Kathryn Taylor v. Maxim Healthcare Services, Inc.

• Court: Court of Appeals of Washington
• Decided: October 6, 2020
• Docket: 36920-0
• Status: Unpublished

Opinion

FILED OCTOBER 6, 2020 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

KATHRYN TAYLOR, ) No. 36920-0-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) MAXIM HEALTHCARE SERVICES, ) INC., ) ) Appellant. )

LAWRENCE-BERREY, J. — Maxim Healthcare Services, Inc. (Maxim) appeals the

trial court’s determination that Kathryn Taylor’s November 2011 injury aggravated her

preexisting asymptomatic right hip osteoarthritis and was a proximate cause of her much

later right hip replacement surgery.

Maxim argues (1) the trial court failed to apply the correct legal standard for an

injury being “lit up,” (2) the osteoarthritis was naturally progressing and does not qualify

under the lighting up doctrine, (3) the trial court erred by placing too much weight on Ms.

Taylor’s attending physician, and (4) a later injury Ms. Taylor suffered broke the chain of

causation. We conclude the trial court did not err and affirm. No. 36920-0-III Taylor v. Maxim Healthcare Servs.

FACTS

Kathryn Taylor is a licensed practical nurse. In 2011, Ms. Taylor was employed by

Maxim Healthcare Services. Ms. Taylor’s duties while working for Maxim included

providing home care for medically fragile children and adults. Prior to November 15,

2011, Ms. Taylor worked for Maxim without restriction for almost 10 years, starting in

2002.

On November 15, 2011, Ms. Taylor was helping one of her clients when she

injured herself. Ms. Taylor had just finished helping the client into the shower when she

turned and felt “immediate excruciating pain” around her groin from front to back.

Administrative Board Record (ABR) at 161. Ms. Taylor had never felt this type of pain

before. Ms. Taylor informed her employer about the injury that same day and filed a

workers’ compensation claim the following day. This claim was accepted by the

Department of Labor and Industries on August 5, 2013. Because her symptoms did not

improve, on November 19, 2011, Ms. Taylor was treated at the emergency room.

Prior to this injury, Ms. Taylor had been seeing a chiropractor for several years in

order to help with various issues. Among these issues were her hands, shoulders, bilateral

hips, and her cervical, thoracic, and lumbar spine. Her right hip was one of the issues she

saw her chiropractor for.

2 No. 36920-0-III Taylor v. Maxim Healthcare Servs.

After her injury, Ms. Taylor underwent physical therapy. In addition, she had

medical management and light work duty. Ms. Taylor began experiencing difficulty

walking and performing household duties. On May 25, 2012, Ms. Taylor received a

magnetic resonance imaging (MRI) of her right hip. The MRI revealed chondromalacia

and tearing of the labrum with reactionary bursitis.

Dr. Patrick Lynch was Ms. Taylor’s attending physician for her orthopedic

surgery. Dr. Lynch first saw Ms. Taylor in April 2013, recommended a hip arthroscopy,

and performed the arthroscopy on May 8, 2013. He testified her hip pain was due to

arthritis and the labral tear. In his opinion, the November 2011 injury permanently

aggravated and accelerated Ms. Taylor’s underlying arthritis, which had been

asymptomatic until then. Dr. Lynch likened her labral tear injury to “putting gasoline on

a fire” and testified that in the case of osteoarthritis, a body normally has the ability to

repair itself, but regarding a traumatic injury like the one Ms. Taylor suffered, those

reparative processes are diminished. ABR at 452. Dr. Lynch based this opinion on the

MRI, Ms. Taylor’s description of her medical history, and his arthroscopic and operative

findings.

Following the surgery, Dr. Lynch met with Ms. Taylor for three office visits from

September 2013 through May 2014. She continued to experience visible discomfort with

3 No. 36920-0-III Taylor v. Maxim Healthcare Servs.

a limp and Dr. Lynch advised Ms. Taylor a right hip replacement would ultimately have

to be performed.

In 2014, Ms. Taylor went to work for another employer. While working for this

employer, she received another injury in October 2014. Dr. Daniel Schmidt was Ms.

Taylor’s attending physician for the October 30, 2014 injury. After learning about Ms.

Taylor’s previous injury, Dr. Schmidt supervised a course of conservative treatments. Dr.

Schmidt concluded the need for a right total hip replacement was not proximately caused

by the October 30, 2014 injury.

Dr. Eric Hofmeister examined Ms. Taylor on June 26, 2015, at the request of

Maxim. Dr. Hofmeister concluded that the need for a right total hip replacement was not

proximately caused by the October 30, 2014 injury. He further concluded the need for a

right total hip replacement was not proximately caused by the November 15, 2011 injury

and was the result of natural progression.

Dr. Schmidt disagreed with Dr. Hofmeister. Dr. Schmidt opined that Ms. Taylor’s

right hip had been permanently aggravated by the November 15, 2011 industrial injury

and required surgical replacement. We note that Dr. Lynch performs 7 to 10 hip

replacement surgeries per week and 5 to 7 hip arthroscopies per week whereas Dr.

Hofmeister’s practice emphasizes hand and upper extremity care.

4 No. 36920-0-III Taylor v. Maxim Healthcare Servs.

At the request of Maxim, Dr. Douglas Porter examined Ms. Taylor on June 16,

2016. Based on this examination, Dr. Porter concluded the November 15, 2011 injury did

not injure Ms. Taylor’s right hip in any way but only injured her back. Dr. Schmidt

disagreed with Dr. Porter.

Finally, on September 10, 2016, Maxim asked Dr. Scott Shawen to examine Ms.

Taylor. Dr. Shawen concluded Ms. Taylor had preexisting degenerative joint disease in

the right hip that was permanently aggravated or lit up by the November 2011 injury. Dr.

Shawen also testified medical research confirms a patient undergoing hip arthroscopy has

a greater chance of needing a hip replacement. However, he was not able to testify on a

more probable than not basis that Ms. Taylor’s hip arthroscopy caused her need for a hip

replacement.

On March 17, 2017, Dr. Lynch noted Ms. Taylor’s right hip had lost nearly all

internal rotation. On March 28, 2017, Dr. Lynch performed a total right hip replacement.

On January 26, 2017, the Department of Labor and Industries issued an “Order and

Notice” finding Maxim responsible for permanent aggravation of the degenerative joint

disease of the right hip and directing Maxim to authorize and pay for the total right hip

replacement surgery. ABR at 98. On April 17, 2017, the Department affirmed the

5 No. 36920-0-III Taylor v. Maxim Healthcare Servs.

January 26, 2017 order. Maxim timely filed an appeal of the Department’s Order and

Notice on May 15, 2017.

The Board of Industrial Insurance Appeals (BIIA) granted Maxim’s appeal and a

hearing was held on June 6, 2018. On September 28, 2018, the Industrial Appeals judge

issued a “Proposed Decision and Order” reversing the Department’s Order and Notice,

finding and concluding the November 2011 industrial injury did not aggravate Ms.

Taylor’s preexisting degenerative joint disease of the right hip and was not the proximate

cause of the need for a right hip replacement surgery. ABR at 64. Ms. Taylor filed a

“Petition for Review” with the BIIA. ABR at 22-46. The BIIA denied Ms. Taylor’s

petition and adopted the Proposed Decision and Order as the “Final Order” of the BIIA.

ABR at 4.

Ms. Taylor appealed the BIIA’s order to Spokane County Superior Court. A bench

trial was held and the trial court issued a written decision, reversing the BIIA and

remanding the matter to the Department to issue an order directing Maxim to accept

responsibility for the acceleration of Ms. Taylor’s preexisting asymptomatic right hip

degenerative joint disease and the total right hip replacement surgery. The trial court

issued a “Judgment & Order” with “Findings of Fact” and “Conclusions of Law”

6 No. 36920-0-III Taylor v. Maxim Healthcare Servs.

consistent with its written decision and awarding attorney costs and fees to Ms. Taylor.

Clerk’s Papers at 71-75.

Maxim timely filed this appeal.

ANALYSIS

SUPERIOR COURT AND APPELLATE COURT STANDARDS OF REVIEW

The superior court reviews the BIIA’s decision de novo. RCW 51.52.115. The

BIIA’s factual findings and decision are prima facie correct, and the burden of proof is on

the party attacking the same. Id. This prima facie presumption controls the superior

court’s decision unless it finds, from a fair preponderance of credible evidence, the

BIIA’s findings and decision are incorrect. City of Bellevue v. Raum, 171 Wn. App. 124,

139, 286 P.3d 695 (2012). If the trier of fact, be it judge or jury, reaches a conclusion

different than the BIIA, then the prima facie presumption of correctness has been

overcome. Groff v. Dep’t of Labor & Indus., 65 Wn.2d 35, 43, 395 P.2d 633 (1964).

When reviewing the superior court’s decision after an appeal from the BIIA’s

decision, this court reviews the record in the light most favorable to the party who

prevailed in superior court. Robinson v. Dep’t of Labor & Indus., 181 Wn. App. 415,

425, 326 P.3d 744 (2014). “We review only ‘whether substantial evidence supports the

trial court’s factual findings and then review, de novo, whether the trial court’s

7 No. 36920-0-III Taylor v. Maxim Healthcare Servs.

conclusions of law flow from the findings.’” Id. (internal quotation marks omitted)

(quoting Rogers v. Dep’t of Labor & Indus., 151 Wn. App. 174, 180, 210 P.3d 355

(2009)). Substantial evidence is evidence sufficient to persuade a fair-minded, rational

trier of fact. Id.

1. “LIGHTING UP” STANDARD

Maxim contends the trial court skipped the correct legal analysis and simply found

that Ms. Taylor’s right hip arthritic condition was asymptomatic before her November

2011 injury. It further argues the trial court ignored compelling evidence that Ms.

Taylor’s right hip arthritis was symptomatic before her injury. We disagree with both

arguments.

“The worker is to be taken as he or she is, with all his or her preexisting frailties

and bodily infirmities.” Dennis v. Dep’t of Labor & Indus., 109 Wn.2d 467, 471, 745

P.2d 1295 (1987). “[W]here a sudden injury ‘lights up’ a quiescent[1] infirmity or

weakened physical condition occasioned by disease, the resulting disability is attributable

to the injury and compensation is awarded.” Id. at 472.

We first must examine the trial court’s finding that Maxim contends was not

supported by substantial evidence. The trial court found that the November 2011 injury

1 Without symptoms.

8 No. 36920-0-III Taylor v. Maxim Healthcare Servs.

Ms. Taylor suffered caused her preexisting right hip osteoarthritis to become

symptomatic. Implied, is the finding that Ms. Taylor’s right hip arthritis was

asymptomatic at the time of her injury.

The trial court based its finding on Dr. Lynch’s testimony. He testified Ms.

Taylor’s right hip arthritis was asymptomatic and, more likely than not, was aggravated

by the November 2011 injury. The trial court also found Dr. Lynch to be the most

qualified of the medical witnesses on hip pathology.

Maxim urges us to disregard Dr. Lynch’s testimony on the basis that Dr. Lynch

had not reviewed Ms. Taylor’s chiropractic records that showed she received chiropractic

care a number of times before November 2011 for hip pain. Its argument would be

stronger if the chiropractic records were compelling. But they are not. Maxim showed

these chiropractic records to Dr. Schmidt during its cross-examination of him. Dr.

Schmidt conceded these records showed Ms. Taylor had hip pain before her November

2011 injury but disagreed that the hip pain described in these records was arthritic hip

pain. These chiropractic records did not alter Dr. Schmidt’s opinion that Ms. Taylor’s

right hip arthritis was asymptomatic prior to her November 2011 injury.

Ultimately, the question of whether Ms. Taylor’s November 2011 injury caused

her hip osteoarthritis to become symptomatic is a question of medically disputed fact.

9 No. 36920-0-III Taylor v. Maxim Healthcare Servs.

Some, like Dr. Hofmeister, testified the osteoarthritis was symptomatic before the injury.

Some, like Dr. Lynch and Dr. Schmidt, testified it was not.

This court will not reweigh the weight given by the trial court to disputed

evidence. The trial court’s finding that Ms. Taylor’s right hip arthritis was asymptomatic

before her November 2011 injury is supported by substantial evidence. As a

consequence, we conclude the trial court’s legal conclusion that the injury lit up a

preexisting condition is correct.

2. OSTEOARTHRITIS IS NATURALLY PROGRESSING

Maxim contends even if Ms. Taylor’s condition was asymptomatic, the trial court

still erred in concluding the November 2011 injury lit up her condition because it was a

naturally progressing condition. We disagree.

An underlying condition need not be work related to be compensable. Dennis, 109

Wn.2d at 475. Dennis quoted the basic aggravation rule: “‘[p]reexisting disease or

infirmity of the employee does not disqualify a claim under the arising out of employment

requirement if the employment aggravated, accelerated, or combined with the disease or

infirmity to produce the death or disability for which compensation is sought.’” Id. at

475 (internal quotation marks omitted).

10 No. 36920-0-III Taylor v. Maxim Healthcare Servs.

Here, Dr. Lynch testified that the 2011 injury accelerated Ms. Taylor’s underlying

osteoarthritis. Specifically, Dr. Lynch noted that without the injury, osteoarthritis has the

potential to recover on its own, but the 2011 labrum tear was like “putting gasoline on a

fire.” ABR at 452. As noted above, the trial court found Dr. Lynch to be the most

credible of the medical experts on the subject of hip pathology. We defer to this

credibility finding.

3. SPECIAL CONSIDERATION OF DR. LYNCH

Maxim contends the trial court erred by applying the wrong legal standard to the

rule requiring special consideration to the attending physician. It argues that Dr. Lynch’s

testimony was not reliable and the trial court overly relied on it. We disagree.

In Washington, the trier of fact for workers’ compensation cases should give

special consideration to the opinions of the claimant’s attending physician. Hamilton v.

Dep’t of Labor & Indus., 111 Wn.2d 569, 571, 761 P.2d 618 (1988). However, this does

not mean the trier of fact must give more weight or credibility to the attending physician’s

testimony, only that it should give the testimony careful thought. Id. at 572.

Maxim argues the trial court erred by giving more weight and credibility to Dr.

Lynch, Ms. Taylor’s attending physician. We disagree.

11 No. 36920-0-III Taylor v. Maxim Healthcare Servs.

While the special consideration rule does not require the trial court to give more

weight to the attending physician, it does not prevent the trial court from giving the

attending physician more weight. For instance, here Dr. Lynch had substantially more

medical experience with hip pathology than Maxim’s central expert witness, Dr.

Hofmeister. We conclude the trial court did not misapply the special consideration rule.

4. PROXIMATE CAUSE

Maxim contends the trial court erred by finding that the November 2011 injury

was the proximate cause of Ms. Taylor’s right hip surgery.2 It argues substantial evidence

shows that Ms. Taylor’s October 2014 injury broke the causation chain between her

November 2011 injury and her right hip replacement surgery. We disagree.

We review challenged findings to determine if they are supported by substantial

evidence. Robinson, 181 Wn. App. at 425. Substantial evidence is evidence sufficient to

persuade a fair-minded, rational trier of fact. Id. The trial court is not required to believe

one set of substantial evidence over another and, if substantial evidence supports two

different arguments, it can decide which it finds more persuasive. Raum, 171 Wn. App.

at 139.

2 This finding is contained in conclusion of law 4. Where a finding is mislabeled a conclusion, we review it as if it was a finding of fact. State v. Baker, 136 Wn. App. 878, 883, 151 P.3d 237 (2007).

12 No. 36920-0-III Taylor v. Maxim Healthcare Servs.

Here, two medical experts testified that the October 2014 injury was not a cause of

the total hip replacement. One of these was Maxim's medical expert, Dr. Hofmeister,

who examined Ms. Taylor for the October 2014 injury. The other was Dr. Schmidt, Ms.

Taylor's attending physician for the injury. While Maxim cites evidence that might be

substantial evidence in support of the idea that there was a break in causation, it is not the

review we conduct. We only review whether there was substantial evidence supporting

the trial court's challenged finding. We conclude that the two medical experts noted

above sufficiently support the trial court's challenged finding.

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.

Lawrence-Berrey, J.

WE CONCUR:

Q. ' c._:s: Pennell, C .J.