Magdaleno v. Dep't of Labor & Indus.
| Decision Date | 23 November 2020 |
| Docket Number | No. 79833-2-I,79833-2-I |
| Court | Washington Court of Appeals |
| Parties | IMELDA MAGDALENO, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES, and WALMART STORES, a Washington Corporation, Respondent. |
UNPUBLISHED OPINION
CHUN, J. — In 2007, Imelda Magdaleno hurt her back while working for Walmart Stores Inc. The Department of Labor and Industries authorized a surgery, which she underwent in 2011. Later, she continued to experience back pain. She sought authorization for a second surgery, but the Department denied her request and closed her claim. Magdaleno proceeded with the second surgery but afterward her back worsened. She sought to reopen her claim, asserting that a claim-related condition had objectively worsened. The Department reopened the claim, but the Board of Industrial Insurance Appeals reversed, concluding that no claim-related condition objectively worsened between the terminal dates.
Magdaleno appealed to superior court. There, a jury returned a verdict for Walmart, finding that the Board ruled correctly. Magdaleno moved for a judgment notwithstanding the verdict, which motion the trial court denied. On appeal, Magdaleno says that the trial court erred because substantial evidence or reasonable inferences therefrom do not support the jury's verdict. But the law requires us to view the evidence in the light most favorable to the Department and Walmart. And for the reasons discussed below, we affirm.
In July 2007, Magdaleno suffered an injury while working at Walmart. As she lifted pallets of frozen chicken, she experienced pain in her back and down her right leg.
The next month, Magdaleno applied for workers' compensation benefits and the Department allowed her claim. Magdaleno underwent six lumbar MRIs between September 2007 and September 2011.
The Department authorized a laminectomy and a right-sided discectomy for a herniated disc at L5-S1 as proper and necessary because of conditions caused by Magdaleno's industrial injury. On November 3, 2011, Dr. Ashit Patel performed these procedures on Magdaleno.
While Magdaleno's symptoms at first subsided, she began complaining of more symptoms about six months after her surgery. In December 2013, Magdaleno had another lumbar MRI. Dr. Patel recommended that Magdaleno undergo a fusion surgery to address her back and leg pain.
Magdaleno then consulted Dr. Varun Laohaprasit, who recommended redoing a laminectomy and discectomy at L5-S1, as he considered fusionsurgery a last resort. Magdaleno requested that this surgery be authorized under her claim.
On September 3, 2014, the Department denied authorization, stating, "[T]he self-insured employer is not responsible for the redo right-sided laminectomy and discectomy at L5-S1 as medical evidence supports that this procedure is not proper and necessary as defined by law."
Magdaleno had another MRI in February 2015.
Magdaleno protested the denial order but the Department reaffirmed it. The Department then closed her claim on May 4, 2015. This was the first "terminal date."1 Magdaleno appealed both the denial and closure orders but dismissed her appeals following a settlement with Walmart.
After claim closure, Magdaleno continued to experience pain. She returned to Dr. Laohaprasit who recommended that she undergo a L5-S1 laminectomy, medial facetectomy, foraminotomy, and microdiscectomy on her right side and, in addition, recommended an L5-S1 laminectomy and foraminotomy on her left side. Using her private insurance, Magdaleno underwent this surgery on March 16, 2016. No MRI was conducted between the first terminal date and the 2016 surgery.
After her second surgery, Magdaleno experienced increased pain and discomfort. She then applied to reopen her claim on May 24, 2016. An MRI taken on August 5, 2016 showed a disc extrusion2 at L5-S1. On August 18, 2016, the Department reopened Magdaleno's claim. It reaffirmed its order on October 20, 2016 following Walmart's protest. This was the second terminal date. Walmart appealed this order to the Board.
During the Board appeal process, both sides presented expert testimony. Walmart introduced testimony by Dr. Houman Sabahi, a radiologist; Dr. Margaret Wacker, a neurosurgeon; and Dr. James Champoux, an orthopedic surgeon. Magdaleno introduced testimony by Dr. Patel who performed the 2011 surgery, and Dr. Laohaprasit who performed the 2016 surgery. She and her husband also testified.
After the presentation of evidence, an Industrial Appeals Judge (IAJ) issued a Proposed Decision and Order reversing and concluding that the claim should not be reopened. Magdaleno petitioned for Board review. The Board denied the petition and the IAJ's Proposed Decision and Order became the Decision and Order of the Board.
Magdaleno appealed the Board's decision to superior court, where the parties cross-moved for summary judgment. The court denied both motions and, in doing so, noted that the 2014 denial order (i.e., the Department's orderdenying authorization for the 2016 surgery) did not have binding effect—through res judicata—on the current litigation.
At trial, the court instructed the jury that, for a worker to establish the need for treatment because of aggravation of a medical condition, the worker has the burden of proving that (1) the aggravation resulted in the need for treatment, (2) the need for treatment was proximately caused by the industrial injury, and (3) the aggravation occurred between May 4, 2015 and October 20, 2016 (i.e., the terminal dates).
The jury returned a verdict for Walmart, finding that the Board was correct in finding that no claim-related condition objectively worsened between the terminal dates. Magdaleno then moved for a judgment notwithstanding the verdict, which motion the trial court denied. Magdaleno appeals.
Magdaleno says that the trial court erred in denying her motion for judgment notwithstanding the verdict because substantial evidence does not support the jury's finding that no claim-related condition objectively worsened between the terminal dates. The Department and Walmart counter that substantial evidence shows a lack of proximate cause, thus rendering any objective worsening unrelated to the claim. We agree with the Department and Walmart.
To reopen an Industrial Insurance Act (IIA) claim, a worker must establish that their claim-related condition objectively worsened between the terminal dates. See RCW 51.32.160. A worker must support the claimed worsening with objective medical evidence. Felipe v. Dep't of Labor & Indus., 195 Wn. App. 908, 914, 381 P.3d 205 (2016). And the worsened condition must be proximately caused by the industrial injury. Ma'ae v. Dep't of Labor & Indus., 8 Wn. App. 2d 189, 200-01, 438 P.3d 148 (2019).
We review a trial court's denial of a motion for judgment notwithstanding the verdict applying the same standard as the trial court. Chaney v. Providence Health Care, 176 Wn.2d 727, 732, 295 P.3d 728 (2013); CR 59(a)(7). Such a denial is proper when "substantial evidence or reasonable inferences" support the jury's verdict. Indus. Indem. Co. of the Nw. v. Kallevig, 114 Wn.2d 907, 915-16, 792 P.2d 520 (1990). The substantial evidence standard requires that the evidence is enough to convince "'an unprejudiced thinking mind'" or persuade a "fair-minded rational person." In re Estate of Dormaier v. Columbia Basin Anesthesia, PLLC, 177 Wn. App. 828, 861-62, 313 P.3d 431 (2013) (quoting Hojem v. Kelly, 93 Wn.2d 143, 145, 606 P.2d 275 (1980)). We view the material evidence and reasonable inferences therefrom in the light most favorable to the nonmoving party. Kallevig, 114 Wn.2d at 915-16.
Neither Walmart nor the Department disputes that there was an objective worsening of some condition between the terminal dates. This dispute centerson whether the worsened condition was claim-related (i.e., whether proximate cause exists).
Magdaleno advances three theories on appeal: (1) the L5-S1 extrusion, which appeared after her 2016 surgery, resulted from her industrial injury through a "chain of proximate causation," beginning with her injury; (2) the compensable consequences doctrine requires that Walmart be responsible for the consequences of her 2011 surgery, namely her current worsened condition; and (3) WAC 296-20-01002 requires that once Walmart authorized her 2011 surgery, it accepted responsibility for her underlying lumbar condition, which the 2016 surgery was intended to treat. We address each in turn.
Magdaleno says that the "chain of proximate causation" from her industrial injury to her current worsened state is unbroken and thus her objectively worsened condition is claim-related. Walmart and the Department counter that two intervening causes, aging and an unauthorized surgery, broke the chain of causation and thus Magdaleno's worsened condition is not claim-related.3 We conclude that substantial evidence supports the assertion that Magdaleno's degenerative disc disease and not the industrial injury led to the 2016 surgery, and therefore her subsequent worsening was not caused by the industrial injury.
In the context of industrial insurance, the law defines proximate cause as a series of sequential events in which the cause produces a condition, and without the cause, the condition would not have occurred. Street v. Weyerhaeuser Co., 189 Wn.2d 187, 194, 399 P.3d 1156 (2017).
Substantial evidence shows that Magdaleno's current worsened condition would have occurred regardless of the industrial injury. She suffered from an unrelated degenerative disc disease. Drs. Champoux, Wacker, and Sabahi testified that they saw a degenerative disc disease present in Magdaleno's MRIs from before the 2011 surgery. Drs. Wacker, Sabahi and...
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