      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CLARK CONSTRUCTION GROUP, INC.,
                                                     DIVISION ONE
                     Appellant,                                                              en

                                                     No. 72816-4-1                       o

DEPARTMENT OF LABOR AND
INDUSTRIES FOR THE STATE OF
WASHINGTON,                                          UNPUBLISHED OPINION
                                                                                         o
                      Plaintiff,




ROLAND ANDERSON,

                      Respondent.                    FILED: September 21, 2015


      Dwyer, J. —When the superior court reviews a decision ofthe Board of
Industrial Insurance Appeals, our review on appeal is limited to whether
substantial evidence supports the trial court's factual findings and whether those
findings support its conclusions.1 Viewing the evidence in the light most
favorable to the claimant, who prevailed in superiorcourt, substantial evidence

supports the superior court's finding that further proper and necessary medical
care was needed after the Department of Labor &Industries closed the worker's
compensation claim. Nothing in the record before us indicates that the superior


       1 Rogers v. Dep't of Labor &Indus.. 151 Wn. App. 174, 180, 210 P.3d 355 (2009).
No. 72816-4-1/2



court failed to apply the correct legal standards in reaching its determination.

Accordingly, we affirm.

                                          I


       In October 2005, Roland Anderson sustained an injury to his foot and

ankle while working as a field superintendent on a road expansion project on

Interstate 5. Between 2008 and 2011, podiatrist James Lee treated Anderson for

various conditions related to the injury. During this period, Dr. Lee performed five

surgical procedures, including a fusion ofthe interphalangeal joint ofAnderson's

left big toe in October 2010.

       On December 23, 2011, the Department of Labor & Industries (the

Department) closed Anderson's workers' compensation claim with a permanent
partial disability award. On February 23, 2012, the Department affirmed its
December 2011 closure order. Approximately two months later, in April 2012,

based on Anderson's continuing symptoms and evidence that the 2010 joint

fusion procedure had failed, another physician, orthopedic surgeon Jeff Mason,
performed a second procedure to fuse the interphalangeal joint.
       Meanwhile, Anderson appealed the Department's claim closure order. In
October 2012, a judge of the Board of Industrial Insurance Appeals considered
evidence, including the deposition testimony offour physicians and one
psychologist, and the live testimony of Anderson and his former spouse. The
judge issued a proposed decision and order. Characterizing the correctness of
the closure order prior to Anderson's final surgery as a difficult question, the
judge found that Anderson's condition was medically fixed and stable as of
No. 72816-4-1/3



December 28, 2011 and that no further surgical procedure was warranted. The

Board affirmed the decision.2

       On appeal, the Snohomish County Superior Court, after a bench trial on

the administrative evidentiary record, reversed the Board's decision. The

superior court found that, as of the December 2011 claim closure date, "Mr.

Anderson's conditions proximately caused by the industrial injury were not fixed

and stable and required further proper and necessary treatment, including a re

fusion of the interphalangeal joint of the left great toe." Based on this factual

finding, the court concluded that Anderson "required, and was entitled to, further
necessary and proper treatment" after the claim closure date and that his "injury-
related conditions were not fixed and stable" as of that date.

       The employer, Clark Construction Group, Inc., filed a motion for
reconsideration. The superior court denied the motion. The employer appeals.3
                                               II


        The employer challenges the superior court's finding that the 2012 surgery
tofuse the interphalangeal joint was necessary and proper medical treatment,
claiming that the finding is unsupported by substantial evidence in the record.
        Washington's Industrial Insurance Act, Title 51 RCW, "includes judicial
review provisions that are specific to workers' compensation determinations."
Rogers v. Dep't of Labor & Indus., 151 Wn. App. 174, 179, 210 P.3d 355 (2009).

According to those provisions, the superior court conducts a de novo review of
        2The Board amended the Department's order by changing the claim closure date from
 December 23, 2011 to December 28, 2011, the date on which Anderson's physician provided him
with an orthotic device.                                                                   .
         3The Department did not participate in Anderson's appeal tothe superior court and is not
a participant in the proceedings before this court. See RCW 51.52.110.
No. 72816-4-1/4



the Board's decision, relying exclusively on the record before the Board. RCW

51.52.115; Rogers, 151 Wn. App. at 179. On appeal to the superior court, the

Board's decision is prima facie correct, and the party challenging the Board's

decision must support its challenge by a preponderance of the evidence. RCW

51.52.115: Rusev. Dep't of Labor & Indus., 138Wn.2d 1, 5, 977 P.2d 570

(1999). This presumption requires the findings of the Board to stand ifthe

superior court, as the trier of fact, finds the evidence to be in equipoise. Allison v.

Dep't of Labor & Indus., 66 Wn.2d 263, 268, 401 P.2d 982 (1965).

       We review the superior court's decision according to the ordinary standard

of review for civil cases, reviewing whether substantial evidence supports the trial

court's factual findings and, if so, whether the trial court's conclusions of law flow
from those findings. RCW 51.52.140; Ruse, 138Wn.2dat5. Afactual finding is

supported by substantial evidence "when the evidence in the record is sufficient
to persuade a rational, fair-minded person that the finding is true." Watson v.
Dep't of Labor& Indus., 133 Wn. App. 903, 909, 138 P.3d 177 (2006). We do

not reweigh or rebalance the competing testimony and inferences, or apply anew
the burden of persuasion. Rogers. 151 Wn. App. at 180-81. Furthermore, in
carrying out this review, we view the record in the light most favorable to the
party who prevailed in superior court. Harrison Mem'l Hosp. v. Gagnon, 110 Wn.
App. 475, 485, 40 P.3d 1221 (2002). Thus, we view the evidence in the light
most favorable to Anderson.

       The Industrial Insurance Act requires the Department or self-insured

employer to reimburse qualified claimants "[ujpon the occurrence of any injury to
No. 72816-4-1/5



a worker entitled to compensation        " RCW 51.36.010(2)(a). Compensation is

required for all "proper and necessary medical and surgical services . . . ." RCW

51.36.010(2)(a). The statute does not define "proper and necessary," but the

Washington Administrative Code, which regulates medical coverage under the

Industrial Insurance Act, states that proper and necessary health care services

are those

       of a type to cure the effects of a work-related injury or illness
       [curative], or.. . rehabilitative. 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.

WAC 296-20-01002.

       The Department or self-insured employer may stop paying for medical
services when the worker reaches maximum medical improvement or, in other

words, becomes "fixed and stable":

       The department or self-insurer stops payment for health care
       services once a worker reaches a state of maximum medical
       improvement. Maximum medical improvement occurs when no
       fundamental or marked change in an accepted condition can be
       expected, with or without treatment. Maximum medical
       improvement may be present though there may be fluctuations in
       levels of pain and function. Aworker's condition may have reached
       maximum medical improvement though it might be expected to
       improve or deteriorate with the passage oftime. Once a worker's
       condition has reached maximum medical improvement, treatment
       that results only in temporary or transient changes is not proper and
       necessary. "Maximum medical improvement" is equivalent to "fixed
       and stable."

WAC 296-20-01002.
No. 72816-4-1/6



       Herein, the employer contends that the evidence before the superior court

does not support its determination that the second fusion procedure was proper

and necessary because only Dr. Mason, who performed the surgery, concluded

that Anderson required additional surgical treatment after December 28, 2011.

The employer claims that Dr. Mason's opinion, standing alone, cannot support

the court's finding because Dr. Mason treated Anderson for a brief period, in

comparison to Dr. Lee, and did not examine Anderson until after December

2011. The employer also asserts that, in reaching its conclusion, the superior

court substituted its own "inappropriate medical analysis" for the expert medical

testimony before it.

       The employer does not, however, challenge the superior court's finding
that the initial "attempted fusion" procedure performed by Dr. Lee was "proper
and necessary," but "failed." It is, therefore, undisputed that in 2010 the
procedure at issue was curative or rehabilitative and, accordingly, proper and
necessary treatment for Anderson's injury-related condition.4 Indeed, all of the
medical experts testified consistent with this finding.5
        In light of clinical findings indicating a non-fused joint following the 2010
surgery and Anderson's continuing reports of pain in the joint, both Dr. Lee and



         4Although it does not assign error to this finding, the employer correctly points out that
the finding, drafted by Anderson's counsel, contains a typographical error and states that the
initial fusion procedure took place in October 2012, instead ofOctober 2010. However,
considering the court's findings as a whole, including Finding of Fact 2, it is amply clear that the
court's ultimate determination was based on an accurate understanding ofthe timeline ofevents.
        5As the judge of the Board noted in her proposed decision, only Dr. Eugene Toomey, the
 physician who performed an independent medical examination in 2011, was unwilling to concede
that the 2010 surgery did notachieve a complete fusion ofthe joint.
No. 72816-4-1/7



orthopedic surgeon Michael Brage considered the option of repeat surgery.6 But,

after considering the independent medical examination report and viewing

surveillance video footage taken over the course of several days during the

summer of 2011, Dr. Lee concluded that the clinical findings did not warrant a

second procedure. The video primarily consisted of several short segments

showing Anderson walking without a distinct limp, and apparently without pain.7
The video also depicted Anderson, assisted by others, moving a refrigerator. Dr.

Brage, who initially recommended a repeat fusion procedure to eliminate pain

caused by the non-fused joint, testified that, after viewing portions of the

surveillance video, he agreed with the opinion of Dr. Lee that Anderson

"seem[ed] fixed and stable."

        On the other hand, viewing the video did not cause Dr. Mason to discount

Anderson's complaints of pain. Dr. Mason noted that Anderson walked without a
significant limp in the office and that doing so for brief periods was not
inconsistent with Anderson's reports of pain. He also expressed the opinion that

moving a refrigerator or intermittently working on other home projects was not
inconsistent with Anderson's complaints. And while he agreed with Dr. Lee, Dr.

Brage likewise acknowledged that Anderson walked "fairly normally" upon
examination, that Anderson probably had "good days and bad days" with regard
to pain, and that the video did not demonstrate that Anderson could walk for a
prolonged period, as required by his previous work. Dr. Brage specifically

        6In fact, all four testifying experts agreed that fusion would be curative treatment if two
conditions were present: non-union ofthe joint after the first surgery and pain.
        7The video exhibit is not included in the record on appeal. As the party seeking
appellate relief, it was the employer's responsibility to perfect the record. Bulzomi v. Dep't of
Labor& Indus.. 72 Wn. App. 522, 525, 864 P.2d 996 (1994).
No. 72816-4-1/8



agreed that since a joint fusion procedure is curative and intended to eliminate

pain, undergoing such a procedure for a second time would be a "reasonable

choice" on Anderson's part.

      The superior court's finding that Anderson's condition was not fixed and

stable and that the fusion surgery was proper and necessary treatment is

supported by the evidence in the record. The court did not engage in

inappropriate medical analysis. As the trier of fact, the court was entitled to

evaluate the opinions of the medical experts and assess the basis for those

opinions. The employer's argument is simply an invitation to reweigh the

evidence that is beyond the scope of review.

                                         Ill


       The employer next contends that the superior court failed to applythe

correct legal standards when it reviewed the Board's decision. In particular, the
employer claims that the court failed to appreciate that the Board's findings are
prima facie correct, failed to properly defer to Dr. Lee's opinion as the attending
physician, and failed to consider whether, in hindsight, the procedure was
successful in order to determine whether it was proper and necessary treatment.

The employer contends that the court merely relied on the "simple occurrence" of
the later surgery in order to find that Anderson's condition was not fixed and
stable prior to the procedure.

       Contrary to the employer's assertion, nothing in the record suggests that
the superior court misunderstood the standard for reviewing the Board's decision
or failed to adequately consider Dr. Lee's opinion. See Intaico Aluminum v. Dep't


                                          8
No. 72816-4-1/9



of Labor & Indus., 66 Wn. App. 644, 654, 833 P.2d 390 (1992) (attending

physician's opinion receives special consideration). In a letter to counsel

elaborating on the court's view of the evidence and the basis for its decision, the

court specifically and expressly stated that it reached its conclusion,

"notwithstanding the presumption that the Board's findings and decision are

'prima facie' correct and notwithstanding the special consideration to be given to

the testimony of Dr. Lee."

        The employer essentially claims that because the court's decision is

contrary to Dr. Lee's opinion, the court "failed to give any weight" to it. The

employer further argues that Dr. Mason's opinion was not entitled to any special

weight because Dr. Mason did not treat Anderson for a significant amount of

time.

        Dr. Lee was clearly an attending physician, but the attending physician

rule does not require the trier of fact to defer to or creditthe testimony of the

treating physician. Groff v. Dep't of Labor &Indus., 65 Wn.2d 35, 45, 395 P.2d
633 (1964). The fact that the court did not credit Dr. Lee's opinion testimony
does not suggest that the court failed to carefully consider the testimony.

Moreover, the employer cites no authority to support the assertion that there

cannot be more than one treating physician whose opinion is entitled to special

consideration or that a specific length of treatment is required for this principle to

apply. Importantly, the attending physician rule stems not merely from the length
of the doctor's contact with a patient but also from the fact that an attending
No. 72816-4-1/10



physician is not "an expert hired to give a particular opinion consistent with one

party's view of the case." Intaico, 66 Wn. App. at 654.

       The employer's contention that the superior court could not find that the

repeat fusion surgery was proper and necessary without proof that the procedure

achieved the intended result is also incorrect. Hindsight analysis allows a party

to succeed on a claim for reimbursement when he or she can demonstrate, in

hindsight, that the procedure was, in fact, objectively curative or rehabilitative.

See Rogers, 151 Wn. App. at 181. This does not mean that a claimant must

present unequivocal proof of success to establish that treatment was proper and

necessary. For example, here, as explained, the 2010 fusion surgery was

undisputedly curative treatment even though three out of the four medical experts

agreed that the procedure did not result in a properly fused joint. While evidence
that the 2012 procedure had the desired effect of eliminating Anderson's joint

pain would have been undoubtedly relevant, the employer points to no authority
that requires a determination of proper and necessary treatment to be supported
by such evidence.

       Moreover, although the employer claims that the second surgeryfailed, in

fact, as the trial court observed, the outcome was not yet evident. Although

Anderson testified before the Board that his pain remained unchanged, he also

testified about a lengthy recovery process and surgical hardware that still had to
be removed. Dr. Mason testified that the joint appeared to be well-fused and he

believed Anderson had obtained some benefit already from the procedure.




                                          10
No. 72816-4-1/11



Indeed, no medical expert testified that at the time of Anderson's testimony, six

months following the procedure, his pain should have been eliminated.

       Substantial evidence supports the superior court's factual findings. The

superior court did not misapply the standard of review or otherwise err in

determining that Anderson's medical condition was not fixed and stable when the

Department closed his workers' compensation claim in December 2011 and that

the 2012 fusion procedure was curative or rehabilitative.

       Affirmed.


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We concur:



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