Garrett Freightlines, Inc. v. Department of Labor and Industries

• Decision Date: 15 September 1986
• Docket Number: No. 14629-7-I,14629-7-I
• Court: Washington Court of Appeals
• Parties: GARRETT FREIGHTLINES, INC., Respondent, v. DEPARTMENT OF LABOR AND INDUSTRIES, State of Washington, Respondent, and John Kovach, Appellant.

Page 335

45 Wn.App. 335

725 P.2d 463

GARRETT FREIGHTLINES, INC., Respondent, v. DEPARTMENT OF LABOR AND INDUSTRIES, State of Washington, Respondent and John Kovach, Appellant.

No. 14629-7-I.

Court of Appeals of Washington Division 1.

Sept. 15, 1986.

Mark A. Lange, Sharpe Law Offices, Seattle, for appellant John kovach.

Ralph J. Brindley, Karen Vanderlaan, Lish Whitson, Helsell, Fetterman, Martin, Todd & Hokanson, Seattle, for respondent Garrett Freightlines, Inc.

John R. Wasberg, Dept. of Labor & Industries, Seattle, for respondent Dept. of Labor & Industries State of Wash.

UTTER, Justice.

This workers' compensation claim comes to us on appeal from the trial court. The trial court reversed some of the Board of Industrial Insurance Appeals' findings and held for the employer. We affirm the trial court.

John Kovach (Kovach) worked for Garrett Freight Lines (Garrett) for 15 years. On August 17, 1981, the Department of Labor and Industries received an accident report from Kovach alleging that he had injured his back on August 6, 1981, during the course of his employment with Garrett.

On August 6, 1981, Kovach told a fellow employee, Ray Norris, that he had a pain in his leg and hip rather than in his back. Kovach also told Norris that he did not know how the alleged injury occurred. In August of 1981, Kovach also told another fellow employee that he had hurt his back and that he did not know whether he had hurt it at work or at home. Kovach was not able to identify when, how, or where the alleged injury took place. Kovach did, however, notice an ache in his back sometime around the second or third hour of his August 6 shift.

Prior to August 6, 1981, Kovach suffered from a congenital back condition, spondylolisthesis. Kovach also had a history of back pain dating back to when he was a teenager. Kovach's spondylolisthesis did not result from any specific traumatic incident occurring during the course of Kovach's employment with Garrett on August 6, 1981. In fact, the trial court specifically found that on or about August 6, 1981, Kovach did not suffer a specific traumatic incident at a fixed time and place which resulted in a medical condition. After August 6, 1981, however, Kovach's spondylolisthesis continued to become more symptomatic and Kovach was required to obtain medical treatment for his condition. Kovach continued to work for Garrett until October 22, 1981.

The court further found that the spondylolisthesis suffered by Kovach is not a disease, illness or morbid process but is a structural abnormality or defect of the vertebrae. The spondylolisthesis was not contracted during the course of Kovach's employment with Garrett.

Because of the absence of a "sudden and tangible happening", to produce "an immediate or prompt result", the trial court concluded that Kovach did not suffer an industrial injury on August 6, 1981. The court further concluded that Kovach's spondylolisthesis was a preexisting congenital condition and not the result of an industrial injury nor was it an occupational injury under RCW 51.08.140. In finding that Kovach "did not suffer a specific traumatic event at a fixed time or place", the trial court reversed the Board's finding that such an event had taken place. In effect, the trial court reinstated the Board of Industrial Appeals Judge's finding that no "specific traumatic event" occurred on August 6, 1981.

Kovach appeals the trial court's decision and raises the following issues:

(1) Whether, under RCW 51.52.115, a trial court is bound by the findings of the Board unless shown they are clearly unsupported by a preponderance of the evidence?

(2) Whether the trial court's scope of review is limited to the issues raised by the appellant (from the Board's decision) in its brief and oral argument?

(3) Whether appellant suffered an "industrial injury", under RCW 51.08.100, where appellant could fix the time he first noticed pain as somewhere between the second and third hours of his shift?

(4) Does RCW 51.08.100, defining "injury", allow for recovery under a repetitive trauma theory?

(5) Does Kovach make out a compensable industrial injury claim for occupational disease where medical evidence shows that his back condition became symptomatic as a proximate result of his recurrent lifting and carrying which were natural or inherent parts of his job of loading and unloading freight?

1. Standard of Review and Scope of Review.

Appellant contends that the trial court erred in reversing the Board of Industrial Insurance Appeals' (Board) factual findings and that the trial court exceeded its scope of review. Because the issues have not been separated, however, their respective bases are unclear.

A. Standard of Review.

Kovach claims, without authority, that the Board's factual findings must stand unless they are shown to be "clearly unsupported by a preponderance of the evidence." Kovach further claims that the record does not support the trial court's Findings of Fact Nos. 3, 4, 5, 6, and 7 which altered the facts as found by the Board.

Kovach has misstated the standard of review. RCW 51.52.115 provides for a de novo review of Board findings. In the new trial, the superior court may review only the evidence in the record of the Board hearing. RCW 51.52.115. Bayliner Marine Corp. v. Perrigoue, 40 Wash.App. 110, 113-14, 697 P.2d 277 (1985). The Board's findings are to be presumed "prima facie correct and the burden of proof shall be upon the party attacking the same." RCW 51.52.115; Bayliner, 70 Wash.App. at 113, 697 P.2d 277 (quoting Department of Labor & Indus. v. Moser, 35 Wash.App. 204, 208, 665 P.2d 926 (1983)). This presumption means that the Board's decision will only be overturned if

the trier of fact finds from a fair preponderance of the evidence that such findings and decision of the board are incorrect. It must be a preponderance of the credible evidence. If the trier of fact finds the evidence to be equally balanced then the findings of the board must stand.

Allison v. Department of Labor & Indus., 66 Wash.2d 263, 268, 401 P.2d 982 (1965) (citations omitted). Thus, one appealing from the Board's decision would appear to bear the same burden as does the plaintiff in an ordinary civil trial.

This requirement is consistent with RCW 51.52.140, which governs appellate review of Industrial Insurance Act (IIA) cases. RCW 51.52.140 reads, in part, "[a]ppeal shall lie from the judgment of the superior court as in other civil cases." This court is thus limited to determining whether the trial court's factual findings are supported by substantial evidence and whether they support the trial court's legal conclusions. Kovach challenges only the trial court's factual findings and implicitly concedes that those findings, if true, would support the trial court's conclusions. Hence, the trial court must be upheld if its findings meet the substantial evidence test.

A party seeking to reverse a trial court's finding of fact must meet a difficult standard. A reviewing court is constitutionally limited to determining whether there is "substantial evidence" to support the trial court's findings. See, e.g., Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 575, 343 P.2d 183 (1959); Nichols Hills Bank v. McCool, 104 Wash.2d 78, 82, 701 P.2d 1114 (1985); Ridgeview Properties v. Starbuck, 96 Wash.2d 716, 719, 638 P.2d 1231 (1982).

" 'Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise.' " Nichols, 104 Wash.2d at 82, 701 P.2d 1114 (quoting Holland v. Boeing Co., 90 Wash.2d 384, 390-91, 583 P.2d 621 (1978)); Ridgeview, 96 Wash.2d at 719, 638 P.2d 1231. Even though an appellate court "may view the evidence presented at trial differently from the trier [sic] of fact, we can not substitute our judgment for his." Allen v. Seattle Police Officers' Guild, 100 Wash.2d 361, 378, 670 P.2d 246 (1983). One Court of Appeals has concluded that where there is disputed evidence the standard for "substantial evidence" is "any reasonable view [that] substantiates [the trial court's] findings, even though there may be other reasonable interpretations." Ebling v. Gove's Cove, Inc., 34 Wash.App. 495, 501, 663 P.2d 132 (1983) (citations omitted). While this deference is generally rooted in the trial court's access to the live testimony, RCW 51.52.140 requires that the trial court's findings be afforded the same deference in workers' compensation cases.

In the present case, there is considerable testimonial evidence on both sides and the record readily supports the trial court's findings. Kovach has not attempted to rebut this evidence and any attempt to do so would probably be unsuccessful.

B. Scope of Review.

Kovach claims that the trial court went beyond the scope of review when it considered issues other than the two issues allegedly raised in Garrett's brief and oral argument before the superior court. Kovach never explains why Garrett's petition for superior court review should not establish the scope of review. The petition seeks review of "each and every part of" the Board's order.

RCW 51.52.110 provides that anyone aggrieved by the Board's decision has 30 days in which to appeal to superior court. The appeal is perfected by filing a notice with the court clerk and by serving copies of the notice on the director and on the board. With the exception for meeting a bond requirement, not relevant here, the aggrieved party need not do more. The Board is obligated, however, to file with the court clerk "the notice of appeal and other pleadings, testimony and exhibits, and the board's decision and order, which shall become the record in such case." RCW 51.52.110. While RCW 51.52.115 limits the trial court to considering only the record, the statute does not require the petitioner to do more than give notice to protect its right of full review.

The little discussion existing on the subject implies that the court is...