     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                         DIVISION ONE

AUTUMN L. MATTO,                                  No. 73717-1-1
                                                                                   r-o



                     Respondent,

           v.



HAGGEN, INC.,
                                                                                       O

                     Appellant,

WASHINGTON STATE DEPARTMENT                       UNPUBLISHED OPINION
OF LABOR & INDUSTRIES,
                                                  FILED: April 18, 2016
                     Respondent.


       Verellen, C.J. — In this industrial insurance appeal, the superior court found

Autumn Matto's low back condition proximately caused by her work injury objectively

worsened from March 2009 to April 2013. Matto's former employer, Haggen, Inc.,

appeals, challenging the sufficiency of the evidence supporting the superior court's

findings. Because substantial evidence in the record supports the superior court's

findings that in turn support its conclusions, we affirm.

                                           FACTS

       Matto worked in the deli at Haggen for several years. In September 2008, Matto

injured her low back at work when she bent over to pick up a box of cucumbers. She

heard a crunch and felt a sharp pinch in her low back. Matto saw her attending

physician, Dr. Stephen Aldrich, for treatment.
No. 73717-1-1/2


       Dr. Aldrich examined Matto's low back and ordered a magnetic resonance

imaging (MRI) test. The MRI revealed Matto had degenerative disc disease at the

L5-S1 disc level of her low back. Dr. Aldrich prescribed Matto ibuprofen and referred

her to physical therapy. Matto then filed an application for benefits with the

Department of Labor and Industries.

       Matto progressed in treatment and returned to work full time in November 2008.

In December 2008, Matto quit Haggen and a few months later moved to Florida. In

March 2009, the Department closed Matto's claim for her work injury with no present

disability award. At that time, Matto's low back hurt only if she "overdid it."1

       In July 2012, Matto moved back to Washington. She applied to reopen her claim

with the Department due to an aggravation of her work injury. Matto resumed treatment

with Dr. Aldrich.


       The Department denied Matto's application to reopen her claim, concluding the

condition caused by her industrial injury had not objectively worsened. Matto sought

reconsideration. The Department affirmed the denial of reopening Matto's claim.

       Matto petitioned for review before the Board of Industrial Insurance Appeals.

The parties relied upon the deposition testimony of several medical experts. Dr. Aldrich

testified that Matto's low back condition caused by her industrial injury had objectively

worsened between March 2009, the date the claim closed, and April 2013, the date the

Department denied reopening of the claim. He noted specific objective reduced disc

heights at her L4-5 and L5-S1 levels. He found a causal relationship between the work

injury and the degeneration of her lower back.



       1 Clerk's Papers (CP) at 129.
No. 73717-1-1/3



      Two independent physicians, Dr. William Stump and Dr. Gerald Seligman,

evaluated and examined Matto. They testified that the worsening of Matto's low back

condition from March 2009 to April 2013 was caused by the progression of her

degenerative disc disease and natural aging.

      An industrial appeals judge issued a detailed proposed decision and order. The

proposed decision and order reversed the Department's order denying the reopening of

Matto's claim for permanent partial disability benefits. Haggen petitioned for review.

The Board of Industrial Insurance Appeals affirmed the Department's order, concluding

Matto's condition proximately caused by the work injury did not objectively worsen from

March 2009 to April 2013.

      Matto appealed to the superior court. After a bench trial, the superior court

issued its letter ruling reversing the Board's decision and order. The court then entered

findings of fact, conclusions of law, and judgment. The court found:

      2.     On March 4, 2009, Ms. Matto's objective findings proximately
             caused by the industrial injury were the findings on imaging studies
             which revealed degenerative disc disease at the L5-S1.

      3.     On April 5, 2013, Ms. Matto's objective findings proximately caused
             by the industrial injury were the progression of the findings on
             imaging studies that revealed an increase in the degenerative disc
             disease of the L4-5 and L5-S1 levels of her low back.

      4.     Mr. Matto's condition proximately caused by the industrial injury
             objectively worsened from March 4, 2009 and April 5, 2013.[2]

The court concluded that "[bjetween March 4, 2009 and April 5, 2013, Ms. Matto's

condition proximately caused by the industrial injury objectively worsened within the

meaning of RCW 51.32.160."3


      2 CP at 356.
No. 73717-1-1/4



      Haggen appeals the superior court's judgment.

                                        ANALYSIS


       Haggen challenges the superior court's findings and conclusions, contending

Matto's condition proximately caused by her work injury did not objectively worsen from

March 2009 to April 2013. We disagree.

      We review a superior court's decision in this context under the usual civil

standards.4 We review the court's findings of fact for substantial evidence.5 We review

de novo whether the findings in turn support the court's conclusions.6 Substantial

evidence is evidence "sufficient to persuade a rational fair-minded person the premise is

true."7 We do not reweigh competing testimony and inferences.8 We view the record

and all reasonable inferences in the light most favorable to the prevailing party.9

       A worker may have a claim reopened for aggravation of a condition caused by a

work injury.10 Establishing aggravation requires medical testimony that objective

symptoms show a causal relationship between the injury and increased disability after




       3 CP at 357.
       4 RCW 51.52.140: Rogers v. Dep't of Labor & Indus., 151 Wn. App. 174, 180-81,
210 P.3d 355 (2009); Malana v. Dep't of Labor and Indus., 139 Wn. App. 677, 683, 162
P.3d 450 (2007).
       5 Ruse v. Dep't of Labor & Indus.. 138 Wn.2d 1, 5, 977 P.2d 570 (1999).
       6 Rogers, 151 Wn. App. at 180.
       7 Sunnvside Vallev Irrigation Dist. v. Dickie. 149 Wn.2d 873, 879, 73 P.3d 369
(2003).
       8 Foxv. Dep't of Ret. Svs., 154 Wn. App. 517, 527, 225 P.3d 1018 (2009).
       9 Zavala v. Twin City Foods, 185 Wn. App. 838, 859, 343 P.3d 761 (2015).
       10 RCW 51.32.160; Eastwood v. Dep't of Labor & Indus., 152 Wn. App. 652, 656,
219P.3d711 (2009).


                                             4
No. 73717-1-1/5


the claim closure.11 A trier of fact in this context should give special consideration to an

attending physician's opinion.12

       Dr. Aldrich testified that Matto's work injury "was a material contributor to her

current disability"13 and that the work injury "likely contributed to" the acceleration of her

preexisting degenerative disc disease.14

       [0]n a more probable than not basis I think she is significantly more
       disabled simply because of the restrictions of pain preventing her from
       pursuing some activities that would be a normal part of daily living. So I
       think her disability is progressing just as her objective evidence of the
       spinal deterioration has progressed.[15]

Although Dr. Aldrich testified it was difficult to determine if Matto's L4-5 disc level

degeneration was caused by the work injury, he did conclude that her work injury

contributed to her L4-5 disc issues:

       Given that she had very little evidence of previous dis[c] deteriorative
       changes at L4-5 prior to the injury or right after the injury's imaging
       studies, I have to conclude that the stress is occurring because of her
       lifting up those . . . cucumbers in all cases probably strained that area or
       delivered some pressure stress to the area that may very well have
       accelerated an underlying degenerative process that was at the time not
       symptomatic and most of her symptoms were really around the already
       declining . . . L5-S1 dis[c]. So I don't think you can rule out that thatinjury
       had some contributing factors as far as the L4-5 dis[c] is concerned.[™]

He testified that Matto's condition at her L4-5 and L5-S1 disc levels proximately caused

by her work injury worsened from March 2009 to April 2013. For example, when



       11 Phillips v. Dep't of Labor & Indus., 49 Wn.2d 195, 197, 298 P.2d 1117(1956).
       12 Zavala. 185 Wn. App. at 867.
       13 CP at 220.
       14 CP at 207.
       15 CP at 197.
       16 CP at 221 (emphasis added).
No. 73717-1-1/6



Dr. Aldrich compared Matto's x-rays from July 2012, he found a loss of L5-S1 disc

height from 1.11 centimeters in 2007 to .066 centimeters in 2012 and a loss of L4-5 disc

height from 1.47 centimeters in 2007 to 1.15 centimeters in 2012. Matto "definitely had

objective evidence of worsening" and "narrowing" of her L4-5 and L5-S1 disc levels,17

and the "significant roots of this symptom" arose from her work injury.18

      Therefore, viewing the evidence in the light most favorable to Matto, we conclude

substantial evidence in the record supports the superior court's findings, which in turn

support its conclusion that Matto's condition proximately caused by the work injury

objectively worsened from March 2009 to April 2013.

       On appeal, Haggen asserts Dr. Aldrich's testimony should not be given "greater

weight or credibility."19 This is so, according to Haggen, because its physicians are

more credible. Haggen effectively asks us to reweigh the evidence and to make

credibility determinations. We do neither.20

       Contrary to Haggen's contention, the superior court here did not improperly rely

on the industrial appeals judge's proposed decision and order. The superior court's

letter ruling mentions the proposed decision and order in passing only to note the

significance of the attending physician's opinion. The record does not suggest the

superior court deferred to the industrial appeals judge or put "greater weight" on the

proposed decision and order solely by virtue of its length.




       17 CP at 192.
       18 CP at 194.

       19 Appellant's Br. at 20.
       20 Raum v. City of Bellevue. 171 Wn. App. 124, 151, 286 P.3d 695 (2012).
No. 73717-1-1/7



                                     CONCLUSION

      Substantial evidence in the record supports the superior court's findings that in

turn supports its conclusion that Matto's condition proximately caused by her work injury

objectively worsened from March 2009 to April 2013. Therefore, we affirm the superior

court's judgment.




WE CONCUR:




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