IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
-HCZ PILCHUCK CONTRACTORS, INC., Appellant,

v. DAVID D. BERKA and DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON, Respondents. No. 71062-1-1 DIVISION ONE rn
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UNPUBLISHED OPINION °^ ==' FILED: July 14, 2014


### Becker, J. —The superior courtgranted Respondent David Berka's 

### motion forjudgmentas a matter of law, affirming the reopening of his workers' 

### compensation claim for a knee injury he suffered while working for Appellant Pilchuck Contractors, Inc. We affirm this ruling. On the record presented, a 

### reasonablejury could onlyconclude thatthe work Berka did for Pilchuckwas a
cause ofthe worsening ofBerka's knee condition and thatthe work he did later for an Arizona employerwas not an independent superseding cause. 

### Berka, 37 years old at the time ofthe hearing before the Board of Industrial Insurance Appeals, has always worked for contractors doing 

### installation and maintenance ofunderground utilities. On May 2, 2007, Berka


### was employed by Pilchuck. While climbing out of a trench, he slipped, fell, andNo. 71062-1-1/2
twisted his left knee. The injury tore the medial meniscus and required two surgeries. On May 3, 2007, Berka filed a claim with the Departmentof Labor and Industries. On May 21, 2007, the Department issued an order allowing the claim. Berka had surgeries in 2007 and 2008, but his knee continued to be sore and swollen. His surgeon, Dr. Steven Yamamoto, advised him to find a different position that would meet the restrictions provided by his activity report. The restrictions were no kneeling, squatting, consecutive walking, or consecutive standing. On October 27, 2008, Dr. Richard Thorson examined Berka's knee and concluded thatthe injury was at maximum medical improvement; there was no curative treatment at that time that would make him better. On November 14, 2008, the Department closed the claim with a permanent partial disability award. With the medical restrictions in place, Berka continued to work at Pilchuck as a walking foreman. This position was an 

### accommodation by Pilchuck inthe sense that it involved more administrative duties and less physical activity than was required ofotherforemen. Berka's assignments were limited to level ground, and he was not expected to get into ditches or trenches. Nevertheless, thejob still involved considerable time 

### walking jobsites, and occasionally Berka would get into trenches to assistwith the actual completion ofthe work. Although Berka did thejob on a daily basis, he continued to complain thatwalking caused him pain. Berka testified that his 

### knee remained symptomatic and neverfullyhealed. Brad Wauldron, who workedNo. 71062-1-1/3


### inPilchuck's safety department and had many discussions with Berka about his knee condition, testified that Berka approached himbetween November2008 and January 2009 to ask about being put in a superintendent position, where he would not have daily stress on his knee. 

### Berka was terminated by Pilchuck on January 27, 2009. According to JenniferTorvik, human resources managerfor Pilchuck, Berka was terminated forpoorperformance unrelated to his knee injury. Berka immediately moved to Arizona, where he had a job lined up with Northern Pipeline. Around this time, Berka contacted Wauldron to ask aboutthe 

### process for reopening his industrial injury claim. He also contacted the Departmentto get a list ofphysicians and clinics inArizona who would treat injured workers undera Washington claim. 

### When Berka arrived inArizona inearly February 2009, Northern Pipeline wanted him to startwork immediately. Berka asked to have his startdate 

### delayed for a month. He testified that he hoped the knee would improve if he rested it. He told Wauldron he did notwant to let Northern Pipeline know he had
a knee injury because he was new to thejob. Berka began the process of finding
a physician inArizona, and he eventually decided to see physicians atthe CORE Institute in Goodyear, Arizona. On March 2, 2009, Berka began working for Northern Pipeline. He was hired as an equipment operator, not as a foreman, and his job operating a backhoe did not involve walkingjobsites. Operating the equipment required climbing up and down and some use offoot pedals.No. 71062-1-1/4 

### On April 7, 2009, Berka applied to the Departmentto reopen the claim for the May 2007 injury due to aggravation ofthat injury. On April 15, 2009, Berka had his first medical appointment at the CORE Institute. On June 4, 2009, Berka had an independent medical examination 

### performed atthe Department's request by Dr. James Kopp, an actively practicing 

### orthopedic surgeon. The purpose ofthe examination was to determine whether the claim should be reopened due to worsening ofthe left knee condition. Dr. 

### Kopp took a complete medical history and compared his findings with the 

### findings from the closing examination on October 27, 2008. He testified thatthe knee condition had worsened as demonstrated by objective findings ofincreased 

### thigh atrophy, thatthe cause of the worsening was Berka's industrial injury in May2007, and that Berka was inneed of further medical treatment. On June 22, 2009, the Department reopened the original claim effective 

### April 15, 2009. Pilchuckfiled a protest, and the Departmentagreed to reconsider the reopening order. 

### OnAugust 14, 2009, the Departmentissued an order in which it affirmed its decision to reopen the claim. 

### On August 19, 2009, Berka was evaluated by Dr. Stacey Dale McClure,
an orthopedic surgeon at the CORE Institute. Berka's knee pain was continuing 

### to worsen throughoutthis time, and itcaused him to miss about a week of work at Northern Pipeline. Through a physical examination, Dr. McClure found that 

### Berkawas limping and was sensitive to touch on his left knee. As a result of thisNo. 71062-1-1/5

exam, Dr. McClure scheduled a magnetic resonance imaging test (MRI). The test showed a tear inthe posterior horn ofthe medial meniscus, a very small effusion, and some mild chondromalacia (damage to cartilage underthe kneecap). On September 14, 2009, Pilchuckfiled an appeal with the Board of Industrial Insurance Appeals ofthe Department's decision to reopen the claim. 

### On January 8, 2010, Dr. McClure performed surgery on Berka's leftknee. On April 7, 2010, Dr. Lance Brigham, Pilchuck's consulting orthopedist, 

### completed a report containing his expert opinion based on a records review. Dr. Brigham is an orthopedic surgeon. His practice consists ofseeing patients one day a week and doing insurance medical examinations the rest ofthe week. He has not performed surgery since 2001. 

### The hearing ofPilchuck's appeal to the Board took place later inApril 2010 before Industrial Appeals Judge Janice Grant. Livetestimony was heard from Berka, Wauldron, and Torvik. Perpetuation depositions ofthe three 

### doctors—Dr. Brigham, Dr. Kopp, Dr. McClure—weretaken onApril 14, May 10, and May 14 respectively, and the transcripts were made part of the record. OnAugust 13, 2010, IndustrialAppeals Judge DavidCrossland issued a proposed decision and orderaffirming the Department's decision to reopen the claim. The decision contained an extensive summary and analysis ofthe testimony. 

### On October 5, 2010, the Board granted Pilchuck's petition for review.No. 71062-1-1/6
On October 19, 2010, the Board issued its final decision. The Board 

### found the proposed decision correctwith one minor change not relevant here. The Board decided that between November 14, 2008 (the date the 2007 claim
was closed) and August 14, 2009 (the date the Department affirmed its decision to reopen), "Berka's left knee condition, proximately caused by the May 2, 2007 industrial injury, had objectively worsened and was in need offurther necessary and proper medical treatment." Pilchuckfiled a petition forjudicial review with the superior court. Outlining for the court its position thatthe claim should not have been reopened, Pilchuck stated, "we believe there's evidence thatthere was an intervening event
or a series ofevents, exposure, with the new employer, such that a new claim should have been filed in Arizona." On June 25, 2012, a jury was convened. The testimony before the Board


### was read into the record for thejury. After both parties had presented all oftheir evidence, Berka moved under CR 50(a) for a directed verdict orjudgment as a
matter of law. On June 27, 2012, the trial court granted Berka's motion: 

### THE COURT: Okay. Well, I'm going to do something Ivery seldom do. I'mgoing to grantthe plaintiff's motion here for a directed verdict. Ithink reasonable triers offact could only conclude, based on the evidence in the record, thatthe prior industrial injury of May 2, '07, was a cause ofthe problems Mr. Berka had later. It is possible that something happened. It's possible that he wasn't candid and didn't report something, but it's always the case thatthere are possibilities. There's no evidence ofthat. The medical testimony, as Iunderstand it, is that the 

### condition afterthe surgeries necessitated by the May 2, '07 injury resulted in a weakened, for lack of a betterterm, leg. He's had, byNo. 71062-1-1/7
thattime, four meniscectomies, at least. He's most likely going to 

### have continuing problems. The loading and the uneven gait is certainly a majorfactor inthe lateral meniscus problem he later had, and, clearly, to me - - clearly

- - the evidence is that all of those are related to the injury of May 2, '07, probably also to the 

### prior injuries. It's a cumulative thing. And nothing that Ihear indicated he did much more thanjust kind ofnormal stuffafter 

### those surgeries. He's working. Maybe he shouldn'twork. He's got a family to support. 

### On July 19, 2012, the superior court signed an ordergranting Berka's motion for a directed verdict and dismissing Pilchuck's appeal. The court 

### determined that "no legally sufficientevidentiary basis exists for a reasonablejury
to conclude" that the Board's decision was incorrect. 

### Pilchucktimely appealed the superiorcourt's decision. Pilchuckfirst contends Berka was procedurally barred from bringing the 

### motion for a directed verdict orjudgment as a matterof law because he did not 

### challenge the sufficiency of Pilchuck's evidence at the Board level. The Departmentis aligned with Berka in opposition to Pilchuck's procedural argument. 

### Pilchuck alternatively contends thatthe trial court erred in taking the case 

### away from the jurybecause the evidence, when considered in the light most favorable to Pilchuck, established a prima facie case that Berka was not entitled 

### to reopen the May 2007 claim and receive further benefits. On this issue, the 

### Department sides with Pilchuck and joins Pilchuck'srequestthat the matter be
remanded for trial.No. 71062-1-1/8

PROCEDURAL ISSUE CR 50(a) provides as follows: (a) Judgment as a Matter ofLaw. 

### (1) Nature and Effect ofMotion. If, during a trial by jury, a party has been fully heard with respectto an issue and there is no 

### legally sufficientevidentiary basis for a reasonablejury to find or have found forthat party with respectto that issue, the court may 

### grant a motion forjudgmentas a matterof lawagainstthe party on any claim, counterclaim, cross claim, or third party claim that cannot underthe controlling law be maintained without a favorable 

### finding on that issue. Such a motion shall specify thejudgment sought and the law and the facts on which the moving party is entitled to thejudgment. A motion forjudgment as a matter of law 

### which is not granted is not a waiver of trial by jury even though all parties to the action have moved forjudgment as a matterof law. (2) When Made. A motion forjudgment as a matter of law may be made at any time before submission ofthe case to thejury. Motions for directed verdictwere renamed motions forjudgmentas a matter of law effective September 17, 1993. Litho Color. Inc. v. Pac. Emp'rs Ins. 

### Co., 98 Wn. App. 286, 298 n.1, 991 P.2d 638 (1999). A motion under CR 50(a) is to be made before the case is submitted to thejury. Pilchuck argues that Berka waived his right to bring a CR 50(a) motion at trial because he did not challenge the sufficiency of Pilchuck's evidence at the Board. The simple answerto this argument is that a CR 50(a) motion was not available to Berka at the Board level because there is no jury in Board hearings. We recognize that Pilchuck's argument is nottied to the literal reference to a jury in CR 50(a). Pilchuck is arguing that a party in an industrial injury case who fails to bring anyargument challenging the sufficiency ofthe evidence atthe Board level should not be permitted to bring a sufficiency challenge in court.

8No. 71062-1-1/9
Pilchuck relies on the rule that issues not raised before the Board are generally waived and cannot be raised on appeal to the superior court. Upon appeals to the superior court only such issues of law or fact may be raised as were properly included inthe notice of appeal to the board, or inthe complete record ofthe proceedings before the board. The hearing in the superiorcourt shall be de novo, butthe 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. RCW 51.52.115; Wilbur v. Dep't of Labor & Indus.. 38 Wn. App. 553, 559, 686 P.2d 509 (1984). review denied. 103Wn.2d 1016(1985). Rules requiring preservation oferror are designed to ensure efficient use 

### of judicial resources. See RAP 2.5; State v. Robinson. 171 Wn.2d 292, 304-05, 253 P.3d 84 (2011). Itwould be inefficientto permit a party to insist on wasting 

### the superiorcourt's time on a jury trial ifthere is not enough evidence to support 

### thatparty's claim. Under RCW 51.52.115, the hearing insuperior court is de

novo on the evidence in the Board's record. Review ofthat evidence for 

### sufficiency is a normal and an expected part ofthe superiorcourt's function in industrial insurance casesjust as inevery othertype ofcase governed by the civilrules. We conclude Berka was entitled to challenge the sufficiency ofthe evidence for the first time in the superior court. SUFFICIENCY OF THE EVIDENCE 

### Pilchuck, supported by the Department, arguesjudgment as a matterof 

### law in favor ofreopening the claim was inappropriate because (1) a jury could findthe 2007 injurywas not a cause ofBerka's worsened knee condition or (2)No. 71062-1-1/10

even ifthe 2007 injury was a cause, a jury could find that Berka's work at Northern Pipeline was a superseding cause ofthe worsened condition. This court reviews a motion forjudgment as a matter of law de novo, 

### performing the same inquiry as the trial court. Jov v. Dep't ofLabor &Indus., 170 Wn. App. 614, 619, 285 P.3d 187 (2012), review denied, 176Wn.2d 1021 

### (2013). Judgment as a matterof law is appropriate when, viewing the evidence and all inferences in a light mostfavorable to the nonmoving party, substantial 

### evidence does not existto supportthe nonmoving party's claims. Schmidtv. Coogan. 162 Wn.2d 488, 491, 173 P.3d 273 (2007). Substantial evidence is that 

### which is sufficientto persuade a rational, fair-minded person ofthe truth of a declared premise. Wenatchee Sportsmen Ass'n v. Chelan County. 141 Wn.2d 169, 176, 4P.3d123(2000). 

### Generally, a worker may have a claim reopened foraggravation of a condition caused by an industrial injury. RCW51.32.160. Establishing the right to further medical treatment based on aggravation requires medical testimony 

### that objective symptoms show a causal relationship between the injury and increased disability after the claimclosure. Phillips v. Dep't of Labor & Indus.. 49 Wn.2d 195, 197, 298 P.2d 1117 (1956). In this case, the required testimony was 

### furnished by Dr. McClure and Dr. Kopp, who both testified that Berka's knee 

### objectivelyworsened after the claim closing date in November 2008 and that the worsening was causally related to the May2007 industrial injury. Pilchuck, supported bythe Department, contends Dr. Brigham's testimony 

### would allow a jury tofind that Berka's need for further medicaltreatmentof his

10No. 71062-1-1/11
knee was not caused by the 2007 injury but ratherwas due to a new injurythat Berka sustained, eitherby a single event or repetitive overuse, after he began to work for Northern Pipeline. Pilchuck and the Department concede there is no direct evidence of any particular injurious eventthat occurred during the fiveweek period between Berka's first day ofwork at Northern Pipeline and his 

### application to reopen his claim. They rely on Dr. Brigham's inference that new 

### objective findings and new pathology documented in Berka's medical records permit an inference that a new injury occurred. 

### The imaging test requested by Dr. McClure inAugust 2009 showed a horizontal tear inthe posterior body ofthe medial meniscus as well as mild 

### chondromalacia (damage to cartilage underthe kneecap). During surgery in 

### January 2010, Dr. McClure found a horizontal cleavage tearand a radial tearin the mid portion ofthe lateral meniscus. 

### Dr. Brigham thoughtthe horizontal tearwas a new injurybecause "something" had to cause this new finding. Dr. Brigham's testimony that 

### "something" must have caused the changes reflected inthe records is too speculative to allow a jury to inferthatthe "something" was a new injury. Dr. 

### Kopp and Dr. McClure both testified that more probably than not the tear in the meniscus was a continuation or progression ofthe effect ofthe May 2007 

### industrial injury, caused by an avoidance pattern inBerka's gait that put abnormal loading on the lateral meniscus. All of the doctors agreed that
someone like Berka who has had successive surgeries resulting inprogressive

11No. 71062-1-1/12


### removal ofmore and more ofthe meniscus is going to continue to have knee trouble. 

### Dr. Brigham understood from Berka's history as given to Dr. Kopp that Berka was "jumping in and out ofditches" inArizona. Dr. Brigham described the 

### existence ofthe finding ofchondromalacia in a new portion ofBerka's knee as a "new presentation" and "new pathology" thatwould be caused by "jumping in and out ofditches." The word "jumping" is an exaggeration supplied by Dr. Brigham. There is no evidence inthe record that Berka was "jumping." A reasonablejury could only conclude thatthe 2007 injury, not some new 

### injury, was the occasion for Berka's renewed need for medical treatment ofthe
knee. In a variation ofthe "new injury" argument, the Department contends that 

### a jury could infer from Dr. Brigham's testimony thatthe worsening ofBerka's knee condition was totally unrelated to the May 2007 injury. Aworker is not entitled to have a claim reopened if his condition worsened for entirelynoninjury related reasons. Nagel v. Dep't ofLabor & Indus.. 189 Wash. 631, 636, 66 P.2d 

### 318 (1937); Jenkins v. Weyerhaeuser Co.. 143 Wn. App. 246, 256, 177 P.3d 180. review denied, 165Wn.2d 1004(2008). 

### Dr. Brigham testified that Berka's work as an equipment operatorin Arizona caused a worsening of his left knee condition in 2009. But he did not 

### explicitlystate thatthe condition ofBerka's knee was totally unrelated to the May 

### 2007 injury. On cross-examination, Dr. Brigham conceded thatthe May2007 injurywas "a significant cause" ofBerka's knee condition. Even when

12No. 71062-1-1/13 

### considering inferences from Dr. Brigham's testimony inthe lightmostfavorable to Pilchuck, ajury could not conclude that Berka's knee condition was entirely unrelated to his May 2007 industrial injury. "But for" causation was established beyond dispute. The primary argument raised by Pilchuck and the Department is that Dr. Brigham's testimony supports an inference that Berka's work at Northern Pipeline
was an independent superseding cause of his knee getting worse after he left Pilchuck. This argument revolves around McDougle v. Department of Labor & Industries. 64 Wn.2d 640, 393 P.2d 631 (1964). In McDougle. a worker soughtto reopen a claim for an industrial back 

### injury after his condition worsened. The claimanttestified thatthe day before he soughttreatmentfor an aggravation of his injury, he had been helping his brother-in-law unload some sacks of livestockfeed. The Department refused to reopen the claim. The Board affirmed, finding thatthere was an aggravation that 

### required medical treatment, but itwas "'due to a new intervening independent 

### cause, namely, lifting a sack or sacks of grain on thatdate.'" McDougle. 64 Wn.2d at 643. The superior court affirmed. The worker appealed. 

### The Supreme Court separated compensable from noncompensable 

### aggravation by asking whetherthe claimantcould reasonably have expected to engage inthe activity without injury. The supervisor, the Board of Industrial Insurance Appeals, 

### and the trial courtwere all apparently underthe impression that any condition caused by the lifting ofthe ground feed was not 

### compensable even though, as found bythe trialcourt, itoperated upon and aggravated the preexisting disability. In this they were mistaken. Aggravation ofthe claimant's condition caused bythe
13No. 71062-1-1/14 

### ordinary incidents ofliving—bywork which he could be expected to do; by sports or activities in which he could be expected to participate—is compensable because it is attributable to the 

### condition caused by the original injury. McDougle. 64 Wn.2d at 644. Aggravation is not compensable if it is caused by activities inwhich the 

### claimant could not, because of his existing disability, reasonably expectto engage without injury. McDougle. 64 Wn.2d at 644. The testto be applied "is 

### whetherthe activity which caused the aggravation is something thatthe claimant might reasonably be expected to be doing, or whether it is something that one with his disability would not reasonably be expected to be doing." McDougle. 64 Wn.2d at 645, citing 1 Larson, Workmen's Compensation Law § 13.11, at 183. Whetherthe claimant's lifting ofthe feed sacks was a reasonable activity for
someone in his condition had not yet been considered below. Thus, the court held itwas premature to decide that liftingthe feed sacks was an intervening superseding cause ofthe aggravation ofthe back condition. Accordingly, the court remanded the case backto the Department: We cannot, nor can the trial court, the Board, orthe Department say that because an individual has a 30 percent permanent partial disability based on a back injury, that he is thereby precluded from doing any lifting, and that any injury sustained from any lifting is not attributable to his prior injury because it is an intervening cause. Whether itwas a reasonable 

### thing for this particularclaimantto do, is a differentquestion—never considered by the Department, the Board, or the trial court. We are not deciding that the claimant's claim should be reopened. There is testimony from both Dr. King and the claimant which indicates that anything which placed a strain on his back would lead to a temporary exacerbation of his condition; such 

### testimony may have a bearing on whether he acted reasonably. We are deciding thatthe reasons given for not reopening the claim

14No. 71062-1-1/15 

### do not constitute a sufficientjustification forthat action, but indicate a disposition ofthis case on a fundamentally wrong basis. McDougle. 64 Wn.2d at 645-46. 

### On remand, the Department again denied reopening, the Board took evidence and overruled the Department, the employer successfully appealed to 

### the superiorcourt, and the claimant successfully appealed to the Supreme Court. Scott Paper Co. v. Dep't of Labor & Indus.. 73 Wn.2d 840, 440 P.2d 818 (1968). 

### In deciding the second appeal in favor of the claimant, the Supreme Court noted thatthe claimantwas far from being totally disabled and that no specific 

### instructions had been given to himlimiting how much he could lift. The court concluded thatthe Departmentand the superiorcourt erroneously considered the claimant's own description of how painful his backwas at the time the feed 

### sack incident occurred. They should have been concerned with "the mannerin 

### which the aggravation was sustained," Scott PaperCo.. 73 Wn.2d at 845, rather than whetherthe claimant subjectively believed that he should not be exerting
himself. Underthe evidence ofthis case, where we are dealing with a 

### man with a 30 per centdisability (established bydepartmentorder) who had, prior to his initial injury, worked in the woods, operated a small farm where he milked six cows, made hay, and prepared 

### ground for a garden—all very hardwork—we conclude that there is 

### just as much reason to say that the conduct of assistingin sliding, or even lifting, twosacks of grain was to be contemplatedwithin the scope of the prior award as to saythat itwas not. Therefore, not 

### onlydoes the evidence notpreponderate against the Board's findings, but the court's findings lacksubstantial evidence to supportthem. Scott Paper Co., 73 Wn.2d at 847.

15No. 71062-1-1/16


### Pilchuck and the Departmentcontend that a jury could apply the test established in McDougle and conclude that Berka's work at Northern Pipeline
was an intervening cause ofthe aggravation that necessitated new treatmentfor his knee. Under McDougle and Scott Paper Co.. Pilchuck had to show 

### substantial evidence that: (1) Berka engaged inphysical activities that aggravated his condition while he was working for Northern Pipeline and (2) he 

### would not reasonably have been expected to engage inthese activities given the extent of his disability at the time his 2007 claim was closed. Because we are reviewing an order grantingjudgment as a matter of law, we view the evidence in 

### the lightmostfavorable to Pilchuck even though the evidence appears to preponderate infavor of Berka. 

### Pilchuck and the Department rely primarily on the testimony ofWauldron and Dr. Brigham. The evidence they considerto be significant includes the following:

• Berka told Wauldron inJanuary 2009 that his knee was "'as good as it could be.'" Before leaving for Arizona, Berkatalked to Wauldron about reopening the claim against Pilchuckto get a new leg brace, but Wauldron did not recall Berka complaining about new orworsening 

### pain until after he gotto Arizona.

• Berka told Wauldron that the work was more physically demanding at Northern Pipeline than ithad been at Pilchuck and that "he was getting in and out of holes."

• Berka told Wauldron during one oftheir phone conversations that he had to take a day offhere and there at Northern Pipeline because his knee was bothering him.

• Berka told Wauldron that he did not want to let Northern Pipeline know that he had a knee injury.

16No. 71062-1-1/17



### • Berka began using his knee brace, icing his knee, and taking ibuprofen after starting with Northern Pipeline. Berka told Dr. Kopp thatthe work he was doing inArizona was more strenuous. 

### • Dr. Kopp got Berka's work history wrong when he took itdown at the time ofexamining Berka. Dr. Kopp understood that Berka operated heavy equipment inWashington and was a foreman inArizona, when in reality itwas the otherway around. • Dr. Brigham testified that the discrepancy between how Berka described his work in his deposition and what Dr. Kopp wrote down 

### when taking Berka's work history suggests that Berka was making misrepresentations and gaming the system. 

### • Dr. Brigham testified that Berka's activities were contraindicated by the restrictions given to him by Dr. Yamamoto. • Dr. Brigham interpreted Dr. Kopp's notes as reflecting Berka's 

### statementthat his work inArizona involved "jumping in and outof ditches," and he testified that Berka would continue to have injuries if he continued to jump in and out ofditches. The evidence described above is insufficientto support a finding that Berka's Arizona workwas an independent intervening cause of his aggravated 

### knee injury. The inquiry under Scott Paper Co. mustfocus on the manner in which the aggravation was sustained. Exceptfor Berka's own testimony and his statements to others, there was no evidence ofwhat his work activities actually 

### consisted of inArizona. Dr. Brigham's depiction ofBerka's work as "jumping in and outofditches" is not supported by the records Dr. Brigham reviewed. The record supplies no more reason to believe that Berka unreasonably endangered his knee by operating heavy equipment inArizona than to believe 

### that he unreasonably endangered his knee bythe consecutive walking he did as 

### a walkingforeman for Pilchuck after his 2008 surgery. Itappears that both jobs
were physically demanding. Berka was unsuccessful in his effort to find workas

17No. 71062-1-1/18

a superintendent or some other indoor position. There is no evidence that Berka
was told to avoid work completely if itinvolved bending or putting weight on his knee. Itwas reasonably to be expected that after leaving Pilchuck, Berka would continue to work inthe area ofinstallation and maintenance of underground utilities. Pilchuck contends the discrepancy between Berka's work history as reflected in Dr. Kopp's notes and the work history Berka described in his testimony raised an issue ofcredibility that required resolution by a jury. We disagree. The discrepancy was minor and was not clearly elucidated inthe testimony. Dr. Kopp accepted that hejust gotthe history wrong: Iam presuming that Igotthe history wrong. And although Idid dictate it in front of him, he must have heard itwrong, too, ifthat's the case. Isaw nothing on his exam thatwould indicate that he was withholding the truth from me at all. So Iam presuming that his testimony that you referred to under oath is accurate and that my history is wrong. 

### Dr. Kopp testified itwas immaterial to his opinion whether itwas inArizona or Washington that Berkawas a backhoe operatoror a walking foreman. Ineither case, Dr. Kopp testified, the activity would not have caused an injury to Berka's knee ifthe knee had not already been injured. Dr. Brigham's readiness to 

### conclude that Berka materially misrepresented his work history to Dr. Kopp is not supported by Dr. Kopp's notes and testimony. 

### In summary, judgment as a matter of law was appropriate. The evidence inthe record before the Board is insufficientto prove that the worsening of 

### Berka's knee was completely unrelated to the May 2007 industrial injury orthat

18No. 71062-1-1/19
the work Berka did inArizona was an independent intervening cause ofthat worsening. 

### Berka has requested an award ofattorney fees and costs as authorized by RCW 51.52.130. That request is granted. Affirmed.

WE CONCUR 

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