### FILED JUNE 13, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III



### INTHE COURT OF APPEALS OF THE ST ATE OF WASHINGTON DIVISION THREE OLGA KOZUBENKO, Appellant,

V. 

### DEPARTMENT OF LABOR

### & INDUSTRIES, Respondent. ) 

### ) ) ) ) 

### ) ) ) ) 

### ) No. 34068-6-111

UNPUBLISHED OPINION

FEARING, C.J.

- Olga Kozubenko appeals from the superiorcourt'sruling that she failed to show she suffered from a diagnosis labeled inthe ICD-9 code 437.9 as a result ofa work injury. Based on substantial evidence supporting the trial court's ruling,

we affirm the superior court. FACTS OnJanuary 25, 2008, OlgaKozubenko sustained a work injury when a box of bedding struckherheadwhile in the course ofemployment at Spokane'sDavenport Hotel. As a result ofherinjury, Kozubenko suffered a cervical strain, concussion, and thrombosis in herright midtransverse sinus extendingthrough the sigmoid sinus. Thrombosis is a blood clot. Kozubenko's form ofsinus thrombosis is considered aNo. 340686 OlgaKozubenko v. Department of Labor &Industries

"cerebrovascular disease." Appeal BoardRecord (AR) at 28-29. As a consequence of herthrombosis, Kozubenko receives anticoagulation therapy and takes the bloodthinner Coumadin. Olga Kozubenko applied for benefits with the Department ofLabor and Industries (DLI). DLI approved Kozubenko's claim to the extent she suffered from a cervical strain, a concussion, andthrombosis. Kozubenko later claimedthat herwork injury caused her to suffer a stroke that caused hemiplegia, partial or full paralysis on the leftside ofherbody. DLI determined that Kozubenko's work injury did not cause either a stroke orhemiplegia. Like many medical providers and insurers, DLI employs International Classification ofDiseases (ICD) codes to identify accepted conditions andto receive and pay bills for covered care. WAC 296-20-01002; WAC 296-20-025(3)(c); WAC 296-20- 125(3)(e). The ICD nomenclature represents a numerical system ofclassifying diseases and disorders often used for reimbursement in both private andpublic healthcare systems. International Classification of Diseases (!CD) Information Sheet, WORLD HEALTH ORGANIZATION, http://www.who.int/classifications/icd/factsheet/en/ [https://perma.cc/C7QA-CCQ2]. DLI initially classified OlgaKozubenko's thrombosis condition under ICD-9 code 325. This code number covers a "phlebitis and thrombophlebitis ofintracranial venous sinuses." Appeals BoardRecord Transcripts (ART) (Sept. 5, 2014) at 27. Kozubenko questioned the use ofICD-9 code 325 in a series ofe-mails to DLI and requested the 2No. 340686 Olga Kozubenko v. Departmentof Labor & Industries

code designation be correctedto ICD-9 code 437.6 and 437.9. ICD-9 code 437.6 embraces a "nonpyogenic thrombosis ofintracranial venous sinus." ART (Sept. 5, 2014) at 27. "Nonpyogen" means a thrombosis unrelated to an infection. ART (Sept. 5, 2014) at 28. ICD-9 code 437.9 signifies an "unspecified cerebrovascular disease." Atthe request ofOlga Kozubenko, DLI corrected the ICD-9 code number from 325 to 437.6. DLI, however, did not acceptthe ICD-9 code label of437.9 because its Board ofIndustrial Insurance Appeals previously determined Kozubenko did not suffer a stroke as a proximate cause ofher injury. DLI notified Kozubenko ofits decision in a letter dated June 18, 2013. Olga Kozubenko appealedthe denial orderto the Board ofIndustrial Insurance Appeals. FromDecember 17, 2013 through December 15, 2014, the Board ofIndustrial Insurance Appeals administrative lawjudge conducted conferences andhearings on Kozubenko's appeal. Thejudge entertained testimony from DLI claims managerHeidi Jeg, DLI claims unit supervisor Cherell Fisher, and DLI occupational nurse consultant Monica Howell. Before the administrative lawjudge, Olga Kozubenko testified that her neurologist, Dr. Michael Olek, designated the ICD-9 codes for her conditions. Nonetheless, she did not identify Olek as a witness because he no longer worked or lived in her hometown ofSpokane. Kozubenko declared that she wantedthe ICD-9 code 437.9 added to her claim to receive complete treatment for her medical issues and coverage for medications otherthan Coumadin. She asserted that ICD-9 code 437.9 addresses the 3No. 340686 Olga Kozubenko v. Department of Labor &Industries damage and disturbance in the circulation ofherbrain. Kozubenko testifiedthat Advanced Registered Nurse Practitioner (ARNP) Tatiana Ponomarenko's supervisor at the Rockwood Clinic informed her ofthis definition. Ponomarenko delivers anticoagulation therapy to patients. Ponomarenko's supervisor, an unidentified physician, substitutes for Ponomarenko on occasion. Kozubenko did not call Ponomarenko's supervisor as a witness. DLI's Heidi Jeg and Cherell Fishertestified that the DLI denied Olga Kozubenko an ICD-9 code designation of437.9 because no medical opinion determined that Kozubenko suffered a stroke resulting from her industrial injury. Bothwitnesses understood "unspecified cerebrovascular disease" to mean stroke. ART (Sept. 5, 2014) at 39, 48. DLI witness MonicaHowell confirmed that she advised Jegto change the ICD-9 code label from 325 to 437.6, but she did notrecall any advice regarding an ICD-9 code 437.9 designation. The Board ofIndustrial Insurance Appeals administrative lawjudge also considered testimony from Olga Kozubenko's treatingproviders, Dr. William Sayers and ARNP TatianaPonomarenko.- Kozubenko offered Sayers and Ponomarenko as medical experts to support her contentionthat ICD-9 code 437.9 is an appropriate code number for her thrombosis treatment. The testimony ofthese providers looms key to this appeal. Dr. William Sayers, Olga Kozubenko's family physician, confirmedthat ICD-9 code 437.6, nonpyogenic thrombosis ofintracranial venous sinus, correctly represented Kozubenko's thrombosis condition. Sayers also agreed that Kozubenko did not suffer a stroke orhemiplegiaresulting from herwork injury. Sayers testified that an ICD-9 437.9 4

### No. 340686 Olga Kozubenko v. Department of Labor &Industries



### label did not fit Kozubenko's claim. Sayers clarified that 437.9 is an "umbrellaheading" for cerebrovascular diseases, but Kozubenko has a specific diagnosis and ICD-9 code 437.6 describes that condition. ART (Sept. 5, 2014) at 34. While he concededno expertise in ICD-9 coding, he explained that care providers code to the highest level of specificity. ARNP TatianaPonomarenko performed anticoagulation therapy for Olga Kozubenko for her thrombosis since her work injury. Ponomarenko agreed that Kozubenko's injury caused thrombosis in her right mid transverse sinus extending through the sigmoid sinus as coded under ICD-9 code 437.6 number. She, however, qualified her testimony by stating a neurologist diagnosed Kozubenko withthrombosis and she performedthe anticoagulation treatment according to the neurologist's diagnosis. Tatiana Ponomarenko testified that she could not opine whether Olga Kozubenko suffered from an "unspecified cerebrovascular disease" under the ICD-9 code 437.9. She stated thatthrombosis is a cerebrovascular disease, but that a diagnosis of "cerebrovascular disease" merely describes any disease ofthe cerebrovascular system. In

a chart note dated October 4, 2012, Ponomarenko listed three diagnoses: (1) 

### nonpyogenic thrombosis intracranial venous sinus (ICD-9 code 437.6), (2) anticoagulation Rx (ICD-9 code V58.61), and (3) cerebrovascular disease (ICD-9 code 437.9). Ponomarenko expfained that she added cerebrovascular disease (ICD-9 code 437.9) because Kozubenko expressed nonspecific neurological symptoms at herpatientvisit. Ponomarenko customarily documents any patient complaints not pertinentto her anticoagulation 

### 5

### No. 340686 Olga Kozubenko v. Department of Labor 

### &Industries



### treatment. Ponomarenko instructed Kozubenko to see a neurologist to address her neurological symptoms. In December 2014, Olga Kozubenko claimedthat ARNP TatianaPonomarenko received pressure from her employer, Rockwood Clinic, to testify a certain way. As a result, the Board ofIndustrial Insurance Appeals administrative lawjudgepermitted Kozubenko to recall Ponomarenko to testify. Ponomarenko testified that she spoke with Rockwood Clinic's risk manager after her first testimony and the risk manager instructed Ponomarenko to read from her records and tell the truth. Ponomarenko also spoke to Rockwood Clinic's coding department who verified the accuracy ofPonomarenko's assessments and diagnoses. Ponomarenko did not indicate that Rockwood Clinic pressured her to testify in a certain manner. Similarto herprevious testimony, Ponomarenko maintained an inability and unwillingness to opine on whether Kozubenko suffered from an "unspecified cerebrovascular disease" resulting from her work injury. The Board ofIndustrial Insurance Appeals administrative lawjudgetookjudicial notice ofICD-9 code sections. Thejudge noted that ICD-9 code 434.91 and its subcategories classify strokes; ICD-9 code 325 for "inflammatory diseases ofthe central

nervous system"; and ICD-9 codes 390 through 459 for diseases ofthe circulatory system. ART (July 29, 2014) at 10. The Board ofIndustrial Insurance Appeals administrative lawjudge issued a proposed decision and order on March 3, 2015, which affirmed DLI's denial oflCD-9 code 437.9. Thejudge found that Olga Kozubenko did notpresent any medical 6

### No. 340686 Olga Kozubenko v. Department of Labor & Industries 

### testimony to establish that she suffered from a condition under the ICD-9 code 437.9 nomenclature. Thejudge further found that medical testimony reinforced DLI's classification ofKozubenko's thrombosis condition under ICD-9 code 437.6. Accordingly, thejudge concludedthat Kozubenko failed to establish a prima facie case of unspecified cerebrovascular disease under ICD-9 code 437.9 proximately caused by her industrial injury. Olga Kozubenko filed a petition for review to the Board ofIndustrial Insurance Appeals on March 13, 2015. The board denied Kozubenko's petition and accepted the administrative lawjudge'sproposed decision and order as the final order. PROCEDURE Olga Kozubenko appealed the Board ofIndustrial Insurance Appeals' decision to the superior court. Afterreviewing the record, the superior court issued a memorandum opinion that concluded that the medical testimony did not support Kozubenko's claim and she failed to make a prima facie case. The trial court entered ajudgmentand order affirming the Board ofIndustrial Insurance Appeals. Kozubenko now appeals to this reviewing court. LAW AND ANALYSIS Olga Kozubenko assigns error to the superior court's confirmation ofthe Board of Industrial Insurance Appeals' denial ofan ICD-9 code 437.9 label of"unspecified cerebrovascular disease." Because substantial evidence supports the board's decision, we affirm the superior court. 7No. 340686 Olga Kozubenko 

### v. Departmentof Labor & Industries

The Industrial Insurance Act, Title 51 RCW was intended to provide relief"for workers, injured in their work, and their families and dependents

...regardless of questions offault andto the exclusion ofevery otherremedy." RCW 51.04.010; Dennis

v. Departmentof Labor & Industries, 109 Wn.2d 467,470, 745 P.2d 1295 (1987). To

serve this goal, the act should be liberally construed, with all doubts resolved in favor of the worker. Dennis v. Departmentof Labor & Industries, 109 Wn.2d at 470; Department of Labor & Industries v. Estate of MacMillan, 117 Wn.2d 222, 232, 814 P.2d 194 (1991); IntalcoAluminum, Corp. v. Departmentof Labor & Industries, 66 Wn. App. 644, 654, 833 P.2d 390 (1992). The superior court reviews the Board ofIndustrial Insurance Appeals' decision de novo, based solely on the Board ofIndustrial Insurance Appeals record. RCW 51.52.115. In the superior court, Olga Kozubenko had the burden ofproving the Board ofIndustrial Insurance Appeals' findings and decision were not prima facie correct. Potter v. Department of Labor & Industries, 172 Wn. App. 301,310,289 P.3d 727 (2012). An appeal to the Court ofAppeals lies from thejudgment ofthe superior court as in other civil cases. RCW 51.52.140. In reviewing the superior court's decision, the Court ofAppeals determines whether substantial evidence supports the trial court's findings and whetherthose findings supportthe conclusions oflaw. Tomlinson v. Puget SoundFreightLines, Inc., 166 Wn.2d 105, 109, 206 P.3d 657 (2009); Eastwoodv. Department of Labor & Industries, 152 Wn. App. 652,657,219 P.3d 711 (2009). Substantial evidence exists ifa sufficient quantity ofevidence in the record would 8

### No. 340686 Olga Kozubenko 

### v. Department of Labor &Industries 

### persuade a fair-minded, rational person ofthe truth ofthe statedpremise. Eastwood

### v. Department of Labor & Industries, 

### 152 Wn. App. at 657. Substantial evidence supports the trial court's finding that Olga Kozubenko did not suffer from a condition ofunspecified cerebrovascular disease covered under ICD-9 code 437.9. Kozubenko offered medical testimony from Dr. William Sayers and ARNP Tatiana Ponomarenko, but neither testified that she sustained an "unspecified cerebrov.ascular disease" caused by her injury that warranted an ICD-9 code 437.9. Sayers and Ponomarenko testified that Kozubenko's thrombosis condition is a cerebrovascular disease. Nonetheless, each testified that ICD-9 code 437.6 was the appropriate code for Kozubenko's thrombosis condition. Dr. William Sayers testified that ICD-9 code 437.6 was the correct code because it specifically addressed Kozubenko's thrombosis condition. He explained that ICD-9 code 437.9 was not appropriate because this code functions as an umbrella diagnosis when no other code section accurately describes a patient's condition. Dr. Sayers further testified that Kozubenko did not suffer a stroke orhemiplegia resulting from herwork injury. Likewise, TatianaPonomarenko agreed with Dr. Sayers that ICD-9 437.6 is an exact description ofKozubenko's condition, while code 437.9 is a general code description when apatient's condition does not fit under a specific code description. Olga Kozubenko contends that Tatiana Ponomarenko supported her ICD-9 code 437.9 diagnosis. This reliance is misplaced. One ofPonomarenko's chart notes identified cerebrovascular disease as a diagnosis. Nevertheless, Ponomarenko explained 9No. 340686 Olga Kozubenko v. Department of Labor & Industries

thathernotation memorialized Kozubenko's complaints ofnonspecific neurological symptoms. This documentation did not mean thatPonomarenko diagnosed Kozubenko with a cerebrovascular disease, ICD-9 code 437.9, in additionto herthrombosis condition, ICD-9 code 437.6. To the contrary, Ponomarenko told Kozubenko to see a neurologist to diagnose herneurological symptoms. CONCLUSION We affirm the superior court's decision thatupheld the decision ofthe Board of Industrial Insurance Appeals. A majority ofthepanel has determinedthis opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

# ~**~~** Fearin~' WE CONCUR:

Pennell, J.

10