Raum v. City of Bellevue

• Decision Date: 08 October 2012
• Docket Number: No. 67213–4–I.,67213–4–I.
• Court: Washington Court of Appeals
• Parties: Michael A. RAUM, Appellant, v. CITY OF BELLEVUE, Respondent.

171 Wash.App. 124

286 P.3d 695

Michael A. RAUM, Appellant,

v.CITY OF BELLEVUE, Respondent.

No. 67213–4–I.

Court of Appeals of Washington,

Division 1.

Oct. 8, 2012.

Ronald Gene Meyers, Kenneth B. Gorton, Ron Meyers & Associates PLLC, Lacey, WA, L. Zoe Wild, MacColl Busch Sato PC, Lake Oswego, OR, for Appellant.

Cheryl Ann Zakrzewski, City of Bellevue, Bellevue, WA, for Respondent City of Bellevue.

Beverly Norwood Goetz, Ofc. of The Atty. Gen., Seattle, WA, for State of Washington.

LAU, J.

[171 Wash.App. 129]¶ 1 RCW 51.32.185 establishes a rebuttable evidentiary presumption that certain diseases suffered by firefighters are “occupational diseases” as defined by the Industrial Insurance Act (Act), chapter 51 RCW. The presumption extends to heart problems experienced within 24 hours of strenuous physical exertion due to firefighting activities. The presumption “may be rebutted by a preponderance of the evidence.” RCW 51.32.185(1). City of Bellevue firefighter Michael Raum filed a worker's compensation claim after he experienced chest pressure while performing official firefighter duties. After the Board of Industrial Insurance Appeals (Board) awarded him benefits, the City appealed to superior court. A jury returned a verdict for the City. Raum appeals, arguing that (1) the jury instructions and special verdict form inadequately stated the law, (2) the trial court improperly excluded testimony already in the Board record, and (3) insufficient evidence supports the verdict. Because the instructions and special verdict form correctly state the law, the trial court properly excluded inadmissible hearsay testimony, and sufficient evidence supports the verdict, we affirm.

FACTS

¶ 2 The City of Bellevue hired Michael Raum as a professional firefighter in 1991. Throughout 19 years on the job, he was exposed to smoke, chemicals, fumes, and carbon monoxide. Over the course of his career,he was evaluated several times for smoke inhalation at the scene of a fire. He was also exposed to secondhand cigarette smoke at the fire station, though he never smoked as a firefighter.¹

¶ 3 Raum testified that he never experienced chest pain before 2008. That year, he experienced chest pressure on three occasions while at work. ² He first experienced chest pressure in February 2008 while using an elliptical machine at high intensity during a fitness training session at the fire station. He lowered the machine's intensity and the pressure sensation subsided. The second time he felt chest pressure, he was using the same elliptical machine at the same location. The pressure ceased when he stopped exercising. The third episode occurred when Raum went on an emergency call involving a car accident. He jumped out of the fire truck and felt chest pressure as he ran to the accident scene. He testified that on this occasion, the pressure “was a little more intense than it had been before” but it subsided after about a minute. Report of Proceedings (RP) (Apr. 20, 2011) at 357.

¶ 4 Raum applied to the Department of Labor and Industries for benefits, alleging he sustained an industrial injury to his chest in February 2008. The Department denied Raum's claim on the basis that his condition was not an occupational injury or an occupational disease under the Act. The Department denied Raum's subsequent request for reconsideration. Raum appealed to the Board, arguing that the Department failed to apply RCW 51.32.185's ³ rebuttable evidentiary presumption.

¶ 5 Before the Board hearing, Raum moved for summary judgment, arguing he was entitled to RCW 51.32.185's evidentiary presumption and that the City failed to rebut the presumption. The Board denied Raum's motion, and the appeal proceeded to a hearing. Each party presented expert testimony regarding whether Raum's heart condition was employment related.

[171 Wash.App. 131]¶ 6 The industrial appeals judge (IAJ) issued a proposed decision and order reversing the Department's decision. The IAJ found:

The conditions in which Lt. Raum performed his firefighting activities were distinctive conditions of employment that more probably caused his heart problems than conditions in everyday life or all employments in general, including a former history of tobacco use, hypertension, cholesterol, family history, and exposure from other employment or non-employment activities.

Certified Appeal Board Record (CABR) at 49. The IAJ concluded that Raum's heart problems constituted an occupational disease under RCW 51.08.140⁴ and it was more probable than not that he suffered heart problems from his firefighting activities. The City petitioned the Board for review, assigning error to multiple findings of fact and conclusions of law and all adverse evidentiary rulings before the Board. The Board denied review and adopted the proposed decision and order as its own.

¶ 7 The City appealed to King County Superior Court. Raum moved for summary judgment, arguing that the City presented insufficient evidence to overcome RCW 51.32.185's statutory presumption. The court denied his motion, and the matter proceeded to a jury trial. Pursuant to RCW 51.52.115, the entire Board record was read to the jury except for testimony the superior court ordered stricken.

¶ 8 The medical evidence read to the jury at trial established the following: ⁵ The City presented cardiologist EugeneYang's deposition testimony. Dr. Yang reviewed Raum's medical records from 2000 to 2009 but never examined Raum. Dr. Yang testified that reviewing records provides a significant amount of information to form an opinion regarding a patient's condition, “including blood pressure, cholesterol levels, blood glucose levels, the patient's body mass index, that can allow us to determine what kind of risk factors that individual has specifically for cardiovascular disease.” RP (Apr. 19, 2011) at 73. He stated, “[I]t is not uncommon ... for [cardiologists] to place a great role on reviewing records in order for us to formulate a diagnosis and opinion regarding [a patient's] specific cardiovascular-related disease or conditions.” RP (Apr. 19, 2011) at 73.

¶ 9 Dr. Yang testified that a July 2001 cardiovascular examination revealed that Raum had high blood pressure, a very high total cholesterol level, and a high LDL or “bad cholesterol” level. Raum's total cholesterol to HDL or “good cholesterol” ratio—a predictor of cardiovascular risk—was also high. Raum was prescribed Lipitor in October 2001 to treat his high cholesterol. His cholesterol levels initially improved, but Raum began taking the medication only intermittently and by August 2002 his levels increased again.⁶

¶ 10 Dr. Yang testified that in September 2003 another medical examination revealed that Raum had “extremely high” total cholesterol and LDL cholesterol levels, “markedly elevated” triglyceride⁷ levels, high total cholesterol to HDL ratio, and hypertensive resting blood pressure. According to Dr. Yang, the examination indicated Raum was “at high cardiovascular risk” due to his blood tests and other factors such as his weight and blood glucose levels. Raum resumed taking cholesterol-lowering medications. In August 2004 Raum's cholesterol profile showed good LDL cholesterol levels but his triglyceride levels were more than double the acceptable level. His creatine phosphokinase enzyme (CPK) level—an indicator of heart muscle inflammation—was also high.

¶ 11 In July 2005, another examination revealed that Raum's body mass index was on the borderline between overweight and obese. His total cholesterol level and LDL cholesterol level were extremely high, and his triglycerides were still elevated. A stress test showed “potentially worrisome” changes that led Raum's physician to refer him to cardiologist Rubin Maidan. Dr. Yang testified that based on Dr. Maidan's records from August 2005, Raum reported experiencing multiple episodes of chest pain with exertion and at rest—including at least six occasions where a chest ache lasted up to 10 minutes—as well as shortness of breath with exertion. Dr. Maidan's records indicated that Raum's cholesterol levels were elevated, he would very likely need additional cholesterol-lowering medications in the future, and he might have early coronary artery disease given his family history.

¶ 12 Dr. Yang next reviewed records from early 2008.⁸ At that time, Raum's total cholesterol and triglyceride levels were “extremely high,” his LDL cholesterol level was “markedly elevated,” and his fasting glucose level was elevated to the extent it was a potential marker of metabolic syndrome—“a known risk factor for cardiovascular disease.” RP (Apr. 19, 2011) at 94. A March 2008 coronary angiogram showed that Raum had extensive coronary artery disease. Dr. Yang testified that Raum had calcification of his main artery, a condition that “occurs generally when people have advanced disease that occurs over many decades.” RP (Apr. 19, 2011) at 97. Nine months later, another angiogram indicated Raum had very high grade blockage in a different artery.

¶ 13 Based on his review of Raum's medical records, Dr. Yang testified that Raum has very severe multivessel coronary artery disease, very severe hyperlipidemia or hypercholesterolemia, mild hypertension, metabolic syndrome, and abdominal obesity, all of which are risk factors for cardiovascular disease. When asked whether Raum experienced a heart problem within 72 hours of exposure to smoke, fumes, or toxic substances or within 24 hours of strenuous physical exertion due to firefighting activities under RCW 51.32.185, Dr. Yang stated he did not believe, based on the statute's definitions, that the evidence indicated Raum developed a heart problem. Dr. Yang testified that on a more probable than not basis, Raum's risk factors for cardiovascular disease—not his occupational exposures—caused his aggressive coronary artery disease over several decades. Dr. Yang testified that although symptoms of a chronic problem like coronary artery...