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     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON                          r         -.1
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SOUTHWEST AIRLINES,                                                                rt.             r
                                                No. 77301-1-1
                      Respondent,                                                  %:9   —I

        v.                                      DIVISION ONE                       tO

                                                                                              a-4


 KEVIN J. LUCHI,                                UNPUBLISHED OPINION

                      Appellant.                FILED: July 23, 2018


       LEACH, J. — Kevin Luchi appeals the trial court's reversal of the decision of

the Board of Industrial Insurance Appeals (Board). The Board found that Luchi's

2011 industrial injury was a proximate cause of his later injury in 2014. Because

our review of the record leaves this court with the definite and firm conviction that

the trial court made a factual mistake about a proximate cause of Luchi's later

injury, we reverse and remand.

                                   BACKGROUND

       In February 2011, Luchi suffered injuries at the L4-5 and L5-S1 levels of his

vertebrae while working for Southwest Airlines (SW). SW agrees that these

injuries resulted in disc herniations at these levels.      Luchi filed a workers'

compensation claim. He had surgery to address these injuries and was later

diagnosed with right leg radiculopathy due to scar tissue from this surgery. Luchi

continued to experience pain in his lower back, pain and weakness in his right
No. 77301-1-I / 2



lower extremity, and tripping and falling. In April 2014, as Luchi was entering the

post office, his right foot slipped and he jarred his leg but did not fall. A subsequent

MRI (magnetic resonance imaging) showed a disc herniation at the L3-4 level.

       In March 2015,the Department of Labor and Industries affirmed its January

2015 order segregating Luchi's L3-4 disc herniation as unrelated to his February

2011 industrial injury. Luchi appealed to the Board. It reversed, holding that

Luchi's industrial injury and its consequences were a proximate cause of his later

injury. SW appealed to the King County Superior Court, which reversed the

Board's decision and affirmed the Department of Labor and Industries' order. The

trial courtfound,"Mr. Luchi's incident of April 15,2014, was not proximately caused

by his February 28, 2011, industrial injury, and his new right herniated disc at the

L3-4 level was not proximately caused or aggravated by the industrial injury or its

sequelae." Luchi appeals.

                              STANDARD OF REVIEW

       On review, the superior court accepts the Board's decision as prima facie

correct and the burden of proof is on the challenger.1 It reviews the Board's

decision de novo and "may substitute its own findings and decision for the Board's

if it finds from a 'fair preponderance of credible evidence' that the Board's findings

and decision were incorrect."2



      1 Dep't of Labor & Indus. v. Shirley, 171 Wn. App. 870, 878, 288 P.3d 390
(2012).
      2 Shirley, 171 Wn.App. at 878(quoting Ruse v. Dep't of Labor & Indus., 138
Wn.2d 1, 5,977 P.2d 570(1999)).

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       We use the clearly erroneous standard to review the trial court's findings of

fact.3 "A finding offact is clearly erroneous when, although there is some evidence

to support it, review of all of the evidence leads to a 'definite and firm conviction

that a mistake has been committed."4 An appellate court reviews de novo whether

the trial court's findings support the challenged conclusions of law.5 We base our

review on the evidence presented to the Board.6

                                     ANALYSIS

       Luchi makes two claims. First, he claims that insufficient evidence supports

that his slip, and not his industrial injury or its consequences, caused his L3-4 disc

herniation. We reject this claim because SW's expert medical testimony provides

substantial evidence supporting the trial court's finding that his slip caused his new

disc herniation.

       Second, he claims that his right leg radiculopathy resulting from his

Industrial injury caused him to slip and jar his leg at the post office. We agree.

Luchi's treatment providers opined that the consequences of Luchi's industrial

injury caused him to slip and jar his leg; SW's experts did not address at all whether

the radiculopathy caused weakness that in turn caused Luchi to slip and herniate

his L3-4 disc. SW claims that it is equally plausible that Luchi slipped because of


       3 See Schrwers v. Coulee Cmtv. Hosp., 138 Wn. App. 648,654, 158
P.3d 113(2007); see also Wenatchee Sportsmen Ass'n v. Chelan County, 141
Wn.2d 169, 176,4 P.3d 123(2000).
      4 Schrvvers, 138 Wn. App. at 654 (quoting Wenatchee Sportsmen Ass'n,
141 Wn.2d at 176).
      5 Shirley, 171 Wn. App. at 878.
      6 Shirley, 171 Wn. App. at 878.



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a puddle of water or a banana peel on the floor. But the record contains no

evidence to support either of these theories. The only evidence of the cause of his

slip is his history of medical problems resulting from his industrial injury. We thus

conclude that the trial court made a clear mistake because it did not address this

uncontroverted evidence.

       As a preliminary matter, Luchi asserts that in reviewing his claims, this court

should resolve any doubts in his favor because the Industrial Insurance Act(Act)7

"'is to be liberally construed in order to achieve its purpose of providing

compensation to all covered employees injured in their employment, with doubts

resolved in favor of the worker.'"8 But the principle of liberal construction applies

only to matters concerning the construction of the statute, not to questions of fact.°

Here, the principle does not apply because Luchi does not challenge the trial

court's interpretation of the Act; he challenges only the court's proximate cause

determination.

       As discussed below, proximate cause includes cause in fact and legal

causation." There may be more than one proximate cause of a condition for a

worker to recover benefits under the Act.11 Although the industrial injury must be



      7 Title 51 RCW. The Act is a time-loss compensation scheme for workers
who experience industrial (work-related) injuries. Shirley, 171 Wn. App. at 879.
        Shirley, 171 Wn. App. at 880 (quoting Dennis v. Den't of Labor & Indus.,
109 Wn.2d 467, 470,745 P.2d 1295(1987)).
      9 Ehman v. Deal of Labor & Indus., 33 Wn.2d 584, 595, 206 P.2d 787
(1949).
      10 Bauohn v. Honda Motor Co., 107 Wn.2d 127, 142, 727 P.2d 655(1986).
      11 Shirley, 171 Wn. App. at 880.

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No. 77301-1-1/ 5



a proximate cause of the alleged condition for which the worker seeks benefits, the

law does not require that the industrial injury be the sole proximate cause.12 But

"Et must be made to appear that the injury probably caused the disability.""

Testimony of medical experts must establish the probability of a causal connection

between the industrial injury and the subsequent physical condition.14

                                    Cause In Fact

       Luchi claims that but for his industrial injury and its consequences, he would

not have injured the L3-4 level of his vertebrae or slipped. We agree that but for

his industrial injury and its consequences, he would not have slipped.

       Cause in fact is the "but for" consequences of an act. This means that but

for the act, the later events resulting in a direct, unbroken sequence would not have

occurred.15 The "but for" cause of injury is typically a question of fact for the trier

of fact."

       Luchi primarily contends that expert medical testimony establishes that his

surgery, vocational retraining activities, and activities of daily living caused his L3-

4 disc herniation independent of his slip at the post office. By contrast, SW claims

that objective medical evidence and expert medical testimony support that Luchi's


       12 Shirley, 171Wn. App. at 880.
       13 Jackson v. Dep't of Labor & Indus., 54 Wn.2d 643, 649, 343 P.2d 1033
(1959)(quoting Stampas v. Dep't of Labor & Indus., 38 Wn.2d 48, 51, 227 P.2d.
739 (1951)).
       14 Jackson 54 Wn.2d at 648.
       15 Jenkins v. Weyerhaeuser Co., 143 Wn. App. 246, 254, 177 P.3d 180
(2008).
       16 Indoor Billboard/Wash., Inc., v. Integra Telecom of Wash.. Inc., 162
Wn.2d 59, 83, 170 P.3d 10(2007).

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No. 77301-1-1/6



slip alone caused his 13-4 disc herniation. We agree with SW that substantial

evidence supports the trial court's finding that Luchi did not herniate his L3-4 disc

independent of his slip.

       But uncontroverted evidence supports Luchi's claim that his radiculopathy

caused him to slip, and no evidence supports another explanation. All the experts

for both parties agree that this medical condition resulted from his industrial injury.

So we are confident that the trial court made a mistake in finding that the

consequences of his industrial injury were not a cause of his slip. We discuss each

of these points in turn.

       In August 2011, Luchi had a microdiscectomy at levels 14-5 and L5-S1.

Luchi testified that after his surgery, his low back remained symptomatic, with pain

radiating down the right side of his buttocks and down his calf to the outside of his

foot. He received physical therapy and continuing chiropractic care. In January

2013, he started a vocational retraining program for medical assisting. Physician

Assistant-Certified Brian Hiller, who treated Luchi consistently since 2009,testified

about Luchi's complications from his surgery, including inflammation, pain, and

scar tissue buildup. Hiller also stated that Luchi's vocational retraining activities

caused him daily lower back and right leg pain because it required him to stand

and sit for long periods of time.

       Similarly, Dr. Richard Wohns, a board-certified neurosurgeon, who testified

on Luchi's behalf, stated that practicing CPR (cardiopulmonary resuscitation) and




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No. 77301-1-1 / 7



bending over lab tables to practice stitches and other procedures could have

aggravated Luchi's lower back condition.

       In addition, Hiller stated that simple activities like sitting or sleeping caused

Luchi aggravations on a regular basis. Wohns agreed that activities of daily living

for someone with Luchi's history could cause his condition to worsen. In May 2013,

Luchi went to the emergency room after bending over to talk to his son and feeling

a sharp pain in his right lower back. Wohns stated that this could have caused

worsening or aggravation of his lower back condition. Although Luchi told Hiller

that his pain worsened after he slipped at the post office, in March 2014,one month

before the incident, Luchi also reported that he was experiencing worsening back

pain. Both Hiller and Wohns testified that Luchi's vocational activities and activities

of daily living, not his slip, could have caused the L3-4 disc herniation on a more-

probable-than-not basis.

       By contrast, Dr. Patrick Bays, a board-certified orthopedic surgeon who

testified for SW, stated that on a more-probable-than-not basis Luchi's industrial

Injury or its consequences did not cause the L3-4 herniation for two reasons. First,

he stated that the most important evidence was the objective evidence consisting

offour MRI studies. Luchi had three MRIs in 2011, one before his surgery and two

after. All showed a normal L3-4 disc. Not until June 2014,two months after Luchi

slipped at the post office, when Luchi had a fourth MRI, did any study show a disc

herniation at the L3-4 level. Although Luchi asserts that this objective medical

evidence has little probative value because his last MRI before he slipped was


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No. 77301-1-1 / 8



three years earlier, Bays stated that slipping, grabbing a railing at the door, and

twisting like Luchi did at the post office is sufficient to herniate a disc.

       Second, Bays explained that to his knowledge there are "no evidence-

based medicine studies that support an increased incidence of pathology, or the

predisposition to pathology [at the L3-4 level], as a consequence of having a one-

sided microdis[c]ectomy at the lower two levels, [namely, the L4-3 and L5-S1

levels]."

       Dr. David Bauer, a board-certified orthopedic surgeon with a specialty in

spinal injuries and diseases who also testified for SW, similarly concluded that

slipping and twisting like Luchi did at the post office could create a disc herniation.

Bauer explained that the medical literature shows that discectomy like Luchi's does

not change the anatomy of the spine enough to weaken an adjacent level like the

L3-4 level.

       Bauer also reviewed Luchi's chiropractic records as part of his evaluation

of Luchi's claim for SW in May 2015. He stated that Luchi first had increased

symptoms in his back and wrapping around into his thigh and groin after he slipped.

These symptoms were consistent with a herniation at the L3-4 level because the

L3 nerve root gives sensation to the anterior thigh and groin. And he explained

that the pain Luchi experienced from sitting in class or from driving is common in

people who have degenerative changes in their backs and "is a condition that we

all deal with."     Bays' and Bauer's testimony provide substantial evidence




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No. 77301-1-1/ 9



supporting the trial court finding that Luchi did not herniate his L3-4 disc

Independent of his slip at the post office.

       Although Bauer and Bays each testified about how the slip caused the L3-

4 herniation, they did not discuss whether the consequences of Luchi's industrial

injury caused him to slip. Their testimony provides no evidence to answer this

question. They agree that his industrial injury caused issues with his right lower

leg, but they do not address at all Luchi's claim that these problems caused him to

slip. Consistent with the Board's well-reasoned decision,17 we conclude that

substantial evidence supports only one finding, that but for Luchi's radiculopathy

caused by his industrial injury, he would not have slipped and consequently

herniated his L3-4 disc.

       Hiller defined "radiculitis" as "a pain and inflammation of a nerve root when

there is pressure on the nerve root. It gives pain from the spine down the

dermatome or area. For Mr. Luchi it's down his right leg." While a 2011

electrodiagnostic test of Luchi's lower leg did not show evidence of radiculopathy,

Hiller, Wohns,and Bays diagnosed Luchi with right-sided radiculopathy as a result

of his industrial injury. SW relies on the results of the electrodiagnostic testing to

support its position, but it does not dispute Hiller's, Wohns', or Bays' diagnosis.

       Hiller testified about the symptoms Luchi experiences as a result of

radiculopathy. He stated that Luchi fell repeatedly in 2014 because he "was having


       17 In re Luchi, No. 15 15166, at 4(Wash. Bd. of Indus. Ins. Appeals Aug.
29, 2016).

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No. 77301-1-I / 10



weakness to the right lower extremity with his radiculitis and with that he was

tripping over objects and having weakness and a giving-out sensation with his leg

causing him to fall." Similarly, Wohns stated that Luchi "had back pain, right leg

pain, numbness and tingling; right buttock, posterior upper leg, and foot. Could not

sit. Some weakness in the right leg." Luchi testified that he falls on a regular basis

and sometimes falls down and up steps because he has difficulty determining

where the step is in relation to his foot. In addition, he sometimes experiences

numbness radiating down into his right leg causing his foot to drag and has

numbness in the outer part of his right foot around his outer small toes. His wife,

Erin Luchi, testified that she has seen him fall a number of times because he trips

on steps when he walks and even stubs his foot when walking on flat ground.

       Luchi's slip at the post office is consistent with the symptoms he

experiences as a result of his right-sided radiculopathy. Hiller described Luchi's

fall in a chart note and reported that although Luchi did not actually fall, he "slipped,

and extended his leg on the right, while falling towards his buttock." SW asserts

that because Hiller did not indicate that Luchi slipped as a result of lower extremity

numbness or pain or back pain, the record does not show that Luchi slipped as a

result of his radiculopathy. SW claims that it is equally plausible that he slipped

because of a puddle of water or a banana peel on the floor.

       But uncontroverted evidence in the record supports Luchi's claim that he

slipped, as he had many times after his industrial injury, because of his

radiculopathy. The record contains no evidence of a puddle of water, a banana,


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No. 77301-1-1/ 11



or any other alternative explanation. This includes any claim that he slipped

because of an object on the floor, a feature of the building, or a medical condition

other than radiculopathy. Because the only evidence about the cause of his slip

Is his radiculopathy, we are convinced that the trial court made a mistake in finding

that the consequences of Luchi's industrial injury were not a proximate cause of

his slip.

                                  Legal Causation

        Relatedly, Luchi asserts that his slip was not an intervening act that served

as a superseding cause and broke the chain of causation between his industrial

injury and L3-4 disc herniation. We agree.

        Legal causation involves policy considerations about how far the

consequences of an event should extend." "Aggravation of the claimant's

condition caused by the ordinary incidents of living—by work which he could be

expected to do; by sports or activities in which he could be expected to

participate—is compensable because it is attributable to the condition caused by

the original injury."19 But there is no legal causation when the "connection between

the ultimate result and the [original event] is too remote or insubstantial to impose

liability."20 For example, the act is too remote when an Intervening act is a



        18
         Baughn, 107 Wn.2d at 146.
      19 McDougle v. Den't of Labor & Indus., 64 Wn.2d 640, 644, 393 P.2d 631
(1964).
      29 Schooley v. Pinch's Deli Mkt., Inc., 134 Wn.2d 468,478-79,951 P.2d 749
(1998).

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No. 77301-1-1/12



superseding cause that breaks the chain of causation.2I "To be a superseding

cause, an intervening act must be one that is not reasonably foreseeable."22

Legal causation is a question of law for the court.23

       SW relies on In re Swinde11.24 There,a year after an industrial injury causing

a herniated disc, the claimant was walking on a rotted log while hunting when it

crumbled under his feet and he fell, worsening his injury.25 The Board found that

falling through a rotted log was a new injury unrelated to his industrial injury:

       Hunting, which we assume would normally consist of walking while
       carrying a gun was not an unreasonable activity for this claimant
       under the circumstances. However, the aggravation of the
       claimant's condition following the October 15, 1978 incident was not
       the direct result of the hunting "activity", but rather an accident while
       hunting. It was the result of a new and independent traumatic
       occurrence, an accident of falling through a rotted log which acted
       upon his previously weakened condition to create a disabling new
       dimension to the claimant's low back problems.i261

       We distinguish these facts from Luchi's circumstances. Swindell fell while

participating in what the Board found to be a reasonable activity based on his

physical restrictions caused by his industrial injury. Similarly, Luchi slipped while

walking, which was within the scope of his permissible activities.21 But Swindell's



       21 Shirley, 171 Wn. App. at 886-87, 895(Grosse, J., dissenting).
       22 Shirley, 171 Wn. App. at 895(Grosse, J., dissenting).
          Tae Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 204, 15 P.3d
1283(2001).
       24 Nos. 53,792 and 58,864, 1980 WL 309455 (Wash. Bd. of Indus. Ins.
Appeals May 8, 1980).
       25 Swindell, 1980 WL 309455, at *2.
       26 Swindell, 1980 WL 309455, at *3.
       27 In November 2011, Luchi had a physical capacities evaluation that
reported he could not go back to work at his job of injury and was restricted in his
overall ability to work. His restrictions included lifting no more than 50 pounds on

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No. 77301-1-1 / 13



industrial injury or its consequences did not cause him to fall through the rotted

log. The rotted log was a condition of Swindell's environment that caused an

accidental fall independent of his industrial injury. By contrast, as discussed

above, the record supports only one explanation for Luchi's slip; the alternative

explanations offered by SW are speculation not supported by any evidence.

Because the radiculopathy caused by Luchi's industrial injury caused the slip, the

slip was not an intervening act that served as a superseding cause but was instead

reasonably foreseeable.

                                  CONCLUSION

       Our review of all the evidence leaves us convinced that the trial court

committed a mistake in finding that the consequences of Luchi's industrial injury

were not a proximate cause of his slip, resulting in the herniation of his L3-4 disc.

We reverse and remand.




WE CONCUR:



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an occasional basis, no repetitive bending on more than an occasional basis, and
sitting for no more than 30 minutes at a time for a total of 2 hours per day.

                                        -13-
