                                                                                 FILED
                                                                                              ALS
                                                                        COU T
                                                                                  O APP
      IN THE COURT OF APPEALS OF THE STATE OF WASHIN                                                 TON
                                                                       1015 FEB - 3
                                                                                          Ali g:
                                                  DIVISION II                          WASHINGTON
                                                                        STATE     OF

 CLIFFORD S. DANIELS,                                                                    e—
                                                                                   DE U

                                         Appellant,
                                                                      UNPUBLISHED OPINION
            v.




 DEPARTMENT OF LABOR & INDUSTRIES;
 AND         DPWN         HOLDINGS,          INC. (   DHL
 EXPRESS),


                                         Respondents.


           BJORGEN, A. C. J. —        Clifford Daniels appeals the trial court' s order concluding that

Daniels'    s   self -insured   employer,   DPWN Holdings Inc. (DHL), was not responsible for injuries to


both his knees. Daniels contends that the trial court erred in finding that a work place accident did

not cause or aggravate those conditions.


           We hold that substantial evidence supports the trial court' s factual finding that Daniels' s

work place accident did not proximately cause or aggravate the injuries to both his knees. Because

the trial court' s findings support its conclusion that DHL was not responsible for the injuries to


Daniels' s knees, we affirm.


                                                        FACTS


            In 1991, Daniels began working for DHL. Daniels' s job required him to deliver and

receive packages. In 2007, while performing these duties, Daniels suffered two work place

injuries, one to each knee.'




 Daniels' s knee problems predate these work place injuries. While playing football in high
school, Daniels suffered a right knee meniscus tear, an injury requiring surgical removal of part
of   the   meniscus.    This type   of   surgery is linked to the development   of osteoarthritis.
No. 45305 -3 -II



          In 2009, Daniels attempted to reopen his claim for workers' compensation related to the


2007 injury to both knees. An orthopedic surgeon, Allen Jackson, evaluated Daniels as part of

this process. After this evaluation, Jackson diagnosed Daniels with progressive osteoarthritis in


both knees. Jackson recommended that Daniels undergo bilateral knee replacements because of


the advanced state of his osteoarthritis; Daniels' s treating physicians concurred with Jackson' s

recommendation. Despite this advice, Daniels chose not to proceed with the bilateral knee


replacements.




          In December 2010, roughly 18 months after Jackson recommended bilateral knee

replacements, Daniels experienced another work place accident. While Daniels picked up a

package from a desk, a forklift smashed a heavy cart into the backs of his legs, pinning his left

leg between the cart and the desk. The accident resulted in a contusion " seven [ to] eight inches

long" and " two inches deep" in Daniels' s lower left leg and a puncture wound to his right leg.

Clerk' s Papers ( CP) at 126. Daniels told one of the physicians treating him that he could not

remember " any specific injury" to his knees during this accident. CP at 134.

          Daniels never returned to work following the December 2010 work place accident. He

filed a claim with the Department of Labor and Industries requesting " medical treatment and

other   benefits."   CP    at   71.   The Department initially allowed his claim, but later ordered that

  t] he [ self -insured employer DHL] denies responsibility for any aggravations or injury to both

knees."    CP at 71.


          After the Department denied his motion to reconsider this order, Daniels appealed to the


Board    of   Industrial Insurance Appeals ( Board),              contending that he was entitled to

           a]   llowance   of   the claim and corresponding           benefits ... , [ f]urther treatment, time -
          loss    compensation,        or   loss   of   earning   power, [ an]   increased permanent partial

          disability award, or [ a] permanent total disability award.


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No. 45305 -3 -II



CP at 51, 54. The Board assigned the matter to an industrial appeals judge who presided over a

hearing on the merits of Daniels' s appeal.

           At the hearing, Daniels testified about the December 2010 accident and his history of

problems with his knees. Daniels also testified that, after the accident, he could not return to


work or perform many of the activities that he had enjoyed prior to the accident.

           H. Richard Johnson, an orthopedic surgeon, testified on Daniels' s behalf. Johnson


testified that Daniels' s December 2010 accident inflicted crush wounds on Daniels' s knees.


Johnson found it significant that Daniels had suffered this type of injury because crush wounds

cause tissue necrosis.2 Johnson testified that this tissue necrosis, along with the need for Daniels

to limit his activity after the surgery to allow the surgical repairs to heal, resulted in a permanent

aggravation of preexisting flexion contractures in his knees.3 Johnson also testified that

Daniels' s bilateral knee osteoarthritis had worsened after the accident. On cross -examination,


however, Johnson was unable to point to anything in Daniels' s treatment records that showed

that the accident had inflicted crush wounds on him.


           Jeffrey Friedrich, a plastic surgeon, also testified for Daniels. Friedrich treated Daniels

for the contusion he suffered in the December 2010 accident. Friedrich opined that the accident


had not caused Daniels' s bilateral knee osteoarthritis, but had aggravated preexisting

osteoarthritis in the knees. However, under cross -examination, Friedrich testified that he had not


examined the numerous medical records describing the extent of Daniels' s preexisting condition

to his knees. Friedrich agreed that it was " difficult to assess the cause of [Daniel' s] current




2
    As   used   here, tissue       necrosis   is the " death ...   of soft   tissue."   CP at 155.


3 Flexion contractures occur " when the structures in the posterior aspect of the knee tighten up to
where     the   patient   is ...    unable    to   bring   their knee into full   extension."   CP at 154.

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No. 45305 -3 -II



condition" without first reading those records. CP at 215 -16. Friedrich also testified, under

cross -examination, that he would defer to the opinions of the orthopedic surgeons about the


causes and extent of the injuries to Daniels' s knees, and that he concurred with the opinions of


Dr: Patrick Bays and Dr. Carter Maurer.


        Maurer, an orthopedic surgeon, testified for DHL. Based on a review of Daniels' s


medical records and a physical examination, he testified that he diagnosed Daniels with two


relevant conditions.      First, Maurer diagnosed Daniels           with " ongoing[,]    longstanding"

osteoarthritis in his knees that " predated" the December 2010 injuries. CP at 239, 242. Maurer


testified that, in   his, opinion, the   accident   had   not " permanently worsen[ ed] [     Daniels' s]


underlying preexisting bilateral knee        arthritis."    CP at 242. Maurer stated that his opinion


resulted from the advanced state of Daniels' s osteoarthritis in 2009. Given that Daniels already

had end stage osteoarthritis before the accident, Maurer testified that the accident would not have


aggravated the condition. Instead, Maurer stated that osteoarthritis is a progressive disease and


that Daniels' s claims that his osteoarthritis had worsened after the accident simply reflected the

disease' s natural progression.


        Second, Maurer also diagnosed Daniels with knee flexion contractures. Maurer noted


that these contractures predated the accident and opined that the accident had not caused or


worsened them. In support of this opinion, Maurer noted that post -accident measurements of the


flexion contractures were nearly identical to pre- accident measurements. When asked about

Johnson' s theory that Daniels had suffered crush injuries that aggravated his flexion

contractures, Maurer testified that Daniels' s treatment records did not show any evidence of

crush injuries. Maurer went on to testify that, even if Daniels had experienced crush wounds to

the knees, it   would not    have   aggravated   Daniels'    s   preexisting flexion    contractures   because the
No. 45305 -3 - II



knee capsule, the tissue associated with flexion contractures, is " not injured by the mechanism of

a   direct   contusion or a        direct blow." CP at 245.


             Bays, another orthopedic surgeon, also testified for DHL. Based on his examination of


Daniels and review of Daniels' s medical records, Bays diagnosed Daniels with bilateral " end


stage chronic severe             degenerative   arthritis."     CP at 288 -89. Bays testified that, in his opinion, the


arthritis was preexisting and " unaffected by" the December 2010 accident. CP at 289. Bays

reasoned that


              a] rthritis   is   a condition   that   will   take many, many       years   to   reach end stage.   It

             would take probably 10 to 20 to 30 years for that to happen. So it would be literally
             physiologically impossible for any of those imaging studies showing severe
             end stage arthritis to have been in any way causally related to [ the accident].

CP at 289. When discussing Daniels' s preexisting osteoarthritis, Bays noted that Jackson had

recommended bilateral total knee replacements 18 months before the December 2010 accident.


Bays testified that, with Daniels' s decision not to undergo this operation,


             it   was predictable     that   over   time this   would continue      to deteriorate.    His function
             would    become       more and more compromised.                His pain level would continue and
             ultimately he would have significant restrictions not only in the work place but also
             out of   the   work place.      And it   appears ...       that' s exactly what' s happened.
CP    at   301. Like Maurer, Bays also diagnosed Daniels with flexion contractures that preexisted


the accident, and he also opined that the accident had not aggravated these flexion contractures.


Again, like Maurer, Bays based this opinion on the fact that measurements of the contractures


taken before and after the accident were " very                   consistent."    CP at 298. Further, like Maurer,


Bays testified that the medical evidence did not support Johnson' s diagnosis of crush wounds to

Daniels' s knees.

             Jackson, the orthopedic surgeon who evaluated Daniels in 2009, also testified for DHL.


Jackson testified that he diagnosed Daniels with " end stage osteoarthritis" after that evaluation.


CP at 335. Jackson testified that he had reviewed Daniels' s subsequent medical records and that

                                                                    5
No. 45305 -3 -II



the December 2010 injury had not caused or aggravated Daniels' s prior injuries to his knees.

Jackson stated that Daniels had end stage osteoarthritis before the accident and he continued to


have it afterwards. Like Maurer and Bays, Jackson noted the progressive nature of osteoarthritis


and stated that any degeneration in Daniels' s knees reflected a " slow worsening of his underlying

knee] condition" rather than an injury resulting from the accident. CP at 337. Like Maurer and

Bays, Jackson also described measurements of Daniels' s flexion contractures taken before and


after the December 2010 accident and testified that, after comparing the measurements, he could

not " conclude   that his flexion   contracture   is   worse."   CP at 340. Finally, like Maurer and Bays,

Jackson testified that no medical evidence supported Johnson' s contention that Daniels had


suffered crush injuries to his knees.


       After hearing this testimony, the administrative law judge determined that Daniels failed

to show " on a more -probable -than-not basis that" he " sustained knee injuries during his 2010

accident."   CP at 47. Consequently, the judge affirmed the Department' s order denying that

DHL was responsible for Daniels' s knee conditions. Daniels petitioned for review, but the


Board denied the petition and adopted the judge' s proposed decision and order as its own final


decision and order.


       Daniels appealed the Board' s final decision and order to the superior court. After a bench


trial de novo based on the record before the Board, the court found in its order of August 12,


2013 that " Clifford S. Daniels' s bilateral knee conditions were not proximately caused or
                                                                                3974
aggravated   by the   December 21, 2010 industrial         injury."   CP   at          Consequently, the trial




4 The trial court' s order of August 12, 2013 made written findings and incorporated oral findings
already made.

                                                          6
No. 45305 -3 -II



court concluded            that   DHL    was " not responsible            for any     aggravation or
                                                                                                       injury to   both knees."   CP


at397.



          Daniels now appeals the trial court' s order.


                                                                 ANALYSIS


                                                      I. STANDARD OF REVIEW


          RCW 51. 52. 140 governs appeals for proceedings under Washington' s Industrial


Insurance Act, Title 51 RCW ( the Act). It                       states    that "[   e] xcept as otherwise provided in this


chapter, the practice in civil cases shall apply to appeals prescribed in this chapter. Appeal shall

lie from the judgment             of    the   superior court as      in   other civil cases."       RCW 51. 52. 140. This


provision " results in a different role for the Court of Appeals than is typical for appeals of


administrative decisions pursuant to, for example, the Administrative Procedure Act, where we


sit   in the    same position as         the   superior court."          Rogers      v.   Dep 't of Labor &   Indus.,   151 Wn. App.

174, 180, 210 P. 3d 355 ( 2009) ( footnote                   omitted).        Instead, our review


           is   akin   to   our review of       any   other superior court            trial judgment: "   review is limited
          to examination of the record to see whether substantial evidence supports the
           findings made after the superior court' s de novo review, and whether the court' s
           conclusions of law flow from the findings."


Rogers, 151 Wn.             App.   at   180 ( quoting Ruse          v.   Dep' t of Labor       & Indus., 138 Wn.2d 1, 5, 977


P. 2d 570 ( 1999)).


           Substantial evidence is evidence that is sufficient to persuade a fair -minded, rational


person    that the     premise      is true. Jenkins        v.   Weyerhaeuser Co.,             143 Wn. App. 246, 254, 177 P. 3d

180 ( 2008).       During our review, we view the record in the light most favorable to DHL, the party

prevailing in the trial           court, and we       do   not "`   reweigh or rebalance the competing testimony and

inferences,       or ...    apply   anew       the burden of persuasion.              "'   Rogers, 151 Wn. App. at 180 -81

 quoting Harrison Mem' 1 Hosp. v. Gagnon, 110 Wn. App. 475, 485, 40 P. 3d 1221 ( 2002)).

                                                                          7
No. 45305 -3 - II



                                             II. SUBSTANTIAL EVIDENCE


         Daniels contends that the trial court erred in its finding that his December 2010 accident

was not a proximate cause of his knee conditions. He claims that the accident " li[t] up" the

preexisting osteoarthritis or flexion contractures in his knees, meaning that he suffered an injury

within the meaning of the Act, entitling him to compensation. Br. of Appellant at 36 ( citing

Miller   v.   Dep' t   of Labor & Indus., 200 Wash. 674, 682 -83, 94 P. 2d 764 ( 1939)).                    DHL, in


contrast, argues that substantial evidence supports the trial court' s finding that Daniels' s accident

did not cause or aggravate his knee conditions, and that this finding supports the trial court' s

affirmance of the Board' s final decision and order. We agree with DHL.


         Under the Act, "[ e]      ach worker       injured in the     course of   his   or   her   employment ...   shall




receive compensation in accordance with" the provisions of Title 51 RCW. RCW 51. 32. 010.


By definition, an injury " means a sudden and tangible happening, of a traumatic nature,

producing an immediate or prompt result, and occurring from without, and such physical

conditions      as result   therefrom."     RCW 51. 08. 100 ( emphasis         added). "[       I] f the accident or injury

  is the proximate cause of the disability for which compensation is sought, the previous

physical condition of the work[ er] is immaterial and recovery may be had for the full disability

independent       of   any preexisting    or congenital weakness ... [        because] the work[ er' s] prior


physical condition is not deemed the cause of the injury but merely a condition upon which the

real cause operated."         Tomlinson     v.   Puget Sound Freight Lines, Inc., 166 Wn.2d 105, 116 -17,


206 P. 3d 657 ( 2009) ( quoting Dennis             v.   Dep' t of Labor &    Indus:, 109 Wn.2d 467, 471, 745 P. 2d


1295 ( 1987), quoting        and   citing Wendt      v.   Dep' t   of Labor & Indus.,     18 Wn. App. 674, 682 -83,

571 P. 2d 229 ( 1977), Miller        v.   Dep' t   of Labor & Indus., 200 Wash. 674, 682 -83, 94 P. 2d 764


 1939)).




                                                                   8
No. 45305 -3 -II



       Whether     a condition "   is the   result of   injury    or   solely   of a   preexisting   infirmity[]   is


normally   a question of     fact." Jacobson    v.   Dep' t   of Labor & Indus., 37 Wn.2d 444, 448, 224 P. 2d


338 ( 1950); Brittain   v.   Dep' t of Labor &    Indus., 178 Wash. 499, 504, 35 P. 2d 49.( 1934). This


question of fact turns on whether the claimant would experience the condition for which he or


she seeks compensation under the Act even if he or she had not experienced the work place


incident. See Jenkins, 143 Wn. App. at 254.

       Substantial evidence supports the trial court' s factual finding that the December 2010

injury did not proximately cause or aggravate Daniels' s osteoarthritis. Maurer, Bays, and

Jackson each testified that, in their opinion, Daniels' s injury in December 2010 did not cause or

permanently aggravate his bilateral knee osteoarthritis.5 Each of them stated that Daniels' s
osteoarthritis had reached its end stage over a year before the December 2010 incident and that


any worsened osteoarthritis in Daniels' s knees after the accident simply resulted from the natural

progression of the disease, rather than aggravation by the incident. Indeed, Bays went so far as

to testify that it was physically impossible that the December 2010 incident caused or aggravated

Daniels' s knee conditions, and Maurer agreed. Further, Bays specifically testified that Daniels' s

decision to decline bilateral knee replacement surgery before the December 2010 injury made it

inevitable that Daniels would experience the kinds of work and home restrictions that he now


seeks compensation for. This testimony could readily convince a fair -minded, rational individual

that Daniels would experience the same osteoarthritis even if he had not experienced the




5 Although Friedrich testified on direct that he believed the December 2010 injury had
aggravated Daniels' s bilateral knee osteoarthritis, he testified on cross that he concurred with the
opinions of Maurer and Bays, and thus ultimately also testified that the incident did not
aggravate Daniels' s bilateral knee osteoarthritis.



                                                              9
No. 45305 -3 - II



December 2010 accident, meaning that the accident did not proximately cause or aggravate his

osteoarthritis. Jenkins, 143 Wn. App. at 254.

          Substantial evidence also supports the trial court' s factual finding that the December

2010 accident did not proximately cause or aggravate Daniels' s flexion contractures. Maurer,

Bays, and Jackson all testified that the December 2010 accident did not cause or aggravate those


contractures. Each noted that the flexion contractures existed before the December 2010

accident and that measurements of the contractures taken before and after the accident were


consistent with each other.     Maurer also testified that, even assuming that Daniels had

experienced the type of crush injury to the knees that-Johnson believed had occurred, it would

not   have   caused or worsened   Daniels'   s   flexion   contractures.   This testimony could convince a

fair -minded, rational person that, regardless of the December 2010 accident, Daniels would


experience the same flexion contractures he now complains of, meaning that the accident did not

proximately cause or aggravate his flexion contractures. Jenkins, 143 Wn. App. at 254.

          Daniels, nevertheless, argues that the trial court erred in finding the accident did not

proximately cause injury to his knees for four reasons. We review each in turn.

          First, Daniels contends that we should construe the Act broadly. While true, Daniels

nonetheless bears the burden of showing causation. See Ruse, 138 Wn.2d at 6. The Board



6 The evidence about these measurements provided the trial court substantial evidence upon
which to reject Daniels' s theory that his convalescence aggravated his flexion contractures.
According to Friedrich, Daniels could walk and bear weight on his legs in January 2011. Bays
took measurements of the flexion contractures in June 2011; Maurer took measurements of the
flexion   contractures   in October 2011.    These post- accident measurements, which were

comparable to pre- accident measurements, were taken after Daniels could " ambulate" effectively
following his surgery related to the accident. CP at 209.

7 Maurer, Bays, and Jackson all testified that no medical evidence supported the existence of
such an injury, and Daniels himself told one of his treating physicians that he could not recall
any specific injury to his knees during the accident.
                                                           10
No. 45305 -3 - I1



determined that Daniels failed to discharge this burden, and the trial court reached the same

decision      after a   trial de   novo.   Substantial evidence supports the relevant trial court finding to

this effect, as noted above, and broad construction of the Act does not change that.


         Second, Daniels claims that the trial court erred in affirming the Board' s order because he

needed only to show that the December 2010 was a proximate cause of the injuries to his knees,

not the proximate cause. The Act recognizes that an injury might have more than one proximate

cause.   Wendt, 18 Wn. App. at 684. However, here the trial court found that the accident did not

 proximately       cause[]    or aggravate[]"     Daniels' s bilateral knee conditions. CP at 397. This is a


finding that the accident was not even a proximate cause of Daniels' s knee conditions, and, as

noted, substantial evidence supports the trial court' s finding.

         Third, Daniels argues that the trial court erred in failing to find that the December 2010

accident " li[ t] up" his preexisting knee conditions. Miller, 200 Wash. at 682. Daniels maintains

that he was not disabled before the accident, but was disabled afterward, and that the accident


therefore had to have lit up his knee conditions. Daniels presented this argument to the trial

court, and the trial court declined to make the inference Daniels sought. To the extent that


Daniels argues that the trial court had to make the inference because of the evidence that he


presented, he is simply incorrect.8 The trial court, as the fact finder, was free to decline to do so

based    on   the competing         evidence offered   by DHL.    See Lofthus   v.   Navy   Yard   City Mill Co.,   121


Wash. 74, 74 -75, 207 P. 953 ( 1922) ( "[           t]his presented purely a question of fact on which there

was a dispute, and of which the jury was entitled to accept either the respondent' s or the




8 Daniels' s presentation of the standard for reviewing the sufficiency of a party' s evidence,
which suggests that he believes that he needed only to establish a probability of a causal
connection between the accident and his knee condition to succeed on his claim, indicates that he
makes this argument.



                                                             11
No. 45305 -3 - II



appellant' s version. ").   To the extent that Daniels asks us to reverse the trial court' s findings by

making the inference he asked of the trial court, doing so exceeds the scope of our review.9 We
do not weigh testimony or make inferences that the trial court did not make; we simply review

the record for substantial evidence that supports those findings the trial court did make. Rogers,

151 Wn.   App.    at   180 -81 ( quoting Harrison, 110 Wn.    App.   at   485). As discussed above,


substantial evidence supports the trial court' s finding that the December 2010 accident did not

light up Daniels' s existing knee conditions. 10 Daniels' s argument does not avail him.

         Finally, Daniels contends for the first time in his reply brief, that the trial court erred by

finding that the accident did not light up his preexisting osteoarthritis or flexion contractures

because his experts testified that it did. Even if we do not consider this argument waived by

Daniels' s failure to present it before his reply brief, Cowiche Canyon Conservancy v. Bosley, 118

Wn.2d 801, 809, 828 P. 2d 549 ( 1992),      the trial court heard Daniels' s expert' s testimony, along

with contrary testimony from Maurer, Bays, and Jackson. The trial court resolved the competing

testimony against Daniels, and we defer to that determination on review. Rogers, 151 Wn. App.

at 180 -81 ( quoting Harrison, 110 Wn. App. at 485).




9 Daniels' s presentation of the error of law standard of review indicates that he makes this
argument. Daniels contends that the application of the lighting up theory is a question of law and
that under the error of law standard we may substitute our judgment for that of the agency. The
error of law standard recognizes that the ultimate power to determine the meaning of a law
belongs to the courts, not executive agencies, and it does not apply to factual matters. See
Overton   v.   Econ. Assistance Auth., 96 Wn.2d 552, 555, 637 P. 2d 652 ( 1981).         The error of law
standard is inapplicable here because our review concerns factual findings made by the trial
court.




10 We also note that the lighting up theory applies to " latent or quiescent infirmity[ies] or
weakened physical condition[ s]       occasioned   by   disease."   Miller, 200 Wash. at 682. Daniels had
end stage osteoarthritis and flexion contractures in both knees, and it therefore seems difficult to
call his conditions latent or quiescent.

                                                        12
No. 45305 -3 -II



                                                III. ATTORNEY FEES


        Daniels requests reasonable attorney fees under RCW 51. 52. 130, which allows for such

an award where an appeal results in the reversal or modification of the superior court' s order and


 additional relief   is   granted   to   a worker or   beneficiary." Daniels, however, has not obtained the

required reversal or modification of the superior court order, let alone reversal that grants him


additional relief. Therefore, he is not eligible for an award of reasonable attorney fees under

RCW 51. 52. 130.


                                                  CONCLUSION


        The trial court' s finding that the December 2010 accident did not proximately cause or

aggravate Daniels' s bilateral knee conditions is supported by substantial evidence in the record.

The trial court' s conclusion that DHL was not responsible for any aggravation or injury to

Daniels' s knees flows directly from that finding. Therefore, we affirm the trial court' s order.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,


it is so ordered.




                                                                      N,   A. C. J.
                                                                                      41Cs I
 We concur:




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