Peacehealth Medical Group v. Loriann Hull ( 2016 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
LORIANN HULL, en rnp.
No. 74413-5-1 —o rpv
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Appellant, O"1' -.->•••'
DIVISION ONE
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PEACEHEALTH MEDICAL GROUP, UNPUBLISHED OPINION cr-
Respondent. FILED: September 26, 2016
Spearman, J. — While employed at St. Joseph Hospital PeaceHealth
Medical Group (PeaceHealth) or shortly thereafter, LoriAnn Hull began to feel
pain in her shoulders. This led to surgeries for thoracic outlet syndrome which
resulted in significant complications that continue to plague her. Four years after
the surgeries, PeaceHealth challenged the Department of Labor and Industries'
(Department) determination that Hull's employment caused thoracic outlet
syndrome. The trial court found that Hull's condition was not caused by her
employment. On appeal, Hull contends the trial court's finding is not supported by
substantial evidence. We agree and reverse.1
1 Subsequent to withdrawal of her counsel, appellant submitted a number of documents
including a letter, email exchanges between her and PeaceHealth, medical records, and other
documents. To the extent these documents were not already a part of the record on appeal, we
do not consider them because they are untimely.
No. 74413-5-1/2
FACTS
Appellant LoriAnn Hull worked for St. Joseph Hospital PeaceHealth for 20
years as an admitting representative in the emergency room. Her duties included
gathering patient information, inputting information, pulling forms and patient
charts, affixing labels to documents, assembling and breaking down charts,
sorting and stacking documents in piles, and cleaning name badges. These
duties involved reaching over an arm-length away at waist level, reaching for
items at or above her forehead, writing on paper, and typing on a computer.
Hull filed a worker's compensation claim on October 23, 2006 after
experiencing elbow discomfort, aggravated by repetitive motion at work. She had
difficulty bending and extending her arms. The Department issued an order
allowing her claim on December 3, 2007. It did not specify the conditions
allowed.2
On November 7, 2006, Hull saw her primary care provider, Dr. Hughes,
who diagnosed her with left and right medial epicondylitis, a condition of the
tendons in the elbow. Dr. Hughes saw Hull again on January 12, 2007. The
elbow diagnosis remained the same and she was referred for electrodiagnostic
studies. These were performed on February 9, 2007 and were normal.3
2 The record does not include Hull's claim or the Department's order. However, a
jurisdictional history to which the parties stipulated at hearing "for jurisdictional purposes only"
includes information about the Department's December 3, 2007 order. Clerk's Papers (CP) at 94.
3A normal electrodiagnostic test does not rule out thoracic outlet syndrome. Thoracic
outlet syndrome potentially shows up on an electrodiagnostic test only if it is serious. Intermittent
thoracic outlet syndrome can result in a normal study. While an electrodiagnostic test is frequently
used in the diagnostic process for thoracic outlet syndrome, it is not, by itself, helpful in ruling in
or out the diagnosis.
No. 74413-5-1/3
Hull continued to work. To avoid pain, she adjusted her motions. To reach
for something, she twisted her shoulder towards it so to avoid extending her arm
fully. Hull began to feel pain in her left shoulder in March 2007. She continued to
work at PeaceHealth at least through that date.
Hull saw Dr. Hughes again on July 9 and 26, 2007, reporting that she had
pain in her left shoulder. Hull was referred to an orthopedic surgeon for the
shoulder problem. She tried non-invasive treatment such as physical therapy, but
ultimately had acromioplasty surgery on her left shoulder in October, 2007.4 It did
not resolve the problem. Hull attempted to return to work after that surgery.5 With
her left side immobilized from the surgery, she began feeling pain in her right
shoulder.
Because acromioplasty surgery did not resolve her pain, Hull was referred
to a thoracic outlet syndrome specialist. Thoracic outlet syndrome refers to three
separate types of conditions in which either the artery, the veins, or the nerve are
compressed at one of several sites in the body. Neurogenic thoracic outlet
syndrome, Hull's condition, arises where the nerves that pass through from the
spinal cord and the neck out to the arms are compressed. Neurogenic thoracic
outlet syndrome is characterized by steadily worsening pain, numbness, tingling,
and weakness in the shoulder, neck, arm, and hand.
4 The record does not explain the nature of this procedure.
5 Hull's full work history is not in the record.
No. 74413-5-1/4
Hull saw a thoracic outlet specialist, Dr. Johansen, on March 24, 2009.
She reported steadily worsening pain, numbness, tingling, and weakness in her
left arm and described her working conditions and onset of symptoms. Dr.
Johansen reviewed prior testing and did a physical examination. One of the prior
tests that he considered was a scalene block - an anesthetic procedure that
temporarily relieved Hull's symptoms - which is an accurate and specific test for
thoracic outlet syndrome. The effectiveness of the scalene block demonstrated
that Hull had thoracic outlet syndrome. Dr. Johansen diagnosed Hull with
neurogenic thoracic outlet syndrome based on workplace repetitive motion injury,
appropriate story, symptoms, physical examination findings, and a strongly
positive scalene block.
On April 22, 2009, Dr. Johansen performed surgery on Hull to correct the
thoracic outlet syndrome. It did not resolve the symptoms. He performed a
second surgery on December 21, 2009. This surgery resulted in significant
complications, including balance problems, breathing problems, difficulty
swallowing, dry heaving, and emotional problems including adjustment disorder
with depressed mood.
In 2013, the Department issued three orders that directed PeaceHealth to
pay for complications from Hull's thoracic outlet syndrome surgery. Those orders,
which are the subject of this litigation directed PeaceHealth to pay for post-
surgery complications including pulmonary conditions, balance problems,
dysphasia, cricopharyngeal spasms, and adjustment disorder with depressed
mood. They also directed PeaceHealth to pay for the psychiatric medication
No. 74413-5-1/5
Cymbalta. PeaceHealth appealed these orders to the Board of Industrial
Insurance Appeals (Board).
The appeal proceeded to an evidentiary hearing before an Industrial
Appeals Judge (IAJ) on May 23, 2014. Hull's attending physician, Dr. Johansen,
testified in support of Hull's claim. PeaceHealth presented testimony by several
physicians, including Dr. Kremer, a retired vascular surgeon. He reviewed Hull's
medical records and performed a one-time partial evaluation of Hull in
September 2012, nearly three years after her second thoracic outlet syndrome
surgery. Dr. Kremer testified that Hull never had thoracic outlet syndrome and
even if she did, it was not caused by her working conditions.
The IAJ issued a proposed decision and order on October 6, 2014
upholding the Department's orders directing PeaceHealth to pay for
complications from Hull's thoracic outlet syndrome. PeaceHealth filed a petition
for review. The Board denied the petition for review and adopted the lAJ's
proposed decision. The decision and order upheld the Department's
determination that Hull's thoracic outlet syndrome arose naturally and
proximately out of the distinctive conditions of her employment with PeaceHealth,
thereby allowing the downstream consequences of her surgeries.
PeaceHealth appealed this decision to Whatcom County Superior Court,
which held a bench trial on August 25, 2015 and issued a memorandum decision
No. 74413-5-1/6
overturning the Board and finding in favor of PeaceHealth.6 The court issued an
order on December 2, 2015 which included the following "Conclusion of Law":
1. The Board of Industrial Insurance Appeals erred in admitting evidence
regarding payment of services associated with defendant's thoracic outlet
syndrome under Evidence Rule 409 and as such evidence regarding
payment of such services is stricken from the record.
3. Defendant was subsequently diagnosed with a condition of thoracic outlet
syndrome for which surgery was recommended and performed April 22,
2009 and December 21, 2009. Defendant's thoracic outlet syndrome did
not arise naturally and proximately from the distinctive conditions of her
employment with PeaceHealth Medical Group.
8. The Board of Industrial Insurance Appeals' decision dated December 8,
2014, is reversed.
CP at 823-30. Hull appeals.
DISCUSSION
The Industrial Insurance Act includes judicial review provisions that are
specific to workers' compensation determinations. The superior court's review of
a Board determination is de novo. RCW 51.52.115. The Board's decision is
prima facie correct, and a party attacking the decision must support its challenge
by a preponderance of the evidence. Rogers v. Dep't of Labor &Indus., 151 Wn.
App. 174, 180, 210 P.3d 355 (2009) (citing Ruse v. Dep't of Labor &Indus., 138
Wash. 2d 1, 5, 977 P.2d 570 (1999)). By contrast, this court reviews the superior
court's decision under the ordinary standard of review for civil cases. "We review
whether substantial evidence supports the trial court's factual findings and then
review, de novo, whether the trial court's conclusions of law flow from the
6 The memorandum decision is not in the record.
No. 74413-5-1/7
findings." Watson v. Dep't of Labor & Indus., 133 Wash. App. 903, 909, 138 P.3d
177 (2006) (citing Ruse, 138 Wash. 2d at 5; RCW 51.52.115).
The Industrial Insurance Act (MA) provides that a worker suffering disability
from an occupational disease shall receive benefits under the Act. RCW
51.32.180. An occupational disease is defined as "such disease or infection as
arises naturally and proximately out of employment." RCW 51.08.140. "[A] worker
must 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
particular employment." Dennis v. Dep't of Labor & Indus., 109 Wash. 2d 467, 481,
745 P.2d 1295 (1987). "The causal connection between a claimant's physical
condition and his or her employment 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 (citing Ehman v. Dep't of Labor &Indus.,
33 Wash. 2d 584, 206 P.2d 787 (1949)). The disease is not "proximate" if there is an
intervening, independent and sufficient cause for disease, so that itwould not
have been contracted but for working conditions. Simpson Logging Co. v. Dep't
of Labor & Indus., 32 Wash. 2d 472, 202 P.2d 448 (1949). "A physician's opinion as
to the cause of the claimant's disease is sufficient when it is based on reasonable
medical certainty even though the doctor cannot rule out all other possible
causes. . . ." Intalco Aluminum v. Dep't of Labor & Indus., 66 Wash. App. 644, 654-
55, 833 P.2d 390 (1992) (citing Haider v. Dep't of Labor & Indus., 44 Wash. 2d 537,
543-45, 268 P.2d 1020 (1954)). "The evidence is sufficient to prove causation if,
from the facts and circumstances and the medical testimony given, a reasonable
No. 74413-5-1/8
person can infer that a causal connection exists." jd. at 655 (citing Douglas v.
Freeman, 117 Wash. 2d 242, 252, 814 P.2d 1160(1991)). In a worker's
compensation dispute, special consideration should be given to the opinion of a
worker's attending physician. Hamilton v. Dep't of Labor & Indus., 111 Wash. 2d
569, 761 P.2d 618 (1988). The trier of fact needn't give more weight or credibility
to the attending physician's testimony, but must give it careful thought, jd. at 571.
In this case, the record shows that Hull began feeling symptoms of what
was eventually diagnosed as thoracic outlet syndrome either during, or
immediately following, her employment with PeaceHealth. She testified that she
began feeling pain in her shoulder about five months after filing the claim for her
elbow condition and that in those five months she continued to work.7 During this
time at work, she used her shoulders more in order to reduce the pain in her
elbows caused by extending her arms. Expert medical testimony confirms that
Hull should feel thoracic outlet syndrome symptoms concurrently with the work
activity that caused the condition. There is no evidence of an intervening cause
of her shoulder pain.
Hull's attending physician, Dr. Johansen, explained how Hull's particular
job duties caused thoracic outlet syndrome.8 He testified that repetitive out in
front use of her arms and overhead work such as that performed by Hull is a
7 Hull's work history is incomplete in the record. She testified that she worked for St
Joseph's starting in 1990 or 1991, and worked there for 19 years and 11 months. Therefore, she
was an employee of St. Joseph's until 2010 or 2011. Once she started feeling symptoms in her
shoulder, there is no information in the record about whether she worked continuously.
8 Dr. Johansen performs the majority of thoracic outlet syndrome surgeries in Washington
State and authored chapters in a medical textbook on neurogenic thoracic outlet syndrome.
No. 74413-5-1/9
cause of thoracic outlet syndrome. Hull's body habitus and height made her more
susceptible to injury in these work conditions. Her elbow problems indicated that
her work activities were causing repetitive motion injuries. Under Hamilton,
"special consideration" should be given to Dr. Johansen's testimony as Hull's
attending physician. There is no indication that the trial court gave such special
consideration. It did not make a finding that PeaceHealth's experts were
persuasive or that Dr. Johansen was not credible.
PeaceHealth offered testimony by forensic physicians that does not
provide substantial evidence that Hull's thoracic outlet syndrome was not caused
by herwork activity. One expert, Dr. Madhani, deferred on the cause of Hull's
thoracic outlet syndrome. Another expert, Dr. Kremer, testified that the working
conditions of hairdressers and carpenters would cause thoracic outlet syndrome,
but he denied that Hull's out in front and overhead use of her arms caused it. Dr.
Kremer points to electrodiagnostic testing from February 2007 thatwas negative
for thoracic outlet syndrome. However, this test was before Hull reported
shoulder pain, and is not reliable to rule out intermittent thoracic outlet
syndrome.9
If thoracic outlet syndrome is an allowed occupational disease, then the
downstream complications of Hull's surgeries, the sequelae, are also allowed.
Claimants must be reimbursed "[u]pon the occurrence of any injury to a worker
9PeaceHealth also argues that Hull's injury must have occurred prior to when the claim
was allowed by the Department, but they erroneously cite December 3, 2006 as the date the
claim was allowed. In fact, itwas allowed on December 3, 2007 and Hull did complain of shoulder
problems prior to that date.
No. 74413-5-1/10
entitled to compensation. . . ." RCW 51.36.010(2)(a). Compensation is required
for all "proper and necessary medical and surgical services. . . ." jd. Proper and
necessary treatment encompasses conditions secondary to the occupational
disease, such as complications from surgery. See Anderson v. Allison, 12 Wash. 2d
487, 122 P.2d 484 (1942).
PeaceHealth concedes that Hull's balance problems, pulmonary condition,
dysphagia, and cricopharyngeal spasms are proximately related to treatment for
her thoracic outlet syndrome, and as conditions secondary to thoracic outlet
syndrome, they are allowed. PeaceHealth does argue that Hull's adjustment
disorder with depressed mood is not proximately related to her surgeries. They
support this argument with Dr. Friedman's testimony. However, Dr. Friedman
testified that Hull's mental health conditions were not caused by her elbow
condition. That is not at issue. The issue is whether her mental health condition
was secondary to thoracic outlet syndrome, which is well supported by expert
medical testimony. All of Hull's downstream conditions listed in the orders
appealed to the Department are allowed.
Lastly, Hull argued that the trial court erred by excluding evidence that
PeaceHealth paid for Hull's surgeries. The trial court correctly excluded evidence
of payment under ER 409 and our analysis does not incorporate this fact.
We conclude that there is not substantial evidence to support the trial
court's finding that Hull's thoracic outlet syndrome and its sequelae did not arise
naturally and proximately from her employment with PeaceHealth. As discussed
above, the opinions of PeaceHealth's experts are insufficient to support the trial
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No. 74413-5-1/11
court's conclusion. In addition, the timeline of Hull's symptoms, her work history
and the testimony of her attending physicians strongly support the conclusion
that her work activities caused thoracic outlet syndrome. And because the
thoracic outlet syndrome was proximately caused by Hull's working conditions,
the downstream consequences of her surgery are also covered.
The trial court's order is reversed, the Board's Decision and Order is
affirmed and the case is remanded.
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WE CONCUR:
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11