### FILED February 20, 2014 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DNISIONTHREE SMAJO MESAN, ) ) 

### No. 31103-I-III Appellant, ) ) 

### v. ) ) 

### TYSONFOODS INC., ) 

### UNPUBLISHED OPINION ) 

### Respondent. ) 

### SIDOOWAY,1.

- Smajo Mesan appeals the superior court's order affirming a decision ofthe Board ofIndustrial Insurance Appeals. Theboard-rejectingthe proposed decision ofthe industrial appealsjudge (IAJ}-foundthat Mr. Mesan was entitledto an award for partial permanent disability for an occupational injury to his shoulderbutthathewas nonetheless capable ofsubstantial, gainful employment. It 

### directedthat he be compensated for thepartial disability but otherwise,affirmed the closing ofhistwo industrial insurance claims bythe Department ofLabor and Industries without further time loss orother compensation. In affirming the decision ofthe board, the superior court adopted its findings and conclusions. We fmd it impossible to perform ourproperrole onappeal because neither forum

# I

No. 31103-1-III Mesan 

### v. Tyson Foods Inc.

below identified how itresolved disputed material facts bearing on whether Mr. Mesan's occupational diseases incapacitated him from performing any work at a gainful occupation. The IAJ did not reach the disputes, given its conclusion that 

### Mr. Mesan's injury was not fixed and stable and that his claims should be remanded.! The relevant factual findings ofthe board, adopted by the superior court, are conclusory. Becausethe record is inadequate for ourreview, we reverse andremand the case to the superior court for more thorough findings and articulation ofthe basis for its decision. FACTS AND PROCEDURAL BACKGROUND Mr. Mesan was born in Bosnia-Herzegovina in 1954. There, he graduated from high school and earned a two-year degree in mechanical engineering. He worked as a machinist for 15 years before fleeing to Germany when warbroke out in his native country. While interned in a refugee camp in Germany, he was not allowed to work. 

### InAugust 2000, he and his family immigrated to the United States. Despite not speaking orreading English, he worked as a machinist in Kent, Washington for a short

I In a section ofits proposed decision entitled "Issues Not Directly Addressed," the IAJ acknowledged that "[d]ue to my decisions on the below issues,

... I only have peripherally addressed the following issues: geographic relevant labor market; 'odd-lot' jobswithin the meaning of Allen v. Department

## 0/ Labor & Indus., 16 Wn. App. 692[, 559 P.2d 572] (1977) and Wendt v. Department o/Labor & Indus., 18 Wn. App. 674[, 571 P.2d 229] (1977); temporary total disability within the meaning ofRCW 51.32.090; [and] permanenttotal disability withinthe meaning ofRCW 51.08.160," among others. Clerk's Papers at 38. 2No.31103-I-III Mesan 

### v. Tyson Foods Inc.

time but was laid off; then worked in a warehouse for a time until the workproved too heavy; and finally, in September 2002, began working as a meat cutter for a predecessor to Tyson Foods Inc. at the company's plant in Wallula, Washington. After working for Tyson for about seven months, Mr. Mesan developed pain and other difficulties in his right shoulder and both hands. Dr. Thomas Burgdorffdiagnosed him withtrigger finger and eventually recommended surgery, but Mr. Mesan had been diagnosed with diabetes in 2001 and was concerned about slow healing and the risk of complications with healing in light ofhis diabetes. Dr. BurgdorffplacedMr. Mesan on light duty withpermanent restrictions on his left hand. Mr. Mesan later developed further pain in his right shoulder and in both hands. In January 2005 he filed the first industrial insurance claim involved in this appeal, complaining ofa right upper arm and shoulder condition arising from his employment. He filed a second claim in February 2006, alleging a leftupper extremity condition which manifested itselfbetween June 19, 2003 andJanuary 31, 2006. He was transferred to light dutyjobs. Despite continuing complaints ofdifficulty with his shoulder, arms, and wrists, he was able to continue working for Tyson inthejobposition "pickbone sparse lean" until October 2006, when his entire shift was laid off. Tyson has not reinstated the second shift and Mr. Mesan has not obtained work since that time. The department closed Mr. Mesan's right shoulder claim in November2008 for time loss compensation that had been paid up to thattime. It awarded nothing further for 3No. 31103-1-111 Mesan v. Tyson Foods Inc. permanentpartial disability. In May 2009, it closed his left upper extremity claim, which had ultimately resulted in a diagnosis ofbilateral carpal tunnel syndrome, having determined that his condition was stable. 

### It closed the claim without award for time loss compensation orpermanentpartial disability. Atthe time ofthese decisions, Mr. Mesan

was 54 and 55 years old. Mr. Mesan appealed both closures to the Board ofIndustrial Insurance Appeals and they were consolidated for appeal. The IAJ who heard the claims was persuadedthatthe proper and necessary treatment for Mr. Mesan's occupational diseases was the surgeries recommended by Mr. Mesan's attending physician, Owen Higgs. Dr. Thomas Gritzka, Mr. Mesan's expert, also agreed, inpart, with Dr. Higgs's recommendation ofsurgery. YetMr. Mesan had consistently and adamantly opposed surgery. The IAJ observed that the department had not addressed whether Mr. Mesan had "'good cause'" for refusing the surgeries "within the meaning ofthe proviso ofRCW 51.32.110(2)."2 Clerk's Papers (CP) at 49.

2 That sectionprovides, in relevant part: "Ifthe worker

... shall refuse to submit to such medical or surgical treatment as is reasonably essential to his orherrecovery ... , the department orthe self-insurer upon approval by the department, with notice to the worker may suspend any further action on any claim ofsuch worker so long as such refusal, obstruction, noncooperation, orpractice continues and reduce, suspend, ordeny any compensation for such period: PROVIDED, Thatthe department orthe self-insurer shall not suspend any further action on any claim ofa worker orreduce, suspend, or deny any compensation ifa worker has good cause for refusing to submit to orto obstruct any examination, evaluation, treatment orpractice requested by the department orrequired underthis section." RCW 51.32.110(2). 

### 4

### No. 31103-1-111 Mesan v. Tyson Foods Inc.

In its August 2010 proposed order and decision, the IAJ found that both ofMr. Mesan's conditions were in need offurther proper necessary treatment, that he had been offered surgeries to treat the conditions, that he refused the surgeries, and that his refusal "deleteriously affected his employability." CP at 

### 56. It reversed the department's decision and remanded with directions to the department to accept the conditions as occupational disease conditions, determine that the offered surgeries "constitute proper and necessary treatment within the meaning ofRCW 

### 51.04.030 and 

### 51.36.010," and ask Mr. Mesan, again, ifhe would submitto the surgeries. CP at 57. Bothparties petitioned the board to review the IAJ's decision. The board accepted review and found the IAJ's disposition improper, stating that "[a]lthough we can appreciate ourindustrial appealjudge's concerns about Mr. Mesan refusing proper and necessary treatment, we believe that the case law supports fully resolving the issues raised by Mr. Mesan." CP at 

### 10. It observed that the suspension ofbenefits statute that concerned the IAJ applies only to suspension ofbenefits during periods ofrecuperation from an injury, not afterthe worker's condition is fixed. 

### It held that a review ofrelevant

case law, "leads to the conclusion that Mr. Mesan's refusal ofsurgery, whether reasonable ornot and whether medically necessary and proper or not, gives the Department authority to close his claims." CP at 

### 14. Having concluded that it could resolve the issues, the boardreviewed the medical testimony and found that a preponderance ofthe evidence supported a conclusion that 

### 5No. 31103-1-111 Mesan v. Tyson Foods Inc. repetitive work at Tyson had aggravated Mr. Mesan's right shoulder condition and made it symptomatic. Relying onthe testimony ofDr. Gritzka, it found an eight percent permanent impairment ofthe right upper arm and directed the department to require Tyson to pay Mr. Mesan an award equal to eightpercent ofthe amputation value ofthe

arm. 

### It also determined that a preponderance ofthe evidence supported a conclusion that Mr. Mesan was capable ofsubstantial gainful employment. While there was conflicting evidence onthe extent ofMr. Mesan's occupational diseases, the limitations

on work he could perform, the number and type of jobs for which he was qualified, and whether they were available in the relevant labor market, the only factual findings ofthe boardthatprovided support for its conclusion that Mr. Mesan was not temporarily or permanently totally disabled were 8. Duringthe period November4,2008, through May 6, 2009, the claimant was notprevented from performing reasonably continuous gainful employment[, and] 9. As ofMay 7, 2009, Mr. Mesan has not beenpermanently totally disabled. CP at 16. Mr. Mesan appealed the board's decision to the Benton County Superior Court. Following a benchtrial, the superior court affirmed the board, adopting its findings of fact, conclusions oflaw, decision, and order. Mr. Mesan appeals.

6

# I I

i 

### No. 31103-1-111 

### Mesan v. 

### Tyson Foods Inc. 

# j

ANALYSIS Mr. Mesan assigns errorto the board's finding offact that he "was notprevented from performing reasonably continuous gainful employment" during the period covered by his claims and its conclusion oflawthat "[a]s ofMay 7, 2009, Mr. 

### Mesan was not permanently totally disabled." CP at 16-17 (Finding ofFact 8; Conclusion ofLaw 7). He argues that viewed in the light most favorable to Tyson, substantial evidence exists that "Mr. 

### Mesan's occupational diseases, in combination with his pre-existing medical conditions, his age, his lack oftransferable skills and most importantly his lack ofEnglish language skills prevented him from performing 

### or obtaining continuous gainful employment." Br. ofAppellant at 20. "[T]he measure oftotal disability is not the extent ofphysical impairment, essentially a medical question, butrather the effect ofthe injury on the worker's 'wage earning capacity'." 

### Leeper v. 

### Dep'to/Labor & 

### Indus., 123 Wn.2d 803,812,872 P.2d 507 (1994). "To determine a worker's wage earning capacity, the Department must look both at the medical evidence ofimpairment 

### andthe empirical evidence ofthe claimant's ability to obtain ajob." Id. 

### The evidence bearing on total disability '''necessarily requires a study ofthe whole man as an individual-his weakness and strengths, his age, education, training and experience, his reaction to his injury, his loss offunction and otherrelevant factors that build toward the ultimate conclusion ofwhether he is, as a result ofhis injury, disqualified from employment generally available in the labor 7No. 31103-1-111 

### Mesan v. 

### Tyson Foods Inc.

market. '" 

### Id. at 813 (quoting

### Fochtman v. 

### Dep 't

## 0/ Labor & 

### Indus., 7 Wn. App. 286, 295,499 P.2d 255 (1972)). Nonetheless, Washington cases "require a claimantto show the workplace injury, not fluctuations in the labor market alone, caused the inability to obtain work." 

### Id. at 815. In closing Mr. Mesan's claims without an award oftime loss or other compensation despite his unemployment, the department implicitly found, and Tyson argues on appeal, that Mr. Mesan's lack ofemployment is a result offluctuations in the labor market or a lack ofqualifications that is unrelated to his occupational diseases. On appeal, we review the superior court's decision, not that ofthe agency. 

### Dep't o/Labor & 

### Indus. v. 

### Slaugh, 177 Wn. App. 439, 444, 312 P.3d 676 

### (2013),petition/or reviewfiled, No. 89667-4 (Wash. Dec. 17,2013); RCW 51.52.110. Ourreview is limited

.to whether substantial evidence supports the trial court's factual findings and then we

review, de novo, whetherthe court's conclusions oflaw flow from the findings. 

### Young v. 

### Dep'to/Labor & 

### Indus., 81 Wn. App. 123, 128,913 P.2d 402 (1996). Findings offact must be entered in all cases tried without ajury. CR 52. Generally, where findings are required, they must be sufficiently specific to permit meaningful review. While the degree ofparticularity required in findings offact depends on the circumstances ofthe particular case, they should at least be sufficient to indicate the factual bases for the ultimate conclusions. The purpose ofthe requirement offindings and conclusions is to insure the trialjudge '''has dealt fully and properly with all the issues in the case before he decides it and so that the parties involved and this court on appeal may be fully 8

# ~



# . I I i

# I I No. 31103-1-II1 Mesan v. Tyson Foods Inc.

informed as to the bases ofhis decision when it is made.'" However, a trial courtis not required to make findings offact on all matters about which there is evidence in the record; only those which establish the existence or nonexistence ofdeterminative factual matters need be made. In re Det. of LaBelle, 107 Wn.2d 196,218, 728 P.2d 138 (1986) (citations omitted) (quoting State v. Agee, 89 Wn.2d 416,421,573 P.2d 355 (1977) (quoting Roberts v. Ross, 344 F.2d 747, 751 (3d Cir. 1965»). Mr. Mesan submits thatthe board's finding 9, although labeled a finding, is really

a conclusion oflaw. In his view, the board failed to enteranyreal findings offact on the issue ofpermanenttotal disability. Br. ofAppellant at 21. He suggests thatbecause the board entered only legal conclusions, the facts bearing onpermanenttotal disability "mustbe reviewed de novo." Id. Ifa determination concerns whether evidence shows that something occurred or existed, it is properly labeled a finding offact, but ifthe determination is madeby a process oflegal reasoning from facts in evidence, it is a conclusion oflaw. State v. Niedergang, 43 Wn. App. 656, 658-59, 719 P.2d 576 (1986). Stated differently, a finding offact is "an 'assertion that aphenomenonhas happened or is or will be happening independent ofor anteriorto any assertion as to its legal effect.'" Moulden & Sons, Inc.

v. OsakaLandscaping & Nursery, Inc., 21 Wn. App. 194, 197,584 P.2d 968 (1978) (internal quotation marks omitted) (quotingLeschiImprovement Council v. Wash. State Highway Comm'n, 84 Wn.2d 271,283,525 P.2d 774,804 P.2d 1 (1974».

9No. 31103-1-111 Mesan v. Tyson Foods Inc.

We agree with Mr. Mesan that the board's finding 9, that as ofMay 7, 2009 "Mr. Mesan has not been permanently totally disabled," is a determination ofthe legal effect ofMr. Mesan's medical/vocational situation and is a conclusion oflaw. The board's finding 8, that during the period November 4,2008 through May 6, 2009, "the claimant

was not prevented from performingreasonably continuous gainful employment," is a finding ofultimate fact but is not much more helpful than finding 9 in indicating how the board orthe superior court resolved the several key factual disputes bearing on Mr. Mesan's ability to perform or obtain reasonably continuous gainful employment. Finding 8, standing alone, is not sufficiently specific to permit meaningful review. RCW 51.52.104 provides that an IAJ's proposed decision and order "shall contain findings and conclusions as to each contested issue offactandlaw." (Emphasis added.) Where review is granted by the board, RCW 51.52.106 similarly provides thatthe board's final decision and order shall contain findings and conclusions as to each contested issue offact and law, as well as the board's orderbased thereon. Ultimately, a trial court's findings must inform us '''what questions were decided by the trial court, and the manner in whichthey were decided.'" Daughtry v. JetAeration Co., 91 Wn.2d 704, 707, 592 P.2d 63 1(1979) (internal quotation marks omitted) (quotingBowman v. Webster, 42 Wn.2d 129, 134,253 P.2d 934 (1953)). We disagree with Mr. Mesan's suggestion that-faced with no indication how the board orthe superior court resolved the key factual disputes-we should decide them de 10No. 31103-1-II1 

### Mesan v. 

### Tyson Foods Inc.

novo. On review, it is improper for an appellate courtto search out a material orultimate finding offact from the evidence in the record because it wouldplace the court in the initial decision-making process ratherthan maintaining its function ofreview. 

### Wold

### v. Wold, 7 Wn. App. 872, 876, 503 P.2d 118 (1972). When further findings offact and conclusions oflaw are necessary for appellate review, remand for their entry is appropriate. 

### Little v. 

### King, 160 Wn.2d 696, 707, 161 P.3d 345 (2007). While this court'srole is limited toreviewing the decision-makingprocess, not resolving disputed issues, the superior court conducts a de novo review ofthe board's record. The board's decision may be modified by the superior court ifthe court concludes, by a preponderance ofthe evidence, that its findings and conclusions are incorrect. 

### Ruse v. 

### Dep'to/Labor & 

### Indus., 138 Wn.2d 1,5,977 P.2d 570 (1999), We therefore remandthis matterto the superior court, as a trier offact, for the entry of additional findings regarding the contested issues relating to whether Mr. Mesan was temporarily totally disabled betweenNovember4, 2008 and May 6, 2009 and permanently totally disabled as ofMay 7, 2009. What is needed are findings indicating how the court resolved the several material disputes within the medical and vocational testimony. We recognize that further proceedings could conceivably include remandby the trial courtto the board. 

### CjBoeing Co. 

### v. Gelman, 102 Wn. App. 862, 870-71 & n.20, 10 P.3d 475 (2000) (holding that a court is empoweredto order an agency to comply with the lawby providing needed findings offact). 11No. 31103-1-111 

### Mesan 

### v. Tyson Foods Inc.

Mr. Mesanrequests attorney fees under RAP 18.1, RCW 51.52.130, and

### Brand

### v. Department of Labor & 

### Industries, 139 Wn.2d 659,989P.2d 1111 (1999). UnderRCW 51.52.130 workers who successfully obtain a reversal or modification ofa department decision may be awarded attorney fees. 

### Oien 

### v. Dep'tof Labor 

### &Indus., 74 Wn. App. 566,571, 874 P.2d 876 (1994). In 

### SacredHeartMedical Center v. 

### Knapp, this court held that a decision remanding an industrial insurance matter for further fact finding cannotbe construed as affording additional relief. 172 Wn. App. 26, 29, 288 PJd 675 (2012), 

### review denied, 177 Wn.2d 1021 (2013). As in

### Knapp, Mr. Mesan has not yet succeeded

on appeal and is notyet entitled to fees under RCW 51.52.130. Reversed and remanded for further proceedings consistentwith this opinion. A majority ofthe panel has determined that this opinion will not be printed in the WashingtonAppellate Reports but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Korsmo,

# cJ.

Kulik,lP.T. 12No. 3l103-l-II1 Mesan v. Tyson Foods Inc.

APPENDIX The following summary ofevidence illustrates the several material factual disputes that bear on the ultimate issues ofMr. Mesan's alleged total temporary and permanent disability. Itis not intendedto bind anyone but is provided for the convenience ofthe court and the parties. 

### Medical Testimony Dr. Owen Higgs (AttendingPhysician) Dr. Owen Higgs was Mr. Mesan's treating orthopedist for Mr. Mesan's industrial injury claims. He first saw 

### Mr. Mesan in October 2005 for conditions including a trigger finger on his lefthand. He testified that Mr. Mesan suffered from moderate bilateral carpal tunnel syndrome in both hands. Dr. Higgs also testified that

### Mr. Mesan suffered from aright shoulder impingement. He prescribed braces and anti-inflammatory medication and offered surgery for which he felt the prognosis was "very good" but 

### Mr. Mesan did not wantthe shoulder orwrist surgery. CP at 187-90. Dr. Higgs found itappropriate to place some permanentrestrictions onMr. Mesan based on his injuries. He stated that he should only occasionally lift 15 pounds from shoulderto overhead, 20 pounds from floor to waist, and 20 pounds from waistto shoulderheight. Dr. Higgs added that 

### Mr. Mesan would be able to lift 14 pounds from floorto waist frequently and that he could carry 25 pounds occasionally and 15 pounds frequently. He concluded stating that Mr. Mesan could occasionally push40 pounds, frequently push 20 pounds, and occasionally pull 35 pounds and frequently pull 15 pounds. Such limitations were permanent in nature unless corrected. CP at 197-200. Dr. Higgs worked with vocational counselor Maurilio Garza on 

### Mr. Mesan's vocational issues. When 

### Mr. Garza presented Dr. Higgs with whether

### Mr. Mesan could perform thejobofinjury, pickbone sparse lean, Dr. Higgs stated that he couldperform thejobwithoutrestrictions on a permanent basis. The other fourjobswere notpresented to Dr. Higgs because in doing vocational assessments thejob ofinjury is assessed first. CP at 206, 533-35. Mr. KirkHolle (Physical Therapist) During the course oftreatment, Dr. Higgs recommended that 

### Mr. Mesan go through a physical capacities evaluation (PCE) by 

### Mr. Kirk Holle. The PCE was 13No. 31103-1-III Mesan v. Tyson Foods Inc.

conducted on April 20, 2007. 

### Mr. Holle concluded that 

### Mr. Mesan couldwork an eighthour day in light physical demandjobs with no frequent overhead and waist to shoulder lifting. Specifically the PCEprovided that Mr. Mesan could work in an occupation that only requires occasional reaching above the shoulderwith weights of 15 pounds and that he canperform occasional fine manipulation. He can lift 20 pounds occasionally from 4 inchheight to 36 inch height to 56 inch height, and lift 15 pounds occasionally from 56 inch height to 78 inch height. He can frequently lift between 14 pounds from 4 inch heightto 36 inch height, andthen did notprovide weight for frequently lifting about 36 inches. Mr. Holle disapproved ofall ofthejob analyses provided by 

### Mr. Garza. His concern was with the repetitive constant to occasional frequent handling andreaching. CP at 238,418-19,563-64,582,595. Drs. Walter Fife andEugene Wong On May 6, 2008, 

### Mr. Mesan was examinedby Drs. Walter Fife and Eugene Wong at the request ofTyson Foods. Drs. Fife and Wong concluded in their reportthat

### Mr. Mesan was limitedto sedentary work and could notwork for extendedperiods oftime holding his arms up. Dr. Fife testified that Mr. Mesan had limited range ofmotion in his neck and that his right shoulderhad only abouthalfofthe normal rotation it should have. He also noted that Mr. Mesan has restrictions in both ofhis wrists. In theirreport the doctors restricted Mr. Mesanto workthat he could complete sitting down with his elbows athis side. When testifying however, Dr. Fife opinedthat

### Mr. Mesanwas fully capable ofperforming all productionjobs. Dr. Fife and Dr. Wong disapproved ofthejob analyses for warehouse worker and forklift operator in part due to 

### Mr. Mesan's neck and back arthritis. CP at 240, 397-99,401,407-09, 569-70, 587. Dr. William Bozarth (Independent MedicalExamination (IME) Panel) In May 2007, Dr. William Bozarth a neurologist, Dr. Stephen Sears, and Dr. Peter Zografos conducted a panel IME. Dr. Bozarth diagnosed Mr. Mesan with right shoulder pain, most likely due to impingement. Dr. Bozarth opinedthatthis injury was not work related, butrather somethingMr. Mesan was born with. They also diagnosed Mr. Mesan with multiple and diffuse pain complaints, including both hands and both wrists, pain in the neck and lowerback, and buzzing in the right ear. Dr. Bozarth did not diagnose 

### Mr. Mesan with carpal tunnel syndrome. The panel concluded that there was no permanent partial impairment or disability and based on the examination the panel determined that no restrictions were necessary. Thepanel determined that 

### Mr. Mesan could perform the jobs forklift, pick from mixed lean belt, pickbone sparse lean, peel cap, andwarehouse worker on a reasonably continuous gainful basis. The panel concluded that Mr. Mesan 14No. 31103-1-111 Mesan v. Tyson Foods Inc.

had no evidence ofa permanentpartial impairment and/or disability. CP at 237, 503-05, 512. Dr. Thomas Gritzka Dr. Thomas Gritzka, a certified orthopedic doctor, examinedMr. Mesan on May 6,2009 at Mr. Mesan's attorney's request. Dr. Gritzka found a positive impingement sign in Mr. Mesan's right shoulder. He also found upper extremity sensory impairment consistent with diabetic peripheral neuropathy. Dr. Gritzka agreed with Dr. Higgs that Mr. Mesan would be a good candidate for arthroscopic surgery. In addition to the bilateral carpal tunnel syndrome and shoulder impingement, Dr. Gritzka diagnosed chronic cervical and lubosacral sprains, butnoted the examination was basically normal. He recommended no treatment for the carpal tunnel syndrome. CP at 224,253,258,264­ 65. Dr. Gritzka statedthat ifMr. Mesan is put in a position where he has to keep his head and neck bent forward orhas to lean over a conveyor belt for an extended period of time that this back pain is likely torecur and cause problems. Dr. Gritzka opined that Mr. Mesan is best suited for sedentary work and that he needs to be in a work environment where he can be self-paced and allowedto change positions as needed. Dr. Gritzka stated he should avoid working a desk, or at ajob where he wouldhave to sit and look at a computer screen, or anyjob that requires repetitive hand activities, pullingthings on and offa production line orcontinual keyboarding. He testified that Mr. Mesan could perform sedentary to light sedentary work. Therefore none ofthe recommendedjobs wouldreally be appropriate for Mr. Mesan. Dr. Gritzka ultimately rated Mr. Mesan at eightpercent impairment for the rightupper extremity. CP at 266-68,270-71,277,570­ 71,583. In summary, the expert medical testimony varied from doctors suggesting that Mr. Mesan could notperform anyjob at Tyson (Dr. Gritzka) to the suggestion that Mr. Mesan needed no restrictions and couldperform anyjob at Tyson (Dr. Bozarth). There appeared to be no clear consensus amongst the medical experts regarding Mr. Mesan'sphysical ability.

15No. 31103-1-111 Mesan 

### v. Tyson Foods Inc.
Vocational Testimony Maurilio Garza 

### Mr. Maurilio Garza, a certified vocational expert, metwith 

### Mr. Mesan once on October 20, 2006. 

### Mr. Garza determined there were fivejobs

### Mr. Mesan couldperform. The first two were chosen because ofhis past work history: (1) warehouse worker and (2) forklift driver. Additionally, he identified threejobs unique to the Tyson plant for which he was qualified: (3) pickbone sparse lean; (4) bone picker; and (5) meat trimmer. The first threejobs offered were notpart ofthe general labor market, but were unique to Tyson. Mr. Garza asserted that Mr. Mesan could complete thejob ofpickbone sparse lean, pick special trim, orpickmixed lean while adhering to the limitations articulated by Mr. Holle and Dr. Higgs. 

### Mr. Garza agreed that

### Mr. Mesan is incapable ofphysically performing the warehouse worker and forklift operatorpositions. Mr. Garza did not conduct a labor market study. Nonetheless, Mr. Garza concludedthat 

### Mr. Mesan was employable on a reasonably continuous basis atTyson with no accommodation atthe position ofpickbone sparse lean. CP at 543-44,552,576-77,582. 

### Mr. Garza also testified that

### Mr. Mesan is an educated individual. He has a high school diploma, a college degree, and could learn a foreign language. 

### Mr. Garza testified that fivejobs would be appropriate for Mr. Mesan, mixed lean belt, peel cap, pickbone sparse lean, warehouse worker, and forklift operator. Mr. Garzaultimately opined that based on his analysis 

### Mr. Mesan could be gainfully employed on a reasonably continuous basis. Hetestifiedthatno opinion indicated that

### Mr. Mesan was permanently totally disabled. CP at 530, 552, 554. JillFalk 

### Mr. Mesan called vocational rehabilitation counselor, Jill Falk. Ms. Falkmet with 

### Mr. Mesan twice atthe request ofcounsel. Ms. Falk did a thoroughrecord review regarding 

### Mr. Mesan's background. She completed a full intake ofMr. Mesan's background, work history, and reviewed his medical records and PCE. She offered testimony in stark contrast tothat of

### Mr. Garza. CP at 295,307-10. She testified that 

### Mr. Mesan was unable to workbecause none ofthejobs suggested were considered sedentary. But agreed that all medical experts had indicated that they felt Mr. Mesan was capable ofwork in some capacity. Ms. Falktestifiedthat Mr. Mesan was permanently and totally disabled when taking into account his injuries, age, lack ofEnglish skills, and singular workhistory. Ms. Falk felt that due to the 16No. 31103-1-111 Mesan 

### v. Tyson Foods Inc. physical restrictions, his transferable skills, workhistory, education, and language ability, thatMr. Mesan is permanently and totally disabled. Ms. Falk did not conduct a labor market study because it was unnecessary toreach that question, when Mr. Mesan was unable to perform any ofthe positions suggested for his employment. CP at 334,340-47, 351-52. 

### LayTestimony Mr. Mesan testifiedthathe does not understand English andrequires the use of interpreters when he goes to see a doctor orhis attorney. He also testified thatpriorto working at Tyson he had no injuries that limited him from working. Since working at Tyson he has problems withhis hands, right shoulder, and his neck and back. Several doctors offered orrecommended surgeryto help correcthis ailments, however, he declined such suggestions because ofthe risk ofsurgery andthe fact thatnobody guaranteed hewould be better off. CP at 16, 145, 151-53.

17