FILED JULY 23, 2026 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
HERNAN CALDERON, ) ) No. 41216-4-III Appellant, ) ) v. ) ) DEPARTMENT OF LABOR & ) UNPUBLISHED OPINION INDUSTRIES, ) ) Respondent.
STAAB, C.J. — Hernan Calderon appeals the Benton County Superior Court’s
order affirming the Board of Industrial Insurance Appeals’ (Board) decision in his
workers’ compensation claim. The Board determined that Calderon’s industrial injury
proximately caused only a concussion and a cervical sprain/strain, and it further
determined the injury did not proximately cause or aggravate Calderon’s preexisting
cervical degenerative disc disease, cervical facet disease, or cervical disc displacement.
On appeal, Calderon assigns error to three findings: (1) that the cervical
degenerative disc disease, cervical facet disease, and cervical disc displacement were not
proximately caused or aggravated by the industrial injury, (2) that the claim-related
conditions were fixed and stable and not in need of further proper and necessary
treatment, and (3) that he did not have a permanent partial disability proximately caused No. 41216-4-III Calderon v. Dep’t of Lab. and Indus.
by the industrial injury. In essence, Calderon argues these findings are not supported by
substantial evidence and contends the court failed to give special consideration to the
testimony of his attending provider. Calderon also requests an award of attorney fees
under RCW 51.52.130 should he prevail on appeal.
We reject Calderon’s arguments and affirm. Substantial evidence supports the
challenged findings, and the court expressly acknowledged its obligation to give the
attending provider’s testimony special consideration. Because Calderon does not prevail
and obtain relief, we decline to award attorney fees under RCW 51.52.130.
BACKGROUND
In October 2018, while working at a potato processing plant, Hernan Calderon
slipped on a wet floor and fell backward, hitting his head and other parts of his body on a
metal pole. Calderon went to the emergency room, where a neurological examination
returned normal results. Computed tomography (CT) scans of Calderon’s head and neck
showed no acute fractures or trauma.
After the injury, Calderon experienced headaches, dizziness, sleepiness, and
nausea. In the months following the injury, Calderon developed neck pain and numbness
throughout his left arm and legs. Calderon was ultimately diagnosed with a concussion
and a cervical sprain/strain.
Calderon then filed a workers’ compensation claim with the Department of Labor
and Industries (Department), which the Department initially allowed. In January 2019, a
2 No. 41216-4-III Calderon v. Dep’t of Lab. and Indus.
magnetic resonance imaging (MRI) of Calderon’s cervical spine showed a small disc
protrusion at C4-5 and a broad-based disc protrusion at C5-6 that did not touch or
displace the spinal cord. A second MRI of Calderon’s cervical spine in July 2020
showed no change from the earlier imaging.
In October 2020, Calderon received a cervical epidural steroid injection1 from a
neurologist to treat his pain. The injection relieved Calderon’s pain for approximately
one week.
Later in October 2020, Calderon began treatment with a Certified Physician’s
Assistant (PA-C), Kai Jones. Calderon saw PA-C Jones twice. CP at 89, 91. During
Calderon’s first visit, he complained about neck pain and pain going down his left arm.
PA-C Jones conducted a physical examination and found cervical tenderness at C5 and
C7 and a positive Spurling’s maneuver.2 PA-C Jones diagnosed a cervical strain that he
believed was caused or aggravated by the industrial injury. PA-C Jones also noted
Calderon had post-concussive symptoms after the injury but believed those symptoms
had resolved by the time of the examination. PA-C Jones released Calderon to work
without restrictions.
1 This type of procedure involves injecting an anesthetic and steroid into the low back at the emerging nerve root to relieve pain. 2 This test identifies cervical disc or lateral nerve root compression.
3 No. 41216-4-III Calderon v. Dep’t of Lab. and Indus.
PA-C Jones reviewed Calderon’s MRI results and described them as showing a
disc bulge abutting, but not compressing, the spinal cord. Regarding the MRI results,
PA-C Jones opined that the bulging disc abutting the cord meant it was touching a nerve
and causing some pain. PA-C Jones opined that the disc bulge—also referred to as
cervical disc displacement—was related to Calderon’s industrial injury. PA-C Jones
distinguished that condition from cervical degenerative disc disease and cervical facet
disease, which he believed were age-related and not caused or aggravated by the
industrial injury. PA-C Jones also opined Calderon needed further treatment for the
cervical disc displacement, including additional injections and potentially a surgical
evaluation.
In December 2020, Calderon attended an independent medical examination
conducted by board-certified neurologist Kenneth Brait, MD and board-certified
orthopedic surgeon Steven Nadler, MD. The examination was conducted, in part, to
review PA-C Jones’ new diagnoses including cervical degenerative disc disease and
cervical facet disease.
Dr. Brait performed a neurological examination that returned normal results,
without motor or sensory abnormalities or reflex issues. Dr. Nadler performed an
orthopedic examination and found no abnormalities in Calderon’s spine other than
subjective cervical tenderness. Drs. Brait and Nadler concluded the only diagnoses
related to the industrial injury were a concussion (that had resolved) and a cervical
4 No. 41216-4-III Calderon v. Dep’t of Lab. and Indus.
strain/sprain. The doctors also concurred in their conclusions that: the cervical
degenerative disc disease was unrelated to the industrial injury; the cervical facet disease
was a preexisting degenerative condition unrelated to the industrial injury; and the
cervical disc displacement was a degenerative and age-related condition unrelated to the
industrial injury. Dr. Nadler also testified that the preexisting conditions were not “lit
up” by the industrial injury.
Dr. Brait testified that the bulging discs shown on Calderon’s MRIs were
attributable to degenerative processes and arthritic changes associated with aging. Dr.
Brait added that cervical disc displacement is common and can be asymptomatic, and he
opined Calderon’s disc bulge was not near the nerve roots and would therefore not be the
cause of Calderon’s symptoms.
Regarding treatment, Dr. Nadler opined Calderon did not require further treatment
for the conditions. Dr. Brait testified epidural injections are not curative and generally
provide only temporary, palliative relief.
Department Proceedings
The Department considered whether Calderon’s industrial injury caused or
aggravated cervical degenerative disc disease, cervical facet disease, and disc
displacement and later issued an order denying responsibility for those conditions. The
Department also determined Calderon no longer required treatment, had no permanent
partial disability, and closed the claim.
5 No. 41216-4-III Calderon v. Dep’t of Lab. and Indus.
Board Proceedings
Calderon appealed the Department’s orders to the Board. An Industrial Appeals
Judge (IAJ) considered the testimony of Calderon, PA-C Jones, Dr. Brait, and Dr. Nadler
and subsequently issued a Proposed Decision and Order affirming the Department’s
order. The IAJ found that Calderon’s cervical degenerative disc disease, cervical facet
disease, and cervical disc displacement were not proximately caused or aggravated by his
industrial injury and there was insufficient evidence to show Calderon had a permanent
partial disability proximately caused by the industrial injury.
Calderon petitioned the Board for review of the IAJ’s Proposed Decision and
Order. The Board affirmed, entering the following findings relevant to this appeal:
2. Hernan A. Calderon sustained an industrial injury on October 19, 2018, when he slipped and fell and hit his head against a metal pole. The injury proximately caused a concussion without loss of consciousness and a cervical sprain/strain.
3. The October 19, 2018 industrial injury did not proximately cause or aggravate Mr. Calderon's cervical degenerative disc disease, cervical facet disease, and/or cervical disc displacement.
4. As of June 4, 2021, Mr. Calderon’s conditions proximately caused by the October 19, 2018 industrial injury were fixed and stable and not in need of further proper and necessary treatment.
5. As of June 4, 2021, Mr. Calderon’s cervical condition proximately caused by the October 19, 2018 industrial injury was consistent with Category 1 of WAC 296-20-240, categories of cervical and cervico- dorsal impairments.
6 No. 41216-4-III Calderon v. Dep’t of Lab. and Indus.
6. On June 4, 2021, Mr. Calderon did not have a permanent partial disability proximately caused by the industrial injury.
Clerk’s Papers at 9.
Superior Court Proceedings
Calderon then appealed the Board’s decision to the Benton County Superior Court.
Following a hearing on the appeal, the court took the matter under advisement and later
entered a letter decision and written order containing its findings and conclusions. The
court ultimately affirmed the Board’s decision, adopting the Board’s findings above. In
its letter decision, the court also acknowledged that it was required to give special
consideration to the attending provider when making its decision.
Calderon appeals.
ANALYSIS
1. CHALLENGED FINDINGS OF FACT
Calderon assigns error to the trial court’s findings that: (1) the cervical disc
disease, cervical facet disease, and cervical disc displacement were not proximately
caused or aggravated by the industrial injury, (2) Calderon did not need further necessary
and proper treatment for the conditions proximately caused by the industrial injury, and
(3) Calderon did not have a permanent partial disability proximately caused by the
industrial injury.
7 No. 41216-4-III Calderon v. Dep’t of Lab. and Indus.
Contrary to those findings, Calderon argues: the cervical disc displacement
condition was proximately caused or aggravated by the injury, he needs further necessary
and proper treatment for the conditions caused by the injury, and he has a permanent
partial disability proximately caused by the industrial injury. He also argues the trial
court should have given PA-C Jones’ testimony special consideration, as he was
Calderon’s attending provider. In response, the Department contends substantial
evidence supports the trial court’s findings and the court properly gave special
consideration to PA-C Jones’ testimony. We agree with the Department.
A. Standard of Review
A worker aggrieved by a Department decision on a worker’s compensation claim
may appeal to the Board. RCW 51.52.060(1)(a), .050(2)(a). Board decisions may then
be appealed to the superior court, which reviews the Board’s decision de novo. RCW
51.52.110, .115; Grimes v. Lakeside Indus., 78 Wn. App. 554, 560, 897 P.2d 431 (1995).
The findings and decision of the Board are presumed correct until the superior court finds
otherwise by a preponderance of the evidence. Dep’t of Lab. & Indus. v. Moser, 35 Wn.
App. 204, 208, 665 P.2d 926 (1983).
The superior court’s decision may then be appealed to this court. RCW 51.52.140.
On appeal, we review whether the superior court’s findings are supported by substantial
evidence and whether those findings support the conclusions of law. Du Pont v. Dep’t of
Lab. & Indus., 46 Wn. App. 471, 476-77, 730 P.2d 1345 (1986). “Substantial evidence”
8 No. 41216-4-III Calderon v. Dep’t of Lab. and Indus.
is evidence sufficient to persuade a rational, fair-minded person that the finding is true.
Cantu v. Dep’t of Lab. & Indus., 168 Wn. App. 14, 21, 277 P.3d 685 (2012).
Unchallenged findings are verities on appeal. Davis v. Dep’t of Lab. & Indus., 94 Wn.2d
119, 123, 615 P.2d 1279 (1980). When, as occurred in this case, the trial court prepares a
memorandum opinion, we consider that as a supplement to its formal findings and
conclusions. Zavala v. Twin City Foods, 185 Wn. App. 838, 859, 343 P.3d 761 (2015).
As part of our review, we do not substitute our judgment for that of the trial court,
nor do we weigh the evidence or the credibility of witnesses. Davis, 94 Wn.2d at 124.
“We review the record in the light most favorable to the party who prevailed in superior
court.” Hendrickson v. Dep’t of Lab. & Indus., 2 Wn. App. 2d 343, 352, 409 P.3d 1162
(2018).
B. Legal Principles
“An injury is compensable under the [Industrial Insurance Act, Title 51 RCW] if it
occurs in the course of employment and a causal relationship between the injury and the
condition for which compensation is sought is established by sufficient medical
testimony.” Goyne v. Quincy-Columbia Basin Irr. Dist., 80 Wn. App. 676, 682, 910 P.2d
1321 (1996) (citing Sawyer v. Dep’t of Lab. & Indus., 48 Wn.2d 761, 296 P.2d 706
(1956)). “To prove causation, the claimant’s medical experts must establish that it is
‘more probable than not that the industrial injury caused the subsequent disability.’”
Loushin v. ITT Rayonier, 84 Wn. App. 113, 122, 924 P.2d 953 (1996) (quoting Zipp v.
9 No. 41216-4-III Calderon v. Dep’t of Lab. and Indus.
Seattle Sch. Dist. No. 1, 36 Wn. App. 598, 601, 676 P.2d 538 (1984)). “For an
aggravation claim, medical testimony must establish, more probably than not, that the
worsening of [a preexisting] condition is causally related to the industrial injury.” Id. at
122.
Under WAC 296-20-01002(1), in the definition section of “proper and necessary,”
“the [D]epartment . . . pays for [only] proper and necessary health care services that are
related to the diagnosis and treatment of an accepted condition” accepted under their
claim. Under WAC 296-20-01002(2)(b), “proper and necessary” means, in part,
“healthcare services that are . . . [c]urative or rehabilitative. . . . Curative treatment
produces permanent changes, which eliminate or lessen the clinical effects of an accepted
condition. Rehabilitative treatment allows an injured or ill worker to regain functional
activity in the presence of an interfering accepted condition. Curative and rehabilitative
care produce long-term changes.”
Under WAC 296-20-01002(3) “[t]he department . . . stops payment for health care
services once a worker reaches a state of maximum medical improvement. Maximum
medical improvement occurs when no fundamental or marked change in an accepted
condition can be expected, with or without treatment. ‘Maximum medical improvement’
is equivalent to ‘fixed and stable.’” Once a worker’s condition is fixed and stable, they
may qualify for a disability award. See WAC 296-20-19000.
10 No. 41216-4-III Calderon v. Dep’t of Lab. and Indus.
C. Analysis
Calderon’s arguments on appeal largely amount to a request that this court
reweigh the competing medical testimony and credit PA-C Jones over the Department’s
medical experts. But we do not weigh evidence or assess witness credibility on appeal.
Davis, 94 Wn.2d at 124. Rather, our task is limited to determining whether substantial
evidence supports the challenged findings and whether those findings support the
conclusions of law. Du Pont, 46 Wn. App. at 476-77. In this case we conclude that
substantial evidence supports the challenged findings.
First, substantial evidence supports the trial court’s finding that the cervical disc
disease, cervical facet disease, and cervical disc displacement were not proximately
caused or aggravated by the industrial injury. Based on their examinations of Calderon,
Drs. Brait and Nadler opined that Calderon’s cervical degenerative disc disease was
unrelated to the industrial injury; his cervical facet disease was a preexisting degenerative
condition unrelated to the industrial injury; and his cervical disc displacement was a
degenerative and age-related condition unrelated to the industrial injury. This evidence is
11 No. 41216-4-III Calderon v. Dep’t of Lab. and Indus.
enough to persuade a rational, fair-minded person that the trial court’s finding is true.
Thus, substantial evidence supports the finding.3
Second, substantial evidence supports the trial court’s finding that Calderon did
not need further necessary and proper treatment for the conditions proximately caused by
the industrial injury. PA-C Jones and Drs. Brait and Nadler collectively opined that the
only conditions caused by Calderon’s industrial injury were a concussion and a cervical
sprain/strain. Dr. Nadler opined Calderon did not require further treatment for those
conditions. And the only condition PA-C Jones recommended treatment for was cervical
disc displacement.
3 Related to this finding, the Department contends that Calderon raises a new causation theory on appeal, specifically that the industrial injury “lit up” the cervical disc displacement. Resp’t’s Br. at 29 (citing Appellant’s Br. at 11). “[W]here a sudden injury ‘lights up’ a quiescent infirmity or weakened physical condition occasioned by disease, the resulting disability is attributable to the injury and compensation is awardable.” Dennis v. Dep’t of Lab. & Indus., 109 Wn.2d 467, 472, 745 P.2d 1295 (1987). Other than a single mention of the “lighting up” theory in his opening brief, Calderon does not mention or elaborate on it. See Appellant’s Br. 6-19. To the extent he intends the sole mention of this theory to be construed as an argument on appeal, we decline to review it because he waived the issue. He did not raise the lighting up theory before the Board nor in his petition for review of the Board’s decision. A party waives an issue by failing to raise it before the Board. Leuluaialii v. Dep’t of Lab. & Indus., 169 Wn. App. 672, 684, 279 P.3d 515 (2012) (citing RCW 51.52.104); see also Ruse v. Dep't of Lab. & Indus., 138 Wn.2d 1, 8, 977 P.2d 570 (1999) (“An appellate court should not address an issue upon which the Department did not rely in denying the claim.”).
12 No. 41216-4-III Calderon v. Dep’t of Lab. and Indus.
As discussed above, substantial evidence supports the finding that Calderon’s
industrial injury did not cause or aggravate the cervical disc displacement condition.
Because that condition was not related to the industrial injury, Calderon was not entitled
to treatment for it. See WAC 296-20-01002 (the Department pays for only “proper and
necessary” health care services that are related to the diagnosis and treatment of a
condition accepted under their claim).
Moreover, even if we consider whether the proposed treatment was “proper and
necessary,” substantial evidence supports the finding that Calderon did not require
additional treatment. The only treatment PA-C Jones recommended for the cervical disc
displacement condition—additional epidural injections—was not proper and necessary
because it was not curative nor rehabilitative.
Calderon testified that after he received the injection, his pain was relieved for
only one week. PA-C Jones similarly testified that Calderon showed little improvement
after the injection. Dr. Brait testified that epidural injections are not curative and
generally provide only temporary, palliative relief. This evidence does not show that the
injection would “produce long-term changes” as WAC 296-20-01002 requires to be
considered a curative or rehabilitative treatment. This evidence is therefore sufficient to
persuade a rational, fair-minded person that Calderon did not require further proper and
necessary treatment for the conditions proximately caused by the industrial injury. Thus,
substantial evidence supports the trial court’s finding.
13 No. 41216-4-III Calderon v. Dep’t of Lab. and Indus.
Third, substantial evidence supports the trial court’s finding that Calderon did not
have a permanent partial disability proximately caused by the industrial injury. The trial
court adopted the Board’s finding that Calderon’s cervical condition caused by the
industrial injury fell within Category 1 under WAC 296-20-240, and that he therefore did
not have a ratable permanent partial disability proximately caused by the industrial
injury.
WAC 296-20-240 governs the categories of impairment ratings for cervical and
cervical-dorsal impairments. A Category 1 rating means no objective clinical findings of
cervical or cervical-dorsal impairment are present. See WAC 296-20-240(1); accord
WAC 296-20-680(1) (a Category 1 rating means zero percent total body impairment).
Dr. Nadler rated Calderon’s permanent impairment as Category 1 based on the
cervical sprain/strain. Drs. Brait and Nadler also testified that Calderon had no objective
findings of neurological or orthopedic issues based on their examinations of his cervical
spine and neck area. This testimony is sufficient to persuade a rational, fair-minded
person that Calderon did not have a ratable permanent impairment proximately caused by
the industrial injury. Substantial evidence therefore supports the finding.
Calderon suggests the trial court should have found a Category 2 rating. His
argument misunderstands the standard of review. The question is not whether evidence
could support a different finding; it is whether substantial evidence supports the finding
the trial court made. See Du Pont, 46 Wn. App. at 476-77. As discussed above, the
14 No. 41216-4-III Calderon v. Dep’t of Lab. and Indus.
court’s finding is supported by substantial evidence. Calderon’s request for a Category 2
rating invites this court to reweigh the evidence. We decline his invitation. See Davis,
94 Wn.2d at 124.
Relatedly, Calderon contends the trial court was required to give PA-C Jones’
testimony special consideration as Calderon’s attending provider.
It is a long-standing rule that courts should give special consideration to the
opinion of a worker compensation claimant’s attending physician. Hamilton v. Dep’t of
Lab. & Indus., 111 Wn.2d 569, 571, 761 P.2d 618 (1988). This rule, however, does not
require the fact finder to give more weight or credibility to the attending physician’s
testimony, but rather, to give it “careful thought.” Id. at 572. If a court believes the
testimony of an examining physician over that of the attending physician, it should
indicate in its findings this “special consideration” rule and why the examining
physician’s testimony is preferable over the attending physician’s testimony. Groff v.
Dep’t of Lab. & Indus., 65 Wn.2d 35, 45, 395 P.2d 633 (1964).
As the Department points out, the trial court’s letter decision acknowledged the
court’s obligation to give special consideration to the attending physician when reaching
its decision. Moreover, Calderon fails to demonstrate that the trial court failed to comply
with its obligation to give PA-C Jones’ testimony special consideration. As a result, we
conclude the trial court complied with its obligation to give the attending physician’s
testimony special consideration.
15 No. 41216-4-III Calderon v. Dep’t of Lab. and Indus.
Substantial evidence supports the trial court’s challenged findings, and the trial
court properly gave special consideration to the attending physician in this case.
2. ATTORNEY FEES
Calderon requests an award of reasonable attorney fees under RCW 51.52.130.
We deny his request.
RCW 51.52.130(1) provides that, “[i]f, on appeal to the superior or appellate court
from the decision and order of the board, said decision and order is reversed or modified
and additional relief is granted to a worker or beneficiary . . . a reasonable fee for the
services of the worker’s or beneficiary’s attorney shall be fixed by the court.” “The
statute allows the court to fix attorney fees if the court reverses the [Board]’s order and
grants an award to the disabled worker.” Jenkins v. Weyerhaeuser Co., 143 Wn. App.
246, 257, 177 P.3d 180 (2008). “RCW 51.52.130 encompasses fees in both the superior
and appellate courts when both courts review the matter.” Conner v. Harrison Med. Ctr.,
11 Wn. App. 2d 467, 478, 454 P.3d 131 (2019).
Here, because we affirm the superior court’s decision upholding the Board’s final
order, Calderon has not satisfied the prerequisite to obtain relief under RCW
51.52.130(1). We therefore decline Calderon’s request for attorney fees.
16 No. 41216-4-III Calderon v. Dep’t of Lab. and Indus.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________ Staab, C.J.
WE CONCUR:
_________________________________ Lawrence-Berrey, J.
_________________________________ Cooney, J.