. The Department was entitled to an
    award of transcription costs.
    We also affirm the amount of the award in this case. Doppenberg notes
    that portions of the depositions in this case were redacted by agreement ofthe
    parties or by order ofthe trial court and were not read to the jury. He contends
    that an award based on these redacted portions was improper. Although
    Doppenberg is correct that the Department was entitled only to a pro rata award
    14
    No. 71346-9-1/15
    based on those "portions of the depositions introduced into evidence or used for
    purposes of impeachment," he fails to provide copies of the redacted depositions
    or any other evidence of the extent of the redactions. RCW 4.84.010(7). Thus,
    the record is inadequate for this court to assess the trial court's award of
    transcription costs. Because Doppenberg bore the burden of perfecting the
    record on appeal, we decline to grant him relief as to the amount of the award.
    See, Bulzomi v. Dep't of Labor & Indus.. 
    72 Wash. App. 522
    , 525, 
    864 P.2d 996
    (1994).
    Finally, Doppenberg challenges the trial court's award of the $125 jury
    demand fee, arguing that the award has no basis in the law. The argument lacks
    merit. RCW 4.84.010 states that a prevailing party may obtain "costs otherwise
    authorized by law" in addition to those enumerated in the statute. A related title,
    chapter 4.44 RCW (Trial), provides: "[t]he jury fee paid by the party demanding a
    trial by jury shall be a part of the taxable costs in such action." RCW 4.44.110.
    Doppenberg is thus incorrect that there is no statutory basis for the award of the
    jury demand fee. To the extent he argues that only those costs enumerated in
    RCW 4.48.010 are recoverable under the statute, this argument has been
    expressly rejected by our supreme court. Blair v. Wash. State Univ., 
    108 Wash. 2d 558
    , 572, 
    740 P.2d 1379
    (1987) (holding that RCW 4.84.010 did not limit the
    costs recoverable in a discrimination action where the relevant discrimination
    statute includes an applicable cost provision).
    15
    No. 71346-9-1/16
    Attorney Fees and Costs on Appeal
    Doppenberg requests an award of reasonable attorney fees and costs on
    appeal pursuant to RAP 18.1(a) and RCW 51.52.130. Together, these provisions
    allow appellate courts to award a worker or beneficiary who, on appeal from the
    decision and order of the Board, successfully obtains reversal or modification of
    the decision and order and additional relief. Here, Doppenberg fails to obtain
    reversal, modification, or other relief from this court. Thus, we decline his request
    for an award of reasonable attorney fees and costs on appeal.
    Affirmed.
    WE CONCUR:
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    16