      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                    -HCZ
PILCHUCK CONTRACTORS, INC.,
                                                                                    rn
                                                No. 71062-1-1
                    Appellant,
                                                DIVISION ONE                        2> ~o f-n
                                                                            3a»     ^t^r—.
             v.



DAVID D. BERKA and DEPARTMENT
OF LABOR AND INDUSTRIES OF THE                  UNPUBLISHED OPINION            °^   =='
STATE OF WASHINGTON,
                                                FILED: July 14, 2014
                    Respondents.


      Becker, J. — The superior court granted Respondent David Berka's

motion for judgment as a matter of law, affirming the reopening of his workers'

compensation claim for a knee injury he suffered while working for Appellant

Pilchuck Contractors, Inc. We affirm this ruling. On the record presented, a

reasonable jury could only conclude that the work Berka did for Pilchuck was a

cause of the worsening of Berka's knee condition and that the work he did later

for an Arizona employer was not an independent superseding cause.

       Berka, 37 years old at the time of the hearing before the Board of

Industrial Insurance Appeals, has always worked for contractors doing

installation and maintenance of underground utilities. On May 2, 2007, Berka

was employed by Pilchuck. While climbing out of a trench, he slipped, fell, and
No. 71062-1-1/2



twisted his left knee. The injury tore the medial meniscus and required two

surgeries.

       On May 3, 2007, Berka filed a claim with the Department of Labor and

Industries. On May 21, 2007, the Department issued an order allowing the claim.

Berka had surgeries in 2007 and 2008, but his knee continued to be sore and

swollen. His surgeon, Dr. Steven Yamamoto, advised him to find a different

position that would meet the restrictions provided by his activity report. The

restrictions were no kneeling, squatting, consecutive walking, or consecutive

standing.

       On October 27, 2008, Dr. Richard Thorson examined Berka's knee and

concluded that the injury was at maximum medical improvement; there was no

curative treatment at that time that would make him better.

       On November 14, 2008, the Department closed the claim with a

permanent partial disability award. With the medical restrictions in place, Berka

continued to work at Pilchuck as a walking foreman. This position was an

accommodation by Pilchuck in the sense that it involved more administrative

duties and less physical activity than was required of other foremen. Berka's

assignments were limited to level ground, and he was not expected to get into

ditches or trenches. Nevertheless, the job still involved considerable time

walking jobsites, and occasionally Berka would get into trenches to assist with

the actual completion of the work. Although Berka did the job on a daily basis,

he continued to complain that walking caused him pain. Berka testified that his

knee remained symptomatic and never fully healed. Brad Wauldron, who worked
No. 71062-1-1/3



in Pilchuck's safety department and had many discussions with Berka about his

knee condition, testified that Berka approached him between November 2008

and January 2009 to ask about being put in a superintendent position, where he

would not have daily stress on his knee.

       Berka was terminated by Pilchuck on January 27, 2009. According to

Jennifer Torvik, human resources manager for Pilchuck, Berka was terminated

for poor performance unrelated to his knee injury.

       Berka immediately moved to Arizona, where he had a job lined up with

Northern Pipeline. Around this time, Berka contacted Wauldron to ask about the

process for reopening his industrial injury claim. He also contacted the

Department to get a list of physicians and clinics in Arizona who would treat

injured workers under a Washington claim.

      When Berka arrived in Arizona in early February 2009, Northern Pipeline

wanted him to start work immediately. Berka asked to have his start date

delayed for a month. He testified that he hoped the knee would improve if he

rested it. He told Wauldron he did not want to let Northern Pipeline know he had

a knee injury because he was new to the job. Berka began the process of finding

a physician in Arizona, and he eventually decided to see physicians at the CORE

Institute in Goodyear, Arizona.

      On March 2, 2009, Berka began working for Northern Pipeline. He was

hired as an equipment operator, not as a foreman, and his job operating a

backhoe did not involve walking jobsites. Operating the equipment required

climbing up and down and some use of foot pedals.
No. 71062-1-1/4



        On April 7, 2009, Berka applied to the Department to reopen the claim for

the May 2007 injury due to aggravation of that injury.

        On April 15, 2009, Berka had his first medical appointment at the CORE

Institute.


        On June 4, 2009, Berka had an independent medical examination

performed at the Department's request by Dr. James Kopp, an actively practicing

orthopedic surgeon. The purpose of the examination was to determine whether

the claim should be reopened due to worsening of the left knee condition. Dr.

Kopp took a complete medical history and compared his findings with the

findings from the closing examination on October 27, 2008. He testified that the

knee condition had worsened as demonstrated by objective findings of increased

thigh atrophy, that the cause of the worsening was Berka's industrial injury in

May 2007, and that Berka was in need of further medical treatment.

        On June 22, 2009, the Department reopened the original claim effective

April 15, 2009. Pilchuck filed a protest, and the Department agreed to reconsider

the reopening order.

        On August 14, 2009, the Department issued an order in which it affirmed

its decision to reopen the claim.

        On August 19, 2009, Berka was evaluated by Dr. Stacey Dale McClure,

an orthopedic surgeon at the CORE Institute. Berka's knee pain was continuing

to worsen throughout this time, and it caused him to miss about a week of work

at Northern Pipeline. Through a physical examination, Dr. McClure found that

Berka was limping and was sensitive to touch on his left knee. As a result of this
No. 71062-1-1/5



exam, Dr. McClure scheduled a magnetic resonance imaging test (MRI). The

test showed a tear in the posterior horn of the medial meniscus, a very small

effusion, and some mild chondromalacia (damage to cartilage under the

kneecap).

      On September 14, 2009, Pilchuck filed an appeal with the Board of

Industrial Insurance Appeals of the Department's decision to reopen the claim.

      On January 8, 2010, Dr. McClure performed surgery on Berka's left knee.

      On April 7, 2010, Dr. Lance Brigham, Pilchuck's consulting orthopedist,

completed a report containing his expert opinion based on a records review. Dr.

Brigham is an orthopedic surgeon. His practice consists of seeing patients one

day a week and doing insurance medical examinations the rest of the week. He

has not performed surgery since 2001.

      The hearing of Pilchuck's appeal to the Board took place later in April

2010 before Industrial Appeals Judge Janice Grant. Live testimony was heard

from Berka, Wauldron, and Torvik. Perpetuation depositions of the three

doctors—Dr. Brigham, Dr. Kopp, Dr. McClure—were taken on April 14, May 10,

and May 14 respectively, and the transcripts were made part of the record.

       On August 13, 2010, Industrial Appeals Judge David Crossland issued a

proposed decision and order affirming the Department's decision to reopen the

claim. The decision contained an extensive summary and analysis of the

testimony.

       On October 5, 2010, the Board granted Pilchuck's petition for review.
No. 71062-1-1/6



       On October 19, 2010, the Board issued its final decision. The Board

found the proposed decision correct with one minor change not relevant here.

The Board decided that between November 14, 2008 (the date the 2007 claim

was closed) and August 14, 2009 (the date the Department affirmed its decision

to reopen), "Berka's left knee condition, proximately caused by the May 2, 2007

industrial injury, had objectively worsened and was in need of further necessary

and proper medical treatment."

       Pilchuck filed a petition for judicial review with the superior court.

Outlining for the court its position that the claim should not have been reopened,

Pilchuck stated, "we believe there's evidence that there was an intervening event

or a series of events, exposure, with the new employer, such that a new claim

should have been filed in Arizona."

       On June 25, 2012, a jury was convened. The testimony before the Board

was read into the record for the jury. After both parties had presented all of their

evidence, Berka moved under CR 50(a) for a directed verdict or judgment as a

matter of law.

       On June 27, 2012, the trial court granted Berka's motion:

              THE COURT: Okay. Well, I'm going to do something I very
       seldom do. I'm going to grant the plaintiff's motion here for a
       directed verdict. I think reasonable triers of fact could only
       conclude, based on the evidence in the record, that the prior
       industrial injury of May 2, '07, was a cause of the problems Mr.
       Berka had later.
              It is possible that something happened. It's possible that he
       wasn't candid and didn't report something, but it's always the case
       that there are possibilities. There's no evidence of that.
              The medical testimony, as I understand it, is that the
       condition after the surgeries necessitated by the May 2, '07 injury
       resulted in a weakened, for lack of a better term, leg. He's had, by
No. 71062-1-1/7



      that time, four meniscectomies, at least. He's most likely going to
      have continuing problems. The loading and the uneven gait is
      certainly a major factor in the lateral meniscus problem he later
      had, and, clearly, to me - - clearly - - the evidence is that all of
      those are related to the injury of May 2, '07, probably also to the
      prior injuries. It's a cumulative thing. And nothing that I hear
      indicated he did much more than just kind of normal stuff after
      those surgeries. He's working. Maybe he shouldn't work. He's got
       a family to support.

       On July 19, 2012, the superior court signed an order granting Berka's

motion for a directed verdict and dismissing Pilchuck's appeal. The court

determined that "no legally sufficient evidentiary basis exists for a reasonable jury

to conclude" that the Board's decision was incorrect.

       Pilchuck timely appealed the superior court's decision.

       Pilchuck first contends Berka was procedurally barred from bringing the

motion for a directed verdict or judgment as a matter of law because he did not

challenge the sufficiency of Pilchuck's evidence at the Board level. The

Department is aligned with Berka in opposition to Pilchuck's procedural

argument.

       Pilchuck alternatively contends that the trial court erred in taking the case

away from the jury because the evidence, when considered in the light most

favorable to Pilchuck, established a prima facie case that Berka was not entitled

to reopen the May 2007 claim and receive further benefits. On this issue, the

Department sides with Pilchuck and joins Pilchuck's request that the matter be

remanded for trial.
No. 71062-1-1/8



                              PROCEDURAL ISSUE

       CR 50(a) provides as follows:

              (a) Judgment as a Matter of Law.
              (1) Nature and Effect of Motion. If, during a trial by jury, a
       party has been fully heard with respect to an issue and there is no
       legally sufficient evidentiary basis for a reasonable jury to find or
       have found for that party with respect to that issue, the court may
       grant a motion for judgment as a matter of law against the party on
       any claim, counterclaim, cross claim, or third party claim that
       cannot under the controlling law be maintained without a favorable
       finding on that issue. Such a motion shall specify the judgment
       sought and the law and the facts on which the moving party is
       entitled to the judgment. A motion for judgment as a matter of law
       which is not granted is not a waiver of trial by jury even though all
       parties to the action have moved for judgment as a matter of law.
               (2) When Made. A motion for judgment as a matter of law
       may be made at any time before submission of the case to the jury.

       Motions for directed verdict were renamed motions for judgment as a

matter of law effective September 17, 1993. Litho Color. Inc. v. Pac. Emp'rs Ins.

Co., 98 Wn. App. 286, 298 n.1, 991 P.2d 638 (1999). A motion under CR 50(a)

is to be made before the case is submitted to the jury.

       Pilchuck argues that Berka waived his right to bring a CR 50(a) motion at

trial because he did not challenge the sufficiency of Pilchuck's evidence at the

Board. The simple answer to this argument is that a CR 50(a) motion was not

available to Berka at the Board level because there is no jury in Board hearings.

       We recognize that Pilchuck's argument is not tied to the literal reference to

a jury in CR 50(a). Pilchuck is arguing that a party in an industrial injury case

who fails to bring any argument challenging the sufficiency of the evidence at the

Board level should not be permitted to bring a sufficiency challenge in court.




                                          8
No. 71062-1-1/9



Pilchuck relies on the rule that issues not raised before the Board are generally

waived and cannot be raised on appeal to the superior court.

               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. The hearing in the superior court shall be de
       novo, but the court shall not receive evidence or testimony other
       than, or in addition to, that offered before the board or included in
       the record filed by the board in the superior court.

RCW 51.52.115; Wilbur v. Dep't of Labor & Indus.. 38 Wn. App. 553, 559, 686

P.2d 509 (1984). review denied. 103Wn.2d 1016(1985).

       Rules requiring preservation of error are designed to ensure efficient use

of judicial resources. See RAP 2.5; State v. Robinson. 171 Wn.2d 292, 304-05,

253 P.3d 84 (2011). It would be inefficient to permit a party to insist on wasting

the superior court's time on a jury trial if there is not enough evidence to support

that party's claim. Under RCW 51.52.115, the hearing in superior court is de

novo on the evidence in the Board's record. Review of that evidence for

sufficiency is a normal and an expected part of the superior court's function in

industrial insurance cases just as in every other type of case governed by the

civil rules. We conclude Berka was entitled to challenge the sufficiency of the

evidence for the first time in the superior court.

                        SUFFICIENCY OF THE EVIDENCE

       Pilchuck, supported by the Department, argues judgment as a matter of

law in favor of reopening the claim was inappropriate because (1) a jury could

find the 2007 injury was not a cause of Berka's worsened knee condition or (2)
No. 71062-1-1/10



even if the 2007 injury was a cause, a jury could find that Berka's work at

Northern Pipeline was a superseding cause of the worsened condition.

       This court reviews a motion for judgment as a matter of law de novo,

performing the same inquiry as the trial court. Jov v. Dep't of Labor & Indus., 170

Wn. App. 614, 619, 285 P.3d 187 (2012), review denied, 176Wn.2d 1021

(2013). Judgment as a matter of law is appropriate when, viewing the evidence

and all inferences in a light most favorable to the nonmoving party, substantial

evidence does not exist to support the nonmoving party's claims. Schmidt v.

Coogan. 162 Wn.2d 488, 491, 173 P.3d 273 (2007). Substantial evidence is that

which is sufficient to persuade a rational, fair-minded person of the truth of a

declared premise. Wenatchee Sportsmen Ass'n v. Chelan County. 141 Wn.2d

169, 176, 4P.3d123(2000).

       Generally, a worker may have a claim reopened for aggravation of a

condition caused by an industrial injury. RCW 51.32.160. Establishing the right

to further medical treatment based on aggravation requires medical testimony

that objective symptoms show a causal relationship between the injury and

increased disability after the claim closure. Phillips v. Dep't of Labor & Indus.. 49

Wn.2d 195, 197, 298 P.2d 1117 (1956). In this case, the required testimony was

furnished by Dr. McClure and Dr. Kopp, who both testified that Berka's knee

objectively worsened after the claim closing date in November 2008 and that the

worsening was causally related to the May 2007 industrial injury.

       Pilchuck, supported by the Department, contends Dr. Brigham's testimony

would allow a jury to find that Berka's need for further medical treatment of his


                                          10
No. 71062-1-1/11



knee was not caused by the 2007 injury but rather was due to a new injury that

Berka sustained, either by a single event or repetitive overuse, after he began to

work for Northern Pipeline. Pilchuck and the Department concede there is no

direct evidence of any particular injurious event that occurred during the five-

week period between Berka's first day of work at Northern Pipeline and his

application to reopen his claim. They rely on Dr. Brigham's inference that new

objective findings and new pathology documented in Berka's medical records

permit an inference that a new injury occurred.

       The imaging test requested by Dr. McClure in August 2009 showed a

horizontal tear in the posterior body of the medial meniscus as well as mild

chondromalacia (damage to cartilage under the kneecap). During surgery in

January 2010, Dr. McClure found a horizontal cleavage tear and a radial tear in

the mid portion of the lateral meniscus.

       Dr. Brigham thought the horizontal tear was a new injury because

"something" had to cause this new finding. Dr. Brigham's testimony that

"something" must have caused the changes reflected in the records is too

speculative to allow a jury to infer that the "something" was a new injury. Dr.

Kopp and Dr. McClure both testified that more probably than not the tear in the

meniscus was a continuation or progression of the effect of the May 2007

industrial injury, caused by an avoidance pattern in Berka's gait that put

abnormal loading on the lateral meniscus. All of the doctors agreed that

someone like Berka who has had successive surgeries resulting in progressive




                                           11
No. 71062-1-1/12



removal of more and more of the meniscus is going to continue to have knee

trouble.


        Dr. Brigham understood from Berka's history as given to Dr. Kopp that

Berka was "jumping in and out of ditches" in Arizona. Dr. Brigham described the

existence of the finding of chondromalacia in a new portion of Berka's knee as a

"new presentation" and "new pathology" that would be caused by "jumping in and

out of ditches." The word "jumping" is an exaggeration supplied by Dr. Brigham.

There is no evidence in the record that Berka was "jumping."

        A reasonable jury could only conclude that the 2007 injury, not some new

injury, was the occasion for Berka's renewed need for medical treatment of the

knee.


        In a variation of the "new injury" argument, the Department contends that

a jury could infer from Dr. Brigham's testimony that the worsening of Berka's

knee condition was totally unrelated to the May 2007 injury. A worker is not

entitled to have a claim reopened if his condition worsened for entirely noninjury

related reasons. Nagel v. Dep't of Labor & Indus.. 189 Wash. 631, 636, 66 P.2d

318 (1937); Jenkins v. Weyerhaeuser Co.. 143 Wn. App. 246, 256, 177 P.3d

180. review denied, 165Wn.2d 1004(2008).

        Dr. Brigham testified that Berka's work as an equipment operator in

Arizona caused a worsening of his left knee condition in 2009. But he did not

explicitly state that the condition of Berka's knee was totally unrelated to the May

2007 injury. On cross-examination, Dr. Brigham conceded that the May 2007

injury was "a significant cause" of Berka's knee condition. Even when


                                         12
No. 71062-1-1/13



considering inferences from Dr. Brigham's testimony in the light most favorable to

Pilchuck, a jury could not conclude that Berka's knee condition was entirely

unrelated to his May 2007 industrial injury. "But for" causation was established

beyond dispute.

       The primary argument raised by Pilchuck and the Department is that Dr.

Brigham's testimony supports an inference that Berka's work at Northern Pipeline

was an independent superseding cause of his knee getting worse after he left

Pilchuck. This argument revolves around McDougle v. Department of Labor &

Industries. 64 Wn.2d 640, 393 P.2d 631 (1964).

       In McDougle. a worker sought to reopen a claim for an industrial back

injury after his condition worsened. The claimant testified that the day before he

sought treatment for an aggravation of his injury, he had been helping his

brother-in-law unload some sacks of livestock feed. The Department refused to

reopen the claim. The Board affirmed, finding that there was an aggravation that

required medical treatment, but it was "'due to a new intervening independent

cause, namely, lifting a sack or sacks of grain on that date.'" McDougle. 64

Wn.2d at 643. The superior court affirmed. The worker appealed.

       The Supreme Court separated compensable from noncompensable

aggravation by asking whether the claimant could reasonably have expected to

engage in the activity without injury.

              The supervisor, the Board of Industrial Insurance Appeals,
       and the trial court were all apparently under the impression that any
       condition caused by the lifting of the ground feed was not
       compensable even though, as found by the trial court, it operated
       upon and aggravated the preexisting disability. In this they were
       mistaken. Aggravation of the claimant's condition caused by the

                                         13
No. 71062-1-1/14



       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.

McDougle. 64 Wn.2d at 644.

       Aggravation is not compensable if it is caused by activities in which the

claimant could not, because of his existing disability, reasonably expect to

engage without injury. McDougle. 64 Wn.2d at 644. The test to be applied "is

whether the activity which caused the aggravation is something that the claimant

might reasonably be expected to be doing, or whether it is something that one

with his disability would not reasonably be expected to be doing." McDougle. 64

Wn.2d at 645, citing 1 Larson, Workmen's Compensation Law § 13.11, at 183.

Whether the claimant's lifting of the feed sacks was a reasonable activity for

someone in his condition had not yet been considered below. Thus, the court

held it was premature to decide that lifting the feed sacks was an intervening

superseding cause of the aggravation of the back condition. Accordingly, the

court remanded the case back to the Department:

             We cannot, nor can the trial court, the Board, or the
      Department say that because an individual has a 30 per cent
      permanent partial disability based on a back injury, that he is
      thereby precluded from doing any lifting, and that any injury
      sustained from any lifting is not attributable to his prior injury
      because it is an intervening cause. Whether it was a reasonable
      thing for this particular claimant to do, is a different question—never
      considered by the Department, the Board, or the trial court.
             We are not deciding that the claimant's claim should be
      reopened. There is testimony from both Dr. King and the claimant
      which indicates that anything which placed a strain on his back
      would lead to a temporary exacerbation of his condition; such
      testimony may have a bearing on whether he acted reasonably.
      We are deciding that the reasons given for not reopening the claim


                                        14
No. 71062-1-1/15



      do not constitute a sufficient justification for that action, but indicate
      a disposition of this case on a fundamentally wrong basis.

McDougle. 64 Wn.2d at 645-46.

       On remand, the Department again denied reopening, the Board took

evidence and overruled the Department, the employer successfully appealed to

the superior court, and the claimant successfully appealed to the Supreme Court.

Scott Paper Co. v. Dep't of Labor & Indus.. 73 Wn.2d 840, 440 P.2d 818 (1968).

In deciding the second appeal in favor of the claimant, the Supreme Court noted

that the claimant was far from being totally disabled and that no specific

instructions had been given to him limiting how much he could lift. The court

concluded that the Department and the superior court erroneously considered

the claimant's own description of how painful his back was at the time the feed

sack incident occurred. They should have been concerned with "the manner in

which the aggravation was sustained," Scott Paper Co.. 73 Wn.2d at 845, rather

than whether the claimant subjectively believed that he should not be exerting

himself.

              Under the evidence of this case, where we are dealing with a
       man with a 30 per cent disability (established by department order)
       who had, prior to his initial injury, worked in the woods, operated a
       small farm where he milked six cows, made hay, and prepared
       ground for a garden—all very hard work—we conclude that there is
       just as much reason to say that the conduct of assisting in sliding,
       or even lifting, two sacks of grain was to be contemplated within the
       scope of the prior award as to say that it was not. Therefore, not
       only does the evidence not preponderate against the Board's
       findings, but the court's findings lack substantial evidence to
       support them.

Scott Paper Co., 73 Wn.2d at 847.




                                          15
No. 71062-1-1/16



       Pilchuck and the Department contend that a jury could apply the test

established in McDougle and conclude that Berka's work at Northern Pipeline

was an intervening cause of the aggravation that necessitated new treatment for

his knee. Under McDougle and Scott Paper Co.. Pilchuck had to show

substantial evidence that: (1) Berka engaged in physical activities that

aggravated his condition while he was working for Northern Pipeline and (2) he

would not reasonably have been expected to engage in these activities given the

extent of his disability at the time his 2007 claim was closed. Because we are

reviewing an order granting judgment as a matter of law, we view the evidence in

the light most favorable to Pilchuck even though the evidence appears to

preponderate in favor of Berka.

       Pilchuck and the Department rely primarily on the testimony of Wauldron

and Dr. Brigham. The evidence they consider to be significant includes the

following:

       •     Berka told Wauldron in January 2009 that his knee was "'as good as it
             could be.'" Before leaving for Arizona, Berka talked to Wauldron about
             reopening the claim against Pilchuck to get a new leg brace, but
             Wauldron did not recall Berka complaining about new or worsening
             pain until after he got to Arizona.

       •     Berka told Wauldron that the work was more physically demanding at
             Northern Pipeline than it had been at Pilchuck and that "he was getting
             in and out of holes."


       •     Berka told Wauldron during one of their phone conversations that he
             had to take a day off here and there at Northern Pipeline because his
             knee was bothering him.

       •     Berka told Wauldron that he did not want to let Northern Pipeline know
             that he had a knee injury.



                                          16
No. 71062-1-1/17



      •   Berka began using his knee brace, icing his knee, and taking ibuprofen
          after starting with Northern Pipeline. Berka told Dr. Kopp that the work
          he was doing in Arizona was more strenuous.

      •   Dr. Kopp got Berka's work history wrong when he took it down at the
          time of examining Berka. Dr. Kopp understood that Berka operated
          heavy equipment in Washington and was a foreman in Arizona, when
          in reality it was the other way around.

      •   Dr. Brigham testified that the discrepancy between how Berka
          described his work in his deposition and what Dr. Kopp wrote down
          when taking Berka's work history suggests that Berka was making
          misrepresentations and gaming the system.

      •   Dr. Brigham testified that Berka's activities were contraindicated by the
          restrictions given to him by Dr. Yamamoto.

      •   Dr. Brigham interpreted Dr. Kopp's notes as reflecting Berka's
          statement that his work in Arizona involved "jumping in and out of
          ditches," and he testified that Berka would continue to have injuries if
          he continued to jump in and out of ditches.

      The evidence described above is insufficient to support a finding that

Berka's Arizona work was an independent intervening cause of his aggravated

knee injury. The inquiry under Scott Paper Co. must focus on the manner in

which the aggravation was sustained. Except for Berka's own testimony and his

statements to others, there was no evidence of what his work activities actually

consisted of in Arizona. Dr. Brigham's depiction of Berka's work as "jumping in

and out of ditches" is not supported by the records Dr. Brigham reviewed.

      The record supplies no more reason to believe that Berka unreasonably

endangered his knee by operating heavy equipment in Arizona than to believe

that he unreasonably endangered his knee by the consecutive walking he did as

a walking foreman for Pilchuck after his 2008 surgery. It appears that both jobs

were physically demanding. Berka was unsuccessful in his effort to find work as


                                        17
No. 71062-1-1/18



a superintendent or some other indoor position. There is no evidence that Berka

was told to avoid work completely if it involved bending or putting weight on his

knee. It was reasonably to be expected that after leaving Pilchuck, Berka would

continue to work in the area of installation and maintenance of underground

utilities.

         Pilchuck contends the discrepancy between Berka's work history as

reflected in Dr. Kopp's notes and the work history Berka described in his

testimony raised an issue of credibility that required resolution by a jury. We

disagree. The discrepancy was minor and was not clearly elucidated in the

testimony. Dr. Kopp accepted that he just got the history wrong:

         I am presuming that I got the history wrong. And although I did
         dictate it in front of him, he must have heard it wrong, too, if that's
         the case. I saw nothing on his exam that would indicate that he
         was withholding the truth from me at all. So I am presuming that
         his testimony that you referred to under oath is accurate and that
         my history is wrong.

Dr. Kopp testified it was immaterial to his opinion whether it was in Arizona or

Washington that Berka was a backhoe operator or a walking foreman. In either

case, Dr. Kopp testified, the activity would not have caused an injury to Berka's

knee if the knee had not already been injured. Dr. Brigham's readiness to

conclude that Berka materially misrepresented his work history to Dr. Kopp is not

supported by Dr. Kopp's notes and testimony.

         In summary, judgment as a matter of law was appropriate. The evidence

in the record before the Board is insufficient to prove that the worsening of

Berka's knee was completely unrelated to the May 2007 industrial injury or that



                                            18
No. 71062-1-1/19



the work Berka did in Arizona was an independent intervening cause of that

worsening.

         Berka has requested an award of attorney fees and costs as authorized by

RCW 51.52.130. That request is granted.

         Affirmed.




                                                  lh*cke.e;
WE CONCUR
     \

                                                   «C_a-«^e^A




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