FILED
JAN. 29,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
INTERNATIONAL PAPER, ) ) No. 32075-8-111 Respondent, ) ) v. ) ) ANTHONY BOLTE, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. - The jury that heard this industrial insurance appeal sided with the
employer rather than the worker who had prevailed before the Board of Industrial
Insurance Appeals. The injured worker, Anthony Bolte, challenges the trial judge's
failure to direct a verdict in his favor as well as the sufficiency of the evidence to support
the verdict. Because the evidence permitted the jury to resolve the case as it did, we
affirm.
FACTS
Mr. Bolte began working for International Paper (formerly Weyerhaeuser), in
August 2006. International Paper is a self-insured employer. The following year he No. 32075-8-111 Int'l Paper v. Bolte
suffered an inguinal I hernia on the right side; the injury was not related to his
employment. He underwent surgery to insert a mesh patch to repair the hernia and
missed six weeks of work. He returned to work at nearly full capacity and resumed his
normal outdoor activities.
Prior to the October 1, 2008 injury at issue in this case, Mr. Bolte had some work
attendance issues. International has a point-based disciplinary system for attendance. If
an employee for any reason is absent for half a day (four hours) or more, that absence
results in one point on the employee's record. Three points result in a verbal warning to
the employee; four points-a written warning; five points result in a three-day suspension
without pay and finally six points result in the employee's termination. At the end of
each year, an employee with two or fewer points will have his record reset to zero points.
An employee can also have points removed by working for a certain amount of days
without an absence. Due to his own illnesses and his son's illness, Mr. Bolte was at the
written warning stage of the disciplinary system.
On October 1, 2008, Mr. Bolte was driving a forklift as part of his regular job
activities. He turned around to back up the forklift and felt pain in the location of his
former hernia. He left work after only two hours on the job and received another absence
point. The following day he saw Dr. Richard Edgerly, who wrote a note excusing Mr.
I Groin area.
No. 32075-8-111 Int 'I Paper v. Bolte
Bolte from work for the next two days.2 He was also referred to Dr. Manuel Lozano, the
surgeon who had performed the 2007 hernia repair surgery.
On October 13,2008, Mr. Bolte again left work, but this time reported groin pain.
Because he had already worked five hours that shift, no absence points were assessed
against him. This was the first time the supervisor, Mr. Mee, had learned that Mr. Bolte
was suffering groin pain.
Toward the end of October, Mr. Bolte visited the company's safety coordinator,
Cammie McGrath, to discuss FMLA paperwork. He was hoping to reverse some of his
disciplinary points accumulated during prior absences related to his son's illness and his
earlier illnesses.
On November 6, 2008, Mr. Bolte saw Dr. Lozano as the result of the earlier
referral from Dr. Edgerly. Dr. Lozano concluded that the pain Mr. Bolte was
experiencing was unrelated to the prior hernia surgery. Mr. Bolte then returned to Dr.
Edgerly and, eventually, completed the appropriate Department of Labor and Industries
(DLI) paperwork for a self-insured employer. Mr. Bolte did not return to work after his
appointment with Dr. Lozano until February 25, 2010. 3
2 An extended absence counts as one point. 3 Mr. Bolte conceded that he would have received a three day suspension without pay, based on his accumulated absences, ifhe had returned to work after missing the day to see Dr. Lozano.
No. 32075-8-III Int 'I Paper v. Bolte
Mr. Bolte filed a claim for worker's compensation benefits based on the October 1
injury. The claim was allowed and International Paper promptly contested it. DLI
affirmed its order allowing the claim and International Paper appealed to the Board of
Industrial Insurance Appeals. An industrial appeals judge issued a proposed order
affirming DLI, and the full Board subsequently adopted that order. International Paper
appealed to Yakima County Superior Court.
There the matter proceeded to trial before a six person jury. The jury received
deposition testimony from Dr. Lozano. The doctor could not determine the cause of the
pain suffered in October 2008. While he initially suspected a strained muscle in the
inguinal region, he thought it also could be neurodynia, an irritation of the nerve in the
area of the mesh repair patch. 4 However, he could not say whether or not Mr. Bolte had
neurodynia.
After the testimony of Dr. Lozano and Mr. Jeffrey Mee, International Paper rested
its case. Mr. Bolte moved for a directed verdict. The trial judge denied the motion,
reasoning that the evidence allowed the jury to conclude that there could be another cause
for the injury and that Mr. Bolte had a motive to lie because of the disciplinary process he
was facing.
4A nerve block procedure, which should relieve pain from neurodynia, was performed in November 2009. The procedure did not relieve the pain; instead, the problem worsened.
Dr. Adrian Heap testified for Mr. Bolte and opined that Mr. Bolte suffered from
neurodynia that had been caused by the October 1 twisting injury. He also believed that
the original 2007 hernia had been the result of an unreported industrial injury. The issue
for the jury to resolve, then, was whether his current injury was caused by his employment
reawakening 5 his former problem or if the condition flared up on its own. Despite the
medical testimony, the jury unanimously returned its verdict in favor of International
Paper. Mr. Bolte then timely appealed to this court.
ANALYSIS
Mr. Bolte's appeal raises two contentions. He argues that the trial judge erred in
denying his request for a directed verdict and that the evidence did not support the jury's
verdict. Because the two issues concern the state of the evidence at trial, we will address
them together.
The trial court should grant a motion for a directed verdict under CR 50 when
"viewing the evidence and all inferences in a light most favorable to the nonmoving
party, substantial evidence does not exist to support the nonmoving party's claims." Joy
v. Dep't o/Labor & Indus., 170 Wn. App. 614, 619, 285 PJd 187 (2012). "Substantial
5 In workers' compensation parlance, this is known as the "light up" doctrine. E.g., Harbor Plywood Corp. v. Dep't Labor & Indus., 48 Wn.2d 553, 556, 295 P.2d 310 (1956).
evidence is the quantum of evidence sufficient to persuade a rational, fair-minded person
the premise is true." Id. This court conducts de novo review of motions for judgment as
a matter of law. Id.
The substantial evidence standard is also at issue in appellate review of a
challenge to the sufficiency of the evidence. Unlike other administrative appeals to this
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FILED
JAN. 29,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
INTERNATIONAL PAPER, ) ) No. 32075-8-111 Respondent, ) ) v. ) ) ANTHONY BOLTE, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. - The jury that heard this industrial insurance appeal sided with the
employer rather than the worker who had prevailed before the Board of Industrial
Insurance Appeals. The injured worker, Anthony Bolte, challenges the trial judge's
failure to direct a verdict in his favor as well as the sufficiency of the evidence to support
the verdict. Because the evidence permitted the jury to resolve the case as it did, we
affirm.
FACTS
Mr. Bolte began working for International Paper (formerly Weyerhaeuser), in
August 2006. International Paper is a self-insured employer. The following year he No. 32075-8-111 Int'l Paper v. Bolte
suffered an inguinal I hernia on the right side; the injury was not related to his
employment. He underwent surgery to insert a mesh patch to repair the hernia and
missed six weeks of work. He returned to work at nearly full capacity and resumed his
normal outdoor activities.
Prior to the October 1, 2008 injury at issue in this case, Mr. Bolte had some work
attendance issues. International has a point-based disciplinary system for attendance. If
an employee for any reason is absent for half a day (four hours) or more, that absence
results in one point on the employee's record. Three points result in a verbal warning to
the employee; four points-a written warning; five points result in a three-day suspension
without pay and finally six points result in the employee's termination. At the end of
each year, an employee with two or fewer points will have his record reset to zero points.
An employee can also have points removed by working for a certain amount of days
without an absence. Due to his own illnesses and his son's illness, Mr. Bolte was at the
written warning stage of the disciplinary system.
On October 1, 2008, Mr. Bolte was driving a forklift as part of his regular job
activities. He turned around to back up the forklift and felt pain in the location of his
former hernia. He left work after only two hours on the job and received another absence
point. The following day he saw Dr. Richard Edgerly, who wrote a note excusing Mr.
I Groin area.
No. 32075-8-111 Int 'I Paper v. Bolte
Bolte from work for the next two days.2 He was also referred to Dr. Manuel Lozano, the
surgeon who had performed the 2007 hernia repair surgery.
On October 13,2008, Mr. Bolte again left work, but this time reported groin pain.
Because he had already worked five hours that shift, no absence points were assessed
against him. This was the first time the supervisor, Mr. Mee, had learned that Mr. Bolte
was suffering groin pain.
Toward the end of October, Mr. Bolte visited the company's safety coordinator,
Cammie McGrath, to discuss FMLA paperwork. He was hoping to reverse some of his
disciplinary points accumulated during prior absences related to his son's illness and his
earlier illnesses.
On November 6, 2008, Mr. Bolte saw Dr. Lozano as the result of the earlier
referral from Dr. Edgerly. Dr. Lozano concluded that the pain Mr. Bolte was
experiencing was unrelated to the prior hernia surgery. Mr. Bolte then returned to Dr.
Edgerly and, eventually, completed the appropriate Department of Labor and Industries
(DLI) paperwork for a self-insured employer. Mr. Bolte did not return to work after his
appointment with Dr. Lozano until February 25, 2010. 3
2 An extended absence counts as one point. 3 Mr. Bolte conceded that he would have received a three day suspension without pay, based on his accumulated absences, ifhe had returned to work after missing the day to see Dr. Lozano.
No. 32075-8-III Int 'I Paper v. Bolte
Mr. Bolte filed a claim for worker's compensation benefits based on the October 1
injury. The claim was allowed and International Paper promptly contested it. DLI
affirmed its order allowing the claim and International Paper appealed to the Board of
Industrial Insurance Appeals. An industrial appeals judge issued a proposed order
affirming DLI, and the full Board subsequently adopted that order. International Paper
appealed to Yakima County Superior Court.
There the matter proceeded to trial before a six person jury. The jury received
deposition testimony from Dr. Lozano. The doctor could not determine the cause of the
pain suffered in October 2008. While he initially suspected a strained muscle in the
inguinal region, he thought it also could be neurodynia, an irritation of the nerve in the
area of the mesh repair patch. 4 However, he could not say whether or not Mr. Bolte had
neurodynia.
After the testimony of Dr. Lozano and Mr. Jeffrey Mee, International Paper rested
its case. Mr. Bolte moved for a directed verdict. The trial judge denied the motion,
reasoning that the evidence allowed the jury to conclude that there could be another cause
for the injury and that Mr. Bolte had a motive to lie because of the disciplinary process he
was facing.
4A nerve block procedure, which should relieve pain from neurodynia, was performed in November 2009. The procedure did not relieve the pain; instead, the problem worsened.
Dr. Adrian Heap testified for Mr. Bolte and opined that Mr. Bolte suffered from
neurodynia that had been caused by the October 1 twisting injury. He also believed that
the original 2007 hernia had been the result of an unreported industrial injury. The issue
for the jury to resolve, then, was whether his current injury was caused by his employment
reawakening 5 his former problem or if the condition flared up on its own. Despite the
medical testimony, the jury unanimously returned its verdict in favor of International
Paper. Mr. Bolte then timely appealed to this court.
ANALYSIS
Mr. Bolte's appeal raises two contentions. He argues that the trial judge erred in
denying his request for a directed verdict and that the evidence did not support the jury's
verdict. Because the two issues concern the state of the evidence at trial, we will address
them together.
The trial court should grant a motion for a directed verdict under CR 50 when
"viewing the evidence and all inferences in a light most favorable to the nonmoving
party, substantial evidence does not exist to support the nonmoving party's claims." Joy
v. Dep't o/Labor & Indus., 170 Wn. App. 614, 619, 285 PJd 187 (2012). "Substantial
5 In workers' compensation parlance, this is known as the "light up" doctrine. E.g., Harbor Plywood Corp. v. Dep't Labor & Indus., 48 Wn.2d 553, 556, 295 P.2d 310 (1956).
evidence is the quantum of evidence sufficient to persuade a rational, fair-minded person
the premise is true." Id. This court conducts de novo review of motions for judgment as
a matter of law. Id.
The substantial evidence standard is also at issue in appellate review of a
challenge to the sufficiency of the evidence. Unlike other administrative appeals to this
court, by statute workers' compensation cases are reviewed "as in other civil cases."
RCW 51.52.140. On review in superior court, no new evidence is presented and the
case is heard de novo. RCW 51.52.115. Nonetheless, "the findings and decision of the
board shall be prima facie correct and the burden of proof shall be upon the party
attacking the same." Id. This means that the superior court can overturn the Board ruling
only after determining from a "preponderance of credible evidence" that the Board's
"findings and decision are incorrect." Ruse v. Dep' t ofLabor & Indus., 138 Wn.2d 1, 5,
977 P.2d 570 (1999) (internal quotations and citation omitted). In all cases, an appellate
court cannot substitute its view of the evidence for that of the trier of fact. E.g.,
Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570,575,343 P.2d 183 (1959).
With these standards in mind, we turn to Mr. Bolte's contentions. His motion for
directed verdict should have been granted if the record lacked substantial evidence to
show that the Board's ruling was incorrect. He argues that the court erred in denying the
motion because International Paper failed to provide medical evidence establishing that
No. 32075-8-111 Int'l Paper v. Bolte
his condition was not caused by the October 1 twisting. Appellant's Br. at 14. This
misstatement of International Paper's burden undergirds his entire appellate argument.
The proper question is not whether International Paper could prove the cause of Mr.
Bolte's condition, but whether it had sufficient evidence that the Board's decision was
wrong.
As the trial court reasoned, the evidence did allow the jury to conclude that some
other cause was at work here than the purported twisting injury of October 1. Dr. Lozano
had testified that he did not think the turning would result in the unusual strain reported
by Mr. Bolte. Mr. Mee explained Mr. Bolte's tenuous position due to attendance
problems; this provided a motive for fabricating a claim. There also was evidence that
Mr. Bolte had resumed strenuous leisure activities and returned from the hernia surgery
to full-time work for a period of time. The totality of this evidence permitted the jury to
determine that the October 1 incident was not the cause of Mr. Bolte's current injury, ifit
even believed he was injured at that time or not. Viewing the evidence in a light most
favorable to International Paper, as the trial court had to do with a CR 50 motion, there
was evidence in the record to permit the jury to conclude that the Board was wrong. The
court did not err by denying Mr. Bolte's motion.
For similar reasons, the challenge to the sufficiency of the evidence fails.
International Paper was not required to provide medical proof of the cause of the
condition. It was sufficient for it to simply show that there could be a different cause
than that found by the Board. Once again, the testimony of Dr. Lozano is critical.
Although Dr. Heap found that there was neurodynia, Dr. Lozano was uncertain. Based
on this conflict in the evidence, the jury was free to find that the Board erred in
determining that there was an injury. Dr. Lozano also opined that the twisting injury
might not have caused the strain that Mr. Bolte reported. Dr. Heap testified that the
neurodynia may well have resulted from the 2007 hernia repair rather than the twisting
incident (although he attributed the hernia itself to an unreported workplace injury).
Thus, the testimony of both doctors also allowed the jury to decide that Mr. Bolte's injury
was not proximately caused by the October 1 incident.
For both reasons-there was a conflict in the testimony concerning what injury
Mr. Bolte may have suffered, as well as the cause of any injury-there was substantial
evidence to support the jury's verdict. Even when starting from a favorable position such
as that created by RCW 51.52.115, a party in a de novo trial is free to attack the
sufficiency of the evidence to support the original ruling rather than try to establish the
actual cause of injury. Accordingly, ajury is free to reach a different decision than that
reached by the original tribunal either by reweighing the evidence or by believing
No. 32075-8-II1 Int 'I Paper v. Bolte
different evidence than that found credible in the initial action. This court, however, does
not have those luxuries and cannot substitute its view of the case for that of the jury.
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.
~rsmo,J.
WE CONCUR:
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