                                                                           FILED 

                                                                         DEC. 24,2013 

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


ANTONIO L. PADILLA,                          )         No. 31391-3-111
                                             )
                    Appellant,               )
                                             )
             v.                              )
                                             )
DEPARTMENT OF LABOR AND                      )         UNPUBLISHED OPINION
INDUSTRIES OF THE STATE OF                   )
WASHINGTON,                                  )
                                             )
                     Respondent.             )

       BROWN, J. - Antonio L. Padilla appeals the superior court's judgment affirming a

Board of Industrial Insurance Appeals' adjudication. Both tribunals upheld a

Department of Labor and Industries' decision denying Mr. Padilla's application to reopen

his industrial injury claim and readjust his compensation based on aggravation of his

original condition. He now contends the superior court's factual findings lack substantial

evidence and do not support its legal conclusions. Because substantial evidence

supports the court's findings and we defer to the court on matters of witness credibility

and the persuasive weight accorded to disputed evidence, we affirm.

                                         FACTS

       Mr. Padilla suffered an industrial injury in the course of his employment on

August 31,2006. He soon applied to the department for compensation. The
No. 31391-3-111
Padilla v. Dep't of Labor & Indus.

department allowed his claim, paid him compensation, and closed his claim on January

3,2007. About 33 months later, he applied to the department to reopen his claim and

readjust his compensation based on aggravation of his original condition. The

department issued a final order denying his request on March 16,2010.

       Mr. Padilla appealed to the board. At a hearing, both parties produced expert

medical testimony. Mr. Padilla offered the perpetuation deposition of S. Daniel Seltzer,

MD, and the testimony of Ronald H. Warninger, DC. The department offered the

testimony of Paul Reiss, MD. The board affirmed the department's decision after

finding Dr. Reiss's testimony more credible and persuasive than Drs. Seltzer and

Warninger's testimony, especially on the proximate cause element required to prove

aggravation within the meaning of RCW 51.32.160(1)(a). Mr. Padilla unsuccessfully

appealed to the superior court. The court agreed with the board's appraisal of witness

credibility and evidence weight after adopting its factual findings and legal conclusions.

Mr. Padilla appealed.

                                       ANALYSIS

      The issue is whether the superior court erred in affirming the board's

adjudication. Mr. Padilla argues the evidence preponderates in his favor because he

showed his industrial injury worsened after the department closed his claim. The

Industrial Insurance Act, title 51 RCW, empowers the department to reopen an industrial

injury claim and readjust compensation if the worker's disability has become aggravated

and the worker applies for relief within seven years of the initial closing date. RCW




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No. 31391-3-111
Padilla v. Oep't of Labor & Indus.

51.32.160(1 )(a). If the department denies the application, the aggrieved worker may

appeal to the board. RCW 51.52.060.

       If the board affirms the department's decision, the aggrieved worker may appeal

to the superior court and receive a hearing de novo upon the same evidence and

testimony the board heard. RCW 51.52.110, .115. The board's factual findings and

legal conclusions are "prima facie correct," which means they are presumed correct.

RCW 51.52.115; see Allison v. Oep't of Labor & Indus., 66 Wn.2d 263, 268,401 P.2d

982 (1965). The party attacking the findings and conclusions bears the burden of

proving they are incorrect by a preponderance of evidence. RCW 51.52.115; Chalmers

v. Oep't of Labor & Indus., 72 Wn.2d 595, 603, 434 P.2d 720 (1967); Zankich v. Oep't of

Labor & Indus., 189 Wash. 25, 31, 63 P .2d 427 (1936).

       If the superior court affirms the board's adjudication, the aggrieved worker may

appeal "as in other civil cases." RCW 51.52.140; see RAP 3.1. We review the superior

court's factual findings and legal conclusions solely to determine whether substantial

evidence supports the findings and the conclusions flow from the findings. See Ruse v.

Oep'tofLabor& Indus., 138 Wn.2d 1, 5-6,977 P.2d 570 (1999); Groffv. Oep'tofLabor

& Indus., 65 Wn.2d 35, 41,395 P.2d 633 (1964). Substantial evidence is a "sufficient

quantum to persuade a fair-minded, rational person of the truth of a declared premise."

Helman v. Sacred Heart Hosp., 62 Wn.2d 136. 147.381 P.2d 605 (1963).

      To prove aggravation within the meaning of RCW 51.32.160(1){a), the worker

must establish four elements by expert medical testimony at least partly based on a

physician's findings of objective symptoms:


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No. 31391-3-111
Padilla v. Dep't of Labor & Indus.

       (1) the worker's prior industrial injury worsened and resulted in increased 

       disability; 1 

       (2) the worker's prior industrial injury proximately caused the increased disability;
       (3) this worsening occurred between two terminal dates, specifically, the date 

       the department closed the worker's original claim and the date the department 

       issued a final order denying the worker's application for a reopening and 

       readjustment; and 

       (4) the worker's disability on the second terminal date was greater than that for 

       which the department awarded the worker compensation on the first terminal 

       date. 


See Lewis v. ITT Cont'! Baking Co., 93 Wn.2d 1,3,603 P.2d 1262 (1979); Dinnis v.

Dep't of Labor & Indus., 67 Wn.2d 654, 656, 409 P.2d 477 (1965); Phillips v. Dep't of

Labor & Indus., 49 Wn.2d 195, 197,298 P.2d 1117 (1956); Cyr v. Dep't of Labor &

Indus., 47 Wn.2d 92, 95, 286 P.2d 1038 (1955); Hyde v. Dep't of Labor & Indus., 46

Wn.2d 31,34,278 P.2d 390 (1955); Moses v. Dep't of Labor & Indus., 44 Wn.2d 511,

517,268 P.2d 665 (1954); Kamiss v. Dep't of Labor & Indus., 39 Wn.2d 898, 901-02,

239 P.2d 555 (1952); 6A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CIVIL 155.11, at 160,155.11.01, at 161 (6th ed. 2012).

       Here, the superior court found, "Any objective worsening in Mr. Padilla's               ~


condition that occurred between January 3,2007, and March 16, 2010, was not                    I
proximately caused by the residual effects of the August 31,2006 industrial injury."

Administrative Record (AR) at 36; see Clerk's Papers (CP) at 51. As explained in a
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memorandum decision, the court based this finding entirely upon its appraisal of witness

credibility and evidence weight:
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       1 The aggravation "need not be the result of the industrial accident itself but may
be the worsening of the industrial injury through the incidents of day-to-day life."
Tollycraft Yachts Corp. v. McCoy, 122 Wn.2d 426, 432,858 P.2d 503 (1993) (citing
McDougle v. Dep't of Labor & Indus., 64 Wn.2d 640, 644,393 P.2d 631 (1964».

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No. 31391-3-111 

Padilla v. Dep't of Labor & Indus. 


           The case turns on the expert evidence . . .. Dr. Reiss ... provided a
       detailed analysis of why he believed the symptoms experienced by Mr.
       Padilla during the period in question were not related to the industrial
       traumatic injury. He clearly described that the injury would have either
       been traumatic or major with damage to the cervical structure or a minor
       injury with damage to the muscle. A major injury would have required
       immediate care together with follow up care. A minor injury would resolve.
       There being no evidence of a major injury the only conclusion left is the
       injury was minor. He also stated the symptoms of a minor injury would not
       be the source of the alleged aggravation.
           Dr. Reiss attributed the symptoms of Mr. Padilla to his age, physical
       condition and arthritis.
           Mr. Padilla offered testimony from Dr. Selzer [sic] and Dr. Warninger.
       Dr. Warninger made a conclusory statement of causal relationship. Dr.
       Selzer [sic] also made a conclusory statement of causation. Both
       statements were not particularly detailed or supported by reasoning. Both
       doctors felt additional testing would have to be done to provide a better
       analysis. The doctors failed to specifically establish a relationship
       between the current symptoms and the original injury.
                                                                                             i
                                                                                             I
CP at 48-49.

       Mr. Padilla does not challenge how the superior court characterized the contents

of Dr. Reiss's testimony.2 Instead, he challenges the court's appraisal that Dr. Reiss's
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testimony was more credible and persuasive than Drs. Seltzer and Dr. Warninger's
                                                                                             I
testimony. But we must defer to the superior court's assessment of these matters even

if we might disagree. See In re Welfare ofSego, 82 Wn.2d 736, 739-40, 513 P.2d 831
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                                                                                             f.
       2 Nor could he do so. Dr. Reiss testified he examined Mr. Padilla, reviewed his       r
medical records, and concluded "there was no objective worsening related to the claim"
between January 3, 2007 and March 16,2010. AR at 117. Dr. Reiss explained, "I felt
that major trauma had been'ruled out" around the time of the industrial accident, and
                                                                                             I
therefore, "I didn't think anything on diagnostic studies now could be directly related to
the accident, anything." AR at 119-20. Dr. Reiss then suggested the degenerative
changes in Mr. Padilla's neck were "based on his age" instead of his industrial injury.
AR at 123. Again, Dr. Reiss explained, "I believe when I saw him he was in his early
60s, and everybody - I don't think there's anybody over age 60 who doesn't have
degenerative changes in their neck." AR at 123.


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No. 31391-3-111
Padilla v. Dep't of Labor & Indus.

(1973). Because Dr. Reiss's testimony is sufficient to persuade a fair-minded, rational

person Mr. Padilla's industrial injury did not proximately cause his increased disability,

substantial evidence supports the court's negative finding on proximate cause. And,

because proximate cause is an element required to prove aggravation within the

meaning of RCW 51.32.160(1 )(a), the court's negative conclusion on aggravation flows

from its negative finding on proximate cause. Under these circumstances, we defer to

the superior court's finding. See Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570,

343 P.2d 183 (1959). In sum, the superior court did not err in affirming the board's

adjudication.

       Considering the analysis above, we do not address Mr. Padilla's remaining

contentions on the three other elements required to prove aggravation within the

meaning of RCW 51.32.160(1)(a).

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                  Brown, J.

WE CONCUR:



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