                                                                               FILED
                                                                     COURT OF APPALS
                                                                           OCVJISIO     ii

                                                                   2011i DEC 30 AM. 9: t7

     IN THE COURT OF APPEALS OF THE STATER                                            fitiaN
                                                                    BY:..,,,
                                         DIVISION II                           DEPJTY

 KIMBERLEY JOHNS,                                                   No. 44983 -8 -II


                               Appellant,


        v.



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 OF LABOR AND INDUSTRIES,                                     UNPUBLISHED OPINION


                                Respondent.


       W0RSwIcK, P. J. —    Kimberley Johns appeals the superior court' s order affirming the

Department of Labor and Industries' closure of her industrial insurance claim with a permanent


total disability, arguing that the Department should have closed her claim with a permanent

partial disability. Johns argues that ( 1) the Board of Industrial Insurance Appeals and the

superior court exceeded the scope of their review, (2) substantial evidence does not support the


superior court' s finding that Johns was unable to perform or obtain regular gainful employment,

and ( 3) the superior court erred by concluding Johns has a permanent total disability without

finding that the industrial injury was a proximate cause of her inability to perform or obtain

regular gainful employment. We reject Johns' s arguments and affirm.

                                              FACTS


A.      Workplace Injury and Industrial Insurance Claim

        Kimberley Johns injured her back in the course of employment while stretching and

reaching across a table. The injury caused a lumbar strain and L4 -5 disc herniation with

spondylolisthesis.
No. 44983 -8 -II



          In 2003, Johns made an industrial insurance claim to the Department, requesting benefits

for her back injury. In 2003, the Department accepted Johns' s claim, determined she had a

temporary total disability, and paid her industrial insurance benefits.

          At   some point,   Johns began to         receive social        security   disability   benefits.   Starting in

2006, the Department began to reduce her industrial insurance benefits as an offset to her social

security benefits. See RCW 51. 32. 220( 1), .            225( 1).       Beginning in 2008, Johns requested that the

Department close her claim and change her status from "temporary total disability" to

 permanent partial disability" because the social security offset applied only to total disability

benefits, as opposed to partial disability benefits.

          In 2011, following a court order requiring the Department to make a determination

addressing Johns' s disability, the Department entered an order closing her claim with a

determination of permanent total disability, rather than permanent partial disability. Johns

appealed the Department' s order to the Board, arguing that she " is not totally permanently

disabled, does not want to be classified as totally permanently disabled and wants a permanent

partial   disability   award."    Clerk'    s   Papers ( CP)   at   43.    A hearing was conducted before an

industrial appeals judge.


B.        Proceedings Before the Industrial Appeals Judge


          At the industrial appeals hearing, Johns testified that the injury- related back pain slowed

her down " a lot" in her daily life and prevented her from bending over, lifting anything, or sitting

for   long   periods of   time.   CP   at   111.   Johns also testified that she did not anticipate returning to

the work force. Johns' s mother, Betty McCrory, testified that Johns was a steady worker before

the injury and had not returned to work after the injury.



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No. 44983 -8 -II



       Guy Earle, M.D., testified by way of deposition that it would be highly unlikely for Johns

to ever be able to maintain reasonably gainful full -time employment. Dr. Earle testified that

Johns could not sit for more than 10 minutes without deteriorating neurologically, and that

Johns' s condition was likely to
                              . progressively deteriorate over time.

       Johns' s attending physician, Lynn Staker, M.D., also testified by way of deposition. Dr.

Staker testified to the severity of Johns' s back injury:

        So — so
              at that point she' s had ongoing pain since that time. Her pain has never
       really   stopped.It apparently improved some with the arthrodesis, and now we' re
       to when I first started seeing her with significant worsening of her pain. The disc
        above   the level that   was   treated before   went out on   her,   and at   this   point— and   this

        is most likely the issue that we' re here for.

CP at 250. Dr. Staker testified that Johns was not employable.


        The industrial appeals judge entered a proposed .decision and order. The proposed order


concluded Johns had a permanent total disability as a result of the industrial injury, but did not

make any findings as to whether the injury was a proximate cause of Johns' s inability to perform

or obtain regular gainful employment.



C.      Johns' s Petition for Review of the Proposed Order

        Johns petitioned the Board for review of the proposed order. Her petition focused


primarily on an issue unrelated to this appeal: whether a claimant can be required to accept an

erroneous classification of her disabilities where that erroneous classification results in a larger

award. The remainder of her petition argued ( 1) the Department' s ruling was unfair because it

resulted   in Johns receiving    no   money from the Department, ( 2) evidence existed that Johns could


work part-time, and ( 3) the proposed order failed to explain its reasoning for concluding Johns

had a permanent total disability. The petition never mentioned proximate cause or causation.



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No. 44983 -8 -II



            After considering Johns' s petition, the Board entered a final order approving the

industrial appeals judge' s proposed order. The Board' s final order concluded that Johns had a


permanent total disability as a result of the injury, but it did not make any findings as to whether

the injury was a proximate cause of her inability to perform or obtain regular gainful

employment.




D.          Appeal to the Superior Court


            Johns appealed the Board' s final order to the superior court. The superior court affirmed


the Department' s order in part and reversed it in part on an issue unrelated to this appeal. The


superior court entered the following pertinent findings of fact and conclusions of law:

                                                       I. FINDINGS OF FACT


             1. 2 [      Johns'   s]   industrial   injury ...   is the proximate cause of lumbar strain and
            L4 -5 disc herniation with spondylolisthesis.


             1. 3 ...        Johns' [ s]      condition,   proximately      caused   by the   industrial   injury ...   had
            reached maximum medical improvement.


             1. 6        Based upon the above findings, Kimberley Johns is a totally and permanently
             disabled worker.


             Based upon the foregoing findings of fact, the court now makes the following

                                                    II. CONCLUSIONS OF LAW


             2. 1        Kimberley Johns was a permanently totally disabled worker as a result of her
                        industrial injury within the meaning of RCW 51. 08. 160, as of July 1, 2011.

CP    at   289 -90.        In its oral ruling, the superior court explained that it concluded Johns had a

permanent total disability because " it just seems to me that if somebody is not employable, it

does       not make sense          to   put   them on a    partial   disability." Verbatim Report of Proceedings ( VRP)

at   31.    Johns appeals.




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No. 44983 -8 -Ii



                                                 ANALYSIS


         The Washington Industrial Insurance Act' provides the exclusive remedy for workers

injured in the      course of employment.   RCW 51. 04. 010;      Rushing   v.   ALCOA, Inc.,       125 Wn. App.

837, 841, 105 P. 3d 996 ( 2005).      We liberally construe the Act, resolving all doubts in the

worker' s     favor. RCW 51. 12. 010; Dennis    v.
                                                     Dep' t   of Labor & Indus., 109 Wn.2d 467, 470, 745


P. 2d 1295 ( 1987).


         The superior court reviews an appeal from a Board' s decision de novo, based upon the

same evidence as was        before the Board. RCW 51. 52. 115.        When the evidence is evenly

balanced, the Board' s findings and decision " shall be prima facie correct and the burden of proof

shall   be   upon   the party attacking the same."   RCW 51. 52. 115;    Groff v. Dep 't of Labor &         Indus.,


65 Wn.2d 35, 43, 395 P. 2d 633 ( 1964);       Layrite Prods. Co. v. Degenstein, 74 Wn. App. 881, 887,

880 P. 2d 535 ( 1994).      The superior court may substitute its own findings and decision for the

Board' s if it finds, by a preponderance of the evidence, that the Board' s findings and decision are

incorrect. McClelland v. ITT Rayonier, Inc., 65 Wn. App. 386, 390, 828 P. 2d 1138 ( 1992).

             Our review in a workers' compensation case is limited to examining the record to see

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

superior court' s conclusions of      law flow from these findings. Ruse          v.   Dep 't   of Labor & Indus.,


138 Wn. 2d 1, 5, 977 P. 2d 570 ( 1999). We view the record in the light most favorable to the


party who prevailed in superior court. Harrison Mem' 1 Hosp. v. Gagnon, 110 Wn. App. 475,

485, 40 P. 3d 1221 ( 2002).




1 Title 51 RCW.


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No. 44983 -8 -II


          Substantial evidence is evidence sufficient to persuade a fair -minded person of the

declared   premise' s       truth. Panorama Vill. Homeowners Ass 'n             v.   Golden Rule      Roofing, Inc.,   102


Wn. App. 422, 425, 10 P. 3d 417 ( 2000). "              Credibility determinations are solely for the trier of

fact   and cannot      be   reviewed on appeal."       Watson   v.    Dep' t of Labor &     Indus.,   133 Wn. App. 903,

909, 138 P. 3d 177 ( 2006).             Where the superior court does not make a finding necessary for

appellate review, we may look to the superior court' s oral decision and to the record to determine

the             the   superior court used     to decide the    case.    Goodman      v.   Darden, Doman & Stafford
       theory

Assocs., 100 Wn.2d 476, 481,. 670 P. 2d 648 ( 1983);                   Pepper v. King County., 61 Wn. App. 339,

350 -51, 810 P. 2d 527 ( 1991).

                                            I. THE PROPER SCOPE OF REVIEW


          As a threshold issue, Johns argues that because she requested only a permanent partial

disability, the scope of the Board' s and the superior court' s review was limited to whether Johns

had either a permanent partial disability or no disability at all, and that the Board and superior

court exceeded this scope of review by concluding Johns had a permanent total disability. We

disagree.


           The department of labor and industries has the original and exclusive jurisdiction, in all

cases where claims are presented, to determine the mixed question of law and fact as to whether

                                  has                  the            thereof." Brakus           Dept of Labor & Indus.,
a ` compensable         injury'         occurred and         extent                         v.




48 Wn.2d 218, 220 -21, 292 P. 2d 865 ( 1956).                 The, Board may review only those issues the

Department previously decided. Hanquet                  v.   Dept of Labor &     Indus., 75 Wn. App. 657, 661,

879 P. 2d 326 ( 1994).         The Board may not, on its own motion, change the issues on appeal or

enlarge the scope of the proceedings. 75 Wn. App. at 662. And although the superior court' s



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No. 44983 -8 -II



review is de novo, its scope of review is similarly limited to questions properly before the Board

or the Department. 75 Wn. App. at 663 -64.

          Here, Johns asked the Department to close her claim with a permanent partial disability,

and, instead, the Department closed her claim with a permanent total disability. Johns appealed

the Department' s determination to the Board on grounds that she " is not totally permanently

disabled, does not want to be classified as totally permanently disabled and wants a permanent

partial   disability   award."   CP   at   43. Because the Department had jurisdiction to determine the


extent of Johns' s injury, whether Johns had a permanent total disability was an issue properly

before the Department. And because Johns' s appeal challenged the Department' s determination


that she had a permanent total disability, whether Johns had a permanent total disability was an

issue properly before the Board. Thus, neither the Board nor the superior court exceeded its

scope of review.



                        II. CLASSIFICATION AS " PERMANENTLY TOTALLY DISABLED"


          Johns argues that substantial evidence does not support the finding that Johns is unable to

perform or obtain regular gainful employment, and that the superior court erred by concluding

she is permanently disabled without finding that the industrial injury was a proximate cause of

her inability to perform or obtain regular gainful employment. We disagree.

          RCW 51. 08. 150 defines " permanent partial disability ":

           L] oss of either one foot, one leg, one hand, one arm, one eye, one or more fingers,
          one or more toes, any dislocation where ligaments were severed where repair is not
          complete, or any other injury known in surgery to be permanent partial disability.

A conclusion of permanent partial disability requires finding only that the industrial injury

proximately caused a loss of bodily function; whether it proximately caused a claimant' s



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No. 44983 -8 - II



inability to perform or obtain regular gainful employment is irrelevant. WAC 296 -20- 19000;

Mclndoe       v.   Dep' t   of Labor & Indus., 144 Wn.2d 252, 261 -62, 26 P. 3d 903 ( 2001); Jenkins v.


Weyerhaeuser Co.,            143 Wn. App. 246, 256 -57, 177 P. 3d 180 ( 2008).

            RCW 51. 08. 160 defines " permanent total disability ":

             L] oss of both legs, or arms, or one leg and one arm, total loss of eyesight, paralysis
            or other condition permanently incapacitating the worker from performing any
            work at any gainful occupation.


Unlike permanent partial disability, a conclusion of permanent total disability requires finding

not only that the industrial injury proximately caused a loss of function, but also that it

proximately caused an inability to perform or obtain regular gainful employment. 6

WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 155. 07, at 151 -52

 3d   ed.   1989) ( WPI);      see   also   Leeper   v.   Dep 't   of Labor & Indus., 123 Wn.2d 803, 816 -17, 872


P. 2d 507 ( 1994) ( approving WPI 155. 07); Nelson                       v.   Dep' t of Labor &   Indus.,   175 Wn. App. 718,

723 -24, 308 P. 3d 686 ( 2013);             In re Eslinger, No. 06 11433, at 5 ( Wash. Bd. of Indus. Ins.

Appeals Aug. 6, 2007).

            We hold that substantial evidence supports the superior court' s finding that Johns was

unable to perform or obtain regular gainful employment. We also hold that Johns waived the


issue of whether the industrial injury was a proximate cause of that inability.




                                                                     8
No. 44983 -8 -II



A.      Johns was Unable To Perform or Obtain Regular Gainful Employment


        Johns argues that sufficient evidence does not support the finding that she was unable to

perform or obtain regular gainful employment because no evidence addressed her ability to

engage in part-time work. We disagree.


        The   superior court     found that " Johns is       a   totally    and   permanently disabled   worker."   CP


at 289. In its oral ruling, the superior court stated " all of the evidence in this case is [ Johns is]

not employable and won' t be in the future" and " if somebody is not employable, it does not

make sense    to put them      on a partial   disability."       VRP   at   15, 31.   Using the record to interpret the

findings, we hold that substantial evidence supports the superior court' s finding that Johns was

unable to perform or obtain regular gainful employment on even a part-time basis.

        Viewing the evidence in the light most favorable to the Department, substantial evidence

supports this finding. Dr. Earle testified that Johns could not sit in his office for more than 10

minutes without deteriorating neurologically, and that her condition was likely to progressively

deteriorate   over   future   years.   Dr. Staker testified that Johns            was " not employable."   CP at 252.


Johns testified that the back pain caused by the industrial injury slowed her down a lot in her

daily life, prevented her from bending over, lifting anything, or sitting for long periods of time.

Johns' s mother testified that Johns had not returned to work after the industrial injury. The

record contains substantial evidence to support the superior court' s finding that Johns is unable

to perform or obtain regular gainful employment on even a part-time basis. 2



2 Johns also objects to the characterization of her back impairment as a category 4 impairment
under   WAC 296 -20 -280.        WAC 296- 20 -280' s categories have " no applicability to
determinations       of permanent total disability." WAC 296 -20 -200. Because we affirm                     the
determination that Johns is permanently totally disabled, this issue is moot.



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No. 44983 -8 -II



B.        Johns' s Proximate Cause Argument Waived


          Johns argues the superior court erred in concluding that Johns had a permanent total

disability because the superior court made no finding that Johns' s industrial injury was a

proximate cause of her inability to perform or obtain regular gainful employment. We hold that

Johns waived this issue at the Board.3

          When a party appeals a Department order to the Board, an industrial appeals judge

conducts hearings, receives depositions, and enters a proposed order that " shall contain findings

and conclusions      as   to   each contested   issue   of   fact   and   law." RCW 51. 52. 104. The proposed


order becomes the Board' s final order unless a party petitions the Board to review the proposed

order. RCW 51. 52. 104. The petitioning party " shall be deemed to have waived all objections or

irregularities not specifically setforth" in its petition for review. RCW 51. 52. 104 ( emphasis

added).    When the Board' s final order is appealed to the superior court, the superior court may

review    only   matters not waived at     the Board. Rose           v.   Dep' t of Labor   &   Indus., 57 Wn. App.

751, 756, 790 P. 2d 201 ( 1990).


          Here, the industrial appeals judge entered a proposed order concluding Johns was

permanently totally disabled as a result of the industrial injury, but not addressing whether the

injury was a proximate cause of her inability to perform or obtain regular gainful employment.

Johns petitioned for review of that proposed order, but Johns' s petition for review does not

mention proximate cause or causation. Thus, because Johns' s petition for review of the




3 We entered an order requesting supplemental briefing on the issue of waiver. See Order
Requesting Supplemental Briefing, Johns V. Dep' t of Labor and Indus., No. 44983 -8 -II, (Wash.
Ct. App. Sep. 30 2014). Only the Department filed a supplemental brief. Johns failed to respond

in any manner.

                                                               10
No. 44983 -8 -II



industrial appeals judge' s proposed order did not specifically set forth an objection alleging a

lack of proximate cause, we hold that Johns waived that objection.

                                             ATTORNEY FEES


        Johns   requests   attorney fees   on appeal under   RCW 51. 52. 130( 1).   RCW 51. 52. 130( 1)


grants attorney fees to an appealing worker or beneficiary only if

        on appeal to the superior or appellate court from the decision and order of the board,
        said decision and order is reversed or modified and additional relief is granted to a
        worker or beneficiary.

Because we did not grant Johns additional relief on appeal, we do not award Johns attorney fees

on appeal.



        We affirm.


        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:




 LAG; J.




        4**  H-
Sutton, J.       allA"


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