I- ILE.U COURTOFAPPEALS DIV I STATE OF WASHINGTOk 

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IN THE COURT OFAPPEALS OFTHE STATE OFWASHINGTON MASCO CORP., No. 77478-6-I

Appellant, DIVISION ONE
v. UNPUBLISHED OPINION CARLOS ANGULO, Respondent. FILED: February 5, 2019 CHUN, J.

—Carlos Angulo worked as an insulation installerfor Masco Corporation (Masco) for nearlytwo decades. He developed degenerative disc disease ofthe cervical spine and filed an occupational disease workers’ compensation claim with the Departmentof Labor& Industries (the Department). The Department allowed the claim, and Masco protested the decision. An Industrial Appeals Judge (IAJ) reversed the Department’s decision. The Board of Industrial Insurance Appeals (the Board) reversed the IAJ’s decision and reinstated the claim. Masco appealed, and the superiorcourtconducted a bench trial. The trial court affirmed the decision ofthe Board allowing the claim foran occupational disease. We affirm. BACKGROUND Masco is a self-insured employer. Angulo worked for Mascofor 19years, installing insulation in both residential and commercial buildings. In January 2013, Angulo had a workplace accident and sustained a major lower back injury.No. 77478-6-112

As a result ofthis injury, Dr. Sanford Wright performed lumbarsurgeryon Angulo’s back in May 2013.1 Shortly before this surgery, Angulo reported pain in his neck, right shoulder, and right arm down to his little finger. Due to this neck and shoulder pain, Angulo filed a workers’ compensation occupational disease claim alleging injury as ofJanuary2013. This occupational disease claim did not relate to the prior lower back injury and surgery. The Departmentallowed the claim on December9, 2014 and affirmed thatdecision
on January 15, 2015. Hearing Before the IAJ. Masco subsequentlyappealed to the Board. An IAJ conducted alive hearing on November 16, 2015, with testimonyfrom Angulo through a Spanish interpreter. Angulo testified that he was 54 years old and had received formal education through onlyfourth grade in Mexico. He spoke very little English and typically needed an interpreterfor medical appointments. Angulo began working for Masco as an insulation installer in 1994, and worked full-time atthisjob forabout 19 years. Masco paid for installation as piecework, so Anguloworked as quickly as possible and thejob was veryfast paced.Angulo described a typical day of his work. Each day began by packing his truckwith an average of 16 large packages of insulation weighing approximately 70 or 80 pounds each. After he lifted the packages of insulation
Angulofiled aworkers’ compensation claim thatthe Departmentaccepted. Thatclaim is notat issue in the currentcase. 2No. 77478-6-113

into the truck, Angulo drove to thework site and unloaded the packages and heavy scaffolding into the building. Once he had set up hisjob site, Angulowould put on his equipment, including a pouch (containing his stapler, hammer, and knife) and stilts. He often spentfour orfive hours on stilts to install insulation in ceilings, high walls, and around ventilation systems. Sometimes Angulo needed to go down into crawl spaces to work. To perform hisjob, Angulo had to look up constantlywith his neck bent backward. He also had to raise his arms over his shoulders towork. He spent hours each day in this position. He testified that bythe end ofthe day his neck “wasjust done.” Angulo described his neck pain. He experienced stabbing pain in his shoulders and pressure in his neck. He described his pain as moderate on good days, but on bad days, he could not move his neck. The pain started in his neck and shoulders and traveled up to his head. He also experienced numbness on the side of his face and veryfrequent numbness and tingling in his arms. The numbness and tingling went around the circumference ofthe arm and affected his fingers. Angulo could not recall exactlywhen the neck and shoulder pain began, but he estimated the symptoms started afterabout sixyears of installing insulation. He said the pain and discomfort progressed and worsened overtime. The pain became more intense and limited his abilityto work. Angulo testified he did not pay attention to the pain atthe beginning, but as the pain worsened he
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noticed he needed to take more small breaks and bring his arms down to reduce the pain. In addition, insulating parking garages took a heavytoll on his neck, and he stopped working thosejobs during his lastfive years ofemploymentwith Masco. Angulo said that, despite the worsening pain, he neveralerted his supervisors atwork because he needed the moneyfrom hisjob. Angulo said he worried Masco would send him to a doctorwho would say he could no longer work. Angulo said, My bills were not going to waitfor me to get backto work, so no, I simply could not do that. Itwas much too much to miss even one day, just too much.” In addition to Angulo’stestimony, the IAJ received medical evidence through perpetuation depositions, summarized here: Michael Santoro, M.D. Occupational medicine physician Dr. Michael Santoro served as Angulo’s attending physician for his cervical spine disease. Dr. Santoro began treating Angulo in January2015. Atthe time of referral, Dr. Santoro noted Angulo had neck pain radiating into both arms. Angulo experienced tightness ofthe right side ofthe neckwith numbness traveling into his arms, especially on the right side. Upon initial examination in January2015, Dr. Santoro found limited neck mobility, especiallywith respectto extending the neck or bending it backwards. Angulo also had significantly limited range when turning or rotating the neck and bending ittoward the side. When Dr. Santoro

4No. 77478-6-115

performed the Spurling’s maneuver,2 Angulo experienced pain in his neck but not radiating into his arms. Angulo had tenderness in the muscles throughout his neck, trapezius muscle, and sternomastoid muscle. His neck appeared straighter, withoutthe normal, gentle forward curve. According to Dr. Santoro, Angulo’s neurological examination revealed normal strength and sensation to both arms except “{hje was able to feel pinprick in his left hand and had generally diminished sensation, but nothing that I could find thatwas in what is called a dermatomal pattern that correlated to a specific nerve.” Angulo had absent reflexes atthe brachioradialis on both right and left, indicating a potential impairment ofthe nerve at cervical spine level 06 or C7. Dr. Santoro described the results ofthe MRI ofAngulo’s neckfrom December 2013:

An MRI was performed of his neck in Decemberof2013 that showed multilevel spondylosis, which is wear, bone spurs and crowding ofthe spine. That was at the lower levels, mainly on the right side, with narrowing ofthe exit points, where the nerves exitthe spinal cord traveling into the arms. There was likely pinching ofthe nerves as theyweretrying to exitthe spinal cord, although the spinal cord itselfwas not being compressed bythese changes in his neck. Dr. Santoro noted a wear-type pattern involving bone spurs and crowding ofthe
nerves in various areas, but most significantlyat 05-6 and 06-7. Dr. Santoro described furtherfeatures ofthe MRI, including reactive endplate edema between the sixth and seventh vertebrae indicating acute and chronic inflammation where the discs and vertebrae come into contact. The MRI showed

2This involvesextending the neckas bestas possible and then turning ittothe side and applying gentle compression. 5No. 77478-6-1/6

evidence of narrowing ofthe foramen,3which likely resulted in impingement on the nerves. Based on his examination and the MRI, Dr. Santoro diagnosed neckstrain with degeneration ofcervical discs and cervical spine stenosis. Dr. Santoro opined thatwork activities either caused or permanently aggravated Angulo’s cervical condition. He furtherexplained this conclusion as follows: [l]n all of us, as we get older, there are some of these degenerative problemsthat appear in the cervical spine, butthe degree ofchanges thatwere seen on the MRI scan, I believed, were more advanced than what I would expect to see in someone who was 53 years old at the time that I saw Mr. Angulo, and that the nature of his work, in performing sustained overhead work with his neck extended, was a significantfactorand contributing to the development ofthis problem. According to Dr. Santoro, Angulo’sjob involving heavy lifting and working with his neck bent backwards put significantstrain on the small joints in the backofthe neck, which “are not really meantto be loaded.” The weight ofoverhead lifting combined with extending the neck is “not a good combination.” Dr. Santoro concluded thatAngulo’s work activities as an insulation installer, on a more probable than not basis, gave rise to and proximately caused the cervical spine condition. Dr. Santoro testified thattheAmerican Medical Association Guides to the Evaluation of Disease and Injury Causation (AMA Guides)4 did not addressthe development ofcervical spine disease in the context of insulation installation or

~The foramen are the small openings in the bony areas ofthe spine thatallowthe nerves to exitfrom the spinal cord and travel toward the arms.

~TheAMA Guides compiles information aboutdiagnoses and causation to assist in scientificallydetermining causation. https://commerce.ama assn.org/store/catalog/productDetail.jsp?product_id=prodl290007&navAction=push 6No. 77478-6-117

any studies pertaining to neck extension for prolonged periods oftime or overhead work. But the AMA Guides did mention repeated overhead lifting as a riskfactorfordeveloping neck pain. Furthermore, Dr. Santoro noted theAMA Guides is not an exhaustive compilation ofstudies and research on causation. Sanford Wright, M.D. Dr. Wright began treating Angulo for his cervical spine condition in November2013. Upon examination, Dr. Wright noted tenderness atthe back ofthe neck, limited range of motion in the neck, and decreased sensation in both arms. Dr. Wright ordered the December2013 MRI that revealed narrowing ofthe nerve openings atthe C5-6 and C6-7 disc levels dueto degenerative changes. Dr. Wright characterized the foraminal narrowing
as moderatelysevere and “significant.” At subsequent appointments, Dr. Wright diagnosed symptomatic spinal cord and nerve pinching and compression. As of March 2014, Dr. Wright recommended surgery; specifically, a bilateral C5-6 and C6-7 laminectomyto enlarge the narrowed nerve openings to reduce the pain, numbness, and weakness. In his deposition, Dr. Wright noted the connection between Angulo’s neck issues and his employment:

After 18 years ofwork, the pain became so great, he could no longer do overhead work, or any work for that matter. This due to his neck, shoulder and upperextremity pain on both sides. His activity, his work activity, aggravated the degenerative changes in the spine that in turn caused stenosis or narrowing ofthe nerve openings orforamina, which in turn brought about significant nerve root compression and pain, nerve pinching. Surgery was needed to free up the nerves atthose sites.

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Dr. Wright opined that on a more probable than not basis, Angulo’s cervical spine disease arose naturallyand proximatelyfrom the distinctive conditions of his employment as an insulation installer. While Dr. Wright could not give any evidence-based, science-driven supportforthis conclusion, he relied on his 36 years ofclinical experience. John Robertson, M.D. Sports medicine physician Dr. Robertson treated Angulo for his cervical spine condition from June to September2014, when he
was no longeron the list of physicians authorized to treat Department patients. He opined on a more probable than not basisthatAngulo’s cervical spine degeneration was related to his employmentas an insulation installer. He testified that looking up tends to pinch the facetjoints, accelerating the normal degenerative process. He believed that if repetitive neck extension was notthe cause, it certainly contributed to degeneration ofthe cervical spine. Roman Kutsy, M.D. Masco hired neurologist Dr. Roman Kutsyto review medical records and conduct an independent medical examination ofAngulo. Dr. Kutsy conducted this examination in September2015. Dr. Kutsystated that, as best he could determine, Angulo experienced neck pain on and offfor aboutten years, flaring up significantly afterthe back operation. Dr. Kutsy described Angulo’s pain as located in the back ofthe neck and spreading to the shoulders. Angulo experienced the pain on both sides, initially more severe on the left butthen it became more severe on the right side. Angulo had headaches starting in the upper part of his neck as pressure, unrelieved by anti-inflammatory medication. Dr. Kutsy explained thatAngulo
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described feeling numbness in the neck, spreading to both shoulders, down the length ofthe arms, and into his fingers. Dr. Kutsy opined that numbness was an unusual complaintforsomeone with cervical spine problems. Dr. Kutsy reviewed the December 2013 MRI and noted Angulo’s symptoms did not correspond to his expectations based on the MRI. In particular, he believed the pattern of numbness in the neck, arms, and fingers did not correlate with the objective findings ofthe MRI. Dr. Kutsy disagreed with the radiologist’s finding ofsevere disease, describing the level ofcervical spine degeneration as “modest.” Dr. Kutsytestified he had a difficulttime examining Angulo because of significant “self-preservation behavior.”5 He found “give-wayweakness” related to pooreffort, but Dr. Kutsy could not determine whetherthe pooreffort stemmed from pain orvolition. Angulo’s range of motion in his neckwas significantly and unexpectedly limited fora person without extensive neckfusion. Angulo demonstrated an “out-of-proportion response” to touch in his neckand shoulders. Dr. Kutsy also found the sensory examination surprising, with decreased sensation in unexpected areas forsomeone with neck pain. Dr. Kutsyfound no signs thatAngulo suffered from a pinched nerve, because Angulo did not presentwith abnormal motorfindings, changes in strength, muscle atrophy, changes in reflexes, orsensation following the nerve roots. He did not believe Angulo had an impairment orcondition relating to his

~ Dr. Kutsy identified similar guarding behavior in notes from other physicians. A December2013 reportfrom Dr. Seib notes diffuse tingling and pain that does notfollow any distribution ofspinal roots. In October 2014, Dr. Alma Garcia wrote, “Difficultto ascertain weakness due to claimant’s effort.” 9No. 77478-6-I/iC

cervical spine. The history of normal neckexaminations led Dr. Kutsyto conclude, “there were no cervical issues, period, which

. . . confirms an opinion that his MRI is probably irrelevant andjust shows something which is very, very cornmon.” According to Dr. Kutsy, the condition affects most people in Angulo’s age group and progresses naturally, independentofemployment. He explained that based on theAMA Guides, occupational exposure did not create recognizable riskfactors for cervical spine disease. Dr. Kutsy testified thatflexion and overhead work do not contribute to cervical spine disease, and lifting 50 kilograms ofweight had a weak association with cervical spine symptoms. Dr. Kutsy concluded Angulo’s cervical spine condition on a more probable than not basis did not arise as a proximate condition of his employment. He opined Angulo had a pre-existing degenerative condition ofthe cervical spine thatwas not aggravated by employment. S. Daniel Seltzer, M.D. Dr. Seltzer, an orthopedic surgeon, reviewed Angulo’s medical records. Masco hired him to conduct an independent physical examination, but due to scheduling confusion, Dr. Seltzerdid not personally examineAngulo. Based on the December2013 MRI, Dr. Seltzeropined Angulo had multilevel degenerative changes in mostofthe disc spaces in his neckwith most severe involvement at C5-6 and C6-7. Angulo had mild to moderate foraminal stenosis. In reviewing the records, Dr. Seltzerfound Angulo’s first mention of neck symptoms in April 2013. At that point, Angulo had notworked as an insulation
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installersince January2013 due to his lower back injury. Based on the factthat Angulo had not been working at the time he began reporting the neck pain, Dr. Seltzerstated, “I would find thatto be unusual and an indicatorthat it is unlikelythat the symptoms would relate to Mr. Angulo’s employment.” Dr. Seltzerfurtheropined thatthe imaging showed findings typical of people in Angulo’s age range, associated with aging ratherthan work activities. He diverged from the radiologist’s interpretation and graded the foraminal narrowing as mild to moderate, ratherthan severe. He noted that any nerve impingementwould be moderate ratherthan severe. Dr. Seltzerstated heavywork in and of itself is not a recognized cause of cervical degeneration in peer-reviewed literature. Dr. Seltzertestified that there
are no physical riskfactors that could cause oraccelerate degenerative conditions in the neck, butthere are activities that might exacerbate or make an individual aware ofa condition. The IAJ’s Decision. The IAJ reversed and remanded the Department’s orderallowing the claim, concluding Angulo’s cervical disc degeneration was not
an occupational disease as it did not arise naturally and proximately out ofthe distinctive conditions of his employment. In arriving atthat determination, the IAJ relied on Dr. Seltzer’s and Dr. Kutsy’s descriptions ofAngulo’s MRI results as typical fora person his age. He also cited Dr. Kutsy’s testimony concerning Angulo’s pain response and inconsistentfindings during the physical exam. The IAJ discounted Angulo’s treating physicians, saying they based theiropinions on inaccurate information about his work history. Finally, the IAJ found
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unpersuasive Angulo’s reasons fordelaying any report of his neck pain. The IAJ remanded the claim to the Departmentto issue an order rejecting the claim. The Board’s Decision. Angulo requested review ofthis decision, and the Board subsequently issued a decision (2-1) and order reversing the IAJ and affirming the Department’s decision to allowthe claim. The Board found the distinctive conditions ofAngulo’s employment required him to look up with his neck bent backward for hours at a time and to lift up to ten pounds above his shoulder on a frequent basis. The Board further attributed Angulo’s cervical disc disease as arising naturally and proximately out ofthese conditions. The Board concluded Angulo’s cervical disc disease was an occupational disease and affirmed his claim. Masco appealed this decision to the superiorcourt. The Superior Court’s Decision. The superiorcourt heard oral argument at
a bench trial in August 2017 and issued a written decision on September 19, 2017. The trial courtfound Angulo’s cervical disc degeneration to be an occupational disease and affirmed the decision ofthe Board and the Department. Masco appeals. ANALYSIS A. Occupational Disease Masco claims the trial court erred by affirming the Board’s decision finding Angulo’s cervical spine degenerative disc condition an occupational disease under RCW 51.08.140. Specifically, Masco argues that substantial evidence does not supportthetrial court’s findings offact and thatthe conclusions of law

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do notflowfrom those findings. However, the trial court concluded Angulo suffered from an occupational disease based on its evaluation ofthe credibilityof various medical evidence. Because the appellate court does not revisit issues of credibility, we affirm. Underthe Industrial InsuranceAct, “a worker injured in the course of employmentsuffers from an ‘occupational disease’ and is entitled to certain benefits.” Gorre v. City ofTacoma, 184Wn.2d 30, 33, 357 P.3d 625 (2015). The Act defines an occupational disease as “such disease or infection as arises naturally and proximately out ofemployment RCW 51.08.140. The burden of proving an injury arose naturally and proximately from employmentfalls on the worker. Gorre, 184 Wn.2d at 33. To establish that an occupational disease “arises proximately,” employment conditions must be the proximate cause ofthe disease such thatthe disease would not have been contracted butforthe employment conditions. Streetv. WeyerhaeuserCo., 189 Wn.2d 187, 194, 399 P.3d 1156 (2017). Competent medical testimony must establish the causal connection such that claimant’s employment probably, not merely possibly, caused the condition. QJ~y of Bellevue v. Raum, 171 Wn. App. 124, 140, 286 P.3d 695 (2012). The trier of fact should give special consideration to the opinion ofthe attending physician. Chalmers v. Dept of Labor & lndus., 72 Wn.2d 595, 599, 434 P.2d 720 (1967); Hamilton v. Dept of Labor & lndus., 111 Wn.2d 569, 571 761 P.2d 618 (1988). “To satisfythe ‘arises naturally’ requirement, a worker must prove the occupational disease came about as a natural consequence ofdistinctive
13No. 77478-6-1/14

employment conditions.” Street, 189Wn.2d at 195. This proofofsimple causation does not require expert opinion. Street, 189 Wn.2d at 195. A modified standard of review applies in industrial insurance appeals. Gorre, 184 Wn.2d at 36. The superior court reviews decisions de novo, relying
on the certified Board record. Raum, 171 Wn. App. at 139. The Board’s order is presumed correct and the party challenging the Board’s decision carries the burden on appeal. Gorre, 184 Wn.2d at 36; ROW 51.52.115. “The superior court can make its own findings or reach a different result only ifthejudge finds by a preponderance ofthe evidence thatthe Board’s findings and decision are erroneous.” Gorre, 184 Wn.2d at 36. On appeal ofan industrial insurance claim from the superior court, the appellate court reviews the record to determine “whether substantial evidence supports the findings made afterthe superior court’s de novo review and whether the conclusions of lawflowfrom the findings.” Gorre, 184 Wn.2d at 36. The appellate court does not examine issues ofcredibility as “credibility determinations remain solelyforthe trieroffact in a workers’ compensation claim.” Zavala v. Twin City Foods, 185 Wn. App. 838, 869, 343 P.3d 761 (2015) Dr. Kutsytestified thattheAMA Guides did not recognize repetitive looking up and overhead work as a cause ofcervical degenerative changes. The trial courtfound this testimony lacking in accuracyand credibility. Instead, the trial court relied on Dr. Santoro’s discussion ofa quote in theAMA Guides “about performing repeated

. . . overhead lifting as a riskfactorfordeveloping neck pain,” as well as Dr. Santoro’s statementthattheAMA Guides summarizes
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scientific studies but is not exhaustive. The trial courtevaluated the conflicting testimonyand made a credibility determination in favor of Dr. Santoro. Similarly, the trial courtfound Dr. Santoro’s testimony credible on the MRI findings. Masco argues the court erred by discounting Dr. Seltzer’s testimony thatAngulo’s MRI results showed only mild cervical degeneration consistentwith normal aging and relying on Dr. Santoro’s statementsto the contrary. The trial courtfound Dr. Seltzer’s testimony in conflictwith Dr. Santoro’s testimony, requiring a credibility determination. Afterweighing the testimony, the trial court concluded the medical evidence supported Dr. Santoro’s testimony and found Dr. Seltzer’s process and conclusions lacked credibility. Finally, Masco also claims the trial court erred in finding Angulo credible despite his contradictory statements and lengthy delay in reporting his cervical spine symptoms. The trial court concluded Angulo’s delayed report of back pain resulted from human frailty ratherthan deception and Angulo’s loss of reflexes proved credibility. Each of Masco’s contentions that substantial evidence does not support the trial court’s findings offact relates to credibility determinations. But a credibility determination is not subjectto review on appeal. State v. Mines, 163 Wn.2d 387, 391, 179 P.3d 835 (2008). We will not revisitthese issues.6

6The Zavala court addressed this deference in workers’ compensation cases where the trial court reads transcripts ratherthan hears testimony from live witnesses: Ana Zavala questions why this reviewing court should defer to the trial court’s findings with regard to credibility ofwitnesseswhen the trial court read atranscript rather than watched and heard the witnesses. This questioning is legitimate. Nevertheless, underprecedent, credibilitydeterminations remain solelyforthe trier offact in a workers’ compensation claim. cantu v. De~’t of Labor & Indus., 168 Wash. App. 14[, 22, 277 P.3d 685] (2012). The law may assume thatthe superior 15No. 77478-6-1/16

As a result ofthe credibility determinations, the evidence supportsthe trial court’s statementthat “[a} ‘severe’ finding would not be consistentwith normal aging.” The conclusion thatAngulo suffers from an occupational disease flows logicallyfrom the severe cervical spine degeneration inconsistentwith normal aging and the additional credible medical testimony on causation. Therefore, substantial evidence supportsthe trial court’s decision. B. Evidence Outside the Record Masco contends the trial court committed prejudicial error by considering evidence outside the Board’s hearing record during oral arguments. Specifically, Masco takes exception to the trial court’s examination ofthe MRI report and medical chart entries, as well as consideration of its own thoughts on Angulo’s language barrier, the process ofspine degeneration, and the size and weight of insulation. Because the trial court’s written decision does not rely on evidence improperlyconsidered, we disagree thatthe court committed prejudicial error. The Industrial InsuranceAct provides thatthe trial court “shall not receive evidence ortestimony otherthan, or in addition to, that evidence offered before the Board RCW 51.52.115. Therefore, the superior court reviews the Board’s decision based solely on the evidence and testimony presented to the Board. Stelterv. Dept. of Labor & Indus., 147 Wn.2d 702, 707, 57 P.3d 248 (2002). The appellate court presumesthe trial court disregarded improper courtwifl devote moreattention and timeto reviewthetranscriptthantheappellate courtand thereby be able to betterweigh the believability ofawitness’ testimony whenjuxtaposed with otherwitness testimony. A reviewing courtfocuses onlyon those portions of the record highlighted by the parties. A trial court has more experience in evaluating conflicting testimony. Zavala, 185Wn. App. at869-70. 16No. 77478-6-1/17

evidence when making its findings. Katare v. Katare, 175 Wn.2d 23, 40 n.8, 283 P.3d 546 (2012); State v. Miles, 77 Wn.2d 593, 601, 464 P.2d 723 (1970). “In nonjury proceedings a newtrial ordinarilywill not be granted forerror in the admission ofevidence, ifthere remains substantial admissible evidence to otherwise supportthe trial court’s findings.” Miles, 77 Wn.2d at 601. During the bench trial, the court discussed the 2013 MRI reportthat had not been before the Board. In the written decision, the trial court referenced the radiologist’s interpretation ofthe MRI as showing “severe foraminal narrowing.” Multiple medical experts testified as to this specificfinding in the MRI report.7 Given the testimony bythe medical professionals as to the details ofthe MRI, the trial court’s examination ofthe actual reportwas inconsequential. Furthermore, the decision ofthe Board before the courtfor review specificallydescribed the MRI report as showing “severe foraminal narrowing on the right at C5-6 and bilaterally at 06-7.” Therefore, the reference to “severe foraminal narrowing” in the trial court’s written decision had a clearfoundation in the record beyond the actual MRI report. The court’s written decision provides
no evidence of impermissible consideration ofthe MRI report. Masco also disputes the trial court’s discussion ofa chart note from Dr. Wright aboutthe onset ofthe neck pain during oral arguments. Butthe trial court’s written decision does not mention Dr. Wright’s chart note orattemptto pinpointthe exact onset and reporting of neck pain in support ofAngulo’s



### ~c~ 286, 322-23 (Dr. Kutsy), 437, 443-44 (Dr. Robertson), 484-85 (Dr. Santoro), 575-76 (Dr. Wright). 17No. 77478-6-1/18

credibility. Thus, the written decision fails to showthe trial court impermissibly relied on this evidence. Similarly, Masco challenges the trial court’s discussion aboutAngulo’s
access to interpreters, the process ofspine degeneration, and personal knowledge ofthe heftof insulation. The trial court raised these issues while questioning Masco’s counsel during oral arguments. However, the written decision does not reference these issues orshowthe trial court considered them when reaching its conclusions. Masco does not overcome the presumption that the trial courtdisregarded improperevidence. Furthermore, trialjudges are not barred from using personal knowledge and common sense in arriving at a decision. “We do not believe the legislature intended thatjudges leave their knowledge and understanding ofthe world behind and enterthe courtroom with blank minds. Judges are not expected to leave their common sense behind.” State v. Grayson, 154 Wn.2d 333, 339, 111 P.3d 1183 (2005). Therefore, we find no merit in Masco’s claim thatthe court committed prejudicial error by considering evidence outside the record. C. Due Process Masco requests a newtrial because the trial courtviolated due process and denied a fairtrial. According to Masco, the trial courtwas not adequately familiarwith the evidence in the record after reading the record at “warp speed,” focusing on the briefing, and only “spot-checking” a fewthings. Thejudge also called Masco’s argument on causation related to age and smoking as “specious.” Based on this, Masco claims the trialjudge predetermined his position, failed to
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properly reviewthe evidence, and denied Masco a fairtrial. We disagree. Basic due process requires a fairtrial in a fairtribunal. Withrowv. Larkin, 421 U.S. 35, 46, 95S. Ct. 1456, 43 L. Ed.2d 712 (1975). A biased decisionmaker is constitutionally unacceptable. Withrow, 421 

### U.S. at46. But “[w]e presume that courts are fairand will properly ‘discharge 

### [] [their] official duties without bias or prejudice.’ This presumption is inherent in the role ofajudge.” In
re Disciplinary Proceeding Against King, 168 Wn.2d 888, 904, 232 P.3d 1095 (2010) (citations omitted). Therefore, “[a]n assertion ofan unconstitutional risk of bias must overcome a presumption of honesty and integrity accruing tojudges.” State v. Chamberlin, 161 Wn.2d 30, 38, 162 P.3d 389 (2007). Overcoming the presumption requires specificfacts establishing bias. In re Pers. Restraint of Davis, 152 Wn.2d 647, 692, 101 P.3d 1(2004). Masco fails to provide sufficient proofto overcome this presumption. The trial court explained its preparation, including review ofthe briefs and decisions of the Board and the AU, and reference to the record as needed. The trial court heard oral argumentfrom the parties and tookthe case under advisement before issuing its written decision. The record demonstrates thorough consideration of the parties’ positions. While the trial court showed clear reservations about Masco’s position, it provided Masco the opportunityto argue in response and attemptto alleviate the reservations. Understandably, Masco may not have appreciated the trial court’s overt skepticism or pointed questions about its theory ofthe case. But, thetrial court’s aggressive inquiry does not amountto specific evidence of bias.
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D. Attorney Fees on Appeal Angulo requests fees on appeal under RCW 51.52,130, which awards fees to a workerwhose rightto relief is sustained when the employerappeals. Young v. Dept. of Labor & Indus., 81 Wn. App. 123, 132, 913 P.2d 402 (1996). “[TJhe statute encompassesfees in the superior court and the appellate court when both courts reviewthe matter.” Fred Meyer, Inc. v. Shearer, 102 Wn. App. 336, 341, 8 P.3d 310 (2000). Here, Masco appealed the decision ofthe Board. Angulo defended the appeal and the prevailed on his rightto relief. Therefore,
we award reasonable attorneyfees as requested. Affirmed.

WE CONCUR:

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