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                                                                                             2013 JUL 23 A        9: 14
                                                                                             ST      0       li    TON

                                                                                             BY
                                                                                                      D     TY


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

                                                  DIVISION II

                                                                              No. 42703 6 II
                                                                                        - -


                                        Appellant,

       V.




FRED        MEYER            STORES,         INC.     and             UNPUBLISHED OPINION
DEPARTMENT                   OF       LABOR          AND
INDUSTRIES              OF        THE       STATE     OF
WASHINGTON,

                                        o

       HUNT, J. —Erika Hardy appeals the superior court's trial de novo decision in favor of the

Department of Labor and Industries and Fred Meyer Stores, Inc. The court accepted the Board

of Industrial Insurance Appeals' findings and decision denying Hardy's worker's compensation

claim for   a   right   shoulder    injury   she asserts she suffered while   working   for Fred   Meyer. She

argues that (1)under the doctrine of res judicata, the Department's order allowing her worker's

compensation claim for her injured left shoulder also included her right shoulder condition as a

matter of law; and (2) superior court erred in refusing to consider evidence corroborating her
                      the

res judicata argument, which she had not presented to the Board. Holding that Hardy neither

proved nor preserved         her   right shoulder claim, we affirm.
No. 42703 6 II
          - -


                                                   FACTS


                       I. WORKPLACE INJURY AND BENEFITS DETERMINATION


         Erika Hardy began working in the service department of Fred Meyer Stores, Inc. in 1985.

In February 2004, Fred Meyer transferred Hardy to a checker cashier position; three months
                                                            /

later, she began experiencing problems with her left shoulder and visited Dr. Louis Enkema.

Although medical records from this visit referred to "bilateral shoulder conditions,"Hardy

alleged problems with only her left shoulder when she applied for worker compensation benefits.

Administrative Record ( R)7823 Mar. 4,2010)at 10024 (Finding of Fact ( F)1). June 22,
                      A    (                                         F     On

the Department allowed Hardy's left shoulder claim, after which she began receiving time loss

compensation and medical benefits.

         About four months later (after Fred Meyer had terminated her for unrelated reasons),

Hardy again sought medical          treatment       from      Dr. Enkema     and   filed   another   worker's


compensation claim, this    time   alleging   a   right   shoulder   condition.' On October 30, 2007, the

Department denied her right shoulder claim, finding that (1)there was no proof to support her

right shoulder claim; 2) condition was not the of the injury or exposure alleged on the
                      ( her            -

job;and ( ) condition was neither an industrial injury nor an occupational disease.
        3 her

         Hardy protested this October 30, 2007 Department order, arguing that (1)her right

shoulder injury should have been accepted as part of her previous left shoulder injury claim; or

2) the alternative, it should have been accepted as an independent claim. The Department
  in

forwarded this protest to the Board of Industrial Insurance Appeals for treatment as a direct

appeal.


1
    Hardy's second benefits claim also described a back condition, which is not part of this appeal.


                                                          2
No. 42703 6 II
          - -



       Meanwhile, on August 2, 2007 the Department had determined that Hardy's time loss
                                                                                     -

compensation benefits for her left shoulder claim were ended and paid through March 29, 2006,

and that she would receive    no    award for permanent       partial disability. Hardy appealed this

Department order to the Board, which consolidated Hardy's two appeals.

                   II. APPEAL TO BOARD OF INDUSTRIAL INSURANCE APPEALS


       On appeal, the parties stipulated that the Board's summarized jurisdictional history of

Hardy's claims was correct; this summary stated that Hardy's original claim had been for a left

shoulder injury. Nevertheless, Hardy argued that the Department should have included her right

shoulder condition under her left -
                                  shoulder claim; she also sought time loss compensation
                                                                        -

benefits from March 29, 2006, to December 20, 2007, and a pension thereafter.

       At the hearing before the Administrative Law Judge (ALJ), parties presented Dr.
                                                               the

Enkema's deposition testimony: Dr.
                                 Enkema testified that ( )
                                                       1 during Hardy's first visit, she had

complained   about "pain   over   the left shoulder ";   and (2)both of her shoulders "seemed to be

involved,"but "[ he left
               t]            was    her main   complaint." AR (7825 Mar. 4, 2010) at 505 06.
                                                                                         -

Defendants Fred Meyer and the Department asked Dr. Enkema about -
                                                                his specific findings for

Hardy's right and left shoulders:

       Fred MeyerDepartment]: [ I] your opinion, if you take out the subjective
                 /               n
       findings that you talked about, did you note any objective abnormal findings on
       examination?
        Enkema]: At this point in time, looking at the overall situation, I did not have
       very much in terms ofpositive physical findings. I had the patient's complaint.
       And usually when I try to assess something like this, I give the patient the benefit
       of the doubt. I had no prior history. And usually the patients tell me the truth.

       Fred Meyer /Department]: [ ]d you actually note any specific right shoulder
                                     Di
       symptoms that she reported in that visit?
        Enkema]: I focused .on the left, because that was her major complaint.   I

       wasn't impressed at the time that the right was significantly involved.


                                                    3
No.42703 6 II
         - -



       Fred Meyer/ epartment]: And in this case it appeared that the examinations
                 D
       were basically symmetrical between the right and the left?
        Enkema]: Correct, except that there was more pain on the left.

AR (7825 Mar.     4, 2010) at 507 08 (emphasis added). Dr. Enkema further testified that the
                                  -


disability certificate he had given Hardy contained a number of restrictions on the use of her left

shoulder, but it did not include restrictions on the use of her right shoulder.

       The ALJ issued two separate proposed decisions, both affirming the Department's orders,

which the Board   adopted. Hardy filed a petition for review with the Board challenging both

decisions. The Board granted review, consolidated the appeals, and affirmed its earlier adoption

of the ALJ's proposed decisions.

                                 III. APPEAL TO SUPERIOR COURT


       Hardy appealed the Board's decision to superior court and immediately moved for

judgment as a matter of law under CR 50. In support of her motion, Hardy attached copies of 1).
                                                                                            (

Dr. Enkema's     initial   medical   report, mentioning bilateral   shoulder      conditions; (2) the

Department's June 22,2004 order; 3) Enkema's report on Hardy's right shoulder during the
                                 ( Dr.

second visit; and ( ) Department's denial of Hardy's right shoulder claim. Noting that Hardy
                  4 the

had not submitted any of these attached materials to the Board, the superior court refused to

consider them.


       In the memorandum supporting her CR 50 motion, Hardy argued for the first time that

her right shoulder condition should have been allowed under her original worker's compensation


2
  Hardy did not, however, offer this disability certificate into evidence before the ALJ; nor did
she offer Dr. Enkema's medical records about her conditions or the Department's June 22, 2004
order. The record does include, however, the parties' stipulated procedural history, which noted
the date that Hardy had received the Department's June 22 order; but this stipulation did not
contain the order language that Hardy later tried to use as evidence in superior court.

                                                  M
No. 42703 6 II
          - -



claim for her left shoulder injury because (1) Department's June 22, 2004 order had put Fred
                                              the

Meyer on notice that her original claim was for a "bilateral" shoulder condition; and (2)thus,

under the doctrine of res judicata, Fred Meyer was precluded from denying her right shoulder

condition. Clerk's Papers (CP)at 32. Because Hardy had not argued her res judicata theory to

the Board, the   superior   court   ruled that she had waived the issue. The superior court denied

Hardy's CR 50 motion.

         Nevertheless, Hardy argued to the superior court that (1)the res judicata doctrine

prevented Fred Meyer from denying that the Department had accepted her claim for worker's

compensation for her right shoulder injury by virtue of the Department's June 22, 2004 order; 2)
                                                                                              (

Fred Meyer was put on notice that her claim encompassed both shoulders because, according to

the Board's findings, medical records from her original visit to Dr.Enkema referred to "
                                                                                       bilateral

shoulder conditions ";   and (3) "
                                because the June 22, 2004 order and notice was neither appealed

nor   protested,"it   was "final    and   binding   upon all   parties."   CP at 121.   The superior court

adopted the Board's findings of fact in their entirety and ruled in favor of Fred Meyer and the

Board. The superior court did not further address Hardy's res judicata argument. Hardy appeals.




3
    Hardy acknowledged that she had not previously raised her res judicata argument before the
Board. .


4 AR 7823 Mar. 4,2010)at 10024 (FF 1)emphasis added).
     (                                (

                                                        G
No. 42703 6 II
          - -



                                         ANALYSIS


                                   I. ISSUE PRESERVATION


       Hardy now argues that the doctrine of res judicata should have precluded the superior

court from denying her claim for worker's compensation benefits for her alleged right shoulder

injury. We disagree. Instead, we agree with the superior court that because she failed to raise

this argument to the Board, she raise it now. See RCW 51. 2.Kustura v. Dep't of
                                                      115;
                                                        5

Labor &   Indus.,142 Wn. App. 655, 673 74, 175 P. d 1117 (2008), d, 169 Wn. d 1001, 233
                                       -        3              aff'       2

P. d 853 (2010).
 3

       RCW 51. 2.provides,
           115
             5

       Upon appeals to the superior court only such issues of law or fact may be raised
       as were properly included in the notice of appeal to the board, or in the complete
       record of the proceedings before the board.

Applying this statute, Washington courts have held that we may decline to review on appeal any

issue not raised before the Board. See, e. .,
                                         g Kustura, 142 Wn. App. at 673 74 ( ivision One of
                                                                        - D

our court refused to consider an argument on appeal that workers had failed to make to the

Board).

       Because Hardy raised her res judicata argument for the first time in her CR 50 motion in

superior court, the Board never had the opportunity to rule on this issue. And, although both

parties briefed the issue, the superior court did not reach the merits of Hardy's res judicata

argument; instead, it concluded that Hardy had waived the issue by having failed to raise it

before the Board. Because Hardy failed to raise her res judicata claim to the Board, we, too,

decline to consider it further.




                                               on
No. 42703 6 II
          - -



                                               II. CLAIM PRECLUSION


         Hardy next argues that because Dr. Enkema's initial report noted a "bilateral" shoulder

condition, the Department's order " allowed [ her] occupational disease claim for bilateral

shoulder conditions."Br. of Appellant at 16. This argument also fails.

                                               A. Standards of Review


         On appeal, the superior court sits in a quasi -appellate capacity, reviewing the Board's

decision de novo, but basing its decision solely on the evidence and testimony presented to the

Board. Stelter       v.   Dep't of Labor & Indus.,147 Wn. d 702, 707, 57 P. d 248 (2002).See also
                                                        2                 3

RCW 51. 2. The superior court considers the Board's decision to be prima facie correct;
    110
      5

thus, a party attacking the Board's decision must support its challenge by a preponderance of the

evidence. Leuluaialii           v.
                                     Dep't of Labor & Indus.,169 Wn. App. 672, 677, 279 P. d 515 (2012)
                                                                                         3

citing   Ruse   v.   Dep't of Labor & Indus.,138 Wn. d I;5, 977 P. d 570 (1999)),
                                                   2             2             review denied,

176 Wn. d 1018 (2013).
      2

         We review the superior court's factual findings by asking whether substantial evidence

supports them. We review de novo whether the trial court's legal -
                                                                 conclusions flow from the

findings. Rogers          v.   Dep't of Labor & Indus.,151 Wn. App. 174, 180, 210 P. d 355 (2009).On
                                                                                   3

appeal, we treat unchallenged findings of fact as verities. Moreman v. Butcher, 126 Wn. d 36,
                                                                                      2

39, 891 P. d 725 (1995).
         2

                                  B. Finality of Unchallenged Department Orders

         All   Department orders "become final within sixty days ...               unless a written request for

reconsideration is filed with the           department   of labor and industries ...   or an appeal is filed with

the board of industrial insurance appeals."RCW 51. 2.The doctrine of claim preclusion
                                               050(
                                                  1
                                                  5 ).



                                                            7
No. 42703 6 II
          - -



applies to a Department's final order the same as it would to a trial court's unappealed final

order.   Marley     v.   Dep't of Labor & Indus.,125 Wn. d 533, 537, 886 P. d 189 (1994).Failure to
                                                       2                  2

appeal precludes a party from rearguing the claim that the Department denied in its final order.

Marley, 125 Wn. d at 538.
              2

         Here, both parties agree that the doctrine of claim preclusion applies to the Department's

June 22, 2004 final order that allowed Hardy's left shoulder worker's compensation claim.

Contrary to Hardy's assertion, there is no evidence in the record that the Department's order

accepted    her claim      as a "bilateral" shoulder   condition.   Moreover, the stipulated jurisdictional

history that the parties submitted to the Board for its review stated that Hardy's original claim

was   for   a   left shoulder    injury. Consistent with the record and this stipulated history was Dr.

Enkema's testimony that (1)during his exam of Hardy, he "focused on the left [shoulder,]

because that        was    her   major complaint "; and ( 2) Hardy's disability certificate contained

restrictions on the use of only her left shoulder. AR 7825 Mar. 4,2010)at 508.
                                                      (

         The Board found that Hardy "alleged an occupational condition involving her left

shoulder, arising out of her employment" AR ( 823 Mar. 4, 2010) at 10024 (FF 1).
                                            7                                  Hardy did

not challenge this finding. There is no support in the record before us for Hardy's argument that




s Not in evidence before the Board were the Department's June 22, 2004 order, Dr. Enkema's
medical records, and Hardy's disability certificate. Therefore, the superior court did not err in
refusing to consider these documents. Stelter, 147 Wn. d at 707.
                                                      2


                                                         8
No. 42703 6 II
          - -



the Department's June 22, 2004 order included her right shoulder condition. The superior court

adopted the Board's findings and confirmed its decision. We affirm the superior court.

       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

040,
2.6.it is so ordered.
 0




                                                   Hunt,J.
We concur:




                                               9
