Rogers v. Dept. of Labor & Indus.

• Citation: 210 P.3d 355,151 Wn. App. 174
• Decision Date: 06 July 2009
• Docket Number: No. 62544-6-I.,62544-6-I.
• Court: Court of Appeals of Washington
• Parties: Lisa A. ROGERS, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent.

210 P.3d 355

151 Wn. App. 174

Lisa A. ROGERS, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent.

No. 62544-6-I.

Court of Appeals of Washington, Division 1.

July 6, 2009.

Brian Lee Stiles, Stiles & Stiles Inc. PS, Sedro Woolley, WA, for Appellant.

Sarah Leigh Martin, WA Atty. General's Office, Seattle, WA, for Respondent.

DWYER, A.C.J.

¶ 1 Following an on-the-job injury, Lisa Rogers requested that the Department of Labor and Industries authorize payment for spinal fusion surgery. The Department denied this request, concluding that the surgery was unlikely to be successful. Rogers did not challenge the Department's determination but, instead, proceeded with the surgery without authorization. The surgery was unsuccessful. Rogers nonetheless sought reimbursement from the Department, contending that the surgery constituted "proper and necessary" medical care under the Industrial Insurance Act.¹ The Department denied the reimbursement request. Both the Board of Industrial Insurance Appeals and the superior court affirmed the denial. Holding that substantial evidence supports the superior court's finding that the unauthorized surgery was neither curative nor rehabilitative and, thus, not subject to reimbursement, we also affirm.

I

¶ 2 Although the parties dispute factual issues regarding Rogers' need for surgery, they essentially agree on the facts leading up to Rogers' claim with the Department for reimbursement.²

¶ 3 Rogers slipped and fell while at work, injuring herself. As a result, she developed persistent pain in her low back. Dr. Sanford Wright diagnosed her as suffering from a herniated disc and performed surgery on her spine. Dr. Wright operated again four days later. Both surgeries were preauthorized and paid for by the Department. Both were unsuccessful.

¶ 4 After experiencing a coughing fit several months later, Rogers' back pain became constant and severe, and she was again hospitalized. Dr. Wright requested that the Department authorize payment for a third surgery for Rogers, a spinal fusion.

¶ 5 The Department denied authorization. In later testimony, the Department's medical director, Dr. Gary Franklin, testified that Rogers' medical records failed to show that Rogers' condition met the Department's guidelines for authorizing spinal fusion surgery. Specifically, according to Dr. Franklin, the records submitted to the Department failed to show that Rogers' spine was subject to instability justifying fusion. Although Dr. Franklin admitted on cross-examination that Rogers' records contained mention of a "bilateral [P]ars defect" that could have caused that level of instability in Rogers' vertebrae, he also opined that Rogers' chronic pain may well have been caused instead by the scarring that resulted from her two previous surgeries and that spinal fusion would not be effective in treating that condition.

¶ 6 Dr. Franklin also observed that Rogers' medical records indicated that she had at least four of the six relative contraindications listed in the Department's spinal fusion guidelines, including presently smoking cigarettes, having had two prior failed spinal surgeries, having multiple-level degenerative disease of the lumbar spine, and having been disabled for greater than 12 months prior to considering the fusion.

¶ 7 This rationale was not described in detail in the Department's letter denying authorization. Rather, the letter simply stated that the company used by the Department to analyze claims, Qualis Health, had determined that "the requested procedure [did] not meet department guidelines." Notwithstanding the absence of detailed information, however, Rogers declined to engage in medical consultation with the Department regarding the possible misapplication of the guidelines. Rather, when a Qualis representative contacted Dr. Wright to gather additional information—requesting a "physician-to-physician discussion"—Dr. Wright declined to provide additional information in support of the surgery.

¶ 8 Instead, he informed the Qualis representative that "payment for the hospitalization, including surgery, was being obtained through Ms. Rogers' private insurance." Based on this, the Department accepted Qualis's recommendation and denied authorization for the surgery.

¶ 9 Rogers was aware that the Department had denied authorization. She nonetheless elected to have the surgery.

¶ 10 There is no dispute as to whether the surgery was successful. It was not. Rogers herself testified, "I haven't really progressed well at all. I have been running into a few complications.... I've [been] unable to get better." When asked whether her symptoms had improved, she replied, "They're worse now.... They're constant."

¶ 11 The surgery was paid for by a private insurer. In spite of this, Rogers requested additional reimbursement from the Department.³ The Department denied this request, based on Dr. Wright's refusal to engage in further medical consultation in support of the surgery and the related conclusion that "there was insufficient clinical evidence to support the procedure."

¶ 12 Rogers then requested that the Department reconsider its reimbursement decision. The Department denied this request as well. Rogers appealed. Based on the unsuccessful outcome of the surgery, an industrial appeals judge affirmed, concluding as a matter of law that "Ms. Rogers' ... low back surgery was not proper and necessary medical treatment within the meaning of RCW 51.36.010 and WAC 296-20-01002."

¶ 13 Rogers sought review of the industrial appeals judge's decision by the Board of Industrial Insurance Appeals. Adopting the industrial appeals judge's decision, the Board also affirmed the Department's denial. CP at 8-11.

¶ 14 Rogers then appealed the Board's decision to the superior court, which also affirmed. The court's decision essentially adopted the decision entered by the Board, with the exception of characterizing as a factual finding rather than a legal conclusion the determination that Rogers' spinal fusion surgery did not constitute "proper and necessary" medical treatment.⁴

¶ 15 Rogers now appeals from the judgment of the superior court.

II

¶ 16 Because the proper standard of review is material here and because that standard has been inconsistently articulated, it merits brief discussion.

¶ 17 Washington's Industrial Insurance Act includes judicial review provisions that are specific to workers' compensation determinations. In particular, the act provides that superior court review of a Board determination is de novo, that it includes the right to a jury trial, and that the party seeking review bears the burden of showing that the Board's decision was improper:

The hearing in the superior court shall be de novo, but the court shall not receive evidence or testimony other than, or in addition to, that offered before the board or included in the record filed by the board in the superior court as provided in RCW 51.52.110.... In all court proceedings under or pursuant to this title the findings and decision of the board shall be prima facie correct and the burden of proof shall be upon the party attacking the same. If the court shall determine that the board has acted within its power and has correctly construed the law and found the facts, the decision of the board shall be confirmed; otherwise, it shall be reversed or modified.

RCW 51.52.115. Thus, the superior court (or the jury,⁵ where one is empanelled) applies the standards set forth in RCW 51.52.115:

The Board's decision is prima facie correct under RCW 51.52.115, and a party attacking the decision must support its challenge by a preponderance of the evidence. On review, the superior court may substitute its own findings and decision for the Board's only if it finds from a fair preponderance of credible evidence, that the Board's findings and decision are incorrect.

Ruse v. Dep't of Labor & Indus., 138 Wash.2d 1, 5, 977 P.2d 570 (1999) (citations and quotation marks omitted). In appeals of the superior court's decision to this court, by contrast, "[w]e review whether substantial evidence supports the trial court's factual findings and then review, de novo, whether the trial court's conclusions of law flow from the findings." Watson v. Dep't of Labor & Indus., 133 Wash.App. 903, 909, 138 P.3d 177 (2006) (citing Ruse, 138 Wash.2d at 5, 977 P.2d 570).

¶ 18 This statutory review scheme results in a different role for the Court of Appeals than is typical for appeals of administrative decisions pursuant to, for example, the Administrative Procedure Act,⁶ where we sit in the same position as the superior court.⁷ To be clear, unlike in those cases, our review in workers' compensation cases is akin to our review of any other superior court trial judgment: "`review is limited to examination of the record to see whether substantial evidence supports the findings made after the superior court's de novo review, and whether the court's conclusions of law flow from the findings.'" Ruse, 138 Wash.2d at 5, 977 P.2d 570 (quoting Young v. Dep't of Labor & Indus., 81 Wash.App. 123, 128, 913 P.2d 402 (1996)). More extensive appellate review of facts found in the superior court abridges the jury trial right provided by RCW 51.52.115:

Our function is to review for sufficient or substantial evidence, taking the record in the light most favorable to the party who prevailed in superior court. We are not to reweigh or rebalance the competing testimony and inferences, or to apply anew the burden of persuasion, for doing that would abridge the right to trial by jury.

Harrison Mem'l Hosp. v. Gagnon, 110 Wash. App. 475, 485, 40 P.3d 1221 (2002) (footnotes omitted). The Industrial Insurance Act itself encapsulates this rationale, providing that "[a]ppeal shall lie from the judgment of the superior court as in other civil cases." RCW 51.52.140 (emphasis added).

¶ 19 All of this is significant because Rogers frames her appeal...