                                                                                                      FILED
                                                                                              COURT OF APPEALS
                                                                                                   ONISloH f
                                                                                           2015 JUtii 23 AN 8: 31
      IN THE COURT OF APPEALS OF THE STATE OF WA § p Il
                                                                                                         Q.,    TON

                                                DIVISION II                                   8Y


BRUCE BUTSON,                                                                     No. 45928 -1 - II


                                        Appellant,


            v.



DEPARTMENT OF LABOR AND                                                  UNPUBLISHED OPINION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


                                        Respondent.




           LEE, J. —       Bruce Butson appeals the trial court' s order granting the Department of Labor

and   Industries' ( Department) CR 50 motion for judgment as a matter of law. Butson argues that


 1) the trial court erred in granting the Department' s CR 50 motion at the conclusion of his case

before hearing the Department' s evidence, and ( 2) substantial evidence exists to survive the CR

50 motion showing he had a temporary total disability, was undergoing rehabilitative treatment,

and had not reached maximum medical improvement.1 Because the trial court is not required to



1 At oral argument, Butson conceded that ( 1) his paraffin treatment was palliative and not curative,
and ( 2)   his    condition was    medically fixed   and stable as of   January   25, 2011.    We accept Butson' s
concessions, and we do not address Butson' s challenge that there remained an issue of fact as to
whether he was undergoing rehabilitative treatment from June 4, 2010 through January 25, 2011,
and that he had not yet reached maximum medical improvement when the Department closed his
claim   on       January    25, 2011.   See WAC 296 -20 -01002 ( definition of " Proper and necessary,"
subsection ( 2)(     b): " Curative treatment produces permanent changes, which eliminate or lessen the
clinical effects of an accepted condition. Rehabilitative treatment allows an injured or ill worker
to regain functional activity in the presence of an interfering accepted condition.   Curative and
rehabilitative care produce long -term  changes;" subsection  ( 3): maximum medical  improvement
obtained when   injured worker is " fixed and stable "); Shafer v. Dep' t of Labor & Indus., 166 Wn.2d
710, .716 -17, 213   P. 3d 591 ( 2009) ( claim closure appropriate when claimant' s condition has
become fixed        and stable).
No. 45928 -1 - II



hear the Department' s evidence and substantial evidence does not exist supporting Butson' s

claims, we affirm.



                                                    FACTS


A.       BACKGROUND


         Bruce Butson appeals the trial court' s entry of a judgment as a matter of law against him

at the conclusion of his case in chief, on issues relating to a workplace injury he sustained on

January 15, 2004.2 Butson was injured working as a plumber' s helper for Blue Herron Plumbing.

Butson' s prior work history included operating and acting as superintendent of the lumber dry kiln

family   business; starting, operating,   and   a   truck   leasing   business;   and working for a metal

fabrication company.     He completed three years of undergraduate studies, two at Oregon State


University and one at Washington State University, before leaving school to take over the family

business. Butson' s elderly mother and disabled sister live with him, and he provides for their care.

Between June 4, 2010 and January 25, 2011, Butson was able to attend to their care and conduct

his daily routine.

         While at work on January 15, 2004, Butson fell from a ladder onto a concrete floor,

fracturing his left wrist, and hyperextending his left thumb. Butson' s injuries required surgery on

his wrist and thumb.


          Butson began a vocational plan and was assigned a vocational counselor. To participate in


the plan, Butson signed an accountability agreement requiring him to " initiate contact with [ his




2
    Presumably, Butson filed his claim for this injury shortly after this date; however, no record of
this filing is in the record.



                                                      2
No. 45928 -1 - II



counselor] at   least twice monthly      and   inform them     of [his] progress and     barriers." Certified Appeal


Board Record ( CABR) Ex. 2. The agreement also required Butson to " provide a written doctor' s

assessment of    illness   or physical   disability   if [he] ...    missed more than two consecutive days or a


total of 10 days during" the plan. CABR Ex. 2. The vocational plan involved Butson enrolling in

Clark College to complete a degree in accounting and business. The vocational plan began in June

2008, and was to be completed by June 2010.

        Butson complied with his vocational plan at Clark College until the fall quarter of 2009,

when   he took time    off   for   reasons unrelated     to his     condition.   Butson returned to Clark College


and completed the 2010 winter quarter. Two weeks into the 2010 spring quarter, Butson withdrew,

claiming the repetitive use of his thumb in typing caused extreme pain in his thumb and wrist.

        On April 30, 2010, Butson received a letter stating he was not complying with the

vocational plan' s accountability agreement and that he would lose his benefits if he did not

cooperate.      The letter stated that another letter warning him of the consequences of his

noncooperation had been sent on December 22, 2009. The letter also detailed what Butson needed


to do to keep his benefits from being suspended, including calling his vocational counselor by May

15, 2010.


         Butson sought medical treatment for the pain he was experiencing in his thumb and wrist

from Dr. Ezra Rabie          on    May   27, 2010.      Dr. Rabie ordered an x -ray and a bone scan, and

recommended that Butson not use a computer for more than two hours per day.

         On June 4, the Department sent an order and letter to Butson notifying him of his

suspension    from   vocational      benefits for     noncooperation with         the   vocational   plan.   The   order
No. 45928 -1 - II



informed Butson that he had 60 days to appeal the order or it would become final. Butson did not

appeal.




          Dr. Fleiss was Butson' s original doctor, and Butson first met with him on January 21, 2004.

Between June 4, 2010             and   January    25, 2011, Butson        met    with    three different doctors:   Dr. Won,


Dr. Weirich,      and     Dr. Karges.      Dr. Won had become Butson' s attending physician because Dr.

Fleiss had passed away. Dr. Won met with Butson on June 17, 2010, and recorded Butson' s pain

as    being " four   to   eight out of    ten."       CABR Won       at   13.    Butson requested surgery, so Dr. Won

referred Butson to Dr. Weirich for a surgical evaluation.


          Dr. Weirich did not recommend surgery. Instead, he recommended Butson use a paraffin

bath. A    paraffin     bath is " like    a wax   bath....    the wax melts and you put your wrist in there and it


feels   good   because it' s     nice and warm."        CABR (Dr. Won) at 16. Butson continues to use a paraffin


bath every     day   because it       affords   his   wrist "[ sjome   temporary        relief ...   and makes it feel at ease


for   a short period of time."         CABR (Butson) at 20. Dr. Won testified that the paraffin baths " would


have helped decrease the              pain."    CABR ( Dr. Won)           at   24.    Butson testified his condition stayed


 the    same   pretty   much"     between June 4, 2010         and   January         25, 2011.   CABR (Butson) at 21.


          On October 30, 2010, Dr. Karges                  conducted an          independent     medical examination.     Dr.


Karges     reviewed       Butson'     s medical records as part of         the   examination.        At that time, Dr. Karges


apparently thought Butson might need treatment at some unknown time in the future, but that his

condition was currently stable.


           On December 2, Dr. Won saw Butson again. At that time, Dr. Won recorded that the pain


was still " four     to eight out of ten,"       but closer to four, because Butson was generally feeling better.

CABR ( Dr. Won)            at   18.   Dr. Won recommended that if Butson returned to school, he should be




                                                                 4
No. 45928 -1 - II



limited to 12          credits.     Otherwise, the same restrictions put in place by Dr. Fleiss should be

followed.        Dr. Fleiss'      s restrictions were: "        Avoid tight gripping and grasping with the left hand,

avoid forceful and prolonged bending of [the] left wrist, avoid exposure, direct impact to the left

hand   and wrist, and          limit left-hand     lifting     to 15   pounds."       CABR (Dr. Won) at 15.


           Dr. Won last          saw   Butson     on.   January       7, 2011.   Dr. Won recorded Butson' s pain level as


being " five         out of   ten," and "[ t] hat the flare up          had pretty     much resolved."    CABR ( Dr. Won) at


21 -22.    When asked about the Department' s decision to close Butson' s claim, Dr. Won testified


that Butson'         s claim was " reasonable           to   close"   on    January   25, 2011. CABR (Dr. Won)          at   23.   Dr.


Won also agreed with Dr. Karges' assessment that Butson was in stable condition, adding that

Butson     might need          further surgery "[       s] ometime      in the future,    we' re not sure when."       CABR (Dr.


Won)      at   30.    Dr. Won believed Butson was going to continue to experience the pain in his hand

for the   rest of his    life. Dr. Won concluded there                 was " plenty of work ...     such as answering phones"


or another " observatory job" that Butson could do as of January 25, 2011, but that Butson could

not return to the same work he had been injured doing. CABR (Dr. Won) at 25 -26.

B.         PROCEDURE


           On December 23, 2010, the Department issued                                an order   closing Butson'   s   claim.      The


Department           affirmed    the   order on   January       25, 2011. Butson appealed, and the order was affirmed


by an industrial appeals judge on October 5, 2012.

           Butson       appealed, and      the Board          of   Industrial Insurance Appeals ( " Board ")           affirmed on




December 11, 2012. Butson appealed the Board' s order to the Clark County Superior Court. After

presenting his case in chief, the trial court granted the Department' s CR 50 motion for judgment

as a matter of law and dismissed Butson' s appeal of the Board' s decision. Butson appeals.




                                                                        5
No. 45928 -1 - II



                                                      ANALYSIS


           Butson argues that the trial court erred in granting the Department' s CR 50 motion for a

judgment        as a matter of   law.   Specifically, Butson argues the trial court erred in granting the CR

50 motion at the conclusion of his case in chief because ( 1) the trial court should have heard the

Department' s evidence and ( 2) substantial evidence exists to survive a CR 50 motion on whether

he   was   totally temporarily disabled.           We disagree because the trial court is not procedurally

required to hear the moving party' s witnesses before ruling on a CR 50 motion and because

substantial evidence does not support Butson' s argument that he was temporarily totally disabled.

A.         STANDARD OF REVIEW


           Under the Industrial Insurance Act ( IIA), the trial court' s review of a Board order is de


novo and is based solely on the evidence and testimony presented to the Board. Stelter v. Dep' t of

Labor & Indus., 147 Wn.2d 702, 707, 57 P. 3d 248 ( 2002);                  Malang    v.   Dep' t   of Labor & Indus.,


139 Wn.         App.    677, 683, 162 P. 3d 450 ( 2007); RCW 51. 52. 115.            We review the trial court' s


decision,       not   the Board' s order. RCW 51. 52. 140;       Malang, 139   Wn.   App.   at   683. And, this court


reviews the decision of the trial court in the same way as it does other civil cases. RCW 51. 52. 140;

Mason      v.   Georgia—Pac.     Corp., 166 Wn. App. 859, 863, 271 P. 3d 381, review denied, 174 Wn.2d

1015, 281 P. 3d 687 ( 2012).            On appeal to the superior court, the Board's decision is prima facie

correct, and a party challenging the decision must support its challenge by a preponderance of the

evidence.        RCW 51. 52. 115; Ruse     v.   Dep' t ofLabor   & Indus., 138 Wn.2d 1, 5, 977 P. 2d 570 ( 1999).
No. 45928 -1 - II



          This   court reviews a    trial   court' s   CR 50 decision de       novo.   Davis   v.   Microsoft   Corp.,   149


Wn.2d 521, 530 -31, 70 P. 3d 126 ( 2003).                   A CR 50   motion   is properly   granted when, "'      viewing


the evidence most favorable to the nonmoving party, the court can say, as a matter of law, there is

no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party.'"

Davis, 149 Wn.2d       at   531 ( quoting     Sing     v.   John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P. 2d 816


 1997)). "    Substantial evidence is evidence sufficient to persuade a fair -minded, rational person


that the   premise   is true."    Jenkins    v.   Weyerhaeuser Co.,       143 Wn. App. 246, 254, 177 P.3d 180,

review    denied, 165 Wn.2d 1004 ( 2008); Davis, 149 Wn.2d at 531.


B.         JUDGMENT AS A MATTER OF LAW: HEARING THE DEPARTMENT' S EVIDENCE


           Butson argues that the trial court erred in granting the Department' s CR 50 motion at the

conclusion of his case in chief because it should have considered the Department' s evidence before


ruling. Butson acknowledged that the trial court had authority to issue a judgment as a matter of

law, but argued the trial court needed to hear all of the testimony that was heard in front of the

Board before the trial      court was allowed           to   make a   ruling   on   the CR 50   motion.    We hold that


Butson' s argument that the trial court was required to hear the Department' s evidence before ruling

in the CR 50 motion is contrary to the language of CR 50.

           RCW 51. 52. 140       provides    that   civil rules of procedure        apply to the IIA    appeals.    CR 50


states:




                                                                7
No. 45928 -1 - II



           1)   Nature    and   Effect of Motion.            If, during a trial by jury, a party has been fully
          heard with respect to an issue and there is no legally sufficient [31 evidentiary basis
          for a reasonable jury to find or have found for that party with respect to that issue,
          the court may grant a motion for judgment as a matter of law against the party on
          any claim . . . that cannot under the controlling law be maintained without a
          favorable finding on that issue. Such a motion shall specify the judgment sought
          and the law and the facts on which the moving party is entitled to the judgment.

           2)   When Made.  A motion for judgment as a matter of law may be made at any
          time before submission of the case to the jury.

          A CR 50 motion is properly granted after the nonmoving party presents its case and before

the moving party      presents      its   case.   Joy   v.   Dep' t   of Labor & Indus.,     170 Wn. App. 614, 628, 285

P. 3d 187 ( 2012) ( affirming       the dismissal of the worker' s claims on a CR 50 motion made after the

presentation of     her   case),   review denied, 176 Wn.2d 1021 ( 2013). Here, Butson had concluded his


presentation of     the   case.     The Department            moved       before the   presentation of   its   own case.   The


timing of the Department' s motion was appropriate, and accordingly, the trial court' s decision

thereon    was not    improper.           Therefore, we hold that the trial court did not err by granting the

Department' s CR 50 motion before the Department presented its case.


          Butson cites RCW 51. 52. 115 and Fay v. Northwest Airlines, 115 Wn.2d 194, 796 P. 2d 412

 1990), in support of his argument. However, neither supports his argument.




 There is apparent confusion as to whether there needs to be " substantial" evidence presented, see
Davis, 149 Wn.2d   at 531, or whether there needs to be " sufficient" evidence presented, see CR

50( 1).   The Washington Supreme Court has attempted to reconcile the distinction between the
 sufficient"    and " substantial"         standards: "'      Substantial evidence' has likewise been described as
evidence ` sufficient ...    to persuade a fair -minded, rational person of the truth of a declared
premise. "'     Davis, 149 Wn.2d at 531 ( quoting Helman v. Sacred Heart Hosp., 62 Wn.2d 136, 147
381 P. 2d 605 ( 1963)).




                                                                      8
No. 45928 -1 - II



          RCW 51. 52. 115      states,   in relevant part,    "   The hearing in the superior court shall be de novo,

but the court shall not receive evidence or testimony other than, or in addition to, that offered

before the board     or   included in the    record   filed   by the   board in the    superior court."   We review the


meaning of a statute de novo, giving effect to the legislature' s intent. Dep' t ofEcology v. Campbell
   Gwinn, LLC, 146 Wn.2d 1, 9, 43 P. 3d 4 ( 2002). "[                    I] f a statute' s meaning is plain on its face,

then the court must give effect to that plain meaning as an expression of legislative intent."

Campbell & Gwinn, 146 Wn.2d at 9 -10.


          RCW 51. 52. 115 is      not ambiguous.        The plain language of the statute does not require the


superior court to review all of the " evidence or testimony" that was " offered before the board or

included in the     record."   RCW 51. 52. 115. The statute prohibits the superior court from receiving

 evidence or testimony" that was not " offered before the board or included in the record filed by

the board."    RCW 51. 52. 115.           It does not require the superior court to ignore the civil rules of

procedure, or otherwise contradict            RCW 51. 52. 140.           Butson' s argument asks this court to read


language into RCW 51. 52. 115 that is neither present nor implied.


          With regard to Butson' s reliance on Fay v. Northwest Airlines, that reliance is misplaced.

115 Wn.2d 194. Fay addressed jurisdictional requirements for appealing a Board decision to the

superior court under        RCW 51. 52. 110.        Fay,   115 Wn.2d       at   201.   Fay does not address whether a

trial   court must review evidence         in the   context of a      CR 50   motion.   Fay,   115 Wn.2d   at   201. Thus,


Butson' s reliance on Fay to support his argument that the trial court erred by failing to hear the

Department' s evidence before making its CR 50 ruling is misplaced.




                                                                  9
No. 45928 -1 - I1



C.       TEMPORARY TOTAL DISABILITY


         Butson also argues that the trial court erred in finding no substantial evidence supported

his claim that he was not temporarily totally disabled from June 4, 2010 through January 25, 2011.

Butson contends that whether he was entitled to time loss benefits should have been a jury

question.




         Temporary total disability ends when the claimant' s condition becomes fixed and stable or

he is capable of reasonably continuous employment at any kind of generally available work.

Hunter   v.   Bethel Sch. Dist., 71 Wn.        App.   501, 507, 859 P. 2d 652 ( 1993), review denied, 123 Wn.2d


1031 ( 1994). "     General work means even light or sedentary work, if it is reasonably continuous,

within the range of the claimant' s capabilities, training, and experience, and generally available on

the   competitive   labor market."        Young v. Dep' t ofLabor    &   Indus., 81 Wn. App. 123, 131, 913 P. 2d

402,   review   denied, 130 Wn.2d 1009 ( 1996).            A worker is not totally disabled solely because he is

unable to return to his former occupation. Hunter, 71 Wn. App. at 507.

         Butson claims the trial court erred in equating an " observatory job" with " sedentary and

light"   work.    Br. Appellant      at   1.   In support, Butson quoted the following exchange during Dr.

Won' s deposition:

                    Claimant'   s   Attorney]: So, in your opinion based upon reasonable medical
         probability, was he temporarily totally disabled during the period of time June 4,
         2010, through January 25, 2011?

                            Like I said, if he had an observatory job, then he probably could
                    Dr. Won]:
         have done it. But he wasn' t able to continue what he was doing.

                    Claimant'   s   Attorney]: Was that inability approximately caused by the
          industrial injury on June [ sic] 15, 2004?

                    Dr. Won]: Yes.




                                                             10
No. 45928 -1 - II




Br. of Appellant at 15 ( quoting CABR (Dr. Won) at 25 -26.

            Butson claims that Dr. Won' s specific use of the term " observatory" cannot mean " work."

Br. of Appellant at 16. However, Butson ignores Dr. Won' s testimony that immediately preceded

the portion quoted in Butson' s brief. The immediately preceding testimony is as follows:

                        Claimant'   s   attorney]:   Well, as far as any work that you knew that he could
            perform during that period of time.

                        Dr. Won]:
                              There' s plenty of work that, you know, if there' s modified work
            such as answering phones or observatory, those kind of work [ sic].

CABR (Dr. Won) at 24 -25.


            One way an employee can be temporarily totally disabled is if he or she is not capable of

reasonably continuous employment at any kind of generally available work. Hunter, 71 Wn. App.

at   507.    No evidence exists in the record to support Butson' s argument that he is not capable of


reasonably continuous employment at any kind of generally available work.

            Dr. Won testified that Butson could not return to the job that Butson was hurt doing, but

that Butson      could perform "         plenty   of work,"    doing what Dr. Won termed an " observatory job."

CABR (Dr. Won) at 25, 26. Dr. Won noted the observatory jobs Butson could perform included

 answering      phones,"       and similar " kind[ s] of work."         CABR (Dr. Won)      at   25. Butson testified that


he   could not    do physically         demanding      work, such       as " lifting 100, 150    pounds of concrete,"   but


could conduct his daily routine and care for himself and the two other adults who were dependent

on him. CABR (Butson) at 38. Butson did not present any evidence to support an argument that

work such as answering phones was not " generally available" work that he could perform. Young,

81 Wn.       App.. at   131;   see also    Leeper    v.   Dep' t   of Labor & Indus. 123 Wn.2d 803, 815, 872 P. 2d




                                                                   11
No. 45928 -1 - II



507 ( 1994) ( requiring     the claimant " prove he or she is incapable of performing light or sedentary

work of a general nature ") ( emphasis             in   original).   Rather, substantial evidence, in fact all of the


evidence, Butson presented shows that Butson was physically able to perform jobs that required

him to answer phones and other similar tasks.


         Because Butson did not to show he was " physically unable to perform or obtain work of a

general nature,"     Herr   v.   Dep' t   of Labor & Indus., 74 Wn.        App.   632, 636, 875 P. 2d 11 ( 1994), the


issue turns to whether substantial evidence shows Butson was temporarily totally disabled because

he did not have the skills to perform any kind of generally available work, such as answering

phones.     Young, 81       Wn.    App.    at   131.    We hold that the evidence does not support Butson' s


contention that did not have the skills to perform or obtain work of a general nature.


          Butson was previously employed as the head of his family' s lumber dry kiln business for

approximately twelve years; he started, managed, leased, and operated a trucking business; and he

worked in the shipping and receiving department of a metal fabrication company off and on for

approximately fifteen        years.       Butson completed three years of undergraduate studies, two at


Oregon State University and one at Washington State University, before he was called to run the

family   business.    Butson also completed approximately six quarters of business and accounting

classes at Clark College as part of his vocational rehabilitation program after his injury. At Clark

College, he    was    studying accounting              and   business to become     an " assistant manager"   or " an




accounting    clerk."   CABR (Butson) at 6.


          Butson' s prior experience working as the head of a family business and managing a

trucking business surely required a reasonable level of proficiency at answering the phone and

similar administrative tasks. Additionally, the completion of three years of undergraduate studies



                                                                12
No. 45928 -1 - II




and recently completing approximately six quarters of business and accounting classes is evidence

that Butson could       perform      at   least   general      office    work.    Offering no evidence to counter the

reasonable conclusions that can be drawn from his prior work experience and education,

substantial evidence      does. not       exist   to   support an argument         that Butson'   s"   capabilities, training,

and experience" would not enable him to do " light or sedentary work" such as answering phones.

Young, 81 Wn. App. at 131.

          To establish he was temporarily totally disabled, Butson needed to present evidence that

he was physically unable, or did not have the requisite skills, to maintain employment in any kind

of general work. See e. g. Hunter, 71 Wn. App. at 507; see also Young, 81 Wn. App. at 131. Butson

failed to present such evidence. We hold that the trial court did not err in finding, as a matter of

law, there was no substantial evidence or reasonable inference to support the claim that Butson


was temporarily totally disabled.

D.        PRECLUSIVE EFFECT OF JUNE 4, 2010 ORDER


          Butson also contends there is " an issue of fact as to whether Mr. Butson had a documented


plan interruption that prevented him from participation in his vocational plan from June 4, 2010,

through    January   25, 201[ 1]."        Br.   of   Appellant    at    2.   We do not consider this argument because


Butson did not appeal the June 4, 2010 order that suspended his benefits for noncompliance, and


the doctrine of res judicata precludes him from making the claim now. Marley v. Dep' t ofLabor

     Indus., 125 Wn. 2d 533, 538, 886 P. 2d 189 ( 1994) ( " If a                party to a claim believes the Department

erred in its decision, that party must appeal the adverse ruling. The failure to appeal an order, even

one containing a clear error of law, turns the order into a final adjudication, precluding any

reargument of     the   same claim. ");      Chavez      v.   Dep 't of Labor    & Indus.,   129 Wn. App. 236, 239, 118



                                                                  13
No. 45928 -1 - II



P. 3d 392 ( 2005) ( " Under     the Industrial Insurance Act, Title 51 RCW, an action or order by L &I

becomes final   when   it is   not appealed within   60 days "), review denied, 157 Wn.2d 1002 (2006).


        We affirm the trial court' s issuance of a CR 50 judgment as a matter of law finding Butson

was not   temporarily totally disabled from June 4, 2010      through   January   25, 2011.   We also accept


Butson' s concessions that he was not undergoing rehabilitative treatment and was medically fixed

and stable as of January 25, 2011.

        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:




                    Bjorgen, A.C. J.




                                                       14
