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FILED JANUARY 4, 2024 In the Office of the Clerk of Court WA State Court of Appeals Division III
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON
JANICE BRINSON-WAGNER, ) No. 39388-7-III ) Appellant, ) ) v. ) ORDER GRANTING MOTION ) TO PUBLISH OPINION KENNEWICK SCHOOL DISTRICT, AND ) THE DEPARTMENT OF LABOR AND ) INDUSTRIES, ) ) Respondents.
THE COURT has considered the Department of Labor and Industries’ motion to
publish the court’s opinion of November 16, 2023, the Appellant’s response thereto and
the record and file herein, and is of the opinion the motion should be granted.
Therefore,
IT IS ORDERED, the motion to publish is granted. The opinion filed by the court
on November 16, 2023, shall be modified on page 1 to designate it is a published
opinion and on page 12 by deletion of the following language:
A majority of the panel has determined that 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.
PANEL: Judges Cooney, Fearing, Staab
FOR THE COURT:
___________________________________ GEORGE B. FEARING Chief Judge For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
FILED NOVEMBER 16, 2023 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
JANICE BRINSON-WAGNER, ) ) No. 39388-7-III Appellant, ) ) v. ) ) KENNEWICK SCHOOL DISTRICT, ) UNPUBLISHED OPINION AND THE DEPARTMENT OF LABOR ) AND INDUSTRIES, ) ) Respondents. ) COONEY, J. — Janice Brinson-Wagner suffered an injury to her left ankle
(industrial injury) while working for the Kennewick School District (School District).
She filed a worker’s compensation claim with the Department of Labor and Industries
(Department), which was accepted as an industrial injury. Ms. Brinson-Wagner
underwent an ankle replacement surgery. A few years later, Ms. Brinson-Wagner
claimed that the industrial injury necessitated a left knee replacement. After a series of
appeals, it was determined that the knee injury was unrelated to her industrial injury.
Nevertheless, the Board of Industrial Insurance Appeals (Board) authorized a knee
replacement to aid in the recovery of her industrial injury. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 39388-7-III Brinson-Wagner v. Kennewick Sch. Dist., et al.
The Department later issued an order closing Ms. Brinson-Wagner’s claim. Ms.
Brinson-Wagner appealed, arguing she needed an additional left knee surgery. The
Board disagreed and closed her claim. On appeal to the superior court, summary
judgment was granted in favor of the School District. Ms. Brinson-Wagner appeals.
We affirm.
BACKGROUND
In 2008, Ms. Brinson-Wagner was working as a para-educator for the School
District when one of her students, who was working with an occupational bar, fell
backwards onto her left leg and ankle. Ms. Brinson-Wagner filed a worker’s
compensation claim with the Department, and her left ankle injury was accepted as an
industrial injury. She underwent left ankle replacement surgery in 2014, which the
School District covered.
A few years later, Ms. Brinson-Wagner claimed the industrial injury caused her
need for a left knee replacement. The Board disagreed and instead concluded her knee
condition was the result of the natural progression of degenerative arthritis. Nonetheless,
the Board directed that the left knee replacement be authorized by the Department as an
aid to recovery of the industrial injury pursuant to WAC 296-20-055. On appeal, the
Board’s decision was affirmed by both the superior court and this court. In 2018, Ms.
Brinson-Wagner received a left knee replacement.
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No. 39388-7-III Brinson-Wagner v. Kennewick Sch. Dist., et al.
In 2020 the Department issued an order closing Ms. Brinson-Wagner’s claim with
a permanent impairment award related to her left ankle. Ms. Brinson-Wagner appealed
the closure of her claim and a hearing before an industrial appeals judge (IAJ) was held.
At the hearing, Ms. Brinson-Wagner testified that her surgeon told her in 2020 that her
ankle was as good as it was going to get. She also testified that the “ankle was looking
well-set” and that any loss of movement was just “the way it was going to be.” Clerk’s
Papers (CP) at 147.
Dr. Anne McCormack, who performed an independent medical examination of
Ms. Brinson-Wagner on behalf of the Department, testified by perpetuation deposition.
Dr. McCormack agreed with Ms. Brinson-Wagner’s surgeon who had previously told
Ms. Brinson-Wagner that the ankle was “as good as [it] was going to get.” CP at 222.
She testified that further treatment of Ms. Brinson-Wagner’s knee would do nothing to
change the condition of the ankle and that the ankle was stable.
Dr. Mark Reed Merrell, Ms. Brinson-Wagner’s orthopedic surgeon, also testified.
Dr. Merrell said he performed Ms. Brinson-Wagner’s knee replacement and a subsequent
surgery to remove scar tissue from her knee. Dr. Merrell testified that he thought a third
surgery was necessary and proper. Dr. Merrell agreed with Dr. McCormack that the
ankle was fixed and stable.
Dr. William Faloon also performed an independent medical examination of Ms.
Brinson-Wagner. Dr. Faloon testified that at the time of his examination, Ms. Brinson-
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 39388-7-III Brinson-Wagner v. Kennewick Sch. Dist., et al.
Wagner’s ankle was medically fixed and stable. Dr. Faloon also agreed with Dr.
McCormack and Ms. Brinson-Wagner’s surgeon that the ankle was as good as it was
going to get. He opined that Ms. Brinson-Wagner’s knee condition was not limiting her
ankle rehabilitation.
Following the hearing, the IAJ issued a proposed decision and order reversing the
Department and directing further treatment of Ms. Brinson-Wagner’s knee. The School
District petitioned for review to the Board. Thereafter, the Board reversed the IAJ’s
proposed decision and order and affirmed the closure of Ms. Brinson-Wagner’s claim.
Ms. Brinson-Wagner appealed the Board’s decision to the superior court.
On appeal to the superior court, the School District filed a motion for summary
judgment. The School District argued res judicata barred relitigating the relatedness of
Ms. Brinson-Wagner’s knee condition to the industrial injury. It argued that the Board’s
earlier conclusion that the knee condition was unrelated to the industrial injury and that
its decision to nevertheless allow treatment of the knee to aid in recovery of the industrial
injury was final and binding. The School District further argued that because all parties
agreed that Ms. Brinson-Wagner’s ankle was fixed and stable and that additional
treatment to the knee would not aid in its recovery, there was no genuine issue of material
fact related to whether further treatment of the knee was necessary to heal the industrial
injury.
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No. 39388-7-III Brinson-Wagner v. Kennewick Sch. Dist., et al.
Ms. Brinson-Wagner responded that there was a genuine issue of material fact
related to whether her industrial injury was the proximate cause of her continued knee
pain and limited range of motion, thus rendering summary judgment inappropriate. Ms.
Brinson-Wagner also argued that the compensable consequences doctrine entitled her to
further treatment for her knee.
The superior court concluded that res judicata precluded Ms. Brinson-Wagner
from relitigating the issue of whether her knee condition was proximately related to the
industrial injury. It also determined that the compensable consequences doctrine was
inapplicable and that there was no dispute that Ms. Brinson-Wagner “was medically
fixed and stable with regard to all conditions proximately related to the industrial injury.”
CP at 341. Accordingly, the superior court affirmed the Board’s closure of her claim.
Ms. Brinson-Wagner appeals.
ANALYSIS
Ms. Brinson-Wagner argues that the superior court erred in granting the School
District’s motion for summary judgment because genuine issues of material fact exist
regarding whether a further surgery would increase mobility and reduce pain in her left
knee. The record undisputedly reveals that Ms. Brinson-Wagner is medically fixed and
stable with regard to all conditions proximately related to the industrial injury. Further,
res judicata bars Ms. Brinson-Wagner from relitigating the relatedness of the knee
condition. Accordingly, we affirm.
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No. 39388-7-III Brinson-Wagner v. Kennewick Sch. Dist., et al.
We review orders on summary judgment de novo. Keck v. Collins, 184 Wn.2d
358, 370, 357 P.3d 1080 (2015). Summary judgment is only appropriate if there are no
genuine issues of material fact and the moving party is entitled to judgment as a matter of
law. Id.; CR 56(c). The moving party bears the initial burden of establishing that there
are no disputed issues of material fact. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225,
770 P.2d 182 (1989). “A material fact is one upon which the outcome of the litigation
depends in whole or in part.” Atherton Condo. Apartment-Owners Ass’n Bd. of Dirs. v.
Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990).
When considering a motion for summary judgment, evidence is considered in a
light most favorable to the nonmoving party. Keck, 184 Wn.2d at 370. If the moving
party satisfies its burden, then the burden shifts to the nonmoving party to establish there
is a genuine issue for the trier of fact. Young, 112 Wn.2d at 225-26. While questions of
fact typically are left to the trial process, they may be treated as a matter of law if
“reasonable minds could reach but one conclusion.” Hartley v. State, 103 Wn.2d 768,
775, 698 P.2d 77 (1985).
A nonmoving party may not rely on speculation or having its own affidavits
accepted at face value. Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 13,
721 P.2d 1 (1986). Instead, a nonmoving party must put “forth specific facts that
sufficiently rebut the moving party’s contentions and disclose that a genuine issue as to a
material fact exists.” Id.
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No. 39388-7-III Brinson-Wagner v. Kennewick Sch. Dist., et al.
RES JUDICATA
“Res judicata precludes litigation of an entire claim when a prior proceeding
involving the same parties and issues culminated in a judgment on the merits.” Weaver v.
City of Everett, 194 Wn.2d 464, 480, 450 P.3d 177 (2019). Res judicata applies where a
prior final judgment is identical to the challenged action in subject matter, cause of
action, persons and parties, and the quality of persons for whom or against the claim is
made. Id. If a claim is barred by res judicata, it is a basis for ordering summary
judgment. Penner v. Cent. Puget Sound Transit Auth., 25 Wn. App. 2d 914, 923-31,
525 P.3d 1010, review denied, 1 Wn.3d 1026, 534 P.3d 788 (2023).
Ms. Brinson-Wagner claims a genuine issue of material fact exists as to whether a
further procedure is appropriate and necessary to increase the range of motion and
decrease the pain in her left knee. Before the superior court, Ms. Brinson-Wagner’s
argument differed. There, she argued a genuine issue of material fact existed related to
whether her continued knee pain and lack of range of motion were proximately caused by
her industrial injury. Regardless of which argument Ms. Brinson-Wagner advances, the
relatedness of her knee condition to the industrial injury has already culminated in a
judgment on the merits.
The Board issued a final and binding order that concluded Ms. Brinson-Wagner’s
knee injury was unrelated to the industrial injury. The Board’s determination was
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 39388-7-III Brinson-Wagner v. Kennewick Sch. Dist., et al.
affirmed by the superior court and by the Court of Appeals. CP at 301, 313-25; Brinson-
Wagner v. Kennewick Sch. Dist., No. 36980-3-III, slip op. at *5 (Wash. Ct. App. June 25,
2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/369803_unp.pdf. The
doctrine of res judicata precludes Ms. Brinson-Wagner from relitigating the relatedness
of her knee condition to the industrial injury.
TREATMENT TO AID IN RECOVERY OF INDUSTRIAL INJURY
The Board previously ordered Ms. Brinson-Wagner’s knee condition be
temporarily treated pursuant to WAC 296-20-055. Accordingly, the School District
covered a total knee replacement as an aid to her recovery from the industrial injury.
WAC 296-20-055 provides:
Conditions preexisting the injury or occupational disease are not the responsibility of the department. When an unrelated condition is being treated concurrently with the industrial condition, the attending doctor must notify the department or self-insurer immediately and submit the following: (1) Diagnosis and/or nature of unrelated condition. (2) Treatment being rendered. (3) The effect, if any, on industrial condition. Temporary treatment of an unrelated condition may be allowed, upon prior approval by the department or self-insurer, provided these conditions directly retard recovery of the accepted condition. The department or self-insurer will not approve or pay for treatment for a known preexisting unrelated condition for which the claimant was receiving treatment prior to his industrial injury or occupational disease, which is not retarding recovery of his industrial condition. A thorough explanation of how the unrelated condition is affecting the industrial condition must be included with the request for authorization. The department or self-insurer will not pay for treatment of an unrelated condition when it no longer exerts any influence upon the
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 39388-7-III Brinson-Wagner v. Kennewick Sch. Dist., et al.
accepted industrial condition. When treatment of an unrelated condition is being rendered, reports must be submitted monthly outlining the effect of treatment on both the unrelated and the accepted industrial conditions.
(Emphasis added.) To overcome the School District’s motion for summary judgment,
Ms. Brinson-Wagner would have to present evidence that her knee condition continued to
“directly retard recovery of the accepted condition.” WAC 296-20-055.
The record is void of any evidence showing Ms. Brinson-Wagner’s knee injury is
impairing the healing of her ankle. Ms. Brinson-Wagner’s own physician, Dr. Merrell,
testified that her ankle condition was fixed and stable. Dr. McCormack agreed with Ms.
Brinson-Wagner’s surgeon’s assessment that the ankle was as good as it was going to get.
Likewise, Dr. Faloon testified that Ms. Brinson-Wagner’s ankle condition was medically
fixed and stable. Ms. Brinson-Wagner agreed that her “ankle was looking well-set” and
that any loss of movement or mobility was “the way it was going to be.” CP at 147-48.
The evidence in the record affirms Ms. Brinson-Wagner’s ankle condition is medically
fixed and stable. Consequently, Ms. Brinson-Wagner’s knee condition is not retarding
the recovery of her industrial injury.
COMPENSABLE CONSEQUENCES
In the alternative, Ms. Brinson-Wagner argues her knee condition should be
covered under the compensable consequences doctrine. “Washington has recognized the
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No. 39388-7-III Brinson-Wagner v. Kennewick Sch. Dist., et al.
rule, referred to as the compensable consequences doctrine, which establishes that if
treatment performed for an industrial injury causes complications or aggravates the
injury, the claim covers the sequelae of treatment.” Clark County v. Maphet, 10 Wn.
App. 2d 420, 438, 451 P.3d 713 (2019). Ms. Brinson-Wagner posits that Maphet does
not distinguish between treatment meant to treat the condition allowed under the claim
(industrial injury) and the treatment performed as an aid to recovery. We disagree with
her interpretation of Maphet.
The rule outlined in Maphet states that the compensable consequences doctrine
covers complications or aggravations resulting from treatment of the “industrial injury.”
Id. Further, in Maphet, the compensable consequences doctrine was being applied to
allow further treatment of the industrial injury. Id. at 423-29, 439-43. Unlike the facts of
Maphet, here, Ms. Brinson-Wagner’s industrial injury was not the proximate cause of her
knee condition. The Board authorized treatment of her knee condition solely to aid in the
healing of the industrial injury. Thus, the compensable consequences doctrine does not
apply.
ATTORNEY FEES
Both parties request attorney fees on appeal. Ms. Brinson-Wagner requests
attorney fees and costs pursuant to RCW 51.52.130 and RAP 18.1. We decline her
request as she is not the prevailing party, nor was the decision of the Board modified.
Additionally, Ms. Brinson-Wagner’s appeal does not involve the presumption of
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 39388-7-III Brinson-Wagner v. Kennewick Sch. Dist., et al.
occupational disease for firefighters and fire investigators established under
RCW 51.32.185.
The School District requests an award of attorney fees under RCW 4.84.080 and
costs under RAP 14. “The general rule is that in absence of statute or recognized ground
of equity, the court has no power to award attorney’s fees as part of the costs of
litigation.” Dept. of Lab. & Indus. v. Dillon, 28 Wn. App. 853, 857, 626 P.2d 1004
(1981). The School District fails to provide any specific statutory authority that would
entitle it to attorney fees. Rather, the School District cites generally to RCW 4.84.080
and RAP 14 in arguing it is entitled to its attorney fees and costs.
RCW 4.84.080 provides: “When allowed to either party, costs to be called the
attorney fee, shall be as follows . . . .” (Emphasis added.) It is unclear how RCW
4.84.080 would entitle the School District to attorney fees. Similarly, RAP 14.3 simply
explains what expenses are allowed as costs. It is again unclear how RAP 14 would
entitle the School District to costs. We decline the School District’s request for attorney
fees and costs.
CONCLUSION
Res judicata bars Ms. Brinson-Wagner from relitigating the relatedness of her
knee condition to the industrial injury. The compensable consequences doctrine does not
cover treatment provided to aid in the recovery of the industrial injury. Ms. Brinson-
Wagner has failed to present any admissible evidence showing her industrial injury is not
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No. 39388-7-III Brinson-Wagner v. Kennewick Sch. Dist., et al.
medically fixed and stable. We affirm the superior court’s order granting summary
judgment in favor of the School District. We decline to award fees to either party.
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.
Cooney, J.
WE CONCUR:
Fearing, C.J.
Staab, J.