### FILED DEC. 24,2013 IntheOfficeofthe ClerkofCourt W AStateCourtofAppeals, Division III

IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON DIVISION THREE ANTONIO L. PADILLA, 

### ) No. 31391-3-111 

### ) Appellant, 

### ) ) 

## v. ) ) DEPARTMENT OF LABOR AND 

### ) UNPUBLISHED OPINION INDUSTRIES OFTHE STATE OF 

### ) WASHINGTON, 

### ) ) Respondent. 

### ) BROWN, 

### J.

- Antonio L. Padilla appeals the superior court'sjudgmentaffirming a Board of Industrial InsuranceAppeals' 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 nowcontends the superiorcourt's factual findings lack substantial evidence and do notsupport its legal conclusions. Because substantial evidence supports the court's findings and we defertothe court on matters ofwitness 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 departmentfor compensation. TheNo. 31391-3-111 Padilla v. Dep'tofLabor

### & Indus. department allowed his claim, paid him compensation, and closed his claim on January 3,2007. About 33 months later, he applied to the departmentto 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 appealedtothe board. At a hearing, both parties produced expert medical testimony. Mr. Padilla offered the perpetuation deposition ofS. 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 tothe superior court. The court agreed with the board's appraisal ofwitness credibility and evidence weight after adopting its factual findings and legal conclusions. Mr. Padilla appealed. ANALYSIS The issue is whetherthe 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 afterthe department closed his claim. The Industrial InsuranceAct, title 51 RCW, empowers the department to reopen an industrial injury claim and readjust compensation ifthe worker's disability has become aggravated and theworker applies for reliefwithin seven years ofthe initial closing date. RCW

2No. 31391-3-111 Padilla v. Oep'tofLabor& Indus. 51.32.160(1)(a). Ifthe department denies the application, the aggrieved worker may appeal to the board. RCW 51.52.060. Ifthe 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'tofLabor& Indus., 66Wn.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 ofevidence. RCW 51.52.115; Chalmers

v. Oep'tofLabor& Indus., 72 Wn.2d 595, 603, 434 P.2d 720 (1967); Zankich v. Oep'tof Labor

### & Indus., 189 Wash. 25, 31, 63 P.2d 427 (1936). Ifthe superior court affirms the board's adjudication, the aggrieved worker may appeal "as in other civil cases." RCW51.52.140; see RAP 3.1. We review the superior court's factual findings and legal conclusions solelyto determine whethersubstantial 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 ofthe truth ofa declared premise." Helman v. SacredHeartHosp., 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 ofobjective symptoms:

### 3No. 31391-3-111 Padilla v. Dep'tofLabor& Indus. (1) the worker's prior industrial injuryworsened and resulted in increased disability; 1 (2) theworker's prior industrial injury proximately caused the increased disability; (3) this worsening occurred between twoterminal dates, specifically, the date the department closed theworker's original claim and the datethe department issued a final orderdenying theworker's application for a reopening and readjustment; and (4) the worker's disability on the second terminal date was greaterthan thatfor which the department awarded the worker compensation on the first terminal date. See Lewis v. ITTCont'!Baking Co., 93 Wn.2d 1,3,603 P.2d 1262 (1979); Dinnis v. Dep'tofLabor& 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); Cyrv. Dep't ofLabor& Indus., 47 Wn.2d 92, 95, 286 P.2d 1038 (1955); Hyde v. Dep'tofLabor& Indus., 46 Wn.2d 31,34,278 P.2d 390 (1955); Moses v. Dep't ofLabor& Indus., 44 Wn.2d 511, 517,268 P.2d 665 (1954); Kamiss v. Dep't ofLabor& Indus., 39 Wn.2d 898, 901-02, 239 P.2d 555 (1952); 6AWASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 155.11, at 160,155.11.01 , at 161 (6th ed. 2012). Here, the superior court found, "Any objectiveworsening in Mr. Padilla's**~** 

# I condition that occurred between January 3,2007, and March 16, 2010, was not proximately caused bythe residual effects oftheAugust 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 ofwitness credibility and evidence weight: 

# i

1 The aggravation "need not be the result ofthe industrial accident itself but may bethe worsening ofthe industrial injury through the incidents ofday-to-day life." Tollycraft Yachts Corp. v. McCoy, 122 Wn.2d 426, 432,858 P.2d 503 (1993) (citing McDougle v. Dep'tofLabor& Indus., 64 Wn.2d 640, 644,393 P.2d 631 (1964». 

### 4No. 31391-3-111 Padilla v. Dep'tofLabor

### & Indus. The case turns on the expert evidence

. . .. Dr. Reiss

... provided a detailed analysis ofwhy 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 majorwith damage to the cervical structure or a minor injury with damagetothe muscle. A major injurywould have required immediate care togetherwith follow up care. A minor injurywould resolve. There being no evidence ofa major injurythe only conclusion left is the injury was minor. He also stated the symptoms ofa minor injury would not bethe source ofthe 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 ofcausal relationship. Dr. Selzer [sic] also made a conclusory statement ofcausation. Both statements were not particularly detailed orsupported by reasoning. Both doctors felt additional testing would have to be doneto provide a better analysis. The doctors failed to specifically establish a relationship 

# i between the current symptoms and the original injury. 

# I I CP at 48-49. Mr. Padilla does not challenge howthe 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 deferto the superior court's assessment ofthese matters even 

# I ifwe might disagree. See In re Welfare ofSego, 82 Wn.2d 736, 739-40, 513 P.2d 831 

# j f.**~** 

# I r 2 Norcould 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 majortrauma had been'ruled out" around the time ofthe industrial accident, and therefore, "I didn'tthink 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'tthink there's anybody over age 60who doesn't have degenerative changes in their neck." AR at 123.



### 5No. 31391-3-111 Padilla v. Dep'tofLabor& Indus. (1973). Because Dr. Reiss's testimony is sufficientto 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 negativefinding on proximate cause. Underthese circumstances, we deferto 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 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. Brown, J. WE CONCUR:

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