Bayna v. Catholic Health Initiatives Franciscan Health Sys.
| Decision Date | 02 August 2021 |
| Docket Number | 81732-9-I |
| Parties | DALISAY L. BAYNA, Respondent, v. CATHOLIC HEALTH INITIATIVES FRANCISCAN HEALTH SYSTEM, Appellant. |
| Court | Court of Appeals of Washington |
UNPUBLISHED OPINION
Dalisay Bayna appeals the superior court's order affirming the Board of Industrial Insurance Appeal's decision that ended her time loss benefits as of August 17, 2017, and closed her claim as of May 18, 2018, without an award of permanent partial disability. Bayna claims she was unable to secure and maintain gainful employment between August 18 2017, and March 15, 2018, was in need of further medical treatment as of May 18, 2018, and was partially permanently disabled when the Department of Labor and Industries (Department) closed her claim. Bayna also challenges the superior court's ruling on a pretrial procedural motion. For the reasons that follow, we affirm.
On October 9, 2015, Dalisay Bayna was working as a nurse in an Intensive Care Unit (ICU) at Catholic Health Initiatives Franciscan Health System (CHI), formerly Highline Medical Center. She injured her neck and right shoulder while attempting to rotate a patient. She opened a claim for workers' compensation benefits with the Department. On May 18, 2018, the Department closed the claim, with time loss compensation paid to Bayna through August 17, 2017. The Department concluded that as of May 18, 2018, Bayna needed no further medical treatment for her workplace injury and she was not entitled to a permanent partial disability award. Bayna appealed.
The issues before the industrial appeals judge (IAJ) on appeal were (1) whether Bayna had the ability to obtain and maintain gainful employment between August 18, 2017, and March 15 2018, (2) whether Bayna's condition was fixed and stable and she was in need of no further treatment as of May 18 2018, (3) whether Bayna sustained new injuries to her wrist and back that required treatment and were related to the 2015 work injury, and (4) whether Bayna was permanently partially disabled and therefore entitled to a partial disability award.
At the hearing before the IAJ, Bayna and her spouse testified in person. She also presented the deposition testimony of two treating physicians, Dr. Alvin Nayan, an occupational medicine specialist, and Dr. Keith Fujisaki, an orthopedic surgeon. CHI presented the deposition testimony of two orthopedic surgeons, Dr. Louis Kretschmer and Dr. James Dupree. CHI also presented the live testimony of Cheryl McDonald, a vocational counselor.
Dr Nayan first saw Bayna a few days after her injury. Based on her symptoms and presentation, he believed that she had a "[r]ight-shoulder and cervical strain." Dr. Nayan ordered X-rays, prescribed anti-inflammatories and muscle relaxants, and ordered massage therapy. Dr. Nayan also imposed numerous injury-related work restrictions, including restrictions on lifting weight, lifting arms above the shoulder, power gripping and fine manipulation. CHI was unable to accommodate the restrictions.
Soon after, Dr. Nayan ordered magnetic resonance imaging (MRI). Based on those results, Dr. Nayan referred Bayna to Dr. Fujisaki.
Bayna first saw Dr. Fujisaki two months after the injury. He diagnosed her with rotator cuff strain of her shoulder and impingement syndrome. Dr. Fujisaki initially treated Bayna with subacromial cortisone injections and physical therapy. But after her symptoms persisted for nearly a year, Dr. Fujisaki recommended shoulder surgery.
In the meantime, Dr. Nayan referred Bayna for a functional evaluation. According to that evaluation, Bayna could tolerate "medium level" full-time work for eight hours per day. Also, approximately a year after the injury, Dr. Kretschmer performed an independent medical exam (IME). Dr. Kretschmer diagnosed Bayna with right shoulder tendonitis related to her injury and adhesive capsulitis, or "frozen shoulder." He determined that further treatment was "appropriate."
CHI also arranged for a vocational counselor to perform an assessment. The counselor determined that Bayna could not return to work as an ICU nurse because of the physical demands, but she had "excellent" transferrable skills. The counselor concluded that Bayna is employable in a variety of health care settings and positions. She identified the nurse case manager as a position that was significantly less physical than her prior position and corresponded to Bayna's preferences. The vocational counselor also evaluated the labor market and concluded there was adequate job availability in Bayna's area.
The Department approved surgery, and in March 2017, Dr. Fujisaki performed an arthroscopic procedure to repair a labral tear and subacromial decompression. Afterwards, Bayna engaged in physical therapy. Three months postsurgery, Dr. Fujisaki believed that Bayna could return to work, with some modification of her physical duties. In August 2016, five months after surgery, Dr. Fujisaki noted that Bayna had surpassed her presurgery condition. He still recommended that she continue physical therapy and participate in work conditioning.
Both Drs. Nayan and Fujisaki approved Bayna's release for work as a nurse case manager, a sedentary position, as of August 15, 2017. In the fall of 2017, Bayna experienced pain in her right wrist and low back while participating in a work conditioning program. She reported complaints to Drs. Nayan and Fujisaki and ceased that program. Dr. Nayan saw Bayna for the last time on March 15, 2018.
Dr. Dupree performed a second IME on February 2018. He reported that Bayna's chief complaints at that time were lingering shoulder pain, right wrist pain, and some fatigue with overhead lifting. His examination revealed that Bayna's shoulder range of motion and strength were within the normal range. Dr. Dupree determined that when he saw her, Bayna had the ability to perform the duties of a nurse case manager and, based on the records, agreed with the treating physicians' decision to release her to work in that capacity in August 2017. Dr. Dupree concluded that Bayna's wrist and back conditions were not related to her 2015 workplace injury.
Following the hearing, the IAJ issued a proposed decision and order affirming the Department's order. The Board of Industrial Insurance Appeals (Board) denied Bayna's petition for review and adopted the IAJ's proposed decision and order.
Bayna appealed to superior court. After considering the parties' briefing and oral arguments at a bench trial, the superior court issued a written decision upholding the Board's order. The superior court made the following relevant findings and conclusions that largely mirror the findings of the Board.[1]
1. Ms. Dalisay Bayna sustained an industrial injury on October 9, 2015, when she injured her neck and right shoulder while attempting to rotate a 575-pound patient.
3. Ms. Bayna has work restrictions that include restrictions on her ability to push, pull, and lift. Ms. Bayna also has restrictions concerning her ability to reach or work above her shoulders. Ms. Bayna was also restricted from power gripping and any fine manipulation in regards to her right upper extremity.
4. Ms. Bayna was able to perform and obtain gainful employment on a reasonably continuous basis from August 18, 2017, through March 15, 2018.
5. As of May 18, 2018, Ms. Bayna's conditions proximately caused by the industrial injury were fixed and stable and did not need further proper and necessary treatment.
6. On May 18, 2018, Ms. Bayna did not have a permanent partial disability proximately caused by the October 9, 2015, industrial injury.
7. Ms. Bayna's conditions identified as right wrist pain and low back pain were not proximately caused or aggravated by her industrial injury.
2. Ms. Dalisay Bayna was not a temporarily totally disabled worker within the meaning of RCW 51.32.090 from August 18, 2017, through March 15, 2018.
3. Ms. Bayna's conditions proximately caused by the industrial injury were fixed and stable as of May 18, 2018, and she is not entitled to further treatment per RCW 51.36.010.
4. On May 18, 2018, Ms. Bayna did not have a permanent partial disability, within the meaning of RCW 51.32.080, proximately caused by the industrial injury.
5. The Board of Industrial Insurance Appeals order of October 8, 2019, is correct and is affirmed.
The court denied Bayna's motion for reconsideration. Bayna appeals.
Reviewing workers' compensation determinations under the Industrial Insurance Act (IIA), Title 51 RCW, the superior court reviews the Board's decision de novo, relying solely on the evidence contained in the Board's certified record. RCW 51.52.115; Malang v. Dep't of Labor & Indus., 139 Wn.App. 677, 683, 162 P.3d 450 (2007); Rogers v. Dep't of Labor & Indus., 151 Wn.App. 174, 179-81, 210 P.3d 355 (2009); McDonald v Dep't of Labor & Indus., 104 Wn.App. 617, 621-22, 17 P.3d 1195 (2001). The superior court considers the Board's findings and decisions prima facie correct. Ruse v. Dep't of Labor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999); RCW 51.52.115. The party challenging the Board's findings and decisions has the burden to prove otherwise by a preponderance of evidence. Ruse, 138 Wn.2d at 5.
We review the superior court's decision, not the Board's order. Birgen v. Dep't of Labor & Indus. 186 Wn.App. 851, 856, 347 P.3d 503 (2015). We review the record to determine "'whether substantial evidence supports the findings made after the superior court's de novo review, and whether the court's conclusions of law flow from the findings.'" Ruse, 138 Wn.2d at 5-6 (quoting Young v. Dep't of Labor & Indus., 81 Wn.App. 123, 128, 913 P.2d 402 (1996)). Substantial evidence is...
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