       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

NORMA J. STEIN,                              )        No. 79680-1 -I
                                             )
                      Appellant,             )        DIVISION ONE
                                             )
             v.                              )        UNPUBLISHED OPINION
                                             )
CRANE COMPANY/ELDEC                          )
CORPORATION, DEPARTMENT OF                   )
LABOR AND INDUSTRIES OF THE                  )
STATE OF WASHINGTON,                         )
                                             )
                      Respondent.
                                             )        FILED: December 30, 2019
       HAZELRIGG-HERNANDEZ, J.      —    Norma J. Stein appeals the superior court’s

denial of her claim for benefits based on permanent total disability. The superior

court found Stein was not totally permanently disabled and was capable of

employment.       Stein argues that the superior court erred in finding that her

occupational injury did not worsen or become aggravated within the meaning of

RCW 51.32.        She also challenges the deposition costs awarded to the Crane

Company under RCW 4.84.010.             Because Stein failed to put on any medical

evidence to demonstrate aggravation and substantial evidence supports the

superior court’s findings, we affirm.


                                         FACTS
       Norma Stein filed two worker compensation claims in 2007 that arose out

of repetitive use injuries at work. One claim was for a right thumb injury and the
No. 79680-1 -1/2

other a left shoulder injury. The right thumb claim was closed by the Department

of Labor and Industries (L&I) in 2014 with a permanent partial disability award of

24 percent.

       This appeal is focused on the left shoulder claim which was based on an

injury caused by repetitive use of a riveter. L&l first closed Stein’s left shoulder

claim in 2008 with a 10 percent permanent partial disability award. In 2010, L&I

approved Stein’s request to reopen the claim and she had shoulder surgery. L&I

closed the claim a second time in April 30, 2013, and increased the permanent

partial disability award to 14 percent.

       L&I then approved a second application to reopen Stein’s left shoulder claim

in 2014 to allow for additional treatment. Stein’s treating orthopedic surgeon, Dr.

Brian Cameron, ordered a new MRI and contemplated treatment options.

Cameron ultimately decided another surgery would not improve Stein’s symptoms.

In 2015, Cameron ordered another MRI which Stein never completed. L&I closed

Stein’s shoulder claim a third time on June 10, 2015, without an increase in her

disability determination or benefits.

       Stein appealed the 2015 closure to the Board of Industrial Insurance

Appeals (Board), seeking a finding of permanent total disability. Stein claimed that

the combined effects of her right thumb and left shoulder injuries prevented her

from working.      At a contested evidentiary hearing, Stein’s treating physicians

testified that they believed she could work. Two other doctors who examined Stein

and reviewed her medical records similarly testified that she could work at the time

of the 2015 closure. Craig Bock, a vocational rehabilitation counselor, testified



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Stein was employable as a parking lot cashier and that a job market existed for

such employment. Stein’s vocational witness, Anne Harrison, disagreed that Stein

was employable as a parking lot cashier. Stein presented no medical testimony

that her impairment had worsened since the 2013 closure.1

        On appeal of the Board’s decision, the superior court found that Stein was

capable of gainful employment as a parking lot attendant as of the date of the 2015

closure of the claim. The court further found there was no permanent worsening

of Stein’s condition and concluded that she was not a permanently totally disabled

worker. The court awarded deposition transcription costs to the Crane Company

(Crane). Stein timely appealed the superior courts decision.



                                          ANALYSIS

        Findings of Fact and Substantial Evidence

        The standard of review in worker compensation cases is unique from other

administrative appeals which often involve the Administrative Procedure Act2. This

court’s “function is to review for sufficient or substantial evidence, taking the record

in the light most favorable to the party who prevailed in superior court.” Rogers v.

Der’t of Labor & Indus., 151 Wn. App. 174, 180-81, 210 P.3d 355 (2009). As such,

we are tasked with ensuring that substantial evidence supports the superior court’s




         1 After the Industrial Insurance Appeals Judge initially found Stein was able to work and

rejected her request for an additional award, Stein then filed a petition for further review to the
Board. A majority decision by a three-member panel affirmed the administrative law judge’s
decision. Stein appealed the Board’s decision to the superior court, where a bench trial was held
with the court engaging in de novo review.
         2 Chapter 34.05 RCW.




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findings and that the conclusions of law flow from those findings. Ruse v. Dep’t of

Labor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999).

       A worker has a permanent total disability when the injury causes the worker

to be incapable of any gainful employment. ROW 51.08.160. ‘The definition that

has emerged from case law has both a medical aspect—the extent of physical

impairment—and an economic aspect—the effect on wage-earning capacity.”

Adams v. Dept of Labor & Indus., 128 Wn.2d 224, 230, 905 P.2d 1220 (1995);

See also Leeperv. Dept of Labor& Indus., 123 Wn.2d 803, 810-11, 872 P.2d 507

(1994).

          ROW 51 .32.160 authorizes reopening of a disability claim and adjustment

of benefits in three instances: aggravation, diminution and termination. Stein’s

current case arose after she submitted a Department of Labor and Industries

Application to Reopen Claim Due to Worsening of Condition which she and her

treating physician signed. Within the context of L&l law, the terms worsening and

aggravation are used interchangeably. In cases like Stein’s that involve reopening

a closed claim,

       [Tb establish a claim for an increase in [a pension] as a result of the
       aggravation of a prior industrial injury, the burden is on the claimant
       to produce medical evidence, some of it based on objective findings,
       to prove that there has been an aggravation of the injury which
       resulted in increased disability.

Moses v. Dep’t of Labor & Indus., 44 Wn.2d 511, 517, 268 P.2d 665 (1954)

(alteration in original). Additionally, the time period in which aggravation occurred

is crucial.    “[A] claimant must show that the increased aggravation occurred




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between the terminal dates of the aggravation period.” Id. The terminal dates, or

the dates of closure, in Stein’s case are September 4, 2014 and June 10, 2015.

       Though Stein argues that Dinnis v. Department of Labor & Industries is no

longer controlling authority in aggravation cases, this argument fails in light of the

total absence of negative treatment of the opinion in the nearly fifty-five years since

its publication. 67 Wn.2d 654, 409 P.2d 477 (1965). Dinnis is a Supreme Court

case that expressly clarified that a worker must put on medical evidence to prove

worsening between the date of the first and second terminal dates. jç~ at 656. In

Dinnis, the worker claimant was in the same posture as Stein; appealing a

subsequent closure of the claim after it had been reopened to allow for treatment.

Id. at 655.

       Stein challenges the superior court’s Findings of Fact #7 and #9 as

conclusions of law or mixed statements of law and fact that we should review de

novo. Specifically, the court found:

       7. Norma Stein was capable of working as a parking lot attendant
       from September 4, 2014 through June 9, 2015, and as of June 10,
       2015. She was able to perform and obtain gainful employment on a
       reasonably continuous basis for September 4, 2014 through June 9,
       2015, and as of June 10, 2015.

       9. As of June 10, 2015, there was no permanent worsening of Ms.
       Stein’s condition proximately caused by the industrial injury, or
       increase in permanent disability beyond that which existed on April
       30, 2013.

The line between a finding of fact, a conclusion of law, or a mixed question of law

and fact can be challenging to identify. Leschi Improvement Council v. Wash. State

Highway Comm’n, 84 Wn.2d 271, 282-84, 525 P.2d 774 (1974). “If a term carries

legal implications, a determination of whether it has been established in a case is


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No. 79680-1 -116

a conclusion of law.” Para-Med. Leasing, Inc. v. Hangen, 48 Wn. App 389, 397,

739 P.2d 717 (1987). “A finding, on the other hand, is a determination from the

evidence of the case propounded by one party and denied by another.” j~ This

court treats the findings or conclusions for what they are, not how they are labelled.

Stastny v. Bd. of Tr. of Cent. Wash. Univ., 32 Wn. App. 239, 246, 647 P.2d 496

(1982).

       We disagree with Stein’s assertion that these are mixed questions of law

and fact. Both challenged findings are factual determinations by the court after a

bench trial where the court weighed the evidence. Substantial evidence supports

both findings of fact at issue here.     There was testimony from four medical

providers and one vocational expert to support Finding #7, with the testimony of

only one vocational expert to support a contrary conclusion. With a finding that

Stein was able to obtain gainful employment, she could not meet the statutory

definition of a totally permanently disabled worker and her claim fails.

       As to Finding #9, the evidence only supports a determination that

permanent worsening had not occurred due to the complete lack of medical

evidence from Stein. Stein did not prove worsening despite initiating reopening

and review of her claim by submission of an L&I document titled “Application to

Reopen Claim due to Worsening of Condition.” This application required input and

signature of both the claimant and their medical provider and included a section

on the second page that expressly instructed the medical provider to:

       List all the elements of your current medical findings including
       history, examination, and test results that would support a
       measurable (objective) worsening of the industrial injury or



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No. 79680-1 -117

       occupational disease since claim closure or the last reopening
       denial. Attach test results and findings.

The application here was completed by Stein and Cameron and the handwritten

response to this section on evidence of worsening, presumably completed by

Cameron, simply states “see chart notes.” Cameron ultimately went on to testify

that Stein was able to work. Stein was on notice that she would need to provide

this evidence in support of her claim, yet none was presented to show that her

injury was aggravated or worsened subsequent to the last reclosure of her claim.

Finding #9 is supported by substantial evidence and, like Finding #7, is

independently fatal to her claim for total permanent disability.

       Stein acknowledged at oral argument that if this court determines that

Dinnis is good law, substantial evidence does support the superior court’s findings.

We decline Stein’s invitation to overturn settled precedent. The statute expressly

requires a demonstration of aggravation and Dinnis clearly requires medical

evidence to establish such.      Stein failed to put on any medical evidence of

worsening at any point during her claim. Though she expresses surprise, this need

for medical evidence of worsening has been required to prove aggravation or

worsening for over half a century in Washington. This failure to prove worsening

is dispositive, as it is a statutory requirement for Stein to be awarded an increase

in her pension and the court’s findings are supported by substantial evidence. As

such, we affirm the superior court’s decision.




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II.    Costs

       Stein challenges the superior court’s award of deposition transcription costs

to Crane. Specifically, Stein bases her argument on Cooper v. Dep’t of Labor and

Indus., and submits that Crane may not be awarded costs when the depositions

were not used at trial. 188 Wn. App. 641, 352 P.3d 189 (2015). In Cooper, there

was a challenge to the authority to grant deposition costs based on whether the

superior court was, as here, sitting in its appellate capacity and the court held that

such an award was proper under RCW 4.84.010(7). kI. at 650-52. ‘We review a

challenge to the trial court’s authority to award attorney fees or costs de novo as

question of law.” ki. at 650. As in Cooper, Stein avers that RCW 4.84.010 is

superseded by the Industrial Insurance Act statutes governing litigation costs at

the Board and on appeal, specifically RCW 51.52.110, .120 and .130. However,

Cooper expressly held “Chapter 4.84 RCW applies to appeals in the superior court

from the Board [of Industrial Insurance Appeals].”      at 651 (alteration in original)

(citing Black v. Dep’t of Labor & Indus., 131 Wn.2d 547, 557, 933 P.2d 1025

(1997)).

       Stein argues that Cooper was incorrect on this issue of awarding deposition

costs, but offers no authority in support of that position. She then focuses the force

of her challenge on the “used at trial” language in RCW 4.84.0 10, asserting that

the depositions were not introduced as evidence or used for impeachment. The

litigation order signed by the original Administrative Law Judge (AU) on the case

and provided in the Certified Appeal Board Record indicates that a number of

depositions, including those now at issue, were used at that initial proceding.



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No. 79680-1 -119

While RCW 4.84.010(7), the statute authorizing costs for deposition transcripts,

expressly limits such awards to those depositions used at trial and references pro

rata recovery of only those costs relating to materials which were introduced or

used for impeachment at trial, the nature of L&l appeals is somewhat unique.

        In an L&I appeal, experts may testify via deposition with the attorneys

reading the depositions into the record before a jury; such testimony is evidence

used at trial for purposes of the cost recovery statute. The litigation order from the

earlier proceedings clearly identifies which witnesses would be testifying in person

and others who would be testifying via deposition.                  Here, the superior court

conducted a bench trial and entered orders during the proceedings that

affirmatively indicate that the judge reviewed the Certified Appeal Board Record,

which, per the AU’s litigation order, expressly includes the deposition testimony

of the employer’s experts.3 The award of deposition transcription costs to Crane

by the superior court was proper as the challenged depositions were used at trial

and in line with this court’s interpretation of RCW 4.84.01 0(7) in Cooper. k1.

        Finally, Stein seeks attorney fees under RCW 51 .52.130 and RAP 18.1 if

she is successful on appeal. However, Stein is not the prevailing party and we

therefore decline her request.




        ~ Stein’s reply brief concedes that [t]he depositions used in this case were introduced at
the Board, and automatically transmitted on appeal by the Board as part of the certified Appeal
Board Record.”


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No. 79680-1-1/10

      Affirmed.




WE CONCUR:




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