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      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



LEROY DOPPENBERG,
                                                  No. 71346-9-
                     Appellant,
                                                  DIVISION ONE
       v.



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EAGLE HYDRAULICS,                                 UNPUBLISHED OPINION

                     Respondents.                 FILED: April 6. 2015



       Spearman, C.J. — Leroy Doppenberg challenges the trial court's finding

that his industrial injury did not worsen between the date his claim under the

Industrial Insurance Act, Title 51 RCW (Act) was initially closed and the date his

application to reopen the claim was denied, approximately two years later. He

argues that the trial court improperly allowed the Department of Labor and

Industries (Department) to relitigate the nature and extent of his industrial injury,

an issue that was definitively established by the Department's final order on his

claim. He also contends that the trial court's award of statutory attorney fees and

costs to the Department was improper. We conclude that the Department's final

order on the claim was res judicata as to the extent of Doppenberg's industrial

injury at the time of the order, but not as to any subsequent aggravation of the

injury alleged in his application to reopen the claim. We also find no error in the
No. 71346-9-1/2


trial court's award of statutory attorney fees and costs to the Department. We

affirm.


                                        FACTS


          On March 16, 2007, Leroy Doppenberg was injured during the course of

employment when a heavy steel plate fell onto his right calf and rolled around,

injuring his right ankle and foot. He filed an application for benefits under the Act.

The Department allowed the claim and Doppenberg received treatment and other

benefits under the Act. On April 25, 2008, the Department determined:

          The [Department] is not responsible for the condition
          diagnosed as lumbar stenosis, determined by medical
          evidence to be unrelated to the accepted condition under this
          [industrial] injury for which the claim was filed.

CABR at 46. It does not appear that Doppenberg objected to this finding. The

Department did accept responsibility for:

          the condition diagnosed as right peroneal nerve injury, determined
          by medical evidence to be related to the accepted condition under
          this [industrial injury] for which this claim is filed.

CABR at 47. It issued a notice and order to that effect on June 26, 2008. It does

not appear that either party objected to the order or took steps to modify it in any

way. The Department issued an order closing Doppenberg's claim, which was

affirmed by the Department on May 12, 2009.

          Eighteen months later, Doppenberg filed an application to reopen his

claim on the basis that symptoms related to his industrial injury had worsened.

The Department issued an order denying his application, finding that "the medical

record shows the conditions caused by the injury have not worsened since the

final claim closure, . . ." Certified Appeal Board Record (CABR) at 47. This order
No. 71346-9-1/3


was affirmed on June 2, 2011. Doppenberg appealed the order denying his

application to the Board of Industrial Appeals (Board), which conducted an

evidentiary hearing.

        At the hearing, Doppenberg testified that he filed the application based on

new and worsening symptoms. He testified that, shortly after sustaining the

injury, his right foot "felt like someone was beating on [it] with a sledgehammer"

but, by the time his initial claim was closed, this feeling had lessened in intensity

to a "tingling sensation" similar to pin pricks. CABR (Doppenberg) at 7-8.

Doppenberg testified that after his claim was closed, the unpleasant sensation in

his foot worsened again. He stated:

       It's really prominent if I stand on it for any length of period of time,
       or walking any distance, it just starts, you know, feeling like you are
       stepping on nails. The longer I walk on it, the farther it feels like it
       jabs into the foot, into the right foot.

CABR (Doppenberg) at 8. Doppenberg also complained of new

mechanical difficulties with his right foot. He explained:

        [M]y foot was not working right. It's just not right. I mean, if I walk
        any slope—if I walk on a slope towards the left, my foot just wants
        to fall off from underneath me all the time. If I walk on a hill on the
        right, you know, I can walk on it fairly easily.1

CABR (Doppenberg) at 9.

        Dr. Wardle, a board certified foot and ankle podiatrist who assisted

Doppenberg in filing the application, testified at the hearing by deposition.



         1 Doppenberg's testimony describes the condition of ankle weakness causing difficulty in
clearing the foot from the ground when walking, referred to throughout the Board and trial court
proceedings, as well as the parties' briefs, as "foot drop" or "drop foot." See, CABR (Soo) at 14.
No. 71346-9-1/4


According to Dr. Wardle, he began treating Doppenberg in November of 2010. At

that time, Doppenberg complained of discomfort in his right foot. On examination,

Dr. Wardle was able to observe edema around the ankle and mid foot as well as

diminished sensation over the right foot when compared to the left. A magnetic

resonance imaging (MRI) revealed "chronic injury to [Doppenberg's] lateral

ligaments and no bone abnormality and the tendons were intact." CABR (Wardle)

at 10. Dr. Wardle explained that the collateral ligaments are located on the

outside of the ankle and are responsible for ankle stability. Based on his

examination and the MRI findings, Dr. Wardle concluded, on a more probable

than not basis, that Doppenberg's industrial injury was a nerve contusion that

caused ongoing ankle and foot pain and that his condition had worsened since

his claim was closed in 2009. However, Dr. Wardle acknowledged that "[a]lcohol

intake can aggravate any kind of nerve injury." CABR (Wardle) at 22. And he

agreed that both nerve injury and foot drop "can be aggravated or caused by a

lumbar radiculopathy!2]."CABR (Wardle) at 22.

      Two additional doctors testified by deposition on behalf of the Department.

Dr. Soo, a board certified podiatrist, stated that he had treated Doppenberg for

sensory disturbances and weakness in his right ankle and foot shortly after he

sustained his industrial injury in 2007. Dr. Soo explained that there are two

branches of the peroneal nerve relevant to this case—the common and

superficial peroneal nerves. The common peroneal nerve is located under the

knee and controls the muscle and tendons of the foot. The superficial peroneal


       2 Such as Doppenberg's back condition.
No. 71346-9-1/5


nerve, which runs along the top of the foot, is a sensory nerve that does not

control any muscles. Injury to the superficial peroneal nerve can cause a

"disturbance of sensation," such as a numbing or tingling sensation in the foot,

but cannot cause mechanical difficulties.

        Based on his knowledge of the mechanics of Doppenberg's industrial

injury and his understanding of the anatomy of the leg and ankle, Dr. Soo

diagnosed Doppenberg's industrial injury as a bruised right foot with injury to the

superficial peroneal nerve "running to the top of the foot." CABR (Soo) at 10. Dr.

Soo opined, on a more probable than not basis, that Doppenberg's right ankle

weakness and foot drop was not caused by the industrial injury, which affected

only the superficial peroneal nerve and its sensory functions. He explained that

Doppenberg's right ankle weakness and foot drop was likely related to a

separate condition—peripheral neuropathy—which, based on Dr. Soo's

examination, was afflicting both of Doppenberg's lower legs. Dr. Soo explained

that the neuropathy could have been caused by Doppenberg's preexisting low

back injury3 or by a systemic issue, such as prolonged alcohol abuse, which

Doppenberg had admittedly struggled with in the past.

        Dr. Almaraz, a board certified neurologist, rendered an opinion based on

an independent medical evaluation of Doppenberg in 2010 and extensive record

review. He opined that the only condition accepted under Doppenberg's claim

was "right foot ankle strain." CABR (Almaraz) at 41. He also acknowledged that



        3 The lumbar stenosis acknowledged by the Department during proceedings on
Doppenberg's initial claim as a preexisting condition unrelated to the industrial injury.
No. 71346-9-1/6


he could not find evidence in the records that Doppenberg suffered from any type

of neuropathy prior to the industrial injury.

       After considering this testimony, as well as testimony from Doppenberg's

brother, sister, and ex-wife, the Board issued a proposed decision and order

denying Doppenberg's application on September 26, 2012. Doppenberg filed a

petition for review, which requested reversal of the proposed decision and order

on the grounds that itwas "completely silent regarding the res judicata effect of

the Department's June 26, 2008 order accepting right peroneal nerve injury

under the claim." CABR at 6. The Board denied his petition and adopted the

proposed decision and order as its final decision on November 30, 2012.

       Doppenberg appealed the Board's decision to the King County Superior

Court. At trial, the depositions of Drs. Wardle, Soo, and Almaraz were read to the

jury, as were the transcripts of proceedings from the questioning of Doppenberg,

his brother, sister, and ex-wife. At the close of trial, the jury rendered a verdict

that the Board had correctly determined Doppenberg's industrial injury did not

objectively worsen between May 12, 2009 and June 2, 2011. On October 10,
2013, the trial court entered a judgment and order as the final determination in

this matter. Doppenberg filed a motion for a new trial and reconsideration

pursuant to Superior Court Civil Rules 50 and 59. The trial court denied the
motion. Doppenberg appeals.
No. 71346-9-1/7


                                           DISCUSSION

                                           Res Judicata

        An order or judgment of the Department resting upon findings of fact

becomes a complete and final adjudication, binding upon both the Department

and the claimant unless such action is set aside on appeal or is vacated for fraud

or something of like nature. Marlev v. Dep't of Labor and Indus., 125 Wn.2d. 533,

537-39, 886 P.2d 189 (1994) (citing Le Bire v. Dep't of L&l, 14 Wn.2d 407, 415,

128 P.2d 308 (1942)). If a party fails to timely object to the Department's order,

the party is precluded from relitigating any claim subject to the order. Id. at 538.

However, in the absence of a clear and unmistakable final finding on the cause of

a worker's worsened condition, the parties are not precluded, on a claim of

aggravation of an industrial injury, from litigating the causal relationship between

the industrial injury and the worker's worsened condition. King v. Dep't of Labor

and Indus., 12Wn.App. 1, 4, 528 P.2d 271 (1974).

        In this case, the Department entered a final order on Doppenberg's claim

on June 26, 2008, which states:

        The DLI is responsible for the condition diagnosed as right
        peroneal nerve injury, determined by medical evidence to be
        related to the accepted condition under this industrial injury for
        which this claim was filed.4

CABR at 47 (emphasis added). Doppenberg argues that this unchallenged order

is res judicata as to the nature and extent of his industrial injury and that the

Department was, therefore, precluded from presenting evidence related to


         4 The order contains no further detail on the nature or extent of the industrial injury
subject to the order or its related symptoms.
No. 71346-9-1/8


whether his industrial injury caused the new and worsened symptoms alleged in

his application to reopen the claim. But the June 26 order is only res judicata as

to the extent of his injury existing at the time of the order; it is not res judicata as

to any aggravation of the injury occurring subsequent to that date. King, 12 Wn.

App. at 5 (citing Karness v. Dep't of Labor & Indus., 39 Wn.2d 898, 239 P.2d 555

(1952)).

       Contrary to Doppenberg's claims, the Department did not introduce "a

myriad of evidence designed to call [the] res judicata acceptance of right

peroneal nerve injury into question." Brief of Appellant at 24. In fact, the

Department conceded at trial that Doppenberg sustained an injury to his right

peroneal nerve, as recognized in the June 26 order.5 Instead, the Department

presented evidence in support of its theory that Doppenberg's industrial injury

was simply not the cause of his new symptoms. This included evidence of the

nature and location of the injury to Doppenberg's right peroneal nerve, the new

symptoms one might expect from a similar injury, and alternative theories of

causation for the symptoms of which Doppenberg complained, i.e.,

Doppenberg's alcohol consumption and/or his preexisting low back condition.

Because the June 26 order did not preclude the admission of this evidence on

the lack of a causal relationship between Doppenberg's industrial injury and his

worsened condition, the trial court did not err in allowing the Department to

present it.


        5 The Department did, however, present evidence that the accident that caused
Doppenberg's injury could only injure one branch of Doppenberg's right peroneal nerve and that
his newly maligned symptoms could not be caused by this type of injury.


                                               8
No. 71346-9-1/9


                                          Jury Instruction

        Doppenberg also asserts that the trial court's refusal to give his proposed

instruction 116 was error. We disagree.

        Jury instructions are sufficient when they allow a party to argue his or her

theory of the case, are not misleading, and, when read as a whole, properly

inform the jury of the applicable law. Leeper v. Dep't of Labor & Indus., 123

Wn.2d 803, 809, 872 P.2d 507 (1994). We review a trial court's failure to give a

proposed instruction for abuse of discretion. ]d.

        Doppenberg's proposed instruction 11 advised the jury as follows:

                The Worker's Compensation Act of this state applies
        to all persons engaged in employment, regardless of their
        age or the previous condition of their health.
                In determining the effect of an industrial accident
        upon a worker, such effect must always be determined with
        reference to the particular worker involved, rather than what
        effect, if any, such an accident would have had, if any, upon
        some other person.

CP at 102. It is undisputed that the proposed instruction is a correct statement of

the law. See Wendt v. Dep't of Labor & Indus., 18 Wn. App 674, 676, 571 P.2d

229 (1977). The question is whether it was necessary to give the instruction in

order to permit Doppenberg to argue his theory of the case. Doppenberg

contends it was because the proposed instruction allowed him to rebut the

Department's theory that his "prior physical conditions worsened rather than the

industrially related condition...." Brief of Appellant at 28. But even assuming this


         6 During the colloquy on the parties' proposed jury instruction, both parties and the trial
court referred to proposed instruction 11 as instruction 3. It is evident from the transcript that the
court may have renumbered the instructions prior to this colloquy. Regardless, it is clear from the
discussion that the court was considering Doppenberg's proposed instruction 11.
No. 71346-9-1/10


properly characterizes the Department's theory of the case, the theory addresses

whether the cause of Doppenberg's new symptoms was a worsening of the

industrial injury or a prior condition unrelated to the industrial injury. Indeed, the

issue was presented to the jury as whether "the Board of Industrial Insurance

Appeals [was] correct when it determined that between May 12th, 2009 and June

2nd, 2011, Mr. Doppenberg's condition proximately caused by the March 16,

2007 industrial injury did not objectively worsen[.]" CP at 165.

       On that issue, the Department's witness, Dr. Soo, testified that

Doppenberg's industrial injury had not worsened but that instead, his new

symptoms were from a different cause, bilateral peripheral neuropathy, which

was solely the result of his lower back injury and/or prolonged alcohol abuse. In

contrast, Doppenberg's witness, Dr. Wardle, testified that, while Doppenberg's

industrial injury—the right peroneal nerve injury—was the most probable cause

of his ongoing ankle and foot pain and weakness, his back injury and alcohol

abuse could also have aggravated his nerve injury, contributing to his symptoms.

       The jury was instructed on the issue of proximate cause in instruction 13,

as follows:

                A cause of a condition is a proximate cause if it is related to
       the condition in two ways: (1) the cause produced the condition in a
       direct sequence, unbroken by any new independent cause, and (2)
       the condition would not have happened in the absence of the
       cause.
                There may be one or more proximate causes of a condition.
       For a worker to recover benefits under the Industrial Insurance Act,
       the incident must be a proximate cause of the alleged condition for
       which entitlement to benefits is sought. The law does not require
       that the incident be the sole proximate cause of such condition.7
       7 See 6A Wash. Prac, Washington Pattern Jury Instr.: Civil WP1155.06.02 (6th ed.


                                           10
No. 71346-9-1/11



CP at 184. This instruction was sufficient to allow Doppenberg and the

Department to argue their respective theories as to the cause of Doppenberg's

new symptoms. The trial court did not abuse its discretion when it refused to give

Doppenberg's proposed instruction 11.

                        Statutory Attorney Fees and Costs

       Doppenberg challenges the trial court's award of $200 in statutory

attorney fees pursuant to RCW 4.84.010(6). We find his argument without merit.

       RCW 51.52.140 addresses attorney fees and costs a workers'

compensation appeal to superior court. It states, in relevant part, "Except as

otherwise provided in this chapter, the practice in civil cases shall apply to

appeals prescribed in this chapter." Accordingly, absent a contrary statute in

RCW 51.52, the ordinary civil practice, including its cost provisions, applies to

superior court proceedings.

       Doppenberg argues that the legislature intended for RCW 51.52.130 to be

the exclusive statutory provision for attorney fees in a workers' compensation

appeal to superior court. He argues that, "[consistentwith the Act's remedial
purpose and the legislature's intent that injured workers have access to adequate
legal representation in appeals to superior court, the Act does not provide
attorney fees or costs on appeal to superior court to employers or to the
Department." Br. of Appellant at 18. In his view, application of statutory
provisions not contained in the Act, such as RCW 4.84.010(6), controverts
legislative purpose. He further asserts that RCW 51.52.130, which applies



                                          11
No. 71346-9-1/12


specifically to workers' compensation appeals to superior court, prevails over the

more general provisions of RCW 4.84.010 and 4.84.030.

       But Washington courts have expressly rejected the argument that RCW

51.52.130 precludes an award of statutory attorney fees to the Department as

prevailing party in superior court review of a workers' compensation claim.

Frecenak v. Dep't of Labor & Indus.. 142 Wn. App. 713, 729-30, 175P.3d 1109

(2008) (affirming an award of statutory attorney fees on the grounds that the

nominal fees authorized by the RCW 4.84.030 are different than those governed

by RCW 51.52.130, which concerns actual attorney fees incurred by an injured

worker or employer on appeal to the superior or appellate court), affirmed on

other grounds sub nom, Kustura v. Dep't of Labor & Indus., 169 Wn.2d 81, 233

P.3d 853 (2010); see also, Black v. Dep't of Labor & Indus, of the State of Wash.,

131 Wn.2d 547, 557-58, 933 P.2d 1025, 1031 (1997); Allan v. Dep't of Labor &

Indus., 66 Wn. App. 415, 422-23, 832 P.2d 489 (1992). Under this authority, the

Department, as prevailing party, was plainly entitled to an award of statutory

attorney fees.8

       Doppenberg also contends that the trial court's award of $691 in

deposition transcription fees under RCW 4.84.010 was improper. We disagree.

       RCW 4.84.010(7) provides that a prevailing party may recover the cost of

transcribing depositions as follows:

       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 or at the mandatory


        Doppenberg does not claim that the amount of the award here-$200—was improper.


                                          12
No. 71346-9-1/13


       arbitration hearing: PROVIDED, That the expenses of depositions
       shall be allowed on a pro rata basis for those portions of the
       depositions introduced into evidence or used for purposes of
       impeachment.

Doppenberg argues that the Department's transcription costs in this case are not

recoverable under this provision because, since the transcripts were published

by the Board as part of the CABR, associated transcription costs are a cost of

litigation before the Board, not the superior court. He notes that "[t]he Department

incurs these costs in its role as the trustee of Washington State's workers'

compensation fund. These costs remain whether or not an appeal to superior

court is ever filed." Brief of Appellant at 21.

       But Doppenberg's focus on when the cost of transcription was incurred is

misguided. RCW 4.84.010(7) does not distinguish between transcription costs

incurred during a superior court action and those incurred during proceedings

before the Board or elsewhere. Rather, the statute conditions an award of

transcription costs on whether the depositions were "used at trial" and "necessary

to achieve the successful result." RCW 4.84.010(7).

       Doppenberg cites Tombari v. Blankenship-Dixon Co., 19 Wn. App. 145,

150, 754 P.2d 401 (1978), in support of his position that deposition expenses are

not recoverable costs unless taken for trial purposes. But the case is not helpful

for several reasons. First, the case did not interpret the "used at trial" and

"necessary to achieve the successful result" language of RCW 4.84.010(7).

Instead, the case interprets RCW 4.84.090, which permits an award of "the

necessary expenses of taking depositions" to the prevailing party. Id. (citing RCW

4.84.090). Additionally, Tombari did not hold, as Doppenberg suggests, that a

                                           13
No. 71346-9-1/14


party is only entitled to its deposition costs ifthe depositions were both taken and

used for trial purposes. ]dL Rather, it merely acknowledged that where a trial

court's decision was based solely on a pretrial order, exhibits, and transcripts of

depositions "taken and used for trial purposes," an award of transcription costs

was appropriate. ]d. Finally, to the extent that Tombari can be interpreted as a

limitation on the availability of transcription costs to those depositions "taken for"

trial, the case has been superseded by enactment of RCW 4.84.010(7), which,

by its plain language, lacks such a restriction. Compare, RCW 4.84.010(7)

(enacted in 1983), with, Tombari, 19 Wn. App. at 150 (decided in 1978); see

also, Laws of 1983, 1st Ex. Sess., ch. 45 § 7.

       In this case, both conditions for an award of transcription costs under

RCW 4.84.010(7) are met. The depositions of Dr. Soo and Dr. Almaraz were

read to the jury and were, therefore, "used at trial." See, VRP (9/11/13) at 80-

114, 126-79. Further, the Department's theory that Doppenberg's new and

worsening symptoms had a cause independent from the industrial injury

depended on these doctors' medical causation testimony; thus, their testimony

was necessary to achieve a successful result. The Department was entitled to an

award of transcription costs.

       We also affirm the amount of the award in this case. Doppenberg notes

that portions of the depositions in this case were redacted by agreement ofthe
parties or by order ofthe trial court and were not read to the jury. He contends
that an award based on these redacted portions was improper. Although

Doppenberg is correct that the Department was entitled only to a pro rata award


                                           14
No. 71346-9-1/15


based on those "portions of the depositions introduced into evidence or used for

purposes of impeachment," he fails to provide copies of the redacted depositions

or any other evidence of the extent of the redactions. RCW 4.84.010(7). Thus,

the record is inadequate for this court to assess the trial court's award of

transcription costs. Because Doppenberg bore the burden of perfecting the

record on appeal, we decline to grant him relief as to the amount of the award.

See, Bulzomi v. Dep't of Labor & Indus.. 72 Wn. App. 522, 525, 864 P.2d 996

(1994).

       Finally, Doppenberg challenges the trial court's award of the $125 jury

demand fee, arguing that the award has no basis in the law. The argument lacks

merit. RCW 4.84.010 states that a prevailing party may obtain "costs otherwise

authorized by law" in addition to those enumerated in the statute. A related title,

chapter 4.44 RCW (Trial), provides: "[t]he jury fee paid by the party demanding a

trial by jury shall be a part of the taxable costs in such action." RCW 4.44.110.

Doppenberg is thus incorrect that there is no statutory basis for the award of the

jury demand fee. To the extent he argues that only those costs enumerated in

RCW 4.48.010 are recoverable under the statute, this argument has been

expressly rejected by our supreme court. Blair v. Wash. State Univ., 108 Wn.2d

558, 572, 740 P.2d 1379 (1987) (holding that RCW 4.84.010 did not limit the

costs recoverable in a discrimination action where the relevant discrimination

statute includes an applicable cost provision).




                                         15
No. 71346-9-1/16


                       Attorney Fees and Costs on Appeal

       Doppenberg requests an award of reasonable attorney fees and costs on

appeal pursuant to RAP 18.1(a) and RCW 51.52.130. Together, these provisions

allow appellate courts to award a worker or beneficiary who, on appeal from the

decision and order of the Board, successfully obtains reversal or modification of

the decision and order and additional relief. Here, Doppenberg fails to obtain

reversal, modification, or other relief from this court. Thus, we decline his request

for an award of reasonable attorney fees and costs on appeal.

      Affirmed.




WE CONCUR:
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