                                                                                                                    FILED
                                                                                                          COURT OF APPEALS
                                                                                                                  E V I S l O1 r
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                                         2015 APR
                                                                                                              :                    38
                                                     DIVISION II
                                                                                                         STA      1F &     SHINGTON
MARK W. OSBORN,                                                                       No. 45828 -4 -II
                                                                                                         BY
                                            Appellant


          v.



DEPARTMENT                       OF         LABOR       AND                      UNPUBLISHED OPINION
INDUSTRIES                  OF        THE.     STATE        OF
 WASHINGTON,


                                            Respondent.


        MELNICK, J. —            Mark Osborn appeals from the superior court' s affirmance of the Board of

Industrial Insurance Appeals' s ( Board' s) decision and order closing Osborn' s temporary total

disability claim. Osborn argues that he had a temporary total disability on February 5, 2010. We
disagree and affirm the superior court.


                                                           FACTS


          Osborn worked as a truck driver for 25 years. As a result, he suffers from bilateral carpal

tunnel syndrome, a left shoulder SLAP ( superior labrum anterior to posterior) lesion with internal

derangement and tendonitis, and bilateral cubital tunnel syndrome. Osborn received benefits from

the Department         of   Labor     and   Industries ( L &I) for these    conditions.   He also received physical


therapy   and participated        in   a " work   hardening"   program.    Administrative Record ( AR) (Dr. Mark


Holmes) at 10.


          In 2008 and 2009, Osborn received several medical evaluations. Dr. William Stump found

that Osborn exhibited full shoulder and elbow motion, good general strength, and normal senses


and reflexes.         Dr. David Smith found that Osborn' s condition was " basically normal except for

       mild    loss   of motion and      only   one pain   in his   shoulder,"   as well as " residual numbness   in his
very
45828 -4 -II




hands."      AR ( Smith)         at   20.     Dr. Patrick Bays         opined   that Osborn     was " capable   of gainful



employment on a                             continuous   basis,"   albeit with " permanent restrictions."       AR (Bays)
                           reasonably


at   17.   Dr. Mark Holmes            agreed    that Osborn        was   able   to   work.   All .four doctors agreed that


Osborn' s condition had become fixed and stable: further treatment would not be helpful.


           In January 2010, L &I closed Osborn' s claim and provided him with a permanent partial

disability award. Osborn protested the closure of his claim, but L &I affirmed its order on February

5, 2010.


           Osborn appealed L &I' s decision to the Board. He presented the testimony of occupational

therapist Megan Milyard, who found that Osborn' s conditions impaired both his manual dexterity

and his ability to carry out repetitive movements. As such, Milyard opined that Osborn could not

work as a light delivery driver or a service writer without modifications to his job duties.

Vocational     rehabilitation counselor           Margaret Dillon testified to the contrary. Dillon opined that


Osborn could work as a light delivery driver because the job did not involve heavy grasping and

releasing.


           Osborn also presented the testimony of Dr. Stump, who opined that Osborn could not work

on a   full -time basis between October 7, 2009,              and   February     5, 2010.    However, Dr. Smith testified


to the contrary and opined that Osborn was capable of gainful employment during the same time

period. Dr. Holmes also testified and stated that he believed Osborn could work during that time

period, so     long   as   he   avoided " repetitive overhead work."             AR (Holmes) at 26.




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45828 -4 -II



           Based      on   the   testimony    presented,          the   Board   reversed and remanded       L &I'   s order.'   In


relevant part, the Board found that:


           4. During the period of October 7, 2009,[21 through February 4, 2010, Mr. Osborn' s
           occupational disease conditions precluded him from obtaining or performing
           reasonably continuous gainful employment in the competitive labor market in light
           of his age, education, and work experience.


           5. As of February 5, 2010, all of Mr. Osborn' s occupational disease conditions were
           medically fixed and stable and none of them required further proper and necessary
           medical treatment.


AR   at    7.     The. Board then concluded that Osborn was temporarily totally disabled, within the

meaning         of   RCW 51. 32. 090, between October 7, 2009,                     and    February   4, 2010.    The Board also


concluded that Osborn was permanently partially disabled within the meaning of RCW 51. 32. 080,

as of February 5, 2010.

           Osborn appealed to the Kitsap County Superior Court, which ruled that a preponderance

of   the    evidence       supported    the    Board' s findings             of   fact.    The superior court adopted and


incorporated by reference the Board' s findings of fact and conclusions of law. The superior court

entered an additional conclusion of law that Osborn was " not entitled to temporary total disability

benefits        as of and after    the date   of [ L   &I'   s]    closing   order of     February   5, 2010."    Clerk' s Papers


 CP) at 61. Osborn appeals from the superior court' s order affirming the Board. Although Osborn

raised several issues below, Osborn' s assignments of error before us involve only his disability

status on a single         day —February 5, 2010.




1 The Board reversed L &I' s valuation of Osborn' s permanent partial disability award, increasing
the award in Osborn' s favor. That part of the Board' s decision is unrelated to this appeal.

2 The Board uses this date because L &I terminated Osborn' s time -loss compensation benefits
effective       October 6. This decision is        not at         issue in this   appeal.
45828 -4 -II



                                                           ANALYSIS


I.       STANDARD OF REVIEW


           Washington' s Industrial Insurance Act [IIA] includes judicial review provisions that are


specific   to   workers'       compensation      determinations."     Rogers    v.
                                                                                     Dep' t      of Labor & Indus., 151 Wn.


App.    174, 179, 210 P. 3d 355 ( 2009).              Under the IIA    an "[   a] ppeal shall lie from the judgment of


the   superior court as        in    other civil cases,"   i.e., we review the superior court' s decision rather than

                                3
the Board' s decision.               RCW 51. 52. 140; Rogers, 151 Wn.          App.    at   180.    Accordingly, we review

the superior court' s decision following a bench trial in a workers' compensation case by asking

whether substantial evidence supports the superior court' s challenged findings of fact and whether

the   findings       support   its   conclusions of   law. Rogers, 151 Wn. App.             at   180. " Substantial evidence


is evidence sufficient to persuade a fair-minded, rational person of the truth of the matter asserted."

Robinson        v.   Dep' t   of Labor & Indus.,      181 Wn. App. 415, 425, 326 P. 3d 744, review denied, _

Wn.2d _,         337 P. 3d 325 ( 2014).


           In carrying out this review, we view the record in the light most favorable to the party who

prevailed in superior court and do not reweigh or rebalance the competing testimony and

inferences, or apply anew the burden of persuasion. Harrison Mem' l Hosp. v. Gagnon, 110 Wn.

App.    475, 485, 40 P. 3d 1221 ( 2002).            In this case, we view the evidence in the light most favorable

to L &I.


II.        DISABILITY STATUS

           Osborn argues that he was temporarily totally disabled on February 5, 2010. We disagree

and hold that substantial evidence supported the superior court' s finding that as of February 5,



 3 The IIA' s review scheme results in a different role for us than is typical from appeals of
 administrative decisions under the Administrative Procedure Act, chapter 34. 05 RCW, where we
 sit in the same position as the superior courts. Rogers, 151 Wn. App. at 180.


                                                                 4
45828 -4 -I1



Osborn' s conditions were medically fixed and stable, which in turn supports its conclusion that

Osborn was not temporarily totally disabled on February 5.

           RCW 51. 32.090( 1) provides for continuing payments when a worker has a " total disability

that]     is only temporary."        A "[ t] emporary total           disability"        is   a   condition   that "     temporarily

incapacitates    a worker   from performing any             work at   any   gainful employment."              Hubbard v. Dep 't

                                                                                                                   If a claimant' s
of Labor & Indus., 140 Wn.2d 35, 43, 992 P. 2d 1002 ( 2000) (                            emphasis added).




condition has stabilized so that it cannot be improved with further treatment, the condition is


 fixed" for purposes of closing the temporary total disability claim and determining the permanent

disability    award,   if any. Pybus Steel Co.         v.   Dep' t   of Labor & Indus.,            12 Wn. App. 436, 438 -39,

530 P. 2d 350 ( 1975);    see also     Franks   v.   Dep' t ofLabor         & Indus., 35 Wn.2d 763, 766 -67, 215 P. 2d


416 ( 1950).     Accordingly, temporary total disability ends " as soon as the claimant's condition has

become fixed      and stable or   as   soon as   the   claimant       is   able   to   perform     any kind   of work."      Hunter


v.   Bethel Sch. Dist., 71 Wn.    App.      501, 507, 859 P. 2d 652 ( 1993) (             emphasis added);         see also Shafer


v.   Dep' t   of Labor & Indus., 166 Wn.2d 710,              716 -17, 213 P. 3d 591 ( 2009); Franks, 35 Wn.2d at

766 -67.


           Here, the superior court found that Osborn' s conditions were " medically fixed and stable"

                     5, 2010.   CP          61 ( adopting the Board'                  findings from AR        at   7).   Substantial
as   of   February                     at                                         s




evidence supports this finding.

           A condition is fixed and stable when " maximum medical improvement" occurs, meaning

 no fundamental or marked change in an accepted condition can be expected, with or without

treatment."      WAC 296 -20- 01002. All of the doctors who testified agreed that Osborn had reached

maximum medical improvement by February 2010. As early as 2008, Osborn' s doctors found that

further treatment would not have had any benefit. Osborn provided no evidence to the contrary.



                                                                5
45828 -4 -II




          We hold that substantial evidence supported the superior court' s finding that Osborn' s

condition was fixed and stable as of February 5, 2010. We also hold that this finding supports the

superior court' s conclusion that Osborn' s temporary total disability status ended on February 4.

See Hunter, 71 Wn. App. at 507.

          Osborn argues that the superior court erred by ending Osborn' s temporary total disability

status on February 4 because no evidence was presented to show any restoration of his earning

power.    But the superior court was not required to find that Osborn' s earning power was restored

in order to end his temporary total disability status. Temporary total disability ends as soon as one

of two conditions occurs: when the claimant is able to perform any kind of work or when the

claimant's condition has become fixed and stable. Hunter, 71 Wn. App. at 507. Because Osborn' s

condition was fixed and stable as of February 5, the superior court could conclude that his

temporary total disability status ended irrespective of whether he was capable of gainful

employment. 4

          Substantial evidence shows that by February 5, 2010, Osborn' s condition was fixed and

stable.   The superior court' s finding that Osborn' s condition was fixed and stable on February 5

alone supports its conclusion that Osborn was not temporarily totally disabled on that date.

Therefore, the superior court did not err.




4 We also disagree with Osborn' s allegation that no evidence was presented to show any restoration
of his earning power. Although the Board and superior court did not make the superfluous finding
that Osborn was capable of gainful employment, the record did contain substantial evidence
showing thatOsborn was capable of performing some kind of work on February 5, 2010. Dr.
Smith and Dr. Holmes, as well as Osborn' s rehabilitation counselor, testified that Osborn could
perform light work during the period between October 2009 and February 2010.


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45828 -4 -II



III.    ATTORNEY FEES


        Osborn requests reasonable attorney fees under RCW 51. 52. 130. The statute provides for

attorney fees in the       event   that the Board' s "     decision and order is reversed or modified and


additional relief   is   granted   to a   worker or   beneficiary."   RCW 51. 52. 130( 1).   Because we affirm


the superior court' s affirmance of the Board' s decision and order, we decline Osborn' s request for

fees.


        We affirm the superior court.


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




We concur:




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