FILED 


DEC. 24,2013 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


ANTONIO L. PADILLA, ) No. 31391-3-111 

) 

Appellant, ) 

) 

v. ) 

) 

DEPARTMENT OF LABOR AND ) UNPUBLISHED OPINION 

INDUSTRIES OF THE STATE OF ) 

WASHINGTON, ) 

) 

Respondent. ) 

BROWN, J. - Antonio L. Padilla appeals the superior court's judgment affirming a 

Board of Industrial Insurance Appeals' adjudication. Both tribunals upheld a 

Department of Labor and Industries' decision denying Mr. Padilla's application to reopen 

his industrial injury claim and readjust his compensation based on aggravation of his 

original condition. He now contends the superior court's factual findings lack substantial 

evidence and do not support its legal conclusions. Because substantial evidence 

supports the court's findings and we defer to the court on matters of witness credibility 

and the persuasive weight accorded to disputed evidence, we affirm. 

FACTS 

Mr. Padilla suffered an industrial injury in the course of his employment on 

August 31,2006. He soon applied to the department for compensation. The 
No. 31391-3-111 

Padilla v. Dep't of Labor & Indus. 

department allowed his claim, paid him compensation, and closed his claim on January 

3,2007. About 33 months later, he applied to the department to reopen his claim and 

readjust his compensation based on aggravation of his original condition. The 

department issued a final order denying his request on March 16,2010. 

Mr. Padilla appealed to the board. At a hearing, both parties produced expert 

medical testimony. Mr. Padilla offered the perpetuation deposition of S. Daniel Seltzer, 

MD, and the testimony of Ronald H. Warninger, DC. The department offered the 

testimony of Paul Reiss, MD. The board affirmed the department's decision after 

finding Dr. Reiss's testimony more credible and persuasive than Drs. Seltzer and 

Warninger's testimony, especially on the proximate cause element required to prove 

aggravation within the meaning of RCW 51.32.160(1)(a). Mr. Padilla unsuccessfully 

appealed to the superior court. The court agreed with the board's appraisal of witness 

credibility and evidence weight after adopting its factual findings and legal conclusions. 

Mr. Padilla appealed. 

ANALYSIS 

The issue is whether the superior court erred in affirming the board's 

adjudication. Mr. Padilla argues the evidence preponderates in his favor because he 

showed his industrial injury worsened after the department closed his claim. The 

Industrial Insurance Act, title 51 RCW, empowers the department to reopen an industrial 

injury claim and readjust compensation if the worker's disability has become aggravated 

and the worker applies for relief within seven years of the initial closing date. RCW 

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No. 31391-3-111 

Padilla v. Oep't of Labor & Indus. 

51.32.160(1 )(a). If the department denies the application, the aggrieved worker may 

appeal to the board. RCW 51.52.060. 

If the board affirms the department's decision, the aggrieved worker may appeal 

to the superior court and receive a hearing de novo upon the same evidence and 

testimony the board heard. RCW 51.52.110, .115. The board's factual findings and 

legal conclusions are "prima facie correct," which means they are presumed correct. 

RCW 51.52.115; see Allison v. Oep't of Labor & Indus., 66 Wn.2d 263, 268,401 P.2d 

982 (1965). The party attacking the findings and conclusions bears the burden of 

proving they are incorrect by a preponderance of evidence. RCW 51.52.115; Chalmers 

v. Oep't of Labor & Indus., 72 Wn.2d 595, 603, 434 P.2d 720 (1967); Zankich v. Oep't of 

Labor & Indus., 189 Wash. 25, 31, 63 P .2d 427 (1936). 

If the superior court affirms the board's adjudication, the aggrieved worker may 

appeal "as in other civil cases." RCW 51.52.140; see RAP 3.1. We review the superior 

court's factual findings and legal conclusions solely to determine whether substantial 

evidence supports the findings and the conclusions flow from the findings. See Ruse v. 

Oep'tofLabor& Indus., 138 Wn.2d 1, 5-6,977 P.2d 570 (1999); Groffv. Oep'tofLabor 

& Indus., 65 Wn.2d 35, 41,395 P.2d 633 (1964). Substantial evidence is a "sufficient 

quantum to persuade a fair-minded, rational person of the truth of a declared premise." 

Helman v. Sacred Heart Hosp., 62 Wn.2d 136. 147.381 P.2d 605 (1963). 

To prove aggravation within the meaning of RCW 51.32.160(1){a), the worker 

must establish four elements by expert medical testimony at least partly based on a 

physician's findings of objective symptoms: 

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No. 31391-3-111 

Padilla v. Dep't of Labor & Indus. 

(1) the worker's prior industrial injury worsened and resulted in increased 


disability; 1 


(2) the worker's prior industrial injury proximately caused the increased disability; 

(3) this worsening occurred between two terminal dates, specifically, the date 


the department closed the worker's original claim and the date the department 


issued a final order denying the worker's application for a reopening and 


readjustment; and 


(4) the worker's disability on the second terminal date was greater than that for 


which the department awarded the worker compensation on the first terminal 


date. 


See Lewis v. ITT Cont'! Baking Co., 93 Wn.2d 1,3,603 P.2d 1262 (1979); Dinnis v. 

Dep't of Labor & Indus., 67 Wn.2d 654, 656, 409 P.2d 477 (1965); Phillips v. Dep't of 

Labor & Indus., 49 Wn.2d 195, 197,298 P.2d 1117 (1956); Cyr v. Dep't ofLabor & 

Indus., 47 Wn.2d 92, 95, 286 P.2d 1038 (1955); Hyde v. Dep't of Labor & Indus., 46 

Wn.2d 31,34,278 P.2d 390 (1955); Moses v. Dep't of Labor & Indus., 44 Wn.2d 511, 

517,268 P.2d 665 (1954); Kamiss v. Dep't of Labor & Indus., 39 Wn.2d 898, 901-02, 

239 P.2d 555 (1952); 6A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY 

INSTRUCTIONS: CIVIL 155.11, at 160,155.11.01, at 161 (6th ed. 2012). 

Here, the superior court found, "Any objective worsening in Mr. Padilla's ~ 

I condition that occurred between January 3,2007, and March 16, 2010, was not 

proximately caused by the residual effects of the August 31,2006 industrial injury." I 

Administrative Record (AR) at 36; see Clerk's Papers (CP) at 51. As explained in a 

I 

f 

memorandum decision, the court based this finding entirely upon its appraisal of witness 

credibility and evidence weight: i 

1 The aggravation "need not be the result of the industrial accident itself but may 

be the worsening of the industrial injury through the incidents of day-to-day life." 

Tollycraft Yachts Corp. v. McCoy, 122 Wn.2d 426, 432,858 P.2d 503 (1993) (citing 

McDougle v. Dep't ofLabor & Indus., 64 Wn.2d 640, 644,393 P.2d 631 (1964». 

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No. 31391-3-111 


Padilla v. Dep't ofLabor & Indus. 


The case turns on the expert evidence . . .. Dr. Reiss ... provided a 

detailed analysis of why he believed the symptoms experienced by Mr. 

Padilla during the period in question were not related to the industrial 

traumatic injury. He clearly described that the injury would have either 

been traumatic or major with damage to the cervical structure or a minor 

injury with damage to the muscle. A major injury would have required 

immediate care together with follow up care. A minor injury would resolve. 

There being no evidence of a major injury the only conclusion left is the 

injury was minor. He also stated the symptoms of a minor injury would not 

be the source of the alleged aggravation. 

Dr. Reiss attributed the symptoms of Mr. Padilla to his age, physical 

condition and arthritis. 

Mr. Padilla offered testimony from Dr. Selzer [sic] and Dr. Warninger. 

Dr. Warninger made a conclusory statement of causal relationship. Dr. 

Selzer [sic] also made a conclusory statement of causation. Both 

statements were not particularly detailed or supported by reasoning. Both 

doctors felt additional testing would have to be done to provide a better 

analysis. The doctors failed to specifically establish a relationship i between the current symptoms and the original injury. 

I 

CP at 48-49. 

Mr. Padilla does not challenge how the superior court characterized the contents 

of Dr. Reiss's testimony.2 Instead, he challenges the court's appraisal that Dr. Reiss's f 

testimony was more credible and persuasive than Drs. Seltzer and Dr. Warninger's I 

testimony. But we must defer to the superior court's assessment of these matters even I 

if we might disagree. See In re Welfare ofSego, 82 Wn.2d 736, 739-40, 513 P.2d 831 j 

f. 

~ 

I 

r 2 Nor could he do so. Dr. Reiss testified he examined Mr. Padilla, reviewed his 

medical records, and concluded "there was no objective worsening related to the claim" 

between January 3, 2007 and March 16,2010. AR at 117. Dr. Reiss explained, "I felt 

that major trauma had been'ruled out" around the time of the industrial accident, and 

therefore, "I didn't think anything on diagnostic studies now could be directly related to 

the accident, anything." AR at 119-20. Dr. Reiss then suggested the degenerative 

changes in Mr. Padilla's neck were "based on his age" instead of his industrial injury. 

AR at 123. Again, Dr. Reiss explained, "I believe when I saw him he was in his early 

60s, and everybody - I don't think there's anybody over age 60 who doesn't have 

degenerative changes in their neck." AR at 123. 

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No. 31391-3-111 

Padilla v. Dep't of Labor & Indus. 

(1973). Because Dr. Reiss's testimony is sufficient to persuade a fair-minded, rational 

person Mr. Padilla's industrial injury did not proximately cause his increased disability, 

substantial evidence supports the court's negative finding on proximate cause. And, 

because proximate cause is an element required to prove aggravation within the 

meaning of RCW 51.32.160(1 )(a), the court's negative conclusion on aggravation flows 

from its negative finding on proximate cause. Under these circumstances, we defer to 

the superior court's finding. See Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 

343 P.2d 183 (1959). In sum, the superior court did not err in affirming the board's 

adjudication. 

Considering the analysis above, we do not address Mr. Padilla's remaining 

contentions on the three other elements required to prove aggravation within the 

meaning of RCW 51.32.160(1)(a). 

Affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

Brown, J. 

WE CONCUR: 

r

Sid~a~ 3J S Fear~ I 

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