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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

COLEMAN D. TURNER, )

) No. 80433-2-I

Appellant, )

) DIVISION ONE

v. )

) UNPUBLISHED OPINION

STATE OF WASHINGTON, )

DEPARTMENT OF LABOR AND )

INDUSTRIES, ) 

)

Respondent. )

 )

SMITH, J. — The Board of Industrial Insurance Appeals (Board) dismissed 

Coleman Turner’s appeal from a denial of workers’ compensation benefits, and 

the superior court affirmed the dismissal. Because Turner did not present any 

medical testimony to establish a causal connection between his industrial injury 

and his subsequent physical condition, the superior court did not err by affirming 

the Board’s dismissal. Additionally, Turner waived his challenges to the industrial 

appeals judge’s (IAJ) evidentiary rulings. We affirm. 

FACTS

On November 7, 2016, Turner was finishing out a day of work as an 

interior painter for Brunstad Construction (Brunstad) when he fell onto a concrete 

floor. Turner later testified that he was exiting through the kitchen of an 

unfinished house down to the garage, which was “almost waist . . . down” from 
No. 80433-2-I/2

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the kitchen. There were no stairs, and Turner recalled that either his hand 

slipped off the doorjamb or he rolled his ankle and he “fell on [his] back onto the 

concrete floor.” Although there was one other person on site, no one saw Turner 

fall. Turner later testified that the fall “knocked the wind out of [him] a bit, and 

then [he] got up [and] shook it off.” He testified that he “got [him]self together” 

and “was like, well, we’ll see, you know, how this plays out.” Turner testified that 

he “didn’t know how bad [he] was hurt at the time or anything else.”

Turner later recalled that the next day, he felt “[s]ore, achy, not flexible” 

and did not go to work. He “gave it another day,” and on November 10, 2016, he 

went to the emergency room (ER) at the Grays Harbor Community Hospital, 

where he completed a Department of Labor and Industries (Department) Report 

of Accident form.

On November 29, 2016, the Department issued a Notice of Decision 

stating that Turner’s “claim for the industrial injury that occurred on 

11/07/2016 . . . is allowed.” On January 26, 2017, following a protest by 

Brunstad and reconsideration by the Department, the Department issued a 

Notice of Decision rejecting Turner’s claim (January 2017 Notice). The January 

2017 Notice provided: 

This claim for benefits filed on 11/18/2016 while working for 

BRUNSTAD . . . is hereby rejected as an industrial injury or 

occupational disease for the following reasons(s):

That there is no proof of a specific injury at a definite time and place 

in the course of employment.

That claimant’s condition is not the result of an industrial injury as 
No. 80433-2-I/3

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defined by the industrial insurance laws.

That the claimant’s condition is not an occupational disease as 

contemplated by section 51.08.140 RCW.

Any and all bills for services or treatment concerning this claim are 

rejected, except those authorized by the department.

This order corrects and supersedes the Allowance Order dated 

11/29/2016[.]

On June 27, 2017, following additional protests by Turner and his counsel, 

the Department issued a Notice of Decision affirming the January 2017 Notice

(June 2017 Notice). Turner appealed to the Board, the Board granted Turner’s 

appeal on July 25, 2017, and a hearing was held before an IAJ on April 13, 2018. 

At the hearing, Turner was the sole witness on his behalf. As he was 

testifying about his November 10, 2016, visit to the ER, he explained that he had

“seen the emergency ER doctor and she sent [him] in to get x-rays and, you 

know, tests and stuff.” Turner’s counsel then asked Turner, “And so when you 

went there, what did – what was the doctor’s recommendation or direction to you 

as far as your back was concerned?” When the Department objected to this line 

of questioning on hearsay grounds, the IAJ asked Turner’s counsel, “[I]s this the 

end of your questioning on this topic? You’re trying to elicit the doctor’s 

testimony, that would be hearsay. If you’re . . . trying to explain what the witness 

did and why he did it later on, then it could be admitted for another purpose.” 

Turner’s counsel responded, “I’m just trying to have him testify to his state of 

mind following his examination with the doctor.” The IAJ then sustained the 

Department’s objection.

Later, Turner sought to admit the Report of Accident form he had 
No. 80433-2-I/4

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completed at the ER. When shown the form, Turner testified that he “filled out 

[the form] all the way down to where I have signed and dated it,” and that the 

bottom of the form—specifically, a section marked “Health Care Provider 

Information”—had been completed by someone else. Turner testified that he 

was not present when the bottom part of the form was completed.

When the Department objected to the admission of the bottom part of the 

form as hearsay, Turner’s counsel explained that he had planned to have 

someone from the hospital testify and authenticate Turner’s hospital records but 

“didn’t call that doctor when I found this document.” Turner’s counsel also 

explained, “I’m not offering this exhibit for . . . any medical purpose. It’s only to 

show that he did go to the hospital and what he reported about the accident at 

that time.” The IAJ admitted the Report of Accident form in part, excluding the 

bottom part of the form that Turner did not complete. The excluded part of the 

form indicated that the physician who examined Turner at the ER had diagnosed 

Turner with lumbar strain and lumbar radiculopathy. Additionally, on the 

excluded part of the form, the box for “PROBABLY (51% or more)” was checked 

under the question, “Was the diagnosed condition caused by this injury or 

exposure?”

After Turner rested his case, the Department moved to dismiss under 

WAC 263-12-11801 and CR 41(b)(3).1 The Department argued that dismissal 

 

1 Under WAC 263-12-11801(1)(b), “[a] motion to dismiss for failure to 

present a prima facie case may be made at any time prior to closure of the 

record.” CR 41(b)(3) provides that “in an action tried by the court without a jury,” 

a defendant may move to dismiss following the plaintiff’s presentation of 
No. 80433-2-I/5

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was warranted because Turner had failed to establish “that [his] injury was the 

cause of [his] disability . . . through competent medical testimony.” Turner 

opposed the motion, asserting that “there was no contention by the Department 

in [its] order that [Turner’s] condition . . . wasn’t related to this accident.” In 

response, the Department pointed out that in the January 2017 Notice, “the 

Department [did] list on the – in the third paragraph there that the claimant’s 

condition is not the result of an industrial injury as defined by the industrial 

insurance laws.”

The IAJ reserved ruling on the Department’s motion to dismiss, and the 

Department presented its case. At the close of its case, the Department argued 

again in support of dismissal due to the lack of medical testimony to establish 

“the causal relationship between the physical condition and the accident.” The 

IAJ took the matter under advisement. On June 19, 2018, the IAJ issued a 

proposed decision and order dismissing Turner’s appeal of the June 2017 Notice 

for failure to establish a prima facie case. The IAJ explained that “[i]f an 

industrial accident causes an internal injury of the worker, the nature of the injury 

and its relationship to the industrial accident requires expert testimony.”

On July 11, 2018, Turner petitioned the Board for review of the IAJ’s 

proposed decision and order. The Board denied Turner’s petition, and the IAJ’s 

proposed decision and order became the Board’s decision and order. Turner 

then sought judicial review before the superior court. The superior court affirmed 

 

evidence “on the ground that upon the facts and the law the plaintiff has shown 

no right to relief.”
No. 80433-2-I/6

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the Board’s dismissal of Turner’s appeal of the June 2017 Notice. Turner 

appeals. 

ANALYSIS

Dismissal of Turner’s Appeal

Turner contends that the superior court erred by affirming the Board’s 

dismissal of his appeal of the June 2017 Notice. We disagree.

The Washington Industrial Insurance Act (IIA), Title 51 RCW, governs 

judicial review of workers’ compensation determinations. Rogers v. Dep’t of 

Labor & Indus., 151 Wn. App. 174, 179, 210 P.3d 355 (2009). Under the IIA, a 

worker aggrieved by the decision and order of the Board may appeal to the 

superior court. RCW 51.52.110. The superior court may review “only such 

issues of law or fact . . . as were properly included in the notice of appeal to the 

board, or in the complete record of the proceedings before the board.” 

RCW 51.52.115. “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 [board] record.” RCW 51.52.115. 

“[T]he findings and decision of the board shall be prima facie correct and the 

burden of proof shall be upon the party attacking the same.” RCW 51.52.115. “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.

Our review of a superior court’s decision under the IIA is governed by 

RCW 51.52.140, which states that “[a]ppeal shall lie from the judgment of the 
No. 80433-2-I/7

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superior court as in other civil cases.” This statutory scheme dictates a different 

role for this court than is typical for appeals from administrative decisions 

governed by the Administrative Procedure Act, chapter 34.05 RCW, in that 

instead of sitting in the same position as the superior court, we review the 

superior court’s decision as we would its decision in any other civil case. See

Rogers, 151 Wn. App. at 180; see also Hill v. Dep’t of Labor & Indus., 161 Wn. 

App. 286, 292, 253 P.3d 430 (2011) (applying de novo standard of review to 

superior court’s decision to grant Department’s motion for summary judgment). 

Here, the superior court’s decision was one affirming the Board’s 

dismissal of Turner’s appeal under CR 41(b)(3), which provides for “dismissal on 

the ground that upon the facts and the law the plaintiff[, having completed the 

presentation of evidence,] has shown no right to relief.”

2

 Specifically, the 

superior court determined as a matter of law that Turner “failed to present a 

prima facie case, as he failed to establish through medical testimony that there 

was a causal connection between his alleged industrial injury and his alleged 

subsequent physical condition.” Therefore, our review is de novo, and the 

question on appeal is whether Turner presented a prima facie case, viewing the 

evidence in the light most favorable to him. In re Dependency of Schermer, 161 

Wn.2d 927, 939-40, 169 P.3d 452 (2007). We conclude that he did not. 

“A workers’ compensation claimant bears the burden of establishing 

eligibility for benefits.” Robinson v. Dep’t of Labor & Indus., 181 Wn. App. 415, 

 

2 Under RCW 51.52.140 and WAC 263-12-125, the civil rules for superior 

court apply to proceedings before the Board. Kingery v. Dep’t of Labor & Indus., 

132 Wn.2d 162, 172, 937 P.2d 565 (1997).
No. 80433-2-I/8

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426, 326 P.3d 744 (2014). “In order to receive workers’ compensation benefits 

pursuant to the IIA, the claimant must prove he is a ‘worker injured in the course 

of his or her employment.’” Robinson, 181 Wn. App. at 426 (quoting 

RCW 51.32.010). RCW 51.08.100 defines “injury” as “a sudden and tangible 

happening, of a traumatic nature, producing an immediate or prompt result, and 

occurring from without, and such physical conditions as result therefrom.” 

(Emphasis added). In other words, a physical condition constitutes an injury for 

which benefits are available only to the extent that there is a causal connection 

between the injury and the condition. 

“The probability of a causal connection between the industrial injury and 

the subsequent physical condition[ ] must be established by the testimony of 

medical experts.” Stampas v. Dep’t of Labor & Indus., 38 Wn.2d 48, 50, 227 

P.2d 739 (1951); see also Jackson v. Dep’t of Labor & Indus., 54 Wn.2d 643, 

647-48, 343 P.2d 1033 (1959) (affirming correctness of jury instruction stating 

that causal relationship between the incident occurring in the course of 

employment and the claimant’s subsequent back condition “‘must be established 

by medical testimony’” (emphasis omitted)). Furthermore, the testimony must 

establish that the injury probably caused the condition, not merely “that there is a 

possibility of a causal relation.” Stampas, 38 Wn.2d at 51. 

Here, Turner did not present any testimony from a medical expert 

establishing the probability of a causal connection between his fall at work and 

his subsequent back condition. And without that expert testimony, Turner 

“show[ed] no right to relief.” CR 41(b)(3). Therefore, the trial court did not err by 
No. 80433-2-I/9

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affirming the Board’s dismissal of Turner’s appeal. 

Turner disagrees and contends that his own testimony was “sufficient to 

meet the standard required for proof of injury under RCW 51.[0]8.100 without a 

physician’s medical testimony.” He relies on Jackson, in which the court stated, 

in dictum, “If a layman observes a sudden and tangible happening of a traumatic 

nature that produces an immediate or prompt result apparent to one without 

medical training, it may be error to limit proof of causal relationship to medical 

testimony.” 54 Wn.2d at 648. But Jackson itself involved a claimant who, like 

Turner, sought to establish that an industrial injury caused a back condition. See

Jackson, 54 Wn.2d at 645, 647. Yet the Jackson court still held that “in this 

instance,” the trial court did not err by instructing the jury that medical testimony 

was required to establish the requisite causal connection. 54 Wn.2d at 648. 

Furthermore, although Turner avers that “[t]he knowledge of lay persons 

concerning medical conditions has continued to grow since the Jackson case in 

1959,” he points us to no case holding that lay testimony alone is sufficient to 

establish a causal connection between a back condition and an industrial injury. 

Therefore, we are not persuaded that Turner’s testimony was sufficient. 

Turner also argues that reversal is required because the Department’s 

January 2017 Notice in which it rejected Turner’s claim did so only on the basis 

that “there was not proof he was injured in the course of his employment, and . . . 

his condition or injury was not an occupational disease.” But Turner is incorrect. 

As both the Department and the IAJ pointed out to Turner’s counsel at the April 

2018 hearing, the January 2017 Notice expressly provided that Turner’s claim 
No. 80433-2-I/10

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was “hereby rejected as an industrial injury or occupational disease” for three

reasons: (1) “there [was] no proof of a specific injury . . . in the course of 

employment,” (2) Turner’s condition was not an occupational disease, and (3)

Turner’s “condition [was] not the result of an industrial injury as defined by the 

industrial insurance laws.” (Emphasis added.) Therefore, Turner’s argument

fails. 

As a final matter, Turner contends that reversal is required because the 

Department initially accepted his claim and it is “[un]fair to the worker to have 

th[e] additional burden and cost to have medical testimony live or by deposition 

when the Department accepted his medial findings from Grays Harbor 

Community Hospital.” But he cites no authority for the proposition that the 

Department’s initial acceptance of his claim relieved him of his burden to 

establish his entitlement to benefits. Cf. McDonald v. Dep’t of Labor & Indus., 

104 Wn. App. 617, 623-24, 17 P.3d 1195 (2001) (Department’s order reopening 

claim was not an admission of causal relationship between condition and injury 

where Department later superseded and vacated the order). And he ignores 

WAC 263-12-115(10), which provides a mechanism for requesting or agreeing to 

telephonic witness testimony in lieu of live testimony or perpetuation deposition. 

Turner’s contention is unpersuasive.

Evidentiary Rulings

Turner contends that the IAJ erred by excluding the “Health Care Provider 

Information” part of the Report of Accident form and by not permitting Turner to 

testify as to what the ER doctor told him regarding his back. Because Turner 
No. 80433-2-I/11

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failed to preserve these issues for appeal, we disagree.

Under RCW 51.52.104, a petition for review to the Board “shall set forth in 

detail the grounds therefor and the party or parties filing the same shall be 

deemed to have waived all objections or irregularities not specifically set forth 

therein.” Turner’s petition for review stated only as follows:

The claimant Petitions for Review on the following basis:

A. The preponderance of evidence shows claimant was injured on 

the job. There is no contra evidence and claimant was taken 

off work by the doctor at Grays Harbor Hospital Emergency 

Department. The claimant should be entitled to time loss 

benefits and medical treatment.

B. The Claimant hereby appeals each and every part of the 

Decision and Order dated June 19, 2018.

In other words, Turner’s petition for review did not designate any of the IAJ’s 

evidentiary rulings for review. Indeed, Turner did not make even a general

objection to the IAJ’s evidentiary rulings, as expressly permitted under the 

Board’s regulations. See WAC 263-12-145(4) (“A petition for review shall set 

forth in detail the grounds for review. A party filing a petition for review waives all 

objections or irregularities not specifically set forth therein. . . . A general 

objection to all evidentiary rulings adverse to the party shall be considered 

adequate compliance with this rule.” (emphasis added)); cf. Garrett Freightlines, 

Inc. v. Dep’t of Labor & Indus., 45 Wn. App. 335, 346, 725 P.2d 463 (1986) 

(holding that plaintiff was deemed to have waived an issue that it failed to raise in 

its petition for review, and thus, neither Board nor superior court had jurisdiction 

to declare findings or conclusions on the issue). 

Furthermore, even though the superior court may rule independently on 
No. 80433-2-I/12

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evidentiary questions, “as an appellate tribunal, it can only pass upon those 

matters that have first been presented to the Board and preserved in the Board’s 

record for review.” Sepich v. Dep’t of Labor & Indus., 75 Wn.2d 312, 316, 450 

P.2d 940 (1969). “As a court of review, [the superior court] cannot consider 

matters outside the record or presented for the first time on appeal.” Sepich, 75 

Wn.2d at 316; see also Ruff v. Dep’t of Labor & Indus., 107 Wn. App. 289, 295, 

28 P.3d 1 (2001) (superior court “may consider only evidentiary issues that are 

objected to at the hearing below on the same grounds and preserved in the 

record”), overruled on other grounds by Anderson v. Akzo Nobel Coatings, Inc., 

172 Wn.2d 593, 260 P.3d 857 (2011). 

Here, Turner argues that the Report of Accident form should have been 

admitted and considered in full as a business record and that his testimony about 

what the ER doctor told him should have been admitted under ER 803.3 But 

these arguments were presented for the first time on appeal to the superior court. 

Before the Board, Turner offered the Report of Accident form “not for any medical 

reasons or purposes, but only to show that Mr. Turner did attend the hospital . . . 

on November 10th.” He did not argue that the document was admissible in full 

as a business record. And Turner offered his testimony regarding what the ER 

doctor told him to show “[Turner’s] state of mind following his examination with 

the doctor.” In other words, before the Board, Turner argued that his testimony 

was not hearsay. He did not argue, as he did to the superior court, that his

 

3 Turner does not specify which hearsay exception in ER 803 he believes 

applies, but he presumably relies on the exception under ER 803(a)(4) for 

statements made for purposes of medical diagnosis or treatment. 
No. 80433-2-I/13

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testimony was hearsay but nonetheless admissible under ER 803. For the 

foregoing reasons, Turner waived any challenge to the IAJ’s partial exclusion of 

the Report of Accident form and his exclusion of Turner’s testimony about what 

the ER doctor told him. 

We affirm.

WE CONCUR: