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EAGLE HYDRAULICS, UNPUBLISHED OPINION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
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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
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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.
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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.
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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.
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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.
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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
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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.
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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
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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
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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).
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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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