                                                                       FILED
                                                                    JUNE 23, 2020
                                                            In the Office of the Clerk of Court
                                                           WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

RUBEN C. LEON,                               )         No. 37014-3-III
                                             )
                     Respondent,             )
                                             )
              v.                             )         UNPUBLISHED OPINION
                                             )
McCAIN FOODS,                                )
                                             )
                     Appellant.              )

       LAWRENCE-BERREY, J. — McCain Foods USA, Inc. (McCain Foods)1 appeals

after the trial court awarded Ruben Leon additional time-loss compensation and pension

benefits. McCain Foods mostly takes issue with the trial court’s factual findings.

Because substantial evidence supports those findings, we affirm.

                                         FACTS

       Summary of injury

       Ruben Leon worked for McCain Foods for approximately 25 years. On April 27,

2012, Leon and a coworker were sent to unplug a clogged valve underneath a fryer. They



       1
        Ruben Leon’s initial pleading filed with the Adams County Superior Court is
captioned “Ruben C. Leon v. McCain Foods.” Clerk’s Papers (CP) at 1. As reflected in
the record, the employer’s correct name is McCain Foods USA, Inc.
No. 37014-3-III
Leon v. McCain Foods


were told the oil in the fryer was cool and they could safely work on the plug. This was

not true. When Leon started to work on the valve, scalding hot oil gushed out over his

face and upper body.

       Leon’s coworker pulled him to safety and put him in cold water. An ambulance

arrived and took Leon to a nearby hospital. Due to the severity of his burns, Leon was

flown from the local hospital to Harborview Medical Center in Seattle and admitted to the

burn unit. Leon spent a considerable period of time at Harborview Medical Center where

he received a number of surgeries and skin grafts. He continued to receive follow-up

treatment from Harborview until his final skin graft in 2014. Leon takes morphine three

times a day for pain, as prescribed by his doctor, Dr. Randel Bunch.

       In February 2015, McCain Foods offered Leon a forklift driver position. Leon

rejected the offer because he believed he could not safely operate a forklift, given his

daily use of morphine and difficulty sleeping at night.

       Procedure

       The Department of Labor and Industries provided Leon time-loss compensation

for almost three years. By order of January 26, 2016, the Department closed Leon’s

claim. The order awarded Leon time-loss compensation through April 16, 2015, and




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$96,363.84 for permanent impairment of his left upper extremity, his skin, and his mental

health.

          Leon timely appealed the Department’s order to the Board of Industrial Insurance

Appeals. He asserted he was temporarily totally disabled from April 17, 2015, through

January 25, 2016, and permanently totally disabled thereafter. Industrial Appeals Judge

(IAJ) Heidi Bolong scheduled an evidentiary hearing for late October 2016. The parties

presented live and depositional testimony. Leon’s lay witnesses described how the

industrial accident changed Leon from a friendly, independent person into an angry,

dependent person. These testimonies were punctuated by evidence that Leon had missed

only one day of work during 25 years at McCain Foods, but now was dependent on others

to perform simple tasks. In March 2017, IAJ Bolong issued her “Proposed Decision and

Order” that granted Leon’s requested relief. Clerk’s Papers (CP) at 45.

          McCain Foods appealed the Proposed Decision and Order to the Board. The

Board disagreed with the proposed decision and entered its own findings of fact and

conclusions of law that confirmed the Department’s closing order and awards.

          Leon then appealed the Board’s decision to Adams County Superior Court. The

court issued a brief letter decision, which we quote in part:




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      [A]fter reviewing the entire record on a de nov[o] basis, I believe that a fair
      preponderance of the evidence overcomes the presumption of correctness
      enjoyed by the Board’s decision and instead preponderates in conformity
      with the Proposed Decision and Order of Industrial Appeals Judge Bolong
      of March 7, 2017.
              I agree with Judge Bolong that the expert evidence and particularly
      the lay evidence, indicates that Mr. Leon’s horrifying experience, functional
      illiteracy, twice [sic] daily morphine intake, PTS[D], major depression and
      untreatable mental health impairment prevented him from accepting even
      the substantially dumbed down forklift operator position offered by
      defendant at the same plant which plaintiff can’t even stand to look at and
      which [exudes] the terrifying smell of hot potato frying oil. Mr. Leon
      would want nothing more but to got [sic] back to work, but he cannot do so
      and probably never will. He only missed one day of work in 25 previous
      years at the plant.
              The Board’s Decision and Order of May 19, 2017 shall be reversed
      and the matter shall be remanded to the Department to reinstate the
      March 7, 2017 proposed Decision and Order of the Industrial Appeals
      Judge and take action in conformity therewith.

CP at 497. Because the trial court found that the evidence conformed to the Proposed

Decision and Order, we attach it as an appendix to this opinion.

      Four months later, the trial court entered findings of fact, including:

      2.     Ruben Leon sustained an industrial injury on April 27, 2012, when
             he was splashed with hot oil while unplugging a valve underneath a
             fryer, resulting in burns on his left arm, left leg, and the right side of
             his face, as well as post-traumatic stress disorder, somatic symptom
             disorder, and major depressive disorder.
      3.     Mr. Leon is a 49-year-old man with a sixth-grade education, work
             experience as a potato peeler, receiver, machine operator, and in
             maintenance, who is illiterate in English.




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       4.       Mr. Leon is unable to maintain attention and concentration for
                extended periods, to get along with coworkers or peers without
                behavioral extremes, and to interact appropriately with the general
                public, as of April 17, 2015.
       5.       Mr. Leon [w]as unable to perform or obtain gainful employment
                on a reasonably continuous basis from April 17, 2015, through
                January 25, 2016, due to the residuals of the industrial injury and
                taking into account the claimant’s age, education, work history, and
                preexisting conditions.
       6.       As of April 17, 2015, Mr. Leon’s conditions proximately caused by
                the industrial injury were fixed and stable.
       7.       Mr. Leon was unable to perform or obtain gainful employment on a
                reasonably continuous basis as of January 26, 2016, due to the
                residuals of the industrial injury and taking into account the
                claimant’s age, education, work history, and preexisting conditions.

CP at 500-01.

       The trial court remanded the appeal to the Department with instructions to award

Leon time-loss compensation from April 17, 2015, through January 25, 2016. It also

ordered the Department to award pension benefits to Leon effective January 26, 2016, as

a permanently and totally disabled injured worker.

       McCain Foods timely appealed the trial court’s decision.

                                         ANALYSIS

       McCain Foods argues (1) Leon failed to meet his burden of proof to overcome the

correctness of the Board’s decision, (2) the trial court erred by failing to give Leon’s

treating physician special consideration, (3) the preponderance of medical and vocational


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opinions establishes Leon is capable of performing the offered forklift position, and

(4) the Board correctly sustained the Department’s finding that Leon had a category 3

permanent partial disability mental health impairment. We first address McCain Foods’

second argument and then address its remaining three arguments together.

       A.     SPECIAL CONSIDERATION TO ATTENDING PHYSICIAN’S OPINIONS

       McCain Foods contends the trial court erred by not giving sufficient consideration

to the opinions of Dr. Bunch, Leon’s attending physician.

       In a workers’ compensation case, the opinions of the claimant’s attending

physician must be given special consideration. Hamilton v. Dep’t of Labor & Indus., 111

Wn.2d 569, 571, 761 P.2d 618 (1988). However, the Hamilton court makes clear:

              “We are not saying that the trier of the facts should believe the
       testimony of the treating physician; the trier of the facts determines whom it
       will believe; but it should, in its findings, indicate that it recognizes that we
       have, in several cases, emphasized the fact that special consideration should
       be given to the opinion of the attending physician.”

Id. at 572 (quoting Groff v. Dep’t of Labor & Indus., 65 Wn.2d 35, 45, 395 P.2d 633

(1964)).

       McCain Foods contends the trial court did not give Dr. Bunch’s opinions special

consideration. Leon contends it did, but it did not believe Dr. Bunch over the rest of the

evidence. The disagreement boils down to a key question: Did the trial court give Dr.


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Bunch’s opinions special consideration? If it did, then the trial court’s decision on

whether it believed Dr. Bunch or not was a question of credibility, which this court will

not examine. Cantu v. Dep’t of Labor & Indus., 168 Wn. App. 14, 22, 277 P.3d 685

(2012).

       As stated in Hamilton, a trial court should enter a finding of fact that indicates it

recognized the special consideration deserved by an attending physician. Here, the trial

court failed to do this. But we do not believe this failure requires reversal or remand.

       Both parties briefed this rule and later argued it to the trial court. The trial court

itself mentioned this rule, calling it a “particular” consideration before defense counsel

interrupted and noted the phrase was “special” consideration. Report of Proceedings at

21. Nothing in the record indicates the trial court did not know or correctly apply the

rule. While it is true the trial court did not enter a written finding in this regard, that

failure has more to do with claimant counsel’s preparation of the findings of fact than any

confusion on the part of the trial court. We are confident the trial court knew and

correctly applied the rule that required it to give Dr. Bunch’s opinions special

consideration.




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       B.      SUFFICIENCY OF THE EVIDENCE

       McCain Foods contends the trial court’s findings are not supported by substantial

evidence. It argues the overwhelming medical and vocational evidence supports the

Board’s decision and this court should reverse the trial court’s findings of fact. Leon

notes McCain Foods failed to assign error to any of the trial court’s findings and urges us

to treat those findings as verities.

       Failure to assign error to findings of fact

       RAP 10.3(g) requires a party to separately assign error to each finding of fact the

party challenges and refer to the challenged finding by number. An “appellate court will

only review a claimed error which is included in an assignment of error or clearly

disclosed in the associated issue pertaining thereto.” RAP 10.3(g). Nevertheless, we will

waive a strict application of this rule if the briefing makes clear the nature of the

challenge, the violation is minor, there is no prejudice to the opposing party, and there is

minimal inconvenience to the appellate court. Union Elevator & Warehouse Co. v. State,

144 Wn. App. 593, 601, 183 P.3d 1097 (2008). It is clear that McCain Foods is

challenging the trial court’s findings of fact 4, 5, and 7, and Leon provided a full rebuttal

to the factual challenges in his brief. We are not inconvenienced by McCain Foods’




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technical rule violation and will address its sufficiency of evidence challenge on the

merits.

          Sufficiency of evidence

          For cases involving the Industrial Insurance Act (IIA), Title 51 RCW, the trial

court applies a modified standard of review. Gorre v. City of Tacoma, 184 Wn.2d 30, 36,

357 P.3d 625 (2015). RCW 51.52.115 grants a statutory presumption of correctness to

the Board’s decision. This presumption is overcome by a trial court finding that the

preponderance of evidence is against the Board’s findings. Cantu, 168 Wn. App. at 20.

“Only if it finds the evidence to be equally balanced does the presumption require the

findings of the board to stand.” Id. at 20-21 (citing Allison v. Dep’t of Labor & Indus., 66

Wn.2d 263, 268, 401 P.2d 982 (1965)).

          On appeal from the superior court’s decision, this court reviews whether there is

substantial evidence to support the superior court. Ruse v. Dep’t of Labor & Indus., 138

Wn.2d 1, 5, 977 P.2d 570 (1999). “‘Substantial evidence’ is evidence that would

persuade a fair-minded person of the truth or correctness of the matter.” Erection Co. v.

Dep’t of Labor & Indus., 160 Wn. App. 194, 202, 248 P.3d 1085 (2011).

          Dr. Donald Williams provided the only medical opinion to support Leon’s

contention that he could not return to work at McCain Foods. Dr. Williams testified that


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Leon v. McCain Foods


Leon’s posttraumatic stress disorder (PTSD) would cause flashbacks if he was required to

return to McCain Foods and those flashbacks, prompted even by the smell of potato

frying oil, would prevent him from returning to work there. McCain Foods makes worthy

arguments why a trier of fact should not have believed Dr. Williams. Chief among these

arguments are (1) medical tests indicated that Leon’s answers describing his mental

health limitations were unreliable, (2) Dr. Williams met with Leon only once, and (3)

three other doctors disagreed with Dr. Williams.2

       We reject McCain Food’s sufficiency challenge for two reasons. First, the trial

court did not base its decision solely on the weight of medical evidence. Rather, the trial

court found that Leon and his witnesses who described Leon’s severe limitations were

credible. “I agree with Judge Bolong that the expert evidence and particularly the lay

evidence, indicates that Mr. Leon’s horrifying experience, functional illiteracy, twice [sic]

daily morphine intake, PTS[D], major depression and untreatable mental health

impairment” prevented him from accepting the forklift operator job offered by McCain

Foods. CP at 497; see Ellerman v. Centerpoint Prepress, Inc., 143 Wn.2d 514, 523 n.3,

22 P.3d 795 (2001) (“A memorandum opinion may be considered as supplementation of


       2
        We note that IAJ Bolong set forth numerous reasons why she found Dr.
Williams’s testimony credible and the three other doctors’ testimonies inconsistent and
not credible. See Appendix.

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formal findings of fact and conclusions of law.”). In addition, the trial court noted that

Leon wanted to return to work, as shown by his 25 years of work with only one absence.

The trial court credited this fact to Leon and impliedly rejected McCain Foods’ argument

that Leon exaggerated his mental health disability.

       Second, substantial medical and lay evidence supports the trial court’s findings in

this regard. The testimonies of several witnesses described Leon both before and after his

extensive injuries. Leon was once friendly and independent. He is now angry and unable

to work with others. Leon’s partner of several years testified that Leon experienced great

fear the one time she drove them past McCain Foods. Because substantial evidence

supports the trial court’s contested findings, we reject McCain Foods’ sufficiency of the

evidence challenge. We confirm the trial court’s award to Leon of additional time-loss

compensation and pension benefits.3

       C.     ATTORNEY FEES

       Leon requests attorney fees and cites RCW 51.52.130. In the context of the IIA,

when a lower court’s decision is appealed by a party other than the injured worker and the


       3
         McCain Foods correctly notes that permanent partial disability for an injury
cannot be compensated when a worker receives a total disability pension for the same
injury. Appellant’s Br. at 5. Because Leon is entitled to pension benefits due to his
mental health disability, we need not address McCain Foods’ final argument that Leon is
entitled to a category 3 permanent partial disability mental health impairment award.

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injured worker's right to recover is sustained, the court appealed to is required to grant

attorney fees. RCW 51.52.130. Because we sustain Leon's right to recover additional

time-loss compensation and pension benefits, we additionally award Leon reasonable

attorney fees on appeal.

      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.




                                                                           j
WE CONCUR:




                                           Fearing, J.




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