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# ! FILED SEPTEMBER 27, 

### 2016 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE JOEL GONZALEZ-PRUNEDA, Respondent, V. VALLEYFRUIT COMP ANY, LLC, Appellant. ) ) ) ) ) ) ) ) ) No. 33621-2-111

UNPUBLISHED OPINION

PENNELL, J. -Aftera benchtrial onthe merits, the superior court sustainedJoel Gonzalez-Pruneda's claim for workers' compensationbenefits against his former employer, Valley Fruit Company, LLC (Valley Fruit). Valley Fruit appeals, arguing substantial evidence does not supportthis decision because Mr. Gonzalez-Pruneda's allegation ofa workplace injury lacks credibilitywhenviewed in light ofoverwhelming medical evidencetothe contrary. While Valley Fruit'spositionhas factual appeal, we are not fact-finders. We must deferto the trial court's credibility assessment. ThejudgmentNo. 33621-2-III Gonzalez-Pruneda v. Valley Fruit Co. allowing benefits is therefore affirmed, and Mr. Gonzalez-Pruneda's request for attorney fees is granted. 

### FACTS 1 On September 5, 2012, Mr. Gonzalez-Pruneda was employed with Valley Fruit driving a forklift. Because Mr. Gonzalez-Prunedahad previously injured his right shoulder, he steered the forklift primarily with his lefthand. While working at a fast pace, Mr. Gonzalez-Pruneda felt a pop, thenpain, in his left shoulder. Mr. GonzalezPrunedareported the incidentto his supervisor, Luis Reyes. Mr. Gonzalez-Pruneda did not immediately seekmedical care for his injury. However, his wife noticed he was inpain. Two days afterhis left shoulder injury, Mr. Gonzalez-Pruneda was laid offfrom work at Valley Fruit. 

### It was atthis point he sought medical attention. Onthe afternoon ofSeptember 7, Mr. Gonzalez-Prunedawentto the emergency
room at YakimaValleyMemorial Hospital complaining ofleft shoulderpain. According to notes from the triage nurse, Mr. Gonzalez-Prunedareported he had injuredhis left shoulder at worktwo days earlier while making a hard tum ofthe wheel ofhis forklift.

1The facts are construed in the light most favorable to Mr. Gonzalez-Pruneda, the party who prevailed in the superior court. 2No. 33621-2-III Gonzalez-Pruneda v. Valley Fruit Co.
He was later evaluated by LauraDaily, a nurse practitioner in the Yakima Valley Memorial Hospital emergency room. When talking to Ms. Daily, Mr. Gonzalez-Pruneda could not provide a time or place for the onset ofpain in his left shoulder. Duringthe examination, Ms. Daily did not find any objective evidence ofan acute or traumatic injury. She diagnosed Mr. Gonzalez-Pruneda with shoulder strain. On September 18, Mr. Gonzalez-Pruneda visited his primary carephysician, Dr. Joseph Vickers. Dr. Vickers had previously beentreating Mr. Gonzalez-Pruneda for the right shoulder injury. However, as early as July 2010, Dr. Vickers noted Mr. Gonzalez had some discomfort and limited motion in his left shoulder. Dr. Vickers's notes from Mr. Gonzalez-Pruneda's visit on September 18 indicated a worsening ofthe left shoulder condition with greaterpain in the left shoulderthan the right. He assessed this as a "flareup ofbilateral rotator cufftendinosis" that is "[c]onsistent with acute overuse, exacerbating a chronic condition. Currently disabled due to decreased range ofmotion and pain." Clerk's Papers at 580. On November 6, 2012, Mr. Gonzalez-Pruneda had magnetic resonance imaging (MRI) ofhis left shoulder. Dr. Vickers read the report ofthe radiologist interpreting the MRI films. Having not seen the images, he could not say on a more probable than not basis whether any ofthe pathology noted on the study was acute in nature.
3No. 33621-2-111 Gonzalez-Pruneda v. Valley Fruit Co.
Dr. PatrickBays, a board certified orthopedic surgeon, performed a forensic examination ofMr. Gonzalez-Pruneda's medical records atthe request ofValley Fruit. Dr. Bays reviewed the MRI films ofthe left shoulder and determined Mr. GonzalezPrunedahad chronic, not acute, left shoulderpathology. Based on this determination, he concluded Mr. Gonzalez-Pruneda could not have sustained an acute injury to his left shoulder on or about September 5 during the course ofhis employmentwith Valley Fruit. He also determined Mr. Gonzalez-Pruneda's MRI films did not indicate a recent flare up
or lighting up ofhis chronic left shoulderpathology. Mr. Gonzalez-Pruneda filed a claim for workers' compensation benefits with the Department ofLabor and Industries (Department). The Department approvedthe claim
as an aggravation to a pre-existing condition. Valley Fruit appealedto the Board of Industrial Insurance Appeals (Board), which reversed. Mr. Gonzalez-Prunedathen exercised his right ofappeal to superior court. Trial in the superior courtwas limited to the existingpaperrecord. No live testimony was considered. Atthe conclusion ofthe proceedings, the superior court found Mr. Gonzalez-Pruneda's claim ofinjury credible and upheld the Department's initial award ofbenefits. The court also granted Mr. Gonzalez-Pruneda's request for attorney fees. Valley Fruithas filed a timely appeal with this court.
4No. 33621-2-III Gonzalez-Pruneda v. Valley Fruit Co.
ANALYSIS Our analysis is governed by the applicable standard ofreview. While this matter
was in superior court, review was de novo. RCW 51.52.115. Although the evidence before the superior court was limited to the Board's certified record, the courtwas empowered to reweigh testimony and reject the Board's factual findings. Cantu v. Dep 't of Labor & Indus., 168 Wn. App. 14, 20,277 P.3d 685 (2012). Our role is much different. Although the factual record available to us is identical to whatwas considered in superior court, de novo review no longer applies. Instead, we are governed by traditional standards ofappellate review. Id. at 21. We therefore give the superior court's factual determinations broad deference and review the court's findings only for substantial evidence. Ruse v. Dep 't of Labor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999). Ofcritical importance here is that the superior court's credibility determinations "cannotbe reviewed on appeal." Cantu, 168 Wn. App. at 22. To qualify for industrial insurance benefits, a claimant must have suffered an injury during the course ofemploymentthat is causally linked to a physical condition. RCW 51.08.100; Goyne v. Quincy-ColumbiaBasin Irrig. Dist., 80 Wn. App. 676,682, 910 P.2d 1321 (1996). Valley Fruit does not dispute that Mr. Gonzalez-Prunedahas an adverse physical condition pertaining to his left shoulder. The only issue is causation. As


### 5No. 33621-2-III Gonzalez-Pruneda v. Valley Fruit Co.
framed by Valley Fruit, causation "depends on Mr. Gonzalez[-Pruneda]'s credibility as to whether or not he truthfully related the physical effects ofan industrial event in orderto support the opinion ofhis medical expert, Dr. Vickers, on the issue ofmedical causation." Br. ofAppellant at 1. The flaw in Valley Fruit's argument is that it is nothing more than a request to
reassess Mr. Gonzalez-Pruneda's credibility. That is not a cognizable claim on appeal. Watson v. Departmentof Labor & Industries, 133 Wn. App. 903, 910, 138 P.3d 177 (2006). While ample evidence could have permitted the trial courtto reject Mr. Gonzalez-Pruenda's testimony as not credible, this outcome was notrequired. Zavala v. Twin City Foods, 185 Wn. App. 838, 862, 343 P.3d 761 (2015). Valley Fruit fails to provide any authority for the argument that a trier offact's decision to accept a witness's testimony as credible canbe rejected on appeal. The cases cited are inapposite. Both Cochran v. Cochran, 2 Wn. App. 514, 468 P.2d 729 (1970), and Groff v. Dep 't of Labor &Indus., 65 Wn.2d 35, 395 P.2d 633 (1964), involved trial court decisions issued with scant factual findings and raised concerns over whetherthere had been a misunderstanding about the applicable legal standard. In Cochran, the trial court rejected uncontested medical testimony regarding the effectiveness ofa vasectomy, thereby suggesting the court had given too much weight to the legal presumption of
6No. 33621-2-111 

### Gonzalez-Pruneda v. Valley Fruit Co. parentage for a child born during wedlock. In 

### Groff, the trial courthad upheld a Board decision without any detailed independent findings. This raised concern overwhetherthe court appreciated its obligation to conduct an independent review ofthe evidence. 

### Groff, 65 Wn.2d at 40-43. Neither 

### Cochran nor Gro.ffheld thatthe trial courts' ultimate credibility determinations were impermissible. Instead, both decisions heldthatthe trial court's findings needed to be supplemented in order to ensure reviewhadbeen complete and there was no legal error. There is no suggestion here oflegal error. Valley Fruit's only claim is that Mr. Gonzalez-Pruneda's testimony was so implausible thatnoreasonablejurist could have believed him. This is purely a credibility argument. It is not something we will review on appeal.In his response to Valley Fruit's appeal, Mr. Gonzalez-Pruneda has requested attorney fees. Because he is the prevailingparty, such fees are appropriate underRCW 51.52.130 and RAP 18.1. 

### Brandv. Dep'tof Labor & 

### Indus., 139 Wn.2d 659,674,989 P.2d 1111 (1999). CONCLUSION The trial courtjudgmentin favor ofMr. Gonzalez-Pruneda is affirmed. Because Mr. Gonzalez-Pruneda is the prevailingparty, his request for attorney fees is granted.
7No. 33621-2-111 Gonzalez-Pruneda v. Valley Fruit Co.
A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Fearing, C.J. Pennell, J. 

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