Clark Cnty. v. Maphet
| Decision Date | 06 August 2019 |
| Docket Number | No. 51170-3-II,51170-3-II |
| Court | Washington Court of Appeals |
| Parties | CLARK COUNTY; Department of Labor and Industries, Respondents and Cross-Appellants, v. Jennifer MAPHET, Appellant and Cross-Respondent. |
Douglas Maclean Palmer, Hamrick Palmer PLLC, Po Box 1306, Vancouver, WA, 98666-1306, for Appellant/Cross-Respondent.
Brett Schoepper, Gress - Clark - Young & Schoepper, 8705 Sw Nimbus Ave. Ste. 240, Beaverton, OR, 97008-7154, Anastasia R. Sandstrom, Attorney General's Office, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, for Respondents/Cross-Appellants.
¶1 Jennifer Maphet injured her right knee while at work. Her employer, Clark County, is a self-insured employer. Maphet underwent nine surgeries on her knee. The County contested its responsibility for the ninth surgery to the Department of Labor and Industries (L & I). L & I issued an order for the County to authorize and pay for the surgery. The County appealed. The Board of Industrial Insurance Appeals (BIIA) affirmed L & I’s order. The County appealed to the trial court, and the jury returned a verdict that the industrial injury did not cause the need for the ninth surgery and that the ninth surgery was not proper and necessary.
¶2 Maphet appeals, and the County and L & I cross appeal. Both Maphet and L & I argue that the trial court erred in denying their CR 50 motions because the County accepted the knee condition when it authorized the other surgeries and the compensable consequences doctrine requires the County to cover the residuals of its authorized surgery. They further argue that the County conceded the issue that the ninth surgery was proper and necessary. The County argues in its cross appeal that the trial court erred when it found that evidence of authorization is not excluded under ER 409.
¶3 We hold that the trial court did not err in allowing evidence of authorization. We also hold that the trial court erred in denying Maphet’s and L & I’s CR 50 motions as a matter of law because the County accepted the knee condition, which the ninth surgery was performed to correct, when it authorized the sixth, seventh, and eighth surgeries; the compensable consequences apply; and the County conceded the issue of whether the surgery was proper and necessary. Accordingly, we reverse.
¶4 Maphet was a correctional officer at Clark County Jail. On November 8, 2009, while at work, she slipped on a piece of paper and fell down a flight of stairs. She injured her right knee.
¶5 Her self-insured employer, the County, authorized eight surgeries on Maphet’s knee. Her first four surgeries included surgeries on her meniscus, her medial femoral condyle, and her patella. During her fifth surgery on January 24, 2013, Dr. Jonathan Greenleaf testified that he noticed that her kneecap had been pulled to the outside of her knee and he chose to perform a lateral retinacular release
, which released part of the ligaments holding Maphet’s kneecap in place. As a result, Maphet developed patellofemoral instability. Dr. Greenleaf performed surgeries in May 2013 (sixth surgery), December 2013 (seventh surgery), and August 2014 (eighth surgery) to correct the patellofemoral instability. He then performed a ninth surgery on March 20, 2015, also to treat the patellofemoral instability. This is the surgery at issue. The County refused to authorize the ninth surgery and contested its responsibility for this surgery to the L & I.
¶6 The L & I issued an order directing the County to authorize and pay for the ninth surgery and to accept responsibility for a concussion from when Maphet fell from the knee instability.1 The County appealed this order to the BIIA, arguing that the industrial injury did not proximately cause the ninth surgery and that the ninth surgery was not proper and necessary.
¶7 The following testimonies were presented to the BIIA. For medical testimony, Maphet and the L & I presented the testimony of Dr. Thomas Kelly and Dr. Greenleaf, and the County presented the testimonies of Dr. Clyde Farris and Dr. Eugene Toomey.
¶8 Maphet testified that she underwent a number of surgeries for her knee. Dr. Greenleaf performed the fifth surgery and after this surgery, her knee began to buckle. She claimed that after the ninth surgery to fix her patellofemoral instability, she "noticed a significant change" and she was not falling as much. Administrative Record (AR) Hr’g Tr. at 29-30. She believed that the problems she had with her patella were due to her original injury.
¶9 Katherine DeFrang is a third party workers’ compensation claims adjustor at Gallagher Bassett for the County. DeFrang testified that Gallagher Bassett authorized Maphet’s first eight surgeries.
¶10 Dr. Kelly is a chiropractic neurologist who does not perform surgery. Dr. Kelly reviewed Dr. Greenleaf’s procedure notes and opined that the industrial injury in 2009 was the cause of patellofemoral instability, which led to the ninth surgery. He further opined that the scar tissue in that area could lead to the instability. Ultimately, Dr. Kelly deferred to the orthopedic surgeons as to the cause of the patellofemoral instability.
¶11 Dr. Greenleaf, an orthopedic surgeon, testified that on September 19, 2012, Maphet had stability in her knee, but she was still having pain particularly in the inside of the kneecap region. He performed the fifth surgery on Maphet’s knee. This surgery consisted of the removal of scar tissue, a patella chondroplasty
, and a limited lateral retinacular release. He performed the limited lateral retinacular release because when operating, he noticed that the patella was lateralized—i.e., the kneecap had been pulled "to the outside of the knee abnormally." AR Dep. of Greenleaf at 22. Dr. Greenleaf opined that the reason the kneecap shifted was due to the development of scar tissue and the original injury damaged the medial patellofemoral ligament and the medial collateral ligament, which allowed the scar tissue to pull the kneecap over.
¶12 Dr. Greenleaf testified that after the lateral retinacular release
her kneecap began to move medially and subsequent surgeries were performed. He testified that the ninth surgery "was necessary to try to allow her knee to be stable through a full range of motion and prevent further injury with her falling." AR Dep. of Greenleaf at 28. Dr. Greenleaf believed the ninth surgery was due to the industrial injury and prior surgeries.
¶13 Dr. Greenleaf agreed that the treatment and diagnostic records from the years following the industrial injury showed the patellofemoral joint was stable and tracking normally. He also stated that about two years after the industrial injury, on August 25, 2011, he operated on Maphet’s knee and noted that Maphet had "patellofemoral stability within normal limits." AR Dep. of Greenleaf at 45.
¶14 Dr. Farris is an orthopedic surgeon. Dr. Farris performed an independent medical evaluation (IME) of Maphet on January 13, 2015 and reviewed her medical records.
¶15 He stated that after the November 8, 2009 fall, Maphet’s knee injury
consisted of "a small defect in the medial compartment, and then an apparent tear of the lateral meniscus in the lateral compartment." AR Dep. of Farris at 18 (bold omitted). Dr. Farris said he would expect Maphet to have issues with her patellofemoral joint following the industrial injury if that was the cause of the patella instability, which she did not. He also testified that after the fifth surgery, where Dr. Greenleaf performed a lateral retanicular release, Maphet’s main complaint switched to patellofemoral issues. When looking at the examinations leading up to the fifth surgery, Dr. Farris testified that there was no reasonable explanation for performing a limited lateral retanicular release.
¶16 Additional surgeries were conducted to address Maphet’s patellofemoral instability. Dr. Farris opined that the ninth surgery was unnecessary because it is not possible to get her patella stability perfect, but he did state that the surgery could have made the instability better. He did not believe the patellofemoral problems could be attributed to the industrial injury.
¶17 Dr. Toomey, an orthopedic surgeon, performed an IME on Maphet on July 9, 2015. He testified that there was no sign of patellofemoral instability until the fifth surgery and that several of the surgeries before the March 2015 surgery treated patellofemoral instability. Dr. Toomey opined that the ninth surgery was proper because she had patellofemoral instability. However, Dr. Toomey did not believe that the ninth surgery was performed to address a condition that was proximately related to the industrial injury.
¶18 The BIIA granted the County’s motion to preclude testimony as to payment or authorization of treatment2 pursuant to ER 409. The BIIA affirmed the L & I order and ruled that the industrial injury proximately caused the patellofemoral instability requiring the ninth surgery and that the surgery was proper and necessary.
¶19 The County appealed the BIIA’s decision to the superior court. The L & I moved for judgment as a matter of law under CR 50, and Maphet joined the motion. They argued that "as a matter of law, the industrial injury proximately caused the condition." Clerk’s Papers (CP) at 107. The L & I further stated that because there was no issue of proximate cause, Maphet needed to prove only that the surgery was proper and necessary. The trial court denied the motion. The court found there was "a genuine issue of material fact" as to whether the industrial injury proximately caused Maphet’s patellofemoral instability and that it was a question that should go to the jury. CP at 166.
¶20 Maphet moved to...
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