                                                                                                              FILED
                                                                                                      COURT OF APPEALS
                                                                                                           DIVISION 11
                                                                                                    201511P   14 f19 :53



    IN THE COURT OF APPEALS OF THE STATE OF WASHi

                                                         DIVISION II

 NATHAN M. COOPER,                                                                   No. 45793 -8 -II


                                         Appellant,


             v.



 STATE OF WASHINGTON DEPARTMENT                                                UNPUBLISHED OPINION
 OF LABOR AND INDUSTRIES,


                                         Respondent.


         WORSWICK, J. —        Nathan Cooper appeals a judgment affirming an order of the Board of

Industrial Insurance Appeals denying his application to reopen his claim for worker' s

compensation benefits. He argues that ( 1) the trial court erred by not giving Cooper' s requested

jury instruction on preexisting conditions affecting an industrial injury, and ( 2) the trial court

erred   by   awarding to the Department             of   Labor & Industries the cost of a perpetuation deposition.


We disagree and affirm the judgment.


                                                               FACTS


         Nathan Cooper worked for many years in the kitchen of a country club. In 2006, he

slipped and. fell on a wet floor at work, injuring his back. He did not file a worker' s

compensation claim with        the Department             of   Labor &   Industries ( Department) for that injury. He

had surgery in September of 2006 to fuse his lower lumbar spine. By January of 2007, Cooper

was well enough      to   return   to   work   to   a   limited   extent.
No. 45793 -8 -II



           On March 1, 2007, a large metal cutting board fell off a counter in the country club

kitchen, striking Cooper in the back      of the   knees.   Cooper fell backwards, hurting his lower back.

Cooper filed a claim with the Department for this injury, which claim the Department approved.

           The Department closed Cooper' s worker' s compensation claim on January 22, 2008, with

a    preexisting category 3 impairment.'    Cooper returned to work in January of 2008, and

continued to work until April of 2010, during which time he resumed his full work duties. On

April 22, 2010, Cooper reported bending over at work and feeling something " snap" in his lower

lumbar spine. Dep. of Fossier at 21. 2 Cooper filed a claim to reopen his previous worker' s

compensation claim stemming from the 2007 injury, and the Department denied the request.

           Cooper appealed, and the Department affirmed its order denying Cooper' s application to

reopen the claim. Cooper then appealed to the Board of Industrial Insurance Appeals ( Board),

and the Board granted review. The Board' s review sought to establish whether Cooper' s back

condition proximately caused by the 2007 injury had objectively worsened between the January

22, 2008 closure of his claim, and the July 7, 2011 order denying his application to reopen that

claim.3



1"
       Category 3" refers to a classification of the amount of Cooper' s disability under the Industrial
Insurance Act regulations. See WAC 296 -20 -680.


2 The appellant submitted one volume containing the certified board record, transcripts of
testimony and depositions, and other documents. We cite to each separately.

3 Under the Industrial Insurance Act, a worker is eligible for worker' s compensation where there
is evidence of objective worsening of a condition proximately caused by an industrial injury, as
shown by a comparison between the two dates relevant to this question. Phillips v. Dep' t of
Labor & Indus., 49 Wn.2d 195, 197, 298 P. 2d 1117 ( 1956).            These dates are known as the
     terminal dates."   In this case, January 22, 2008 and July 7, 2011 are the terminal dates. Phillips,
49 Wn.2d at 197.


                                                        2
No. 45793 -8 -II



       Evidence before the Board consisted of testimony from Cooper, a deposition from

Cooper' s examining physician Dr. Gritzka, and a perpetuation deposition from the Department' s

examining physician Dr. Fossier. Cooper testified that his back condition had worsened slowly

after the claim closure. He testified that the pain was worse on some days than others, but did


not provide other details about the worsening.

        Dr. Gritzka, who examined Cooper in October of 2011, testified that Cooper' s condition


had " probably    worsened"    between the terminal dates            of   January    22, 2008    and   July   7, 2011.   Dep.

of Gritzka at 39. Dr. Gritzka objectively found that Cooper had fixed muscle spasms, swelling

along the lumbar spine near the site of his 2006 spinal fusion, and deformity in his vertebrae.

But Dr. Gritzka did not testify about any dates relevant to these conditions. Dr. Gritzka had not

examined Cooper before 2011, and did not testify about Cooper' s condition in 2007 ( after the

industrial injury), 2008 ( after      the   claim closure),      or 2010 ( after the most recent reported injury).

Dr. Gritzka rated Cooper' s impairment a category 3.

        By contrast, the Department' s medical examiner, Dr. Fossier, testified that Cooper' s

condition had not objectively worsened between the terminal dates. Dr. Fossier had examined

Cooper on October 11, 2010. Dr. Fossier also reviewed Cooper' s previous x -rays and medical


records. He testified that Cooper' s back condition could be expected to worsen slowly over time

due to his 2006 spinal fusion. Dr. Fossier compared x -rays of Cooper' s back from March 2007

and April 2009, which revealed some worsening which " would be expected just because of age,

change,   the   passage of   time."    Dep. of Fossier at 14. Dr. Fossier also reviewed an independent

medical   examination from January            of   2008 ( just   prior   to the   claim closure), which revealed " no




increase" in impairment       since   the 2007      injury. Dep.     of   Fossier    at   18. That independent     medical
No. 45793 -8 -II



examination concluded that the 2007 injury " caused only temporary aggravation of [Cooper' s]

condition."   Dep.    of   Fossier   at   18. The independent examination physician rated Cooper' s


impairment    as a   category 3.     During Dr. Fossier' s examination of Cooper, Cooper reported pain

and very limited range of motion. Cooper reported pain in response to some of Dr. Fossier' s

tests that should not have been painful, indicating a psychological, not a physical, reaction.

Based on this examination and his review of the' previous examinations, Dr. Fossier concluded


that Cooper' s condition had not objectively worsened. He categorized Cooper' s impairment at a

category 3.

         The Board denied Cooper' s appeal, and made findings of fact. It found no objective


worsening between the terminal dates. It found, " Neither           the sole lay witness (Mr. Cooper), nor

the lone medical witness ( Dr. Gritzka), tied their generalized discussions of worsening to the

terminal   dates   as required   by   law." Certified Bd. R. ( CBR)   at 22. The Board found that many of

Dr. Gritzka' s diagnoses predated the 2007 injury. The Board therefore found that, even if

Cooper' s condition had worsened, it was not caused by the 2007 injury and did not warrant

reopening that claim. The Board concluded that Dr. Fossier' s testimony was " substantially

better founded and more clearly and persuasively presented" than Dr. Gritzka' s testimony. CBR

at 31.


          Cooper petitioned for review of this decision, which the Board denied. Cooper appealed

to the   superior court.     The superior court conducted a jury trial. Cooper proposed a jury

instruction reading:

          If an industrial injury lights up, or makes disabling, a latent or preexisting
          infirmity, or weakened condition, then the resulting disability is to be attributed to
          the industrial injury. If the industrial injury is a proximate cause of the condition


                                                           4
No. 45793 -8 -II



             from which the worker suffers, then the previous physical or mental condition of
             the worker is immaterial, and the industrial injury is considered to be the legal,
             cause of the full disability, regardless of any preexisting or congenital weakness
             or infirmity.

Clerk'   s   Papers ( CP)     at   25.    The trial court denied Cooper' s proposed instruction, finding the

 lighting up" instruction inapplicable. The trial court said:

             I think   introducing       the           lighting up— especially when I look at the
                                               subject of

             instruction —it       hasn' t really been discussed by the doctors themselves. And I
             think that risks more confusion.
                       I think —I    think the Plaintiff is adequately protected because it is, in
             essence, an aggravation condition.



Verbatim Report          of   Proceedings ( Nov. 26, 2013)         at   22 -23. The trial court then mentioned


separate jury instructions about aggravation of a symptomatic previous condition, suggesting that

these instructions would appropriately inform the jury how to consider Cooper' s preexisting

condition.



             The jury    affirmed        the Board' s   finding. 4 The trial court then entered judgment against

Cooper for costs, including $303 for the transcription fee for Dr. Fossier' s perpetuation

deposition taken pursuant to.WAC 263 -12 -117. Cooper appeals.

                                                            ANALYSIS


                                                        I. JURY INSTRUCTION


             Cooper argues that the trial court erred by declining to give his proposed " lighting up"

instruction. We disagree, because no evidence supported the instruction.




4 The jury responded affirmatively to, the following question:
             Was the Board of Industrial Insurance Appeals correct in deciding that between
             January 22, 2008 and July 7, 2011, Nathan M. Cooper' s condition proximately
             caused by the March 1, 2007 industrial injury did not objectively worsen?
CPat61.



                                                                  5
No. 45793 -8 -II



A.        Standard ofReview

          Jury instructions are proper if they adequately state the law, do not mislead the jury, and

allow each party to argue its theory of the case. Boeing Co. v. Key, 101 Wn. App. 629, 633, 5

P. 3d 16 ( 2000).        A party is entitled to a jury instruction only if it has offered substantial evidence

to   support   the instruction.      Stiley    v.   Block, 130 Wn.2d 486, 498, 925 P. 2d 194 ( 1996).                      We review


a trial court' s decision to give a jury instruction for an abuse of discretion. Boeing Co. v.

Harker -Lott, 93 Wn.         App.    181, 186, 968 P. 2d 14 ( 1998). A trial court abuses its discretion if its


decision was manifestly unreasonable, or if its discretion was exercised on untenable grounds or

for untenable reasons. Boeing, 93 Wn. App. at 186. In general, we construe the industrial

insurance      statute   liberally   in favor       of   the   worker.      Ehman   v.   Dep 't   of Labor & Indus., 33 Wn.2d


584, 595, 206 P. 2d 787 ( 1949).              But, where factual sufficiency is at issue, we do not construe the

statute liberally. 33 Wn.2d at 595.

B.         No Abuse ofDiscretion

           If an industrial injury " lights up" a latent preexisting condition, then the worker may be

eligible   for   worker' s compensation.                 Oien   v.   Dep 't   of Labor &    Indus., 74 Wn. App. 566, 569,

874 P. 2d 876 ( 1994); Wendt            v.
                                             Dep' t ofLabor &            Indus.,    18 Wn. App. 674, 676, 571 P. 2d 229

 1977).     To succeed in a reopening claim such as Cooper' s, the plaintiff has to prove, by

objective medical          testimony,      that ( 1)     his   condition was worse after          the   original   injury, ( 2)   the


worsening        was caused    by    the   original       injury, ( 3) his condition worsened between the terminal

dates, and ( 4) the worsening warranted more treatment or disability beyond what the Department

had provided. Phillips v. Dep' t ofLabor and Indus., 49 Wn.2d 195, 197, 298 P. 2d 1117 ( 1956).




                                                                        6
No. 45793 -8 - II



At issue here was the third factor.: whether Cooper' s condition objectively worsened between the

terminal dates of January 22, 2008 and July 7, 2011.

        A claimant is entitled to a " lighting up" jury instruction where the evidence supports that

 1) the preexisting condition was latent, not symptomatic, and (2) the industrial injury

proximately caused the current disability, regardless of a preexisting condition. Miller v. Dep' t

of Labor & Indus., 200 Wn. 674, 682, 94 P. 2d 764 ( 1939); Phillips, 49 Wn. 2d at 197.


        Here, Cooper failed to present evidence supporting the proposed instruction. Instead,

evidence showed that Cooper was symptomatic before the 2007 injury, proving that the 2007

injury did not " light up" an asymptomatic condition.

        Cooper' s back problems began by 2006 when he slipped on the floor and hurt his back.

Both doctors testified that Cooper' s spinal fusion surgery in 2006 would cause Cooper' s pain and

flexibility to worsen over time. Thus, the evidence showed that Cooper had a preexisting spinal

fusion that was expected to worsen his back condition over time. This demonstrates that his


existing back problem was symptomatic before his 2007 injury. Cooper failed to present any

evidence that his back problem was even temporarily asymptomatic, and therefore the trial court

properly   rejected   the instruction.   Wendt, 18 Wn. App. at 676.

        Furthermore, Cooper' s reliance on cases approving instructions similar to his own,is

misplaced. He argues that his proposed instruction was proper because the Court of Appeals


approved nearly identical instructions in Simpson Timber Co. v. Wentworth, 96 Wn. App. 731,

981 P. 2d 878 ( 1999) and Wendt, 18 Wn. App. at 676. But these cases hold that such an

instruction is proper when the evidence supports it; these cases do not hold that such an

instruction is always appropriate as a matter of law.




                                                      7
No. 45793 -8 -II



         Cooper argues that the jury could have found that the spinal fusion " was a pre- existing

infirmity or weakened condition acting upon the industrial injury of March 1, 2007, and had

worsened      following       claim closure on    January   28, 2008."   Br. of Appellant at 12. But this


argument does not support the giving of a " lighting up" instruction where substantial evidence

does not support one.


         The trial court did not abuse its discretion by refusing to give Cooper' s proposed

instruction because Cooper failed to present evidence that his condition was asymptomatic.

                                                  II. DEPOSITION COSTS


         Cooper argues that the trial court erred by awarding the Department its transcription costs

for Dr. Fossier' s perpetuation deposition. We affirm.


A.       Standard ofReview

         We review a challenge to the trial court' s authority to award attorney fees or costs de

novo, as question of law. Tradewell Group, Inc. v. Mavis, 71 Wn. App. 120, 126 -27, 857 P. 2d

1053 ( 1993).       Similarly, we review issues of statutory interpretation de novo. Erakovic v. Dep' t

of Labor & Indus., 132 Wn.             App.    762, 768, 134 P. 3d 234 ( 2006). First, we attempt to determine


legislative intent by examining the statute' s plain language. Erakovic, 132 Wn. App. at 768.

Only if the plain language is ambiguous do we proceed to consider other sources of statutory

interpretation,     such as      legislative   history. 132 Wn. App. at 768. We avoid interpreting a statute

in   such a   way   as   to   create an absurd result.   132 Wn. App. at 768.

B.       No Error in Awarding Costs

         Cooper argues that the statute providing for an award of deposition costs does not apply

to situations where, as here, the superior court exerts its appellate jurisdiction. He argues that



                                                              8
No. 45793 -8 -II



deposition costs are available only where the deposition was taken for the superior court in its

general jurisdiction. He also argues that the Washington Administrative Code demonstrates that


the party taking a perpetuation deposition under the Industrial Insurance Act always bears its

own costs. We disagree, because the plain language of the statute makes clear that costs are


available for depositions used in any action in the superior court, and the Washington

Administrative Code does not limit the superior court' s authority to award costs.

          1.   Plain Language Analysis: Appellate Jurisdiction ofSuperior Court Irrelevant

          Chapter 4. 84 RCW provides the statutory basis for awarding costs in a superior court

action. The chapter applies to and governs " all civil actions and proceedings, both legal and

equitable, and all criminal causes,            in the   superior courts."   RCW 4. 80. 140. RCW 4. 84. 030


provides, in pertinent part:


           In any action in the superior court of Washington the prevailing party shall be
          entitled   to his   or   her   costs and   disbursements." ( Emphasis    added).   RCW 4. 84. 010
          provides,    in              T] here shall be allowed to the prevailing party upon
                            pertinent part: "[

          the judgment certain sums for the prevailing party' s expenses in the action, which
          allowances are termed costs, including, in addition to costs otherwise authorized by
          law, the following expenses ... .
                   7) To the extent that the court or arbitrator finds that it was necessary to
          achieve the successful result, the reasonable expense of the transcription of
          depositions used at trial.


 Emphasis      added).      Chapter 4. 84 RCW applies to appeals in the superior court from the Board of

Industrial Appeals. Black           v.   Dep' t of Labor &    Indus., 131 Wn.2d 547, 557, 933 P. 2d 1025


 1997).


          Cooper argues that chapter 4. 84 RCW applies only when the superior court invokes its

general jurisdiction, not where it sits as an appellate court reviewing the Board' s decision. He

argues that the superior court could not order the parties to generate depositions, because the



                                                                9
No. 45793 -8 -II



superior court' s record was limited to the Board' s record. Therefore, he concludes that the

superior court could not award deposition costs, because it could not order new depositions. But


previous cases have determined that chapter 4. 84 RCW does apply to appeals in the superior

court from the Board. Black, 131 Wn.2d at 557. And Cooper fails to demonstrate that RCW

4. 84.030 and 4. 84. 010 are ambiguous. The statutes provide that in any action in the superior

court wherein depositions are used at trial, the Superior Court shall grant the prevailing party his

or her costs, including reasonable costs for depositions. This language is not ambiguous, and

therefore we apply the statutes as written. Erakovic, 132 Wn. App. at 768. The plain language

of chapter 4. 84 RCW allowed the trial court to award deposition costs to the Department.

        2.   WAC 263 -12 -117 Does Not Supersede RCW 4. 84. 010

        Cooper argues that WAC 263 -12 -117, which governs perpetuation depositions in the

Industrial Insurance Act, requires parties to bear their own deposition costs, and therefore the


trial court erred by awarding deposition costs here. We disagree.

        Provisions outside chapter 4. 84 RCW, including the superior court rules and Washington

Administrative Code, govern how depositions are to be taken and used. Former WAC 263 -12-

117 ( 2010) 5 provided that the industrial appeals judge " may permit or require the perpetuation of

testimony by deposition." The    code   further   provided   that "[   e] ach party shall bear its own costs

except when the industrial appeals judge allocates costs to parties or their representatives."

Former WAC 263 - 12- 117( 2).   CR 32 governs the use of depositions in superior court, and is




5 We analyze the former version because it was in effect during Cooper' s trial.



                                                     10
No. 45793 -8 -II



silent as to costs. It provides that the superior court may use depositions in certain limited

circumstances, none of which were applicable here.

       Cooper argues that because CR 32 does not allow the superior court to use depositions in


circumstances such as these, the deposition fell exclusively under the legal framework of the

Board of Industrial Insurance Appeals. He asserts that, because CR 32 did not authorize the

superior court to take or use the deposition at issue here, that only the rules applicable to the

Board —including    the rule of WAC 263 -12- 117( 2) that parties bear their own costs in

perpetuation   depositions before the Board— applied to this case.


        We disagree, because Cooper fails to demonstrate that WAC 263 - 12 -117 controls the

allocation of costs in a trial before the superior court. As explained above, the plain language of

chapter 4. 84 RCW provides that the prevailing party is entitled to costs, including deposition

costs, in any action in the superior court when depositions were used. RCW 4. 84.030; RCW

4. 84. 010. Neither of these provisions includes an exception for perpetuation depositions under

the Industrial Insurance Act. Nor does the WAC provision provide that, even if the deposition is

later used in an action in the superior court, its cost provision overrides chapter 4. 84 RCW.

        Therefore, Cooper has failed to demonstrate that the plain language of chapter 4. 84

RCW, allowing deposition costs to the prevailing party, does not control the outcome here.




                                                   11
No. 45793 -8 -II



Therefore, we affirm the trial court' s award of costs, including the deposition costs, to the

Department.6

          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.




                                                                                    Worswick, J.
 We concur:




                           41, ci   V

               A.C. J.




6 As a final matter, in his reply brief, Cooper argues that the Department' s brief improperly
includes argument in the statement of the case, and requests that we strike the portion beginning
at   " page 7 ...     first paragraph, last three sentences, through page 8, first paragraph, except for the
first   and   last   sentence," violating RAP 10. 3( a)( 5). Reply Br. of Appellant at 2. This rule
                                  as

requires      that the statement of the case be "[ a] fair statement of the facts and procedure relevant to
the   issues   presented    for   review, without argument."   RAP 10. 3(   a)(   5).   We confine our review of
the Department' s argument as those articulated in its argument section.


                                                        12
