                                                                             FILED 

                                                                          JAN. 29,2015 

                                                                   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 


INTERNATIONAL PAPER,                            )
                                                )         No. 32075-8-111
                       Respondent,              )
                                                )
          v.                                    )
                                                )
ANTHONY BOLTE,                                  )         UNPUBLISHED OPINION
                                                )
                       Appellant.               )

          KORSMO,   J. - The jury that heard this industrial insurance appeal sided with the

employer rather than the worker who had prevailed before the Board of Industrial

Insurance Appeals. The injured worker, Anthony Bolte, challenges the trial judge's

failure to direct a verdict in his favor as well as the sufficiency of the evidence to support

the verdict. Because the evidence permitted the jury to resolve the case as it did, we

affirm.

                                            FACTS

          Mr. Bolte began working for International Paper (formerly Weyerhaeuser), in

August 2006. International Paper is a self-insured employer. The following year he
No. 32075-8-111
Int'l Paper v. Bolte


suffered an inguinal I hernia on the right side; the injury was not related to his

employment. He underwent surgery to insert a mesh patch to repair the hernia and

missed six weeks of work. He returned to work at nearly full capacity and resumed his

normal outdoor activities.

       Prior to the October 1, 2008 injury at issue in this case, Mr. Bolte had some work

attendance issues. International has a point-based disciplinary system for attendance. If

an employee for any reason is absent for half a day (four hours) or more, that absence

results in one point on the employee's record. Three points result in a verbal warning to

the employee; four points-a written warning; five points result in a three-day suspension

without pay and finally six points result in the employee's termination. At the end of

each year, an employee with two or fewer points will have his record reset to zero points.

An employee can also have points removed by working for a certain amount of days

without an absence. Due to his own illnesses and his son's illness, Mr. Bolte was at the

written warning stage of the disciplinary system.

       On October 1, 2008, Mr. Bolte was driving a forklift as part of his regular job

activities. He turned around to back up the forklift and felt pain in the location of his

former hernia. He left work after only two hours on the job and received another absence

point. The following day he saw Dr. Richard Edgerly, who wrote a note excusing Mr.


       I   Groin area.

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No. 32075-8-111
Int 'I Paper v. Bolte


Bolte from work for the next two days.2 He was also referred to Dr. Manuel Lozano, the

surgeon who had performed the 2007 hernia repair surgery.

       On October 13,2008, Mr. Bolte again left work, but this time reported groin pain.

Because he had already worked five hours that shift, no absence points were assessed

against him. This was the first time the supervisor, Mr. Mee, had learned that Mr. Bolte

was suffering groin pain.

       Toward the end of October, Mr. Bolte visited the company's safety coordinator,

Cammie McGrath, to discuss FMLA paperwork. He was hoping to reverse some of his

disciplinary points accumulated during prior absences related to his son's illness and his

earlier illnesses.

       On November 6, 2008, Mr. Bolte saw Dr. Lozano as the result of the earlier

referral from Dr. Edgerly. Dr. Lozano concluded that the pain Mr. Bolte was

experiencing was unrelated to the prior hernia surgery. Mr. Bolte then returned to Dr.

Edgerly and, eventually, completed the appropriate Department of Labor and Industries

(DLI) paperwork for a self-insured employer. Mr. Bolte did not return to work after his

appointment with Dr. Lozano until February 25, 2010. 3



       2 An extended absence counts as one point.
       3 Mr. Bolte conceded that he would have received a three day suspension without
pay, based on his accumulated absences, ifhe had returned to work after missing the day
to see Dr. Lozano.

                                             3

No. 32075-8-III
Int 'I Paper v. Bolte


       Mr. Bolte filed a claim for worker's compensation benefits based on the October 1

injury. The claim was allowed and International Paper promptly contested it. DLI

affirmed its order allowing the claim and International Paper appealed to the Board of

Industrial Insurance Appeals. An industrial appeals judge issued a proposed order

affirming DLI, and the full Board subsequently adopted that order. International Paper

appealed to Yakima County Superior Court.

       There the matter proceeded to trial before a six person jury. The jury received

deposition testimony from Dr. Lozano. The doctor could not determine the cause of the

pain suffered in October 2008. While he initially suspected a strained muscle in the

inguinal region, he thought it also could be neurodynia, an irritation of the nerve in the

area of the mesh repair patch. 4 However, he could not say whether or not Mr. Bolte had

neurodynia.

       After the testimony of Dr. Lozano and Mr. Jeffrey Mee, International Paper rested

its case. Mr. Bolte moved for a directed verdict. The trial judge denied the motion,

reasoning that the evidence allowed the jury to conclude that there could be another cause

for the injury and that Mr. Bolte had a motive to lie because of the disciplinary process he

was facing.


       4A nerve block procedure, which should relieve pain from neurodynia, was
performed in November 2009. The procedure did not relieve the pain; instead, the problem
worsened.

                                             4

No. 32075-8-111
Int 'I Paper v. Bolte


       Dr. Adrian Heap testified for Mr. Bolte and opined that Mr. Bolte suffered from

neurodynia that had been caused by the October 1 twisting injury. He also believed that

the original 2007 hernia had been the result of an unreported industrial injury. The issue

for the jury to resolve, then, was whether his current injury was caused by his employment

reawakening 5 his former problem or if the condition flared up on its own. Despite the

medical testimony, the jury unanimously returned its verdict in favor of International

Paper. Mr. Bolte then timely appealed to this court.

                                       ANALYSIS

       Mr. Bolte's appeal raises two contentions. He argues that the trial judge erred in

denying his request for a directed verdict and that the evidence did not support the jury's

verdict. Because the two issues concern the state of the evidence at trial, we will address

them together.

       The trial court should grant a motion for a directed verdict under CR 50 when

"viewing the evidence and all inferences in a light most favorable to the nonmoving

party, substantial evidence does not exist to support the nonmoving party's claims." Joy

v. Dep't o/Labor & Indus., 170 Wn. App. 614, 619, 285 PJd 187 (2012). "Substantial



       5 In workers' compensation parlance, this is known as the "light up" doctrine.
E.g., Harbor Plywood Corp. v. Dep't Labor & Indus., 48 Wn.2d 553, 556, 295 P.2d 310
(1956).



                                             5

No. 32075-8-III
Int 'I Paper v. Bolte


evidence is the quantum of evidence sufficient to persuade a rational, fair-minded person

the premise is true." Id. This court conducts de novo review of motions for judgment as

a matter of law. Id.

       The substantial evidence standard is also at issue in appellate review of a

challenge to the sufficiency of the evidence. Unlike other administrative appeals to this

court, by statute workers' compensation cases are reviewed "as in other civil cases."

RCW 51.52.140. On review in superior court, no new evidence is presented and the

case is heard de novo. RCW 51.52.115. Nonetheless, "the findings and decision of the

board shall be prima facie correct and the burden of proof shall be upon the party

attacking the same." Id. This means that the superior court can overturn the Board ruling

only after determining from a "preponderance of credible evidence" that the Board's

"findings and decision are incorrect." Ruse v. Dep' t ofLabor & Indus., 138 Wn.2d 1, 5,

977 P.2d 570 (1999) (internal quotations and citation omitted). In all cases, an appellate

court cannot substitute its view of the evidence for that of the trier of fact. E.g.,

Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570,575,343 P.2d 183 (1959).

       With these standards in mind, we turn to Mr. Bolte's contentions. His motion for

directed verdict should have been granted if the record lacked substantial evidence to

show that the Board's ruling was incorrect. He argues that the court erred in denying the

motion because International Paper failed to provide medical evidence establishing that


                                               6

No. 32075-8-111
Int'l Paper v. Bolte


his condition was not caused by the October 1 twisting. Appellant's Br. at 14. This

misstatement of International Paper's burden undergirds his entire appellate argument.

The proper question is not whether International Paper could prove the cause of Mr.

Bolte's condition, but whether it had sufficient evidence that the Board's decision was

wrong.

         As the trial court reasoned, the evidence did allow the jury to conclude that some

other cause was at work here than the purported twisting injury of October 1. Dr. Lozano

had testified that he did not think the turning would result in the unusual strain reported

by Mr. Bolte. Mr. Mee explained Mr. Bolte's tenuous position due to attendance

problems; this provided a motive for fabricating a claim. There also was evidence that

Mr. Bolte had resumed strenuous leisure activities and returned from the hernia surgery

to full-time work for a period of time. The totality of this evidence permitted the jury to

determine that the October 1 incident was not the cause of Mr. Bolte's current injury, ifit

even believed he was injured at that time or not. Viewing the evidence in a light most

favorable to International Paper, as the trial court had to do with a CR 50 motion, there

was evidence in the record to permit the jury to conclude that the Board was wrong. The

court did not err by denying Mr. Bolte's motion.




                                              7

No. 32075-8-III
Int 'I Paper v. Bolte


       For similar reasons, the challenge to the sufficiency of the evidence fails.

International Paper was not required to provide medical proof of the cause of the

condition. It was sufficient for it to simply show that there could be a different cause

than that found by the Board. Once again, the testimony of Dr. Lozano is critical.

Although Dr. Heap found that there was neurodynia, Dr. Lozano was uncertain. Based

on this conflict in the evidence, the jury was free to find that the Board erred in

determining that there was an injury. Dr. Lozano also opined that the twisting injury

might not have caused the strain that Mr. Bolte reported. Dr. Heap testified that the

neurodynia may well have resulted from the 2007 hernia repair rather than the twisting

incident (although he attributed the hernia itself to an unreported workplace injury).

Thus, the testimony of both doctors also allowed the jury to decide that Mr. Bolte's injury

was not proximately caused by the October 1 incident.

       For both reasons-there was a conflict in the testimony concerning what injury

Mr. Bolte may have suffered, as well as the cause of any injury-there was substantial

evidence to support the jury's verdict. Even when starting from a favorable position such

as that created by RCW 51.52.115, a party in a de novo trial is free to attack the

sufficiency of the evidence to support the original ruling rather than try to establish the

actual cause of injury. Accordingly, ajury is free to reach a different decision than that

reached by the original tribunal either by reweighing the evidence or by believing



                                              8

No. 32075-8-II1
Int 'I Paper v. Bolte


different evidence than that found credible in the initial action. This court, however, does

not have those luxuries and cannot substitute its view of the case for that of the jury.

       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.


                                                                ~rsmo,J.

WE CONCUR:




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