Butson v. Dep't of Labor & Indus. of State

• Decision Date: 23 June 2015
• Docket Number: No. 45928–1–II.,45928–1–II.
• Citation: 189 Wash.App. 288,354 P.3d 924
• Parties: Bruce BUTSON, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES OF the STATE of Washington, Respondent.
• Court: Washington Court of Appeals

189 Wash.App. 288

354 P.3d 924

Bruce BUTSON, Appellant

v.DEPARTMENT OF LABOR AND INDUSTRIES OF the STATE of Washington, Respondent.

No. 45928–1–II.

Court of Appeals of Washington, Division 2.

June 23, 2015.

Publication Ordered Aug. 11, 2015.

Steven L. Busick, Busick Hamrick PLLC, Vancouver, WA, for Appellant.

Kaylynn What, Attorney General, L & I Division, Olympia, WA, for Respondent.

Opinion

LEE, J.

¶ 1 Bruce Butson appeals the trial court's order granting the Department of Labor and Industries' (Department) CR 50 motion for judgment as a matter of law. Butson argues that (1) the trial court erred in granting the Department's CR 50 motion at the conclusion of his case before hearing the Department's evidence, and (2) substantial evidence exists to survive the CR 50 motion showing he had a temporary total disability, was undergoing rehabilitative treatment, and had not reached maximum medical improvement.¹ Because the trial court is not required to hear the Department's evidence and substantial evidence does not exist supporting Butson's claims, we affirm.

FACTS

A. Background

¶ 2 Bruce Butson appeals the trial court's entry of a judgment as a matter of law against him at the conclusion of his case in chief, on issues relating to a workplace injury he sustained on January 15, 2004.² Butson was injured working as a plumber's helper for Blue Herron Plumbing.

Butson's prior work history included operating and acting as superintendent of the lumber dry kiln family business; starting, operating, and a truck leasing business; and working for a metal fabrication company. He completed three years of undergraduate studies, two at Oregon State University and one at Washington State University, before leaving school to take over the family business. Butson's elderly mother and disabled sister live with him, and he provides for their care; Between June 4, 2010. and January 25, 2011, Butson was able to attend to their care and conduct his daily routine.

¶ 3 While at work on January 15, 2004, Butson fell from a ladder onto a concrete floor, fracturing his left wrist, and hyperextending his left thumb. Butson's injuries required surgery on his wrist and thumb.

¶ 4 Butson began a vocational plan and was assigned a vocational counselor. To participate in the plan, Butson signed an accountability agreement requiring him to “initiate contact with [his counselor] at least twice monthly and inform them of [his] progress and barriers.” Certified Appeal Board Record (CABR) Ex. 2. The agreement also required Butson to “provide a written doctor's assessment of illness or physical disability if [he] ... missed more than two consecutive days or a total of 10 days during” the plan. CABR Ex. 2. The vocational plan involved Butson enrolling in Clark College to complete a degree in accounting and business. The vocational plan began in June 2008, and was to be completed by June 2010.

¶ 5 Butson complied with his. vocational plan at Clark College until the fall quarter of 2009, when he took time off for reasons unrelated to his condition. Butson returned to Clark College and completed the 2010 winter quarter. Two weeks into the 2010 spring quarter, Butson withdrew, claiming the repetitive use of his thumb in typing caused extreme pain in his thumb and wrist.

¶ 6 On April 30, 2010, Butson received a letter stating he was not complying with the vocational plan's accountability agreement and that he would lose his benefits if he did not cooperate. The letter stated that another letter warning him of the consequences of his noncooperation had been sent on December 22, 2009. The letter also detailed what Butson needed to do to keep his benefits from being suspended, including calling his vocational counselor by May 15,2010.

¶ 7 Butson sought medical treatment for the pain he was experiencing in his thumb and wrist from Dr. Ezra Rabie on May 27, 2010. Dr. Rabie ordered an x-ray and a bone scan

, and recommended that Butson not use a computer for more than two hours per day.

¶ 8 On June 4, the Department sent an order and letter to Butson notifying him of his suspension from vocational benefits for noncooperation with the vocational plan. The order informed Butson that he had 60 days to appeal the order or it would become final. Butson did not appeal.

¶ 9 Dr. Fleiss was Butson's original doctor, and Butson first met with him on January 21, 2004. Between June 4, 2010 and January 25, 2011, Butson met with three different doctors: Dr. Won, Dr. Weirich, and Dr. Karges. Dr. Won had become Butson's attending physician because Dr. Fleiss had passed away. Dr. Won met with Butson on June 17, 2010, and recorded Butson's pain as being “four to eight out of ten.” CABR Won at 13. Butson requested surgery, so Dr. Won referred Butson to Dr. Weirich for a surgical evaluation.

¶ 10 Dr. Weirich did not recommend surgery. Instead, he recommended Butson use a paraffin bath. A paraffin bath is “like a wax bath.... the wax melts and you put your wrist in there and it feels good because it's nice and warm.” CABR (Dr. Won) at 16. Butson continues to use a paraffin bath every day because it affords his wrist “[s]ome temporary relief ... and makes it feel at ease for a short period of time.” CABR (Butson) at 20. Dr. Won testified that the paraffin baths “would have helped decrease the pain.” CABR (Dr. Won) at 24. Butson testified his condition stayed “the same pretty much” between June 4, 2010 and January 25, 2011. CABR (Butson) at 21.

¶ 11 On October 30, 2010, Dr. Karges conducted an independent medical examination. Dr. Karges reviewed Butson's medical records as part of the examination. At that time, Dr. Karges apparently thought Butson might need treatment at some unknown time in the future, but that his condition was currently stable.

¶ 12 On December 2, Dr. Won saw Butson again. At that time, Dr. Won recorded that the pain was still “four to eight out of ten,” but closer to four, because Butson was generally feeling better. CABR (Dr. Won) at 18. Dr. Won recommended that if Butson returned to school, he should be limited to 12 credits. Otherwise, the same restrictions put in place by Dr. Fleiss should be followed. Dr. Fleiss's restrictions were: “Avoid tight gripping and grasping with the left hand, avoid forceful and prolonged bending of [the] left wrist, avoid exposure, direct impact to the left hand and wrist, and limit left-hand lifting to 15 pounds.” CABR (Dr. Won) at 15.

¶ 13 Dr. Won last saw Butson on. January 7, 2011. Dr. Won recorded. Butson's pain level as being “five out of ten,” and “[t]hat the flare up had pretty much resolved.” CABR (Dr. Won) at 21–22. When asked about the Department's decision to close Butson's claim, Dr. Won testified that Butson's claim was “reasonable to close” on January 25, 2011. CABR (Dr. Won) at 23. Dr. Won also agreed with Dr. Karges' assessment that Butson was in stable condition, adding that Butson might need further surgery “[s]ometime in the future, we're not sure when.” CABR (Dr. Won) at 30. Dr. Won believed Butson was going to continue to experience the pain in his hand for the rest of his life. Dr. Won concluded there was “plenty of work ... such as answering phones” or another “observatory job” that Butson could do as of January 25, 2011, but that Butson could not return to the same work he had been injured doing. CABR (Dr. Won) at 25–26.

B. Procedure

¶ 14 On December 23, 2010, the Department issued an order closing Butson's claim. The Department affirmed the order on January 25, 2011. Butson appealed, and the order was affirmed by an industrial appeals judge on October 5, 2012.

¶ 15 Butson appealed, and the Board of Industrial Insurance Appeals (“Board”) affirmed on December 11, 2012. Butson appealed the Board's order to the Clark County Superior Court. After presenting his case in chief, the trial court granted the Department's CR 50 motion for judgment as a matter of law and dismissed Butson's appeal of the Board's decision. Butson appeals.

ANALYSIS

¶ 16 Butson argues that the trial court erred in granting the Department's CR 50 motion for a judgment as a matter of law. Specifically, Butson argues the trial court erred in granting the CR 50 motion at the conclusion of his case in chief because (1) the trial court should have heard the Department's evidence and (2) substantial evidence-exists to survive a CR 50 motion on whether he was totally temporarily disabled. We disagree because the trial court is not procedurally required to hear the moving party's witnesses before ruling on a CR 50 motion and because substantial evidence does not support Butson's argument that he was temporarily totally disabled.

A. Standard of Review

¶ 17 Under the Industrial Insurance Act (IIA), the trial court's review of a Board order is de novo and is based solely on the evidence and testimony presented to the Board. Stelter v. Dep't of Labor & Indus., 147 Wash.2d 702, 707, 57 P.3d 248 (2002) ; Malang v. Dep't of Labor & Indus., 139 Wash.App. 677, 683, 162 P.3d 450 (2007) ; RCW 51.52.115. We review the trial court's decision, not the Board's order. RCW 51.52.140 ; Malang, 139 Wash.App. at 683, 162 P.3d 450. And, this court reviews the decision of the trial court in the same way as it does other civil cases. RCW 51.52.140 ; Mason v. Georgia–Pac. Corp., 166 Wash.App. 859, 863, 271 P.3d 381, review denied, 174 Wash.2d 1015, 281 P.3d 687 (2012). On appeal to the superior court, the Board's decision is prima facie correct, and a party challenging the decision must support its challenge by a preponderance of the evidence. RCW 51.52.115 ; Ruse v. Dep't of Labor & Indus., 138 Wash.2d 1, 5, 977 P.2d 570 (1999).

¶ 18 This court reviews a trial court's CR 50 decision de novo. Davis v. Microsoft Corp., 149 Wash.2d 521, 530–31, 70 P.3d 126 (2003). A CR 50 motion is properly granted when, “ ‘viewing the evidence most favorable to the nonmoving party, the court can say, as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving ...