Romo v. Department of Labor and Industries, 16765-8-III

• Decision Date: 10 September 1998
• Docket Number: No. 16765-8-III,16765-8-III
• Citation: 962 P.2d 844,92 Wn.App. 348
• Court: Washington Court of Appeals
• Parties: 348Estella ROMO, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

Page 844

92 Wn.App. 348

962 P.2d 844

348Estella ROMO, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

No. 16765-8-III.

Court of Appeals of Washington,

Division 3,

Panel Seven.

Sept. 10, 1998.

350George J. Schwab, II, Calbom & Schwab, Moses Lake, Melton L. Crawford, Timothy K. Ford, Macdonald, Hoague & Bayless, Seattle, for Appellant.

John R. Wasberg, Assistant Attorney General, Seattle, for Respondent.

OPINION

KATO, Judge.

Estella Romo appeals a superior court order affirming a decision of the Department of Labor and Industries to suspend her worker's compensation benefits because of her refusal to submit to a medical examination. She contends there is an unresolved factual question whether she had good cause to refuse the exam. We disagree and affirm.

Ms. Romo was injured at her workplace on November 10, 1988. She began receiving benefits on January 4, 1989. As required by the Department, she submitted to medical evaluations in August 1989, February 1990, January 1991, March 1992, and November 1992. Psychiatric evaluations during that time indicated Ms. Romo suffered from somatization disorder and either post-traumatic stress disorder or dysthymia, all of which were causally related to the workplace injury. The examining psychiatrist recommended psychotherapy.

In a letter dated May 1, 1993, the treating psychologist informed the Department that Ms. Romo had appeared for three sessions, but he had stopped the treatment because 351she was not motivated to pursue it. The Department's claims unit supervisor decided another medical evaluation would be in order.

Ms. Romo was examined by a three-doctor panel on January 13, 1994. The orthopedist and neurologist concluded Ms. Romo's condition was fixed and stable so no further treatment was required. All three doctors, including a psychiatrist, concluded Ms. Romo could return to work.

Consistent with its standard policy, the Department asked Ms. Romo's treating physician, Dr. Conrado DeLeon, to comment on the panel's evaluation. Dr. DeLeon disagreed in part with the panel's conclusion; he stated Ms. Romo had a decreased range of motion, real pain, and some type of somatization disorder. Dr. DeLeon stated Ms. Romo was not malingering; he recommended an independent psychiatric evaluation and a referral to a pain clinic.

Despite this disagreement, the Department accepted the panel's evaluation and closed the case. Ms. Romo protested the closure in May 1994. The Department held the closure in abeyance and reassumed jurisdiction.

Ms. Romo's attorney informed the Department by letter that she would not attend another panel examination. The Department nevertheless scheduled another examination by a panel of medical examiners, including a psychiatrist, on July 15 and 27, 1994. Ms. Romo's attorney informed the Department she would not attend the examinations because she had undergone an examination in January 1994 and there was no reason to believe her condition had changed since that time.

Ms. Romo did not appear for the examination, and the Department responded with a letter stating Ms. Romo's benefits would be suspended if she did not respond within 30 days. Ms. Romo's attorney responded that she would not attend another panel examination until the Department provided a good-cause explanation why one was required. The Department extended the review period for an additional 90-day period and scheduled another panel examination on September 16, 1994. Ms. Romo informed 352the Department by letter that she would not attend. In October 1994, the Department again warned Ms. Romo that her refusal would result in suspension of benefits; she again refused. The Department issued an order suspending her benefits on November 4, 1994.

Ms. Romo appealed the suspension to the Board of Industrial Insurance Appeals. After a hearing, an administrative appeals judge issued a proposed decision and order reversing the suspension. The administrative judge's decision was based primarily on his conclusion that a worker is entitled to request a good-cause "explanation from the Department as to why a further examination is necessary for the processing of the worker's case."

The Board rejected the administrative judge's proposed decision and affirmed the suspension. The Board concluded the administrative judge had misinterpreted its precedent in In re Edwards, BIIA No. 90 6072 (Decision and order, June 4, 1992) as requiring the Department to provide good cause for ordering a medical examination:

The authority of the Department to schedule medical examinations does not initially depend on a showing of good cause by the Department. Presumptively, a worker should attend a properly scheduled medical examination unless "good cause" exists to support not attending.

In this appeal, Ms. Romo asserts only that the examinations scheduled by the Department were not necessary, not that she had good cause not to attend. Ms. Romo did not testify or otherwise present affirmative evidence of any personal impediment to her attendance at the examinations. Neither did Ms. Romo present any evidence that the examiners who were to conduct the examinations were incapable of conducting a fair and independent medical examination or that they were motivated to be other than fair. In short, Ms. Romo did not present a prima facie case that she had any cause not to attend the examination, much less a showing of good cause for failure to do so.

Ms. Romo merely challenges the Department's authority to schedule what she alleges is a needless examination. It would 353be consistent with our holding in Edwards that a truly unwarranted examination would constitute good cause not to attend. Further, applying Edwards, that if Ms. Romo could establish a prima facie case that the examination was unwarranted, we would need to weigh the interests of the Department in ordering the examination. However, Ms. Romo failed to establish that the Department's scheduling of a further examination in her case was unwarranted.

(Emphasis in original; footnote omitted.)

Ms. Romo appealed the Board's decision to the superior court and demanded a jury trial. The Department moved for summary judgment, which the superior court granted. Ms. Romo now appeals the superior court's order.

Judicial appeal of a decision by the Board of Industrial Insurance Appeals is de novo, but is based solely on the evidence and testimony presented to the Board. RCW 51.52.115; Johnson v. Weyerhaeuser Co., 134 Wash.2d 795, 800 n. 4, 953 P.2d 800 (1998); Department of Labor & Indus. v. Fankhauser, 121 Wash.2d 304, 308, 849 P.2d 1209 (1993); McClelland v. ITT Rayonier, Inc., 65 Wash.App. 386, 828 P.2d 1138 (1992). The Board's findings and conclusions are considered prima facie correct, although "[t]he superior court may substitute its own findings and decision for the Board's if it finds, 'from a fair preponderance of credible evidence,' that the Board's findings and decisions are incorrect." McClelland, 65 Wash.App. at 390, 828 P.2d 1138 (quoting Weatherspoon v. Department of Labor & Indus., 55 Wash.App. 439, 440, 777 P.2d 1084, review denied, 113 Wash.2d 1030, 784 P.2d 530 (1989)). Either party is entitled to a jury trial to resolve factual disputes. RCW 51.52.115. A superior court's review is subject to the civil appeal rules, including those for summary judgment. RCW 51.52.140; McClelland, 65 Wash.App. at 390, 828 P.2d 1138.

On review of a summary judgment order, an appellate court's inquiry is the same as the superior court's. Our Lady of Lourdes Hosp. v. Franklin County, 120 Wash.2d 439, 451, 842 P.2d 956 (1993); see Fankhauser, 121 Wash.2d at 308, 849 P.2d 1209. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). The burden is on the party seeking summary judgment to establish its right to judgment as a matter of law, and the court must consider facts and reasonable inferences from the facts in favor of the nonmoving party. Our Lady of Lourdes, 120 Wash.2d at 452, 842 P.2d 956.

RCW 51.32.110 provides in pertinent part:

(1) Any worker entitled to receive any benefits or claiming such under this title shall, if requested by the department ..., submit himself or herself for medical examination, at a time and from time to time, at a place reasonably convenient for the worker and as may be provided by the rules of the department....

(2) If the worker refuses to submit to medical examination, or obstructs the same, ... the department ... may suspend any further action on any claim of such worker so long as such refusal, obstruction, noncooperation, or practice continues and reduce, suspend, or deny any compensation for such period: PROVIDED, That the department ... shall not suspend any further action on any claim of a worker or reduce, suspend, or deny any compensation if a worker has good cause for refusing to submit to or to obstruct any examination, evaluation, treatment or practice requested by the department or required under this section.

See WAC 296-14-410.

By regulation, the Department has provided that independent medical examinations generally are requested for one of the following reasons:

(a) To establish a diagnosis. Prior diagnoses may be controversial or ill-defined;

(b) To outline a program of rational treatment, where treatment or progress is controversial;

(c) To establish medical data from which it may be determined whether the medical condition is industrially acquired, or unrelated to industrial work activities; 355(d) To determine the extent and duration of aggravation of a preexisting medical condition by an industrial injury or exposure;

(e) To establish when the accepted medical condition has reached maximum benefit from treatment;

(f) To establish a percentage...