Johnson v. Clark Constr. Grp., Inc.

Decision Date20 November 2017
Docket NumberNo. 75858-6-I,75858-6-I
PartiesRANDY JOHNSON, Respondent, v. CLARK CONSTRUCTION GROUP, INC., a Washington corporation, Appellant.
CourtWashington Court of Appeals

UNPUBLISHED OPINION

LEACH, J.This case involves Randy Johnson's workers' compensation claim for his occupational disease (carpal tunnel syndrome) and his mental condition (depression and anxiety). Clark Construction Group Inc. challenges the sufficiency of the evidence to support the jury's findings that (1) Johnson's occupational disease proximately caused his mental condition, (2) he was temporarily totally disabled between July 25, 2012, and February 10, 2014, and (3) he was permanently totally disabled as of February 10, 2014. Because the record includes sufficient evidence to support each finding, we affirm

FACTS

Johnson worked in construction for nearly 40 years, the last 25 as a journeyman carpenter. Johnson ended his career at Clark Construction on January 6, 2011. He filed a workers' compensation claim in March 2011 for carpal tunnel syndrome. The Department of Labor and Industries (Department) allowed the claim and medical treatment for this condition.

Johnson has a history of anxiety and depression. As he received care for carpal tunnel syndrome, Johnson's mental health deteriorated. He sought coverage for his mental health condition. The Department denied this request and determined that Johnson was capable of working. On February 10, 2014, it issued a final order closing Johnson's claim.

Johnson appealed. An industrial appeals judge held hearings on the matter. Johnson had three medical experts testify about his mental condition: (1) Dr. Richard Seroussi, a physiatrist who treated Johnson for carpal tunnel syndrome and acted as Johnson's attending physician during the period of his carpal tunnel syndrome bilateral condition, (2) Advanced Registered Nurse Practitioner (ARNP) Joshua Webb, a family nurse practitioner who treated Johnson for depression and anxiety beginning in 2008, and (3) Dr. Owen Bargreen, a clinical psychologist who evaluated Johnson after he obtained a referral for a Department of Social and Health Services psychiatric evaluation.Clark Construction presented the testimony of Dr. Douglas Robinson, a psychiatrist who performed a medical evaluation at its request.1

The industrial appeals judge's proposed decision stated that Johnson had failed to present a prima facie case establishing his claim. The Board of Industrial Insurance Appeals (Board) disagreed but affirmed the Department's closing order because it found, after weighing the evidence, that Johnson's occupational disease did not proximately cause his depression and anxiety.

Johnson appealed to superior court. There, a jury reversed the Board, answering the following questions:

QUESTION 1: Was the Board of Industrial Insurance appeals correct in deciding that Randy L. Johnson's depression and anxiety were not proximately caused or aggravated by his occupational disease?
ANSWER: No (Write "yes" or "no")
QUESTION 2: Was the Board of Industrial Insurance Appeals correct in deciding that as of February 10, 2014, the conditions proximately caused by Randy L. Johnson's occupational disease had reached maximum medical improvement and that he was not entitled to further necessary and proper treatment?
ANSWER: Yes (Write "yes" or "no")
. . . .
QUESTION 3: Was the Board of Industrial Insurance Appeals correct in deciding that Randy L. Johnson was capable ofperforming or obtaining a gainful occupation on a reasonably continuous basis from July 25, 2012 through February 10, 2014?
ANSWER: No (Write "yes" or "no")
QUESTION 4: Was the Board of Industrial Insurance Appeals correct in deciding that Randy L. Johnson was not a permanently and totally disabled worker as of February 10, 2014?
ANSWER: No (Write "yes" or "no")

The trial court entered a judgment consistent with the jury's verdict and awarded Johnson attorney fees. Clark Construction appeals.

ANALYSIS

Sufficiency of Evidence

Clark Construction challenges the sufficiency of the evidence to support the jury's findings that Johnson's occupational disease proximately caused his mental condition, that he was temporarily totally disabled from July 25, 2012, through February 10, 2014, and that he was permanently and totally disabled as of February 10, 2014.

The Industrial Insurance Act2 provides for judicial review of workers' compensation decisions. The superior court reviews the Board's decision de novo.3 The superior court must consider the Board's decision as prima facie correct. A party challenging that decision must prove its challenge by apreponderance of the evidence.4 By contrast, this court reviews the superior court's decision under the ordinary standard of review for civil cases.5 Thus, we limit our review to deciding if substantial evidence supports the jury's verdict.6 We will not overturn a jury verdict if substantial evidence supports it.7 Substantial evidence is enough evidence to persuade a fair-minded, rational person of the truth of the declared premise.8 A "mere scintilla" of evidence is not enough.9 Our review of the record persuades us that substantial evidence supports the jury's findings.10

Proximate Cause

First, Clark Construction asserts that the record does not contain substantial evidence that Johnson's carpal tunnel syndrome proximately causedhis anxiety and depression. Johnson must establish with medical testimony that his occupational disease proximately caused the disability.11 An occupational disease proximately causes a condition when there is no intervening independent sufficient cause for the condition.12 The occupational disease need not be the original cause of the claimed disability; it is sufficient for the worker to show that it was an aggravating factor.13

Here, testimony from several experts demonstrates a causal relationship between Johnson's occupational disease and his disability. First, ARNP Webb stated that while Johnson's deteriorating mental condition probably had multiple causes, he believed the labor and industries (L&l) claim was the triggering factor.14 Dr. Seroussi also opined that Johnson's claim more probably than not aggravated his preexisting depression and anxiety issues. He explained that "[Johnson's] psychiatric issues became more notable as the claim evolved, Ithink especially as he felt he couldn't get back to work. And I know that patients who lose their livelihood often end up with a fair amount of depression and anxiety." Dr. Bargreen also maintained, based on his evaluations, that a direct relationship exists between Johnson's depressive symptoms and his L&l claim. The testimony of these witnesses provides substantial evidence of proximate cause.

Clark Construction claims that the testimony of Johnson's experts cannot support the jury's finding because when the experts evaluated Johnson, they lacked material information about Johnson's mental health history. "An expert medical opinion concerning causal relationship between an industrial injury and a subsequent disability must be based upon full knowledge of all material facts."15

When they initially formed their opinions, Johnson's experts were unaware of some information relevant to Johnson's mental health: his methamphetamine drug use, the deaths of his mother and brother, and mental health history. Thus, Clark Construction asserts, their testimony lacks sufficient foundation to be probative.16 Clark Construction relies on two cases to support this contention,Sayler v. Department of Labor & Industries17 and Parr v. Department of Labor & Industries,18 but we consider these cases distinguishable.

In Sayler, the Supreme Court determined that substantial evidence did not support the trial court's finding that the claimant's industrial injury to his ankle caused a disabling back condition.19 The medical witnesses had formed their original opinions based on the claimant's statements, but the claimant had neglected to mention a previous back injury.20 When the doctors learned about the earlier back injury, one testified that he was no longer sure about the cause of the claimant's current back condition, and the other testified that the present condition was more likely caused by his back injury than the ankle injury.21 The court concluded that the medical witnesses' testimony about causation was not probative because each original diagnosis assumed that the claimant had no prior back trouble.22

Similarly, in Parr, the Supreme Court held that the claimant failed to establish a causal connection between his asthma and his job.23 The only evidence to support causation was a doctor's conclusion that wood dustexperienced at his job caused his asthma.24 But the doctor based his opinion on the assumption that only wood dust affected the claimant; the doctor was unaware of the claimant's allergy to other forms of dust.25 Because the doctor did not base his opinion on all the material facts, it was not probative of causation.26

Here, the medical witnesses' testimony remained the same after learning about Johnson's methamphetamine use, the family deaths, and his mental health history. This distinguishes this case. In Sayler, the doctors testified that the missing information changed their opinion, and in Parr, the doctor never gave an opinion based on all material information. Here, however, the experts affirmed their original conclusions about causation after they had all the material information. Specifically, ARNP Webb acknowledged that he was not initially aware of Johnson's past methamphetamine use but stated that this information did not affect his opinion. Dr. Seroussi agreed that he did not know much about Johnson's mental health history and that he had been unaware that Johnson's brother had committed suicide but also maintained his original opinion after learning this information. And Dr. Bargreen testified that Johnson had told him about Johnson's history of depression and methamphetamine use....

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