F' fLLD O00T OF APPEALS Dkllsloi% i 11
2013 JUL 23 A 9: 14 ST 0 li TON
BY D TY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO
DIVISION II
No. 42703 6 II - -
Appellant,
V.
FRED MEYER STORES, INC. and UNPUBLISHED OPINION DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON,
o
HUNT, J. —Erika Hardy appeals the superior court's trial de novo decision in favor of the
Department of Labor and Industries and Fred Meyer Stores, Inc. The court accepted the Board
of Industrial Insurance Appeals' findings and decision denying Hardy's worker's compensation
claim for a right shoulder injury she asserts she suffered while working for Fred Meyer. She
argues that (1)under the doctrine of res judicata, the Department's order allowing her worker's
compensation claim for her injured left shoulder also included her right shoulder condition as a
matter of law; and (2) superior court erred in refusing to consider evidence corroborating her the
res judicata argument, which she had not presented to the Board. Holding that Hardy neither
proved nor preserved her right shoulder claim, we affirm. No. 42703 6 II - -
FACTS
I. WORKPLACE INJURY AND BENEFITS DETERMINATION
Erika Hardy began working in the service department of Fred Meyer Stores, Inc. in 1985.
In February 2004, Fred Meyer transferred Hardy to a checker cashier position; three months /
later, she began experiencing problems with her left shoulder and visited Dr. Louis Enkema.
Although medical records from this visit referred to "bilateral shoulder conditions,"Hardy
alleged problems with only her left shoulder when she applied for worker compensation benefits.
Administrative Record ( R)7823 Mar. 4,2010)at 10024 (Finding of Fact ( F)1). June 22, A ( F On
the Department allowed Hardy's left shoulder claim, after which she began receiving time loss
compensation and medical benefits.
About four months later (after Fred Meyer had terminated her for unrelated reasons),
Hardy again sought medical treatment from Dr. Enkema and filed another worker's
compensation claim, this time alleging a right shoulder condition.' On October 30, 2007, the
Department denied her right shoulder claim, finding that (1)there was no proof to support her
right shoulder claim; 2) condition was not the of the injury or exposure alleged on the ( her -
job;and ( ) condition was neither an industrial injury nor an occupational disease. 3 her
Hardy protested this October 30, 2007 Department order, arguing that (1)her right
shoulder injury should have been accepted as part of her previous left shoulder injury claim; or
2) the alternative, it should have been accepted as an independent claim. The Department in
forwarded this protest to the Board of Industrial Insurance Appeals for treatment as a direct
appeal.
1 Hardy's second benefits claim also described a back condition, which is not part of this appeal.
2 No. 42703 6 II - -
Meanwhile, on August 2, 2007 the Department had determined that Hardy's time loss -
compensation benefits for her left shoulder claim were ended and paid through March 29, 2006,
and that she would receive no award for permanent partial disability. Hardy appealed this
Department order to the Board, which consolidated Hardy's two appeals.
II. APPEAL TO BOARD OF INDUSTRIAL INSURANCE APPEALS
On appeal, the parties stipulated that the Board's summarized jurisdictional history of
Hardy's claims was correct; this summary stated that Hardy's original claim had been for a left
shoulder injury. Nevertheless, Hardy argued that the Department should have included her right
shoulder condition under her left - shoulder claim; she also sought time loss compensation -
benefits from March 29, 2006, to December 20, 2007, and a pension thereafter.
At the hearing before the Administrative Law Judge (ALJ), parties presented Dr. the
Enkema's deposition testimony: Dr. Enkema testified that ( ) 1 during Hardy's first visit, she had
complained about "pain over the left shoulder "; and (2)both of her shoulders "seemed to be
involved,"but "[ he left t] was her main complaint." AR (7825 Mar. 4, 2010) at 505 06. -
Defendants Fred Meyer and the Department asked Dr. Enkema about - his specific findings for
Hardy's right and left shoulders:
Fred MeyerDepartment]: [ I] your opinion, if you take out the subjective / n findings that you talked about, did you note any objective abnormal findings on examination? Enkema]: At this point in time, looking at the overall situation, I did not have very much in terms ofpositive physical findings. I had the patient's complaint. And usually when I try to assess something like this, I give the patient the benefit of the doubt. I had no prior history. And usually the patients tell me the truth.
Fred Meyer /Department]: [ ]d you actually note any specific right shoulder Di symptoms that she reported in that visit? Enkema]: I focused .on the left, because that was her major complaint. I
wasn't impressed at the time that the right was significantly involved.
3 No.42703 6 II - -
Fred Meyer/ epartment]: And in this case it appeared that the examinations D were basically symmetrical between the right and the left? Enkema]: Correct, except that there was more pain on the left.
AR (7825 Mar. 4, 2010) at 507 08 (emphasis added). Dr. Enkema further testified that the -
disability certificate he had given Hardy contained a number of restrictions on the use of her left
shoulder, but it did not include restrictions on the use of her right shoulder.
The ALJ issued two separate proposed decisions, both affirming the Department's orders,
which the Board adopted. Hardy filed a petition for review with the Board challenging both
decisions. The Board granted review, consolidated the appeals, and affirmed its earlier adoption
of the ALJ's proposed decisions.
III. APPEAL TO SUPERIOR COURT
Hardy appealed the Board's decision to superior court and immediately moved for
judgment as a matter of law under CR 50. In support of her motion, Hardy attached copies of 1). (
Dr. Enkema's initial medical report, mentioning bilateral shoulder conditions; (2) the
Department's June 22,2004 order; 3) Enkema's report on Hardy's right shoulder during the ( Dr.
second visit; and ( ) Department's denial of Hardy's right shoulder claim. Noting that Hardy 4 the
had not submitted any of these attached materials to the Board, the superior court refused to
consider them.
In the memorandum supporting her CR 50 motion, Hardy argued for the first time that
her right shoulder condition should have been allowed under her original worker's compensation
2 Hardy did not, however, offer this disability certificate into evidence before the ALJ; nor did she offer Dr. Enkema's medical records about her conditions or the Department's June 22, 2004 order. The record does include, however, the parties' stipulated procedural history, which noted the date that Hardy had received the Department's June 22 order; but this stipulation did not contain the order language that Hardy later tried to use as evidence in superior court.
M No. 42703 6 II - -
claim for her left shoulder injury because (1) Department's June 22, 2004 order had put Fred the
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F' fLLD O00T OF APPEALS Dkllsloi% i 11
2013 JUL 23 A 9: 14 ST 0 li TON
BY D TY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO
DIVISION II
No. 42703 6 II - -
Appellant,
V.
FRED MEYER STORES, INC. and UNPUBLISHED OPINION DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON,
o
HUNT, J. —Erika Hardy appeals the superior court's trial de novo decision in favor of the
Department of Labor and Industries and Fred Meyer Stores, Inc. The court accepted the Board
of Industrial Insurance Appeals' findings and decision denying Hardy's worker's compensation
claim for a right shoulder injury she asserts she suffered while working for Fred Meyer. She
argues that (1)under the doctrine of res judicata, the Department's order allowing her worker's
compensation claim for her injured left shoulder also included her right shoulder condition as a
matter of law; and (2) superior court erred in refusing to consider evidence corroborating her the
res judicata argument, which she had not presented to the Board. Holding that Hardy neither
proved nor preserved her right shoulder claim, we affirm. No. 42703 6 II - -
FACTS
I. WORKPLACE INJURY AND BENEFITS DETERMINATION
Erika Hardy began working in the service department of Fred Meyer Stores, Inc. in 1985.
In February 2004, Fred Meyer transferred Hardy to a checker cashier position; three months /
later, she began experiencing problems with her left shoulder and visited Dr. Louis Enkema.
Although medical records from this visit referred to "bilateral shoulder conditions,"Hardy
alleged problems with only her left shoulder when she applied for worker compensation benefits.
Administrative Record ( R)7823 Mar. 4,2010)at 10024 (Finding of Fact ( F)1). June 22, A ( F On
the Department allowed Hardy's left shoulder claim, after which she began receiving time loss
compensation and medical benefits.
About four months later (after Fred Meyer had terminated her for unrelated reasons),
Hardy again sought medical treatment from Dr. Enkema and filed another worker's
compensation claim, this time alleging a right shoulder condition.' On October 30, 2007, the
Department denied her right shoulder claim, finding that (1)there was no proof to support her
right shoulder claim; 2) condition was not the of the injury or exposure alleged on the ( her -
job;and ( ) condition was neither an industrial injury nor an occupational disease. 3 her
Hardy protested this October 30, 2007 Department order, arguing that (1)her right
shoulder injury should have been accepted as part of her previous left shoulder injury claim; or
2) the alternative, it should have been accepted as an independent claim. The Department in
forwarded this protest to the Board of Industrial Insurance Appeals for treatment as a direct
appeal.
1 Hardy's second benefits claim also described a back condition, which is not part of this appeal.
2 No. 42703 6 II - -
Meanwhile, on August 2, 2007 the Department had determined that Hardy's time loss -
compensation benefits for her left shoulder claim were ended and paid through March 29, 2006,
and that she would receive no award for permanent partial disability. Hardy appealed this
Department order to the Board, which consolidated Hardy's two appeals.
II. APPEAL TO BOARD OF INDUSTRIAL INSURANCE APPEALS
On appeal, the parties stipulated that the Board's summarized jurisdictional history of
Hardy's claims was correct; this summary stated that Hardy's original claim had been for a left
shoulder injury. Nevertheless, Hardy argued that the Department should have included her right
shoulder condition under her left - shoulder claim; she also sought time loss compensation -
benefits from March 29, 2006, to December 20, 2007, and a pension thereafter.
At the hearing before the Administrative Law Judge (ALJ), parties presented Dr. the
Enkema's deposition testimony: Dr. Enkema testified that ( ) 1 during Hardy's first visit, she had
complained about "pain over the left shoulder "; and (2)both of her shoulders "seemed to be
involved,"but "[ he left t] was her main complaint." AR (7825 Mar. 4, 2010) at 505 06. -
Defendants Fred Meyer and the Department asked Dr. Enkema about - his specific findings for
Hardy's right and left shoulders:
Fred MeyerDepartment]: [ I] your opinion, if you take out the subjective / n findings that you talked about, did you note any objective abnormal findings on examination? Enkema]: At this point in time, looking at the overall situation, I did not have very much in terms ofpositive physical findings. I had the patient's complaint. And usually when I try to assess something like this, I give the patient the benefit of the doubt. I had no prior history. And usually the patients tell me the truth.
Fred Meyer /Department]: [ ]d you actually note any specific right shoulder Di symptoms that she reported in that visit? Enkema]: I focused .on the left, because that was her major complaint. I
wasn't impressed at the time that the right was significantly involved.
3 No.42703 6 II - -
Fred Meyer/ epartment]: And in this case it appeared that the examinations D were basically symmetrical between the right and the left? Enkema]: Correct, except that there was more pain on the left.
AR (7825 Mar. 4, 2010) at 507 08 (emphasis added). Dr. Enkema further testified that the -
disability certificate he had given Hardy contained a number of restrictions on the use of her left
shoulder, but it did not include restrictions on the use of her right shoulder.
The ALJ issued two separate proposed decisions, both affirming the Department's orders,
which the Board adopted. Hardy filed a petition for review with the Board challenging both
decisions. The Board granted review, consolidated the appeals, and affirmed its earlier adoption
of the ALJ's proposed decisions.
III. APPEAL TO SUPERIOR COURT
Hardy appealed the Board's decision to superior court and immediately moved for
judgment as a matter of law under CR 50. In support of her motion, Hardy attached copies of 1). (
Dr. Enkema's initial medical report, mentioning bilateral shoulder conditions; (2) the
Department's June 22,2004 order; 3) Enkema's report on Hardy's right shoulder during the ( Dr.
second visit; and ( ) Department's denial of Hardy's right shoulder claim. Noting that Hardy 4 the
had not submitted any of these attached materials to the Board, the superior court refused to
consider them.
In the memorandum supporting her CR 50 motion, Hardy argued for the first time that
her right shoulder condition should have been allowed under her original worker's compensation
2 Hardy did not, however, offer this disability certificate into evidence before the ALJ; nor did she offer Dr. Enkema's medical records about her conditions or the Department's June 22, 2004 order. The record does include, however, the parties' stipulated procedural history, which noted the date that Hardy had received the Department's June 22 order; but this stipulation did not contain the order language that Hardy later tried to use as evidence in superior court.
M No. 42703 6 II - -
claim for her left shoulder injury because (1) Department's June 22, 2004 order had put Fred the
Meyer on notice that her original claim was for a "bilateral" shoulder condition; and (2)thus,
under the doctrine of res judicata, Fred Meyer was precluded from denying her right shoulder
condition. Clerk's Papers (CP)at 32. Because Hardy had not argued her res judicata theory to
the Board, the superior court ruled that she had waived the issue. The superior court denied
Hardy's CR 50 motion.
Nevertheless, Hardy argued to the superior court that (1)the res judicata doctrine
prevented Fred Meyer from denying that the Department had accepted her claim for worker's
compensation for her right shoulder injury by virtue of the Department's June 22, 2004 order; 2) (
Fred Meyer was put on notice that her claim encompassed both shoulders because, according to
the Board's findings, medical records from her original visit to Dr.Enkema referred to " bilateral
shoulder conditions "; and (3) " because the June 22, 2004 order and notice was neither appealed
nor protested,"it was "final and binding upon all parties." CP at 121. The superior court
adopted the Board's findings of fact in their entirety and ruled in favor of Fred Meyer and the
Board. The superior court did not further address Hardy's res judicata argument. Hardy appeals.
3 Hardy acknowledged that she had not previously raised her res judicata argument before the Board. .
4 AR 7823 Mar. 4,2010)at 10024 (FF 1)emphasis added). ( (
G No. 42703 6 II - -
ANALYSIS
I. ISSUE PRESERVATION
Hardy now argues that the doctrine of res judicata should have precluded the superior
court from denying her claim for worker's compensation benefits for her alleged right shoulder
injury. We disagree. Instead, we agree with the superior court that because she failed to raise
this argument to the Board, she raise it now. See RCW 51. 2.Kustura v. Dep't of 115; 5
Labor & Indus.,142 Wn. App. 655, 673 74, 175 P. d 1117 (2008), d, 169 Wn. d 1001, 233 - 3 aff' 2
P. d 853 (2010). 3
RCW 51. 2.provides, 115 5
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.
Applying this statute, Washington courts have held that we may decline to review on appeal any
issue not raised before the Board. See, e. ., g Kustura, 142 Wn. App. at 673 74 ( ivision One of - D
our court refused to consider an argument on appeal that workers had failed to make to the
Board).
Because Hardy raised her res judicata argument for the first time in her CR 50 motion in
superior court, the Board never had the opportunity to rule on this issue. And, although both
parties briefed the issue, the superior court did not reach the merits of Hardy's res judicata
argument; instead, it concluded that Hardy had waived the issue by having failed to raise it
before the Board. Because Hardy failed to raise her res judicata claim to the Board, we, too,
decline to consider it further.
on No. 42703 6 II - -
II. CLAIM PRECLUSION
Hardy next argues that because Dr. Enkema's initial report noted a "bilateral" shoulder
condition, the Department's order " allowed [ her] occupational disease claim for bilateral
shoulder conditions."Br. of Appellant at 16. This argument also fails.
A. Standards of Review
On appeal, the superior court sits in a quasi -appellate capacity, reviewing the Board's
decision de novo, but basing its decision solely on the evidence and testimony presented to the
Board. Stelter v. Dep't of Labor & Indus.,147 Wn. d 702, 707, 57 P. d 248 (2002).See also 2 3
RCW 51. 2. The superior court considers the Board's decision to be prima facie correct; 110 5
thus, a party attacking the Board's decision must support its challenge by a preponderance of the
evidence. Leuluaialii v. Dep't of Labor & Indus.,169 Wn. App. 672, 677, 279 P. d 515 (2012) 3
citing Ruse v. Dep't of Labor & Indus.,138 Wn. d I;5, 977 P. d 570 (1999)), 2 2 review denied,
176 Wn. d 1018 (2013). 2
We review the superior court's factual findings by asking whether substantial evidence
supports them. We review de novo whether the trial court's legal - conclusions flow from the
findings. Rogers v. Dep't of Labor & Indus.,151 Wn. App. 174, 180, 210 P. d 355 (2009).On 3
appeal, we treat unchallenged findings of fact as verities. Moreman v. Butcher, 126 Wn. d 36, 2
39, 891 P. d 725 (1995). 2
B. Finality of Unchallenged Department Orders
All Department orders "become final within sixty days ... unless a written request for
reconsideration is filed with the department of labor and industries ... or an appeal is filed with
the board of industrial insurance appeals."RCW 51. 2.The doctrine of claim preclusion 050( 1 5 ).
7 No. 42703 6 II - -
applies to a Department's final order the same as it would to a trial court's unappealed final
order. Marley v. Dep't of Labor & Indus.,125 Wn. d 533, 537, 886 P. d 189 (1994).Failure to 2 2
appeal precludes a party from rearguing the claim that the Department denied in its final order.
Marley, 125 Wn. d at 538. 2
Here, both parties agree that the doctrine of claim preclusion applies to the Department's
June 22, 2004 final order that allowed Hardy's left shoulder worker's compensation claim.
Contrary to Hardy's assertion, there is no evidence in the record that the Department's order
accepted her claim as a "bilateral" shoulder condition. Moreover, the stipulated jurisdictional
history that the parties submitted to the Board for its review stated that Hardy's original claim
was for a left shoulder injury. Consistent with the record and this stipulated history was Dr.
Enkema's testimony that (1)during his exam of Hardy, he "focused on the left [shoulder,]
because that was her major complaint "; and ( 2) Hardy's disability certificate contained
restrictions on the use of only her left shoulder. AR 7825 Mar. 4,2010)at 508. (
The Board found that Hardy "alleged an occupational condition involving her left
shoulder, arising out of her employment" AR ( 823 Mar. 4, 2010) at 10024 (FF 1). 7 Hardy did
not challenge this finding. There is no support in the record before us for Hardy's argument that
s Not in evidence before the Board were the Department's June 22, 2004 order, Dr. Enkema's medical records, and Hardy's disability certificate. Therefore, the superior court did not err in refusing to consider these documents. Stelter, 147 Wn. d at 707. 2
8 No. 42703 6 II - -
the Department's June 22, 2004 order included her right shoulder condition. The superior court
adopted the Board's findings and confirmed its decision. We affirm the superior court.
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
040, 2.6.it is so ordered. 0
Hunt,J. We concur: