Imelda Magdaleno v. Walmart Stores & Department Of Labor & Industries

• Court: Court of Appeals of Washington
• Decided: November 23, 2020
• Docket: 79833-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

IMELDA MAGDALENO, No. 79833-2-I Appellant, DIVISION ONE v.

DEPARTMENT OF LABOR AND UNPUBLISHED OPINION INDUSTRIES, and WALMART STORES, a Washington Corporation,

Respondent.

CHUN, J. — In 2007, Imelda Magdaleno hurt her back while working for

Walmart Stores Inc. The Department of Labor and Industries authorized a

surgery, which she underwent in 2011. Later, she continued to experience back

pain. She sought authorization for a second surgery, but the Department denied

her request and closed her claim. Magdaleno proceeded with the second

surgery but afterward her back worsened. She sought to reopen her claim,

asserting that a claim-related condition had objectively worsened. The

Department reopened the claim, but the Board of Industrial Insurance Appeals

reversed, concluding that no claim-related condition objectively worsened

between the terminal dates.

Magdaleno appealed to superior court. There, a jury returned a verdict for

Walmart, finding that the Board ruled correctly. Magdaleno moved for a

judgment notwithstanding the verdict, which motion the trial court denied. On

Citations and pin cites are based on the Westlaw online version of the cited material. No. 79833-2-I/2

appeal, Magdaleno says that the trial court erred because substantial evidence

or reasonable inferences therefrom do not support the jury’s verdict. But the law

requires us to view the evidence in the light most favorable to the Department

and Walmart. And for the reasons discussed below, we affirm.

I. BACKGROUND

A. 2007 Injury, Claim, First Surgery & Closure

In July 2007, Magdaleno suffered an injury while working at Walmart. As

she lifted pallets of frozen chicken, she experienced pain in her back and down

her right leg.

The next month, Magdaleno applied for workers’ compensation benefits

and the Department allowed her claim. Magdaleno underwent six lumbar MRIs

between September 2007 and September 2011.

The Department authorized a laminectomy and a right-sided discectomy

for a herniated disc at L5-S1 as proper and necessary because of conditions

caused by Magdaleno’s industrial injury. On November 3, 2011, Dr. Ashit Patel

performed these procedures on Magdaleno.

While Magdaleno’s symptoms at first subsided, she began complaining of

more symptoms about six months after her surgery. In December 2013,

Magdaleno had another lumbar MRI. Dr. Patel recommended that Magdaleno

undergo a fusion surgery to address her back and leg pain.

Magdaleno then consulted Dr. Varun Laohaprasit, who recommended

redoing a laminectomy and discectomy at L5-S1, as he considered fusion

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surgery a last resort. Magdaleno requested that this surgery be authorized under

her claim.

On September 3, 2014, the Department denied authorization, stating,

“[T]he self-insured employer is not responsible for the redo right-sided

laminectomy and discectomy at L5-S1 as medical evidence supports that this

procedure is not proper and necessary as defined by law.”

Magdaleno had another MRI in February 2015.

Magdaleno protested the denial order but the Department reaffirmed it.

The Department then closed her claim on May 4, 2015. This was the first

“terminal date.”1 Magdaleno appealed both the denial and closure orders but

dismissed her appeals following a settlement with Walmart.

B. Magdaleno’s Second Surgery & Reopening of Claim

After claim closure, Magdaleno continued to experience pain. She

returned to Dr. Laohaprasit who recommended that she undergo a L5-S1

laminectomy, medial facetectomy, foraminotomy, and microdiscectomy on her

right side and, in addition, recommended an L5-S1 laminectomy and

foraminotomy on her left side. Using her private insurance, Magdaleno

underwent this surgery on March 16, 2016. No MRI was conducted between the

first terminal date and the 2016 surgery.

1 To decide whether to reopen a claim, the Board—and the courts—examine whether an objective worsening of a claim-related condition occurred between the “terminal dates.” Karniss v. Dep’t of Labor & Indus., 39 Wn.2d 898, 900–01, 239 P.2d 555 (1952). Here, the terminal dates were the date of closure and the date the Department reaffirmed its order to reopen the claim.

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After her second surgery, Magdaleno experienced increased pain and

discomfort. She then applied to reopen her claim on May 24, 2016. An MRI

taken on August 5, 2016 showed a disc extrusion2 at L5-S1. On August 18,

2016, the Department reopened Magdaleno’s claim. It reaffirmed its order on

October 20, 2016 following Walmart’s protest. This was the second terminal

date. Walmart appealed this order to the Board.

C. Proceedings Before the Board & Reversal

During the Board appeal process, both sides presented expert testimony.

Walmart introduced testimony by Dr. Houman Sabahi, a radiologist; Dr. Margaret

Wacker, a neurosurgeon; and Dr. James Champoux, an orthopedic surgeon.

Magdaleno introduced testimony by Dr. Patel who performed the 2011 surgery,

and Dr. Laohaprasit who performed the 2016 surgery. She and her husband

also testified.

After the presentation of evidence, an Industrial Appeals Judge (IAJ)

issued a Proposed Decision and Order reversing and concluding that the claim

should not be reopened. Magdaleno petitioned for Board review. The Board

denied the petition and the IAJ’s Proposed Decision and Order became the

Decision and Order of the Board.

D. Trial Court Proceedings

Magdaleno appealed the Board’s decision to superior court, where the

parties cross-moved for summary judgment. The court denied both motions and,

in doing so, noted that the 2014 denial order (i.e., the Department’s order

2 A type of herniation.

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denying authorization for the 2016 surgery) did not have binding effect—through

res judicata—on the current litigation.

At trial, the court instructed the jury that, for a worker to establish the need

for treatment because of aggravation of a medical condition, the worker has the

burden of proving that (1) the aggravation resulted in the need for treatment,

(2) the need for treatment was proximately caused by the industrial injury, and (3)

the aggravation occurred between May 4, 2015 and October 20, 2016 (i.e., the

terminal dates).

The jury returned a verdict for Walmart, finding that the Board was correct

in finding that no claim-related condition objectively worsened between the

terminal dates. Magdaleno then moved for a judgment notwithstanding the

verdict, which motion the trial court denied. Magdaleno appeals.

II. ANALYSIS

A. Denial of Motion for Judgment Notwithstanding the Verdict

Magdaleno says that the trial court erred in denying her motion for

judgment notwithstanding the verdict because substantial evidence does not

support the jury’s finding that no claim-related condition objectively worsened

between the terminal dates. The Department and Walmart counter that

substantial evidence shows a lack of proximate cause, thus rendering any

objective worsening unrelated to the claim. We agree with the Department and

Walmart.

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To reopen an Industrial Insurance Act (IIA) claim, a worker must establish

that their claim-related condition objectively worsened between the terminal

dates. See RCW 51.32.160. A worker must support the claimed worsening with

objective medical evidence. Felipe v. Dep’t of Labor & Indus., 195 Wn. App. 908,

914, 381 P.3d 205 (2016). And the worsened condition must be proximately

caused by the industrial injury. Ma’ae v. Dep’t of Labor & Indus., 8 Wn. App. 2d

189, 200–01, 438 P.3d 148 (2019).

We review a trial court’s denial of a motion for judgment notwithstanding

the verdict applying the same standard as the trial court. Chaney v. Providence

Health Care, 176 Wn.2d 727, 732, 295 P.3d 728 (2013); CR 59(a)(7). Such a

denial is proper when “substantial evidence or reasonable inferences” support

the jury’s verdict. Indus. Indem. Co. of the Nw. v. Kallevig, 114 Wn.2d 907, 915–

16, 792 P.2d 520 (1990). The substantial evidence standard requires that the

evidence is enough to convince “‘an unprejudiced thinking mind’” or persuade a

“fair-minded rational person.” In re Estate of Dormaier v. Columbia Basin

Anesthesia, PLLC, 177 Wn. App. 828, 861–62, 313 P.3d 431 (2013) (quoting

Hojem v. Kelly, 93 Wn.2d 143, 145, 606 P.2d 275 (1980)). We view the material

evidence and reasonable inferences therefrom in the light most favorable to the

nonmoving party. Kallevig, 114 Wn.2d at 915–16.

Neither Walmart nor the Department disputes that there was an objective

worsening of some condition between the terminal dates. This dispute centers

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on whether the worsened condition was claim-related (i.e., whether proximate

cause exists).

Magdaleno advances three theories on appeal: (1) the L5-S1 extrusion,

which appeared after her 2016 surgery, resulted from her industrial injury through

a “chain of proximate causation,” beginning with her injury; (2) the compensable

consequences doctrine requires that Walmart be responsible for the

consequences of her 2011 surgery, namely her current worsened condition; and

(3) WAC 296-20-01002 requires that once Walmart authorized her 2011 surgery,

it accepted responsibility for her underlying lumbar condition, which the 2016

surgery was intended to treat. We address each in turn.

1. Chain of proximate causation

Magdaleno says that the “chain of proximate causation” from her industrial

injury to her current worsened state is unbroken and thus her objectively

worsened condition is claim-related. Walmart and the Department counter that

two intervening causes, aging and an unauthorized surgery, broke the chain of

causation and thus Magdaleno’s worsened condition is not claim-related.3 We

conclude that substantial evidence supports the assertion that Magdaleno’s

degenerative disc disease and not the industrial injury led to the 2016 surgery,

and therefore her subsequent worsening was not caused by the industrial injury.

3 Walmart also says that the trial court erred in giving jury instructions that the Department order finding the second surgery not proper and necessary was not binding. Walmart contends that because the order is binding, it prevents Magdaleno from arguing that the 2016 surgery was related to the claim. Because we affirm, we do not address this issue.

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In the context of industrial insurance, the law defines proximate cause as

a series of sequential events in which the cause produces a condition, and

without the cause, the condition would not have occurred. Street v.

Weyerhaeuser Co., 189 Wn.2d 187, 194, 399 P.3d 1156 (2017).

Substantial evidence shows that Magdaleno’s current worsened condition

would have occurred regardless of the industrial injury. She suffered from an

unrelated degenerative disc disease. Drs. Champoux, Wacker, and Sabahi

testified that they saw a degenerative disc disease present in Magdaleno’s MRIs

from before the 2011 surgery. Drs. Wacker, Sabahi and Champoux opined that

the disease was not caused by the industrial injury.

Magdaleno says that her subjective symptoms after the 2011 surgery

were caused by a re-herniation, and that therefore her symptoms were tied to the

industrial injury. But we may look at only objective medical evidence. And

Dr. Wacker testified that Magdaleno did not suffer a re-herniation.

Instead, substantial evidence shows that the 2016 surgery was intended

to treat symptoms arising from the degenerative disc disease, not the industrial

injury. The degenerative disc disease, not any claim-related pathology, explains

Magdaleno’s symptoms after the 2011 surgery. Dr. Sabahi testified that

“everything had remained stable” after the 2011 surgery and there was no real

pathology aside from the degenerative disc disease. Drs. Sabahi, Wacker, and

Champoux noted a progression of the degenerative disc disease after the 2011

surgery. Also, the 2011 surgery addressed a bulge on her right side, with the

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resultant scarring also appearing on the right side. Meanwhile, the degenerative

disc disease was asymmetric towards the left. The 2016 surgery treated both the

right and left sides of the spine while the 2011 surgery treated only the right.

Magdaleno was objectively worse after the 2016 surgery. Substantial

evidence shows this. The experts identified an extrusion4 on Magdaleno’s post-

2016 surgery MRI that was not present in her earlier imaging. As mentioned

above, Walmart and the Department do not dispute her worsening.

But substantial evidence shows that the 2016 surgery caused the

objective worsening. Drs. Wacker, Champoux, and Sabahi testified that

Magdaleno’s objective worsening was most likely caused by the 2016 surgery.

These three physicians testified that an extrusion is more likely to occur soon

after a surgery in which the annulus5 is cut, before it has a chance to heal. So,

they opined that the 2016 surgery, during which her annulus was cut, caused the

extrusion, given its temporal proximity to the objective worsening.

Dr. Laohaprasit testified that the objective worsening occurred before the 2016

surgery but cited only Magdaleno’s subjective complaints as a basis for his

conclusion.

Given the foregoing, viewing the facts and reasonable inferences

therefrom in the light most favorable to the Department and Walmart, substantial

evidence supports the jury’s finding no claim-related condition objectively

4 The record refers in some portions to “extrusions” and in others to herniation. An extrusion is a type of herniated disc, but not all herniated discs are extrusions. 5 The annulus provides a rigid structure for a lumbar disc and when it is cut—for instance during a laminectomy—the structural integrity of the spine is affected and the spine can suffer extrusions in which the inner filling of a disc is squeezed out.

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worsened between the terminal dates. Substantial evidence shows that the

unrelated degenerative disc disease, which led to the 2016 surgery, caused the

objective worsening between the terminal dates.

2. Compensable consequences doctrine

Magdaleno says that the 2011 surgery necessitated the 2016 surgery and

thus her worsened condition is compensable as the consequence of treatment.

Walmart counters that because the 2016 surgery treated conditions distinct from

the industrial injury or the result of the 2011 surgery, the worsening after the

2016 surgery was not a compensable consequence of treatment. The

Department argues similarly, noting that the 2016 surgery was not approved.

Because application of this doctrine turns on whether the worsened condition is

“proximately traceable” to the industrial injury, and we conclude above that no

proximate causation exists, we reject Magdaleno’s argument.

If treatment for an industrial injury complicates or aggravates a condition,

then the claim covers the consequences of treatment. Clark County v. Maphet,

10 Wn. App. 2d 420, 438, 451 P.3d 713 (2019). A worker who suffers from

medical malpractice or negligent treatment can recover for the costs of correcting

such treatment. Id. at 439. The key question is whether the condition is

“proximately traceable” to the industrial injury. Id. (quoting Ross v. Erickson

Const. Co., 89 Wash. 634, 648, 155 P. 153 (1916)). “Proximately traceable”

does not mean the complained-of condition has to arise from the industrial injury.

Maphet, 10 Wn. App. 2d at 440. Rather, it means that the complained-of

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condition arose from treatment that was administered to address the industrial

injury. Id.

As discussed above, the record contains substantial evidence to find that

Magdaleno’s worsened condition is not proximately traceable to the industrial

injury or the 2011 surgery, and thus is not a consequence of treatment.6

3. WAC 296-20-01002 and Maphet

Magdaleno says that, based on WAC 296-20-01002’s definitions of

“authorization” and “accepted conditions,” when Walmart authorized her 2011

surgery, it necessarily accepted her underlying lumbar condition, and is therefore

responsible for the condition and for the results of the 2016 surgery, which she

claims was a treatment for the accepted condition. And she says that this

argument prevailed in Maphet. Walmart responds that WAC 296-20-01002 is an

interpretive, and not a binding, rule; Maphet was incorrectly decided; and the

2016 surgery treated conditions different than the 2011 surgery address. The

Department says that while Maphet was correctly decided, it is distinguishable

from this case. We conclude, based on the analysis above, that substantial

evidence existed for the jury to find that the 2016 surgery addressed a condition

different from the industrial injury, and therefore Walmart’s authorization of the

2011 surgery did not mean that it accepted her degenerative disc disease.7

6 No objective medical findings support the argument that the 2011 surgery caused an objective worsening after the first terminal date and before the 2016 surgery. Between claim closure and the 2016 surgery, there is only subjective proof of worsening, the objective proof of worsening comes only after the 2016 surgery. 7 Thus, we do not address whether Maphet was correctly decided, or whether WAC 296-20-01002 is binding.

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WAC 296-20-01002 defines “authorization” as notification by the self-

insured employer that “proper and necessary treatment . . . of an accepted

condition will be reimbursed.” It defines “accepted condition” as a determination

by the self-insured employer that “reimbursement for the diagnosis and curative

or rehabilitative treatment of a claimant’s medical condition is the responsibility”

of the self-insured employer. The court in Maphet held that when an employer

authorizes treatment for a condition, it accepts responsibility for that condition.

10 Wn. App. 2d at 435.

WAC 296-20-01002 does not apply here because, based on our analysis

above, substantial evidence supports finding that the 2016 surgery was intended

to treat a different problem (i.e., degenerative disc disease) than the 2011

surgery treated (i.e., industrial injury). Also, the 2016 surgery treated both the

right and left sides of the spine while the 2011 surgery treated only the right.

And Maphet is distinguishable because the surgery there, which caused

the worsening, was an authorized procedure. 10 Wn. App. 2d at 424. In

Maphet, five separate surgeries were authorized to treat an industrial knee injury.

Id. During the fifth surgery the surgeon released knee ligaments, which caused a

patellofemoral instability, unrelated to the industrial injury. Id. Thus, an

authorized surgery caused the new condition. The employer authorized three

more surgeries aimed at fixing the instability, not the original industrial injury. Id.

But the employer refused to authorize a ninth surgery for the instability, and

Maphet sought to have the employer pay for it after the surgery was performed.

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Id. Magdaleno says that her case is like Maphet in that the 2011 surgery, which

was authorized, caused her worsening. There is substantial evidence, however,

that Magdaleno’s worsening was caused by the 2016 surgery. And the 2016

surgery was not authorized.

B. Attorney Fees

Magdaleno requests an award of attorney fees under RCW 51.52.130.

Because we affirm the trial court’s ruling, we deny her request.

We affirm.

WE CONCUR: