 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                         —1 C~



JAMES D. GOODMAN,
                                                 No. 73665-5-1                    —




                     Respondent,
                                                 DIVISION ONE                     33»       c0'


                                                 UNPUBLISHED OPINION                  -*-



DEPARTMENT OF LABOR AND
INDUSTRIES OF THE STATE OF
WASHINGTON,
                     Defendant,

             and


AIRBORNE EXPRESS, INC.,

                     Appellant.                  FILED: January 11, 2016


      Trickey, J. — Airborne Express, Inc. appeals from a superior court order

reversing the decision of the Board of Industrial Insurance Appeals. The superior

court concluded that James D. Goodman, Airborne's former employee, has been

permanently and totally disabled since February 10, 2011. Because the superior
court failed to apply the proper standard of review to the Board's finding of fact on

a material issue, we reverse and remand.

                                      FACTS

       In March 2002, Goodman was involved in an automobile accident while

working as a delivery driver for Airborne Express.        Goodman's vehicle was

broadsided at an intersection, and he was thrown onto the floor. He sustained

injuries to his neck, shoulder, and arms. He sought treatmentfrom several doctors

and eventually had surgery for his injuries.
No. 73665-5-1 / 2


       Following the     accident,   Goodman     brought a     claim for workers'

compensation benefits. On December 3, 2010, the Department of Labor and

Industries (Department) determined that Goodman's medical conditions related to

the injury were stable. It directed Airborne to pay Goodman a permanent partial

disability award of 14 percent of the amputation value of the right arm at or above

the deltoid insertion or by disarticulation at the shoulder, and a permanent partial

disability award of Category 2 of permanent cervical and cervico-dorsal

impairments. It closed Goodman's claim. On February 10, 2011, the Department

affirmed its order.

       Goodman appealed the Department's February 10 order to the Board of

Industrial Insurance Appeals. In his notice of appeal, he asked for the "[cjlaim to

remain open, treatment, time loss, increased [permanent partial disability,] PPD,

or in the alternative permanent pension."1 The Board granted the appeal. The

case proceeded to an Industrial Appeals Judge (IAJ), where the parties presented

lay, vocational, and medical expert testimony.

       On January 17, 2013, the IAJ issued a proposed decision and order. The

IAJ determined that as of January 7, 2009 through February 10, 2011, Goodman

was not able to perform and obtain gainful employment and was a "temporarily

totally disabled worker."2 The IAJ also determined that Goodman's conditions

were not fixed and stable as of February 10, 2011.             In making this latter

determination, the IAJ found, in finding of fact 3, that the industrial injury was the

proximate cause of left-sided carpal tunnel syndrome. Because surgery for the


1 Clerk's Papers (CP) at 866.
2 CP at 22.
No. 73665-5-1 / 3


carpal tunnel syndrome was not performed until May 2011, the IAJ reasoned that

it was "premature to rate the extent of Mr. Goodman's permanent disability, either

partial or total."3   It concluded that the matter should be remanded to the

Department to provide further proper and necessary treatment.

       Goodman petitioned the Board for review of the proposed order. He argued

that the IAJ erred in not finding him permanently totally disabled. Goodman did

not challenge the lAJ's finding that the left-sided carpal tunnel syndrome was

related to his industrial injury. In response, Airborne requested that the Board

affirm the proposed order.    It argued that Goodman's left-sided carpal tunnel

syndrome was not fixed and stable as of February 10, 2011. Airborne also argued

that if the Board found Goodman fixed and stable as to all conditions, then

Goodman was employable on a reasonably continuous full-time basis.

       On April 17, 2013, the Board issued its decision and order. The Board

acknowledged that Goodman did not dispute the lAJ's determination to allow his

left-sided carpal tunnel syndrome condition under the claim.      Observing that

industrial insurance claims should be kept open until all industrially related

conditions have become fixed and stable, the Board agreed that it could not

determine whether Goodman had become permanently totally disabled as of

February 2011. It concluded that Goodman was a temporarily totally disabled

worker from January 7, 2009 through February 10, 2011. And it concluded that as

of February 10, 2011, Goodman's conditions were notfixed and stable. It reversed
the Department's order and remanded the matter to the Department with direction



3CPat19.
No. 73665-5-1/4


to find Goodman not entitled to time-loss compensation benefits from August 22,

2008 through January 6, 2009, to direct Airborne to pay time-loss compensation

benefits from January 7, 2009 through February 10, 2011, and to provide

Goodman with further proper and necessary medical treatment.

          Goodman appealed to the Pierce County Superior Court. Prior to trial,

Goodman moved to clarify the issues. He argued that because Airborne did not

appeal the Board's order, the issue should be limited to temporary total disability

or permanent total disability. In response, Airborne argued that the scope of review

was not limited to the issues presented by Goodman, but instead, that all of the

issues raised in Goodman's notice of appeal to the Board and tried expressly or

impliedly by the parties were before the court. The court agreed with Goodman
that the issues were limited to temporary total disability or permanent total disability

based on Airborne'sfailure to appeal the Board's order. It entered an order to that

effect.

          Following a bench trial, the superiorcourt reversed the Board's order. The

court found, in finding of fact 1.5, that the industrial injury was not the proximate

cause of the left-sided carpal tunnel syndrome. It concluded that Goodman has

been permanently totally disabled since February 10, 2011. It remanded the claim
to the Department with directions to place Goodman on the pension rolls.

          Airborne appeals.

                                        ANALYSIS

          "In an industrial insurance case, we review the decision of the trial court, not

the decision of the Board." Dillon v. Dep't of Labor & Indus., 186 Wn. App. 1, 6,


                                             4
No. 73665-5-1 / 5


344 P.3d 1216 (2014), review denied, 183 Wn.2d 1021, 355 P.3d 1152 (2015);

RCW 51.52.140.      Our review is akin to our review of other superior court

judgments. Dillon, 186 Wn. App. at 6. "'[W]e review whether substantial evidence
supports the trial court's factual findings and then review, de novo, whether the
trial court's conclusions of law flow from the findings.'" Rogers v. Deo't of Labor &

Indus., 151 Wn. App. 174, 180, 210 P.3d 355 (2009) (quoting Watson v. Dep't of
Labor& Indus.. 133 Wn. App. 903, 909, 138 P.3d 177 (2006)).

                             Carpal Tunnel Syndrome

       Airborne challenges the superior court's finding offact 1.5, thatthe industrial
injury is not the proximate cause of left-sided carpal tunnel syndrome. Airborne
argues that the superior court exceeded the scope of its review when it made this
finding. Airborne also argues that the superior court applied the improper standard
of review. We address these arguments in turn.

       Scope of Review

       Airborne first argues that the superior court exceeded its scope of review
when it found that Goodman's left-sided carpal tunnel syndrome is not causally

related to the industrial injury. We disagree.

       RCW 51.52.115 governs the superior court's review of decisions by the
Board. In relevant part it states:

       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.
No. 73665-5-1 / 6


      Accordingly, "a superior court's authority to determine an issue... 'depends

upon whether or not the Board properly addressed that issue.'" Matthews v. Dep't
of Labor & Indus.. 171 Wn. App. 477, 491, 288 P.3d 630 (2012) (quoting Hanguet

v. Dep't of Labor & Indus., 75 Wn. App. 657, 663-64, 879 P.2d 326 (1994)).

"[Although the superior court is limited to considering only the record before the
Board, the superior court has no limitation upon the intensity of its review."
Hanguet, 75 Wn. App. at 665-66.

       Here, the parties do not dispute that Goodman's notice of appeal to the
Board was broad. He asked for the "[cjlaim to remain open, treatment, time loss,

increased PPD, or in the alternative permanent pension."4 The issue of carpal
tunnel syndrome causation falls within the subjects raised in the notice of appeal.
Thus, based on the plain language of RCW 51.52.115, the superior court had the
authority to review this issue.

       Airborne contends that Goodman's subsequent petition for review to the

Board further narrowed the superior court's scope of review. In his petition for
review, Goodman did not challenge the finding that the industrial injury was the
proximate cause of the carpal tunnel syndrome.
       To support this argument, Airborne relies on RCW 51.52.104. That statute
provides that any party may file with the Board a written petition for review of the
proposed decision and order of the IAJ. RCW 51.52.104 further states, "Such
petition for review shall set forth in detail the grounds therefor and the party or
parties filing the same shall be deemed to have waived all objections or


4 CP at 866.
No. 73665-5-1 / 7


irregularities not specifically set forth therein."

       RCW 51.52.104 did not prohibit the superior court from considering the

issue of carpal tunnel syndrome causation. As stated earlier, this issue was

properly beforethe superiorcourt based on the plain language of RCW 51.52.115.

Goodman's petition for review was not relevantfor purposes of RCW 51.52.115.

       Airborne cites several cases holding that, under RCW 51.52.104, a party

waives legal arguments notpresented to the Board in the petition for review. None
ofthem hold that the superior court's scope of review is limited to issues presented

in the petition for review. See Leuluaialii v. Deo't of Labor &Indus., 169 Wn. App.
672, 684, 279 P.3d 515 (2012), Merlino Const, v. City of Seattle, 167 Wn. App.

609, 616 n.3, 273 P.3d 1049 (2012), Allen v. Dep't of Labor &Indus., 66 Wn. App.
415, 422, 832 P.2d 489 (1992), Hill v. Dep't of Labor &Indus., 90 Wn.2d 276, 280,
580 P.2d 636 (1978). Thus, Airborne's reliance on those cases is misplaced.
        Finally, we note that the Department of Labor and Industries submitted an
appellate brief addressing this issue. The Department advances the same
arguments as Airborne. Because we have already addressed these arguments,
we need not consider the Department's brief.

        Standard of Review

        Airborne next argues that the superior court failed to apply the proper

standard of reviewwhen itfound that Goodman's left-sided carpal tunnel syndrome

is not causally related to the industrial injury. We agree.

        The Board's decision is prima facie correct under RCW 51.52.115. The
superior court may substitute its own findings and decision for the Board's only if
No. 73665-5-1 / 8


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

and decision are incorrect. Ruse v. Dep't of Labor & Indus., 138 Wn.2d 1, 5, 977

P.2d 570 (1999). If the court finds the evidence to be evenly balanced, then the

Board's findings must stand. Jeosen v. Dep't of Labor & Indus., 89 Wn.2d 394,

401, 573 P.2d 10 (1977).

       Here, in finding of fact 1.5, the court found that "[t]he industrial injury ... is
not the proximate cause of . . . left-sided carpal tunnel syndrome."5 This
contradicted the Board's finding of fact 3, that the industrial injury was the

proximate cause of the left-sided carpal tunnel syndrome.
       Neither the court's written findings of fact nor the court's oral ruling indicate

that it found by a preponderance of credible evidence that the Board's finding on
carpal tunnel syndrome causation was incorrect. On the contrary, the court's oral
statements indicate that it found the evidence to be evenly balanced. It stated,
"Well, when I reviewed this, I mean, I basically set aside the carpal tunnel, which
may or may not be related to the original injury."6 The court's failure to apply the
proper standard of review was error.

       Goodman argues that the court did not decide that his carpal tunnel
syndrome was unrelated to the industrial injury. He asserts that the court's oral
ruling makes it clear that it instead decided that Goodman is permanently disabled
regardless of whether the carpal tunnel syndrome is related.7 But the court entered
a written finding explicitly stating that the industrial injury is not the proximate cause


5 CP at 1030.
6Report of Proceedings (June 6, 2014) at 15 (emphasis added).
7 Br. of Resp't (James D. Goodman) at 7.
                                            8
No. 73665-5-1 / 9


of left-sided carpal tunnel syndrome. To the extent that the court's oral ruling is

inconsistent with the written findings, the written findings control. State v. Bryant,

78 Wn. App. 805, 812-13, 901 P.2d 1046(1995).

       In any event, Goodman's contention that the court's oral ruling explains that

it viewed the carpal tunnel syndrome as immaterial to its permanent disability

determination is essentially an argument that the error was harmless. To the

extent that a harmlessness analysis is appropriate, we conclude that this error is

not harmless.

       Whether Goodman's carpal tunnel syndrome is related to his industrial

injury, and whether his carpal tunnel syndrome is fixed and stable, are issues
material to the determination of whether the claim can be closed. "For total

disability to be permanent, it is necessary that 'the physical condition arising from
the injury [be] fixed, lasting, and stable.'" Wilson v. Dep't of Labor &Indus., 6Wn.
App. 902, 904, 496 P.2d 551 (1972) (alteration in original) (quoting Hiatt v. Dep't
of Labor & Indus., 48 Wn.2d 843, 846, 297 P.2d 244 (1956)). Contrary to

Goodman's assertion otherwise, all of the worker's conditions arising from the

injury must be fixed and stable for total disability to be permanent.
       Pend Oreille Mines & Metals Co. v. Department of Labor & Industries is

instructive. 64 Wn.2d 270, 391 P.2d 210 (1964). In that case, the employee's
condition had deteriorated to the point where he was completely and permanently
unemployable with no possibility of recovery. The employer sought to close the
claim and classify the employee as permanently totally disabled. The employer
 argued that "once the workman's condition has passed the point where he will
No. 73665-5-1/10



never be employable again, his condition is properly defined as 'permanent total

disability' and not 'temporary total disability.'" Pend Oreille, 64 Wn.2d at 271. The

Supreme Court rejected this argument as inconsistent with the Industrial Insurance

Act, Title 51 RCW:

               It is clear that if a permanently disabled workman is given a
       lump sum settlement or is placed on the pension roll, the moment he
       comes under this definition of permanent total disability, he
       conceivably could be denied medical care and attention when he is
       in the greatest need since the right to medical aid under the act would
       terminate at that time. Such a construction would make the act an
       absurdity by emasculating one of its primary objectives of providing
       sure and certain relief for workmen, injured in extrahazardous work.
       . . . Considering the act in its entirety, it is implicit that a workman
       who sustained an industrial injury is entitled to receive medical care
       and attention as may reasonably be required.            The act should
       therefore be construed, in the light of its declared purpose and intent,
       by providing that a workman may not be rated for permanent total
       disability until his condition becomes staticor fixed, thereby affording
       him beneficial care and treatment from the time of his injury.

Pend Oreille, 64 Wn.2d at 272.

       Under Pend Oreille, a claim must remain open until all of the worker's

conditions arising from the injury are fixed and stable. This accords with decisions
of the Board of Industrial Insurance Appeals.8 The Board has held that a claim is

either open or closed but cannot be open with respect to some conditions and
closed with respect to others. In re Pike, No. 88 3366 (Wash. Bd. of Indus. Ins.
Appeals Apr. 18, 1990).

       Goodman argues that Pend Oreille is not applicable, because he, the
employee, is the one seeking the rating of permanent disability. He asserts that


8The Board publishes its significant decisions and makes them available to the public.
RCW 51 52 160 These decisions are nonbinding but are persuasive authority for this
court O'Keefe v. Dep't of Labor &Indus.. 126 Wn. App. 760, 766, 109 P.3d 484 (2005).
                                           10
No. 73665-5-1/11


"[b]ecause the choice is his, the [lAJ's] objective of sure and certain relief is met

by allowing the claim to move forward despite continued treatment rather than

forcing his claim to remain open."9 But Goodman cites no authority that the

employee is entitled to make this choice. Accordingly, we reject this argument.

       Goodman contends that Airborne is precluded from arguing that

Goodman's condition is not fixed and stable because it did not appeal the

Department's order. But the carpal tunnel syndrome condition was not a factor in
the Department's closing order. Further, Goodman putthis at issue by arguing on
appeal that his conditions were fixed and stable and his claim should be closed.
For these reasons, Goodman's argument is not convincing.

       In sum, the superior court erred when it applied the incorrect standard of
review to the Board's decision. This error was not harmless. We conclude that

the proper remedy is to remand to the superior court. There, after applying the
correct standard of review, the superior court can properly determine whetherthe
Board's finding of fact on carpal tunnel syndrome causation should stand.
Thereafter, the court can properly determine whether all ofGoodman's conditions
that are related to the industrial injury were fixed and stable in February 2011 and

whether Goodman's claim should be closed.

                                    Emplovability

       Finally, Airborne argues that the superior court erred as a matter of law
when it limited the issues to whether Goodman was temporally totally disabled or

permanently totally disabled. It contends that the superior court should have


9 Br. of Resp't (James D. Goodman) at 24.
                                            11
No. 73665-5-1/12


considered Goodman's employability. We reach this issue because it is likely to

arise again on remand. We disagree with Airborne.

      An aggrieved party has the right to appeal a decision of the Board, but if an

aggrieved party fails to file its appeal to the superior court within 30 days, the

decision of the Board becomes final. RCW 51.52.110; see also Hanguet, 75 Wn.

App. at 665.

       Airborne was an aggrieved party on the issue of Goodman's employability.

Airborne argued to the Board that "the preponderance of the evidence shows

[Goodman] is employable."10 It also argued that Goodman was not temporarily

totally disabled from January 7, 2009 to February 10, 2011, and that at the time of
the claim closure, Goodman was employable on a reasonably continuous basis.

       The Board found that "Goodman was not able to perform and obtain gainful

employment on a reasonably continuous basis from January 7, 2009 through
February 10, 2011."11 And it determined that Goodman was temporarily totally
disabled from January 7, 2009 through February 10, 2011.

       Airborne argues that it was not aggrieved because the Board only made
findings of temporary disability. But "'[t]emporary total disability' is a condition that
temporarily incapacitates a worker from performing any work at any gainful
employment." Hubbard v. Dep't of Labor &Indus., 140 Wn.2d 35, 43, 992 P.2d
1001 (2000). Temporary total disability differs from permanent total disability "only
in duration of disability, and not in its character." Hubbard, 140 Wn.2d at 42.
       Airborne was aggrieved by the Board's determination on Goodman's


10 CP at 52.
11 CP at 46.

                                           12
No. 73665-5-1/13


employability notwithstanding the fact that the Board did not make a permanent
disability determination. Because Airborne did not appeal, it waived its right to
challenge that portion of the decision.

                                   Attorney Fees

       Goodman argues that he is entitled to attorney fees and costs under RCW
51.52.130(1). We disagree.

       RCW 51.52.130(1) provides that in cases "where a party other than the
worker or beneficiary is the appealing party and the worker's or beneficiary's right
to relief is sustained, a reasonable fee for the services of the worker's or
beneficiary's attorney shall be fixed by the court." Goodman is not the prevailing
party in this appeal. We deny his request.

       We reverse and remand.




                                                         |v^\ c ke \j )^J

WE CONCUR:




                                                            4n7C,J




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