IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MICHAEL CONKLIN, No. 84488-1-I
Appellant, DIVISION ONE v.
THE BOEING COMPANY, and UNPUBLISHED OPINION WASHINGTON STATE DEPARTMENT OF LABOR & INDUSTRIES,
Respondents.
SMITH, C.J. — Michael Conklin filed a workers’ compensation claim with
the Department of Labor and Industries in 2011 following an onset of sudden
pain while working as a plane mechanic at Boeing. After years of contentious
litigation, the Department found that Conklin had misrepresented the severity of
his condition and ordered him to pay back the improperly obtained benefits. A
few months later, the Department directed Boeing to continue paying Conklin
time loss benefits, to accept responsibility for one of Conklin’s conditions, and to
authorize and pay for a rehabilitative surgery. Both parties appealed to the
Board of Industrial Insurance Appeals. The Board affirmed the order directing
Boeing to accept responsibility for Conklin’s condition but reversed the orders
authorizing surgery and directing payment. Conklin appealed to the superior
court, which affirmed the Board’s decision and closed Conklin’s claim. No. 84488-1-I/2
On appeal, Conklin makes various challenges to determinations made by
the Board and superior court, arguing that the latter exceeded its scope of review
by reaching issues not properly before the Board. Because all the issues Conklin
raises were before the Board, and therefore, the superior court, we affirm. FACTS 2015 Proceedings
Michael Conklin began working for Boeing as a structure mechanic in
January 2011. In April 2011, Conklin was cleaning the inside of an airplane
fuselage when he suddenly experienced an onset of full-body pain. Conklin filed
a claim with the Department of Labor and Industries (the Department) shortly
thereafter. In the meantime, Conklin continued to work light duty jobs with
Boeing. About a year after Conklin filed his claim, in May 2012, the Department
issued an order closing the claim. Conklin appealed the claim closure.
In 2015, following a jury trial in Snohomish County Superior Court, the
court entered a judgment and order concluding that Conklin’s lumbar
spondylolisthesis, lumbar spondylolysis, and degenerative cervical spine
conditions were proximately caused or aggravated by his occupational disease.1
1 “Occupational disease” is defined clinically and legally. A condition must satisfy three criteria to qualify as an occupational disease: (1) a physician must present an opinion that on a more probable than not basis, work conditions are a cause of the disease or have aggravated a preexisting condition; (2) objective medical findings support the diagnosis; and (3) the disease must arise “naturally and proximately” out of employment. W ASH. DEP’T OF LAB. & INDUS., OCCUPATIONAL DISEASE CLAIMS IN W ORKER’S COMPENSATION 2 (Feb. 2018), https:// www.lni.wa.gov/forms-publications/F252-117-000.pdf [https://perma.cc/Z58W- GM9S]; RCW 51.08.140.
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After the judgment and order, Conklin’s claim remained open and he continued to
seek treatment and benefits for his conditions through 2017.
Present Appeal
Three Department orders form the basis of the present appeal. First, on
July 20, 2018, the Department determined that Conklin willfully misrepresented
his conditions to obtain $95,236.76 in time loss compensation, ordered Conklin to
repay that amount, assessed a 50 percent penalty for willful misrepresentation,
and reversed its prior decision to close the claim. The Department came to this
conclusion after viewing evidence collected by Boeing’s private investigators
indicating that Conklin’s conditions were not as dire as he had previously
represented. Second, on August 15, 2018, the Department ordered Boeing to
pay time loss compensation to Conklin from June 9, 2017 through August 31,
2017. The Department did not explain its reasoning for this conclusion. Third,
on August 17, 2018, the Department ordered Boeing to authorize and pay for a
C5-6 and C6-7 cervical discectomy and fusion. The Department also did not
explain why it issued this order. However, this treatment could have addressed
problems caused by Conklin’s cervical myelopathy, a condition he claimed was
related to or exacerbated by his occupational disease. Conklin appealed the July
20 order finding he willfully misrepresented his conditions. Boeing appealed all
three orders, seeking claim closure.
The appeals were initially reviewed by an industrial appeals judge, who
concluded, in a proposed decision and order, that although Conklin
misrepresented his physical limitations, Boeing failed to establish that Conklin
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actually received the benefits alleged. The judge reversed the Department’s
finding of willful misrepresentation, but determined that Conklin was not entitled
to time loss compensation between June 1, 2015 and June 8, 2017. The judge
also denied the cervical discectomy and fusion procedures, but kept the claim
open for a lumbar injection to further treat Conklin’s lumbar spondylolisthesis and
spondylosis. Both parties petitioned the Board of Industrial Insurance Appeals
(Board) for review by a three judge panel.2
The Board held that Conklin misrepresented his physical limitations, but
that Boeing and the Department failed to prove that Conklin received $95,236.76
in time loss benefits during the period at issue. The Board reversed the
Department’s finding of willful misrepresentation and clarified that Conklin did not
owe an overpayment for June 1, 2015 through June 8, 2017. The Board also
concluded that Conklin’s preexisting cervical spine conditions and lumbar
spondylolisthesis and spondylosis were, at most, only temporarily aggravated by
the conditions of his employment. The Board concluded that those conditions
returned to pre-injury status “long before July 20, 2018.” It held that the
Department should not have authorized the C5-6 and C6-7 cervical discectomy
and fusion, that Conklin’s claim-related conditions were fixed and stable, and that
the claim must be closed.
Conklin appealed the Board’s decision and order to Snohomish County
Superior Court. The superior court affirmed the Board’s decision and order.
Conklin appeals.
2 The three judge panel is referred to by the parties as the “Board.”
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ANALYSIS Scope of Review
The Industrial Insurance Act (Act), chapter 51 RCW, confers a “purely
appellate function” on the Board and the superior court. Kingery v. Dep’t of Lab.
& Indus., 132 Wn.2d 162, 171, 937 P.2d 565 (1997); RCW 51.52.060; RCW
51.52.115. The Board hears appeals de novo, and its authority is “strictly limited
to reviewing the specific Department action” from which the parties appealed.
Kingery, 132 Wn.2d at 171. The Board may only consider and decide questions
included in the appealed order or raised by the notice of appeal. Cowlitz Stud
Co. v. Clevenger, 157 Wn.2d 569, 573, 141 P.3d 1 (2006); Hanquet v. Dep’t of
Lab. & Indus., 75 Wn. App. 657, 661, 879 P.2d 326 (1994).
On appeal to the superior court, the Board’s decision and order is
presumed correct and the party challenging that decision bears the burden of
proof. Gorre v. City of Tacoma, 184 Wn.2d 30, 36, 357 P.3d 625 (2015);
RCW 51.52.115. The superior court’s review is also de novo, but it relies
exclusively on the Board’s record and can decide only matters previously
determined by the Board or the Department. RCW 51.52.115; Malang v. Dep’t of
Lab. & Indus., 139 Wn. App. 677, 683, 162 P.3d 450 (2007). The court’s review
is further confined to issues of law or fact properly included in the notice of
appeal to the Board, or in the record of proceedings before the Board. RCW
51.52.115. “Thus, a superior court’s authority to determine an issue in a workers’
compensation case ‘depends upon whether or not the Board properly addressed
that issue.’ ” Matthews v. Dep’t of Lab. & Indus., 171 Wn. App. 477, 491, 288
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P.3d 630 (2012) (quoting Hanquet, 75 Wn. App. at 663-64). The Board’s
decision will be overturned only if the trier of fact finds by a preponderance of the
evidence that the findings and decision of the Board are incorrect. Cantu v. Dep’t
of Lab. & Indus., 168 Wn. App. 14, 20, 277 P.3d 685 (2012). Both the Board and
the superior court “have authority under the Act to reconsider decisions properly
appealed by one of the parties.” Kingery, 132 Wn.2d at 172 (emphases omitted).
Standard of Review
The scope of our review is narrow. In industrial insurance appeals, we
review the trial court’s decision, not the decision of the Board, and apply ordinary
civil standards of review. RCW 51.52.140; Peterson v. Dep’t of Lab. & Indus., 17
Wn. App. 2d 208, 217, 485 P.3d 338 (2021). We review “ ‘whether substantial
evidence supports the trial court’s factual findings and then review, de novo,
whether the trial court's conclusions of law flow from the findings.’ ” Rogers v.
Dep’t of Lab. & Indus., 151 Wn. App. 174, 180, 210 P.3d 355 (2009) (quoting
Watson v. Dep’t of Lab. & Indus., 133 Wn. App. 903, 909, 138 P.3d 177 (2006));
Ruse v. Dep’t of Lab. & Indus., 138 Wn.2d 1, 5-6, 977 P.2d 570 (1999).
Although the Board’s interpretation of the Industrial Insurance Act does
not bind us, “it is entitled to great deference.” Weyerhaeuser Co. v. Tri, 117
Wn.2d 128, 138, 814 P.2d 629 (1991). We recognize significant decisions of the
Board as persuasive authority in interpreting the Act. O’Keefe v. Dep’t of Lab. &
Indus., 126 Wn. App. 760, 766, 109 P.3d 484 (2005).
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Temporarily Totally Disabled Worker Status and Willful Misrepresentation
Conklin contends that after the superior court determined that Boeing
failed to prove all the elements of willful misrepresentation, it was outside the
court’s scope of review to enter findings related to willful misrepresentation. He
also argues that absent a finding of willful misrepresentation, the court could not
reach whether Conklin was a temporarily totally disabled worker entitled to time
loss compensation between June 1, 2015 and July 20, 2018. We disagree. The
Department orders appealed concerned willful misrepresentation and time loss
benefits during this time frame. To determine if Conklin willfully misrepresented
his condition or was entitled to time loss benefits, the Board and court needed to
first determine if Conklin was a temporarily totally disabled worker. Therefore,
these issues were properly before the superior court.
The Act entitles a worker to compensation if they are injured in the course
of their employment. RCW 51.32.010. A workplace injury may result in
temporary or permanent total disability. See Hubbard v. Dep't of Lab. & Indus.,
140 Wn.2d 35, 43, 992 P.2d 1002 (2000) (defining temporary total disability);
RCW 51.08.160 (defining permanent total disability). “Temporary total disability”
is a condition that temporarily incapacitates a worker from performing any gainful
employment. Hubbard, 140 Wn.2d at 43. If a worker cannot work as a result of
their industrial injury and is totally but only temporarily disabled, they have a right
to time loss compensation “so long as the total disability continues.” RCW
51.32.090(1); Value Village v. Vasquez-Ramirez, 11 Wn. App. 2d 590, 597, 455
P.3d 216 (2019). A worker’s right to time loss compensation terminates when
7 No. 84488-1-I/8
the worker recovers to a point that their “present earning power . . . is restored to
that existing at the time of the occurrence of the injury.” RCW 51.32.090(3)(a).
Thus, determining whether a worker is temporarily totally disabled is a
prerequisite to that worker receiving time loss benefits. See RCW 51.32.090.
If a worker wrongly receives time loss benefits, RCW 51.32.240 allows the
Department or a self-insurer3 to recoup overpayments in benefits based on
several statutory grounds, including “willful misrepresentation.” To prevail on a
willful misrepresentation claim, the Department or self-insurer must prove (1) a
willful false statement, misrepresentation, omission, or concealment of any
material fact, (2) specific intent of obtaining, continuing, or increasing benefits,
and (3) receipt by the claimant of benefits as a result of their actions or
statements. RCW 51.32.240(5). Proof that a worker lied about the true extent of
their physical capabilities is not by itself sufficient to prove willful
misrepresentation. In re Hejna, No. 02-24184 (Wash. Bd. of Indus. Ins. Appeals
Aug. 28, 2006) (Findings of Fact, Conclusions of Law, and Order), http://
biia.wa.gov/DO/0424184_ORD_20060828_DO.PDF [https://perma.cc/UF6B-
KL8G]. Instead, the Department or self-insurer must prove the worker was not
entitled to time loss benefits—in other words, that the worker was not temporarily
totally disabled. Matthews, 171 Wn. App. at 493-94 (non-entitlement to time loss
compensation was an essential element that the Department needed to prove
under RCW 51.32.240 to recoup benefits it had overpaid).
3 Boeing is a self-insurer.
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Here, the July 20 order, finding Conklin willfully misrepresented his
conditions, and the parties’ subsequent notices of appeal, provide the bases for
the superior court to reach whether Conklin willfully misrepresented his condition
and whether Conklin was a temporarily totally disabled worker between June 1,
2015 and July 20, 2018. The July 20 order stated: Time-loss compensation benefits were paid from 06/01/2015 through 06/08/2017, inclusive, to the claimant based upon the representation that he was unable to work. An investigation reveals that during the period of 06/01/2015 through 06/08/2017, the worker misrepresented his physical abilities, thereby resulting in an overpayment of benefits in the amount of $95,236.76 which was obtained by willful misrepresentation.
The July 20 order reversed a prior decision closing Conklin’s claim and instead
held his claim open so that he could continue receiving time loss benefits after
June 8, 2017 through the date of the July 20, 2018 order. Conklin appealed the
July 20 order, seeking “reversal of the determination that he engaged in willful
misrepresentation for the period from 6/1/2015 through 6/8/2017.”
The July 20 order, finding Conklin willfully misrepresented his conditions,
and Conklin’s subsequent appeal squarely placed willful misrepresentation
before the Board. Still, Conklin takes issue with the Board and superior court
entering any findings concerning willful misrepresentation after each concluded
that Boeing did not meet its burden of proof.4 He contends that entering such
4 Specifically, Conklin challenges the following finding: “Mr. Conklin misrepresented his physical limitations during the period of June 1, 2015 through June 8, 2017, but neither Boeing nor the Department presented evidence Mr. Conklin actually received time-loss compensation benefits he was not otherwise entitled to as a result of his willful misrepresentation in an attempt to obtain such compensation.”
9 No. 84488-1-I/10
findings “is contrary to liberal construction of the Act in favor of injured workers.”
But RCW 51.52.104 and RCW 51.52.106 required the Board to make written
findings and conclusions as to each contested issue of fact and law. Because
willful misrepresentation was a disputed issue, the Board was required to enter
findings as to willful misrepresentation. As this issue was properly before the
Board, it was appropriate for the superior court to review.
In his briefing on appeal, Conklin initially argues that after the superior
court determined Boeing did not prove all elements of willful misrepresentation, it
was precluded from determining whether he was a temporarily totally disabled
worker. He later concedes that the court could determine whether he was a
temporarily totally disabled worker between June 9, 2017 and August 31, 2017
because the Department’s August 15, 2018 order directed Boeing to pay time
loss benefits during that time period. Because the superior court needed to
determine Conklin’s status as a temporarily totally disabled worker to reach the
willful misrepresentation claim, this issue was properly before the superior court.
The crux of the matter is whether the time period alleged—June 1, 2015 to July
20, 2018—was properly before the court. We conclude that it was.
The July 20 willful misrepresentation order addressed time loss benefits
between June 1, 2015 and June 8, 2017. But, importantly, the July 20 order
corrected an earlier order that ended time loss benefits as of May 31, 2015 and
closed the claim as of that date. The July 20 order omitted language about
ending time loss benefits, seemingly reopening the claim. Boeing appealed the
July 20 order, contesting that it erroneously omitted language ending time loss
10 No. 84488-1-I/11
benefits as of May 31, 2015 and closing the claim. Because the parties disputed
whether time loss benefits were appropriate after May 31, 2015 through the July
20, 2018 order, it was appropriate for the superior court to determine if Conklin
was a temporarily totally disabled worker—and thus entitled to time loss
benefits—between those dates.
Cervical Myelopathy and Cervical Surgery
Conklin asserts that the Board’s September 25, 2019 order, which made
final a determination that Boeing was responsible for his cervical degenerative
disc disease, precluded the superior court from reversing the Department’s
August 17, 2018 order directing Boeing to authorize and pay for Conklin’s
cervical surgery to address his cervical myelopathy. Conklin contends that the
court erred in reaching whether his cervical myelopathy was causally related to
his work conditions and whether cervical surgery was necessary. Because the
order addressed Conklin’s cervical degenerative disc disease, and not his
cervical myelopathy, we disagree.
“Collateral estoppel, or issue preclusion, bars relitigation of an issue in a
subsequent proceeding involving the same parties.” Christensen v. Grant
County Hosp. Dist. No. 1, 152 Wn.2d 299, 306, 96 P.3d 957 (2004). For
collateral estoppel to apply, the party seeking application of the doctrine must
establish that (1) the issue decided in the earlier proceeding is identical to the
issue presented in the later proceeding; (2) the earlier proceeding resulted in a
final judgment on the merits; (3) the party against whom collateral estoppel is
asserted was a party in the prior adjudication; and (4) application of the doctrine
11 No. 84488-1-I/12
does not work an injustice on the party against whom it is applied. Reninger v.
Dep’t of Corrections, 134 Wn.2d 437, 449, 951 P.2d 782 (1998).
Here, Conklin fails to meet the first collateral estoppel prong, that the issue
decided in the Board’s September 25, 2019 order is identical to the one at bar.
The underlying Department order at issue directed Boeing “to authorize and pay
for the C5-6, C6-7 cervical discectomy and fusion.” The September 25 order
adopted an earlier industrial appeals judge’s proposed decision and order, which
affirmed yet another earlier order stating: “The Self Insured Employer is
responsible for the cervical degenerative disc disease.” In the earlier proposed
decision and order, the industrial appeals judge entered a conclusion of law
stating that Michael Conklin’s cervical degenerative disc disease arose naturally and proximately out of the same distinctive conditions of employment that proximately caused and/or aggravated the condition for which this claim was allowed. The Self Insured Employer is responsible for Michael Conklin’s cervical degenerative disc disease.
Though this conclusion of law makes Conklin’s cervical degenerative disc
disease an accepted condition, it does not address what treatment is reasonable
and necessary. Therefore, it does not require Boeing to authorize any treatment
nor preclude Boeing from contesting whether a treatment is reasonable and
necessary. See RCW 51.36.010 (treatment for worker’s occupational disease
must be “proper and necessary”).
As an alternative argument, Conklin asserts that the surgery was
appropriate treatment for his cervical myelopathy, which he claims is caused by
12 No. 84488-1-I/13
degenerative changes in the spine. In determining whether a condition should be
accepted in an occupational disease claim, the issue is whether the condition
was proximately caused by the occupational disease or by the same distinctive
conditions that caused the original conditions. Street v. Weyerhaeuser Co., 189
Wn.2d 187, 194, 399 P.3d 1156 (2017).
Here, the testimony before the Board indicates that Conklin’s cervical
myelopathy was not proximately caused by his occupational disease. Conklin’s
expert witness, Dr. Michael Wright could not offer an opinion about whether
Conklin’s cervical myelopathy was caused by either an industrial injury or
Conklin’s occupational disease. When asked if he had an explanation as to how
the cervical myelopathy developed, Dr. Wright responded: “I do not.” Dr. Wright
also opined that he didn’t know “if [Conklin]’s ever had an industrial injury to his
neck.” He stated that when he examined Conklin, Conklin had “cervical
myelopathy from cervical spinal stenosis” and that it “would be unusual for
[Conklin] to acquire that type of injury from cleaning airplanes.” Dr. Wright’s
choice of words—that myelopathy comes from spinal stenosis—implies that the
myelopathy was not caused or related to Conklin’s cervical degenerative disc
disease. None of the testimony elicited by either party addressed whether
cervical myelopathy and cervical degenerative disc disease were related
conditions. Accordingly, there is not sufficient evidence to support Conklin’s
claim that the two conditions are linked. We conclude that sufficient evidence
supported the court’s determination that the treatment was unrelated to Conklin’s
occupational disease.
13 No. 84488-1-I/14
Temporarily or Permanently Aggravated Condition
Conklin asserts that the superior court exceeded the scope of its review by
determining his cervical and lumbar degenerative disc diseases were only
temporarily aggravated because the 2015 judgment determined causation, not
duration. Because one of the orders on appeal implicitly addressed whether
Conklin’s conditions were caused or aggravated on a temporary or permanent
basis, we disagree.
The July 20 willful misrepresentation order omitted language from the
original February 20 order on willful misrepresentation that treatment was “no
longer necessary” and that Conklin was not entitled to permanent partial
disability. In its appeal of the July 20 order, Boeing objected to the “reversal of
claim closure without [permanent partial disability].” Thus, whether Conklin’s
conditions were permanent or temporary was before the Board and therefore,
before the superior court.
Conklin’s claim that the superior court was precluded from reaching
whether his conditions were temporary because the 2015 judgment only
addressed causation is unavailing. The 2015 judgment did not state that it
applied to Conklin’s conditions in perpetuity. Moreover, Conklin appears to
misunderstand the superior court’s scope of review. Once raised by Boeing in its
notice of appeal (and reversed by the appealed July 20 order), this issue was
properly before the Board and superior court. We conclude that the court did not
exceed the scope of its review by determining Conklin’s conditions were only
temporarily aggravated.
14 No. 84488-1-I/15
Claim Closure
Conklin maintains that there was no legal authority for the superior court to
close his claim based on the July 20 order after the Board reversed the willful
misrepresentation determination and affirmed that his cervical degenerative disc
disease was causally related to his work conditions. We are unconvinced.
The July 20 order superseded an earlier order closing Conklin’s claim.
Boeing’s notice of appeal specifically stated that it was appealing “reversal of
claim closure.” The effect of the July 20 order and Boeing’s notice of appeal
placed the issue of claim closure squarely before the Board and the superior
court.
It is unclear from Conklin’s briefing how reversal of the willful
misrepresentation finding and a causation determination regarding cervical
degenerative disc disease are related to claim closure. Conklin seems to argue
that Boeing’s appeal of the July 20 order cannot raise issues from the earlier
order. But this attempt to limit the superior court’s review to the substance of the
July 20 order is unavailing. The July 20 order and the earlier order are inherently
related—the former overturned the latter. If the opposite were true, Boeing would
have no recourse to protest the changes made to the earlier order. We conclude
that claim closure was properly within the superior court’s scope of review.
Challenges to Findings of Fact and Conclusions of Law
Conklin assigns error to a number of findings of fact and conclusions of
law made by the superior court but does not devote any part of his briefing to
arguments explicitly addressing these findings and conclusions. “A party that
15 No. 84488-1-I/16
offers no argument in its opening brief on a claimed assignment of error waives
the assignment.” Brown v. Vail, 169 Wn.2d 318, 336 n.11, 237 P.3d 263 (2010).
These assignments related to his arguments about willful misrepresentation, time
loss entitlement, causation, and claim closure, and were addressed in that
portion of his briefing and in the corresponding portion of this opinion.
The challenged findings and conclusions roughly follow Conklin’s issue
statements and can be grouped together by subject matter. Finding 8 and
conclusion 2 concern willful misrepresentation and whether Conklin was a
temporarily totally disabled worker entitled to time loss compensation. [Finding] 8: Mr. Conklin misrepresented his physical limitations during the period of June 1, 2015 through June 8, 2017, but neither Boeing nor the Department presented evidence Mr. Conklin actually received time-loss compensation benefits he was not otherwise entitled to as a result of his willful misrepresentation in an attempt to obtain such compensation. [Conclusion] 2: From June 1, 2015 through July 20, 2018, Conklin was not a temporarily totally disabled worker within the meaning of RCW 51.32.090.
Findings 4 and 5 and conclusions 4, 5a, and 5b concern whether Conklin’s
accepted conditions and his cervical myelopathy were proximately related to his
occupational disease and whether treatment for those conditions was necessary
and proper. [Finding] 4: On April 18, 2011, Mr. Conklin’s occupational disease manifested when he experienced sudden whole-body pain while cleaning the inside of an airplane fuselage. The following preexisting conditions were temporarily aggravated by the same distinctive conditions of employment in the allowed occupational disease claim: lumbar spondylolisthesis, lumbar spondylolysis, and degenerative cervical spine conditions.
16 No. 84488-1-I/17
[Finding] 5: Mr. Conklin’s cervical myelopathy, and his advanced degenerative changes in the L4-L5 and L5-S1 levels of his lumbar spine were not caused by Mr. Conklin’s occupational disease, nor did they arise naturally and proximately out of the same distinctive conditions of employment as Mr. Conklin’s occupational disease. [Conclusion] 4: Department orders dated July 20, 2018, August 15, 2018, and August 17, 2018 are incorrect and are reversed. [Conclusion] 5a: To deny treatment (specifically the C5-6 and C6-7 cervical discectomy and fusion, and the lumbar epidural steroid injection recommended by Dr. Wright). [Conclusion] 5b: To deny responsibility under this claim for the conditions known as cervical myelopathy and advanced degenerative changes in the L4-5 and L5- S1 levels of Conklin’s lumbar spine.
Finding 4 and 6 and conclusions 1, 4, and 5e concern causation, medical
fixity, and claim closure. [Finding] 4: On April 18, 2011, Mr. Conklin’s occupational disease manifested when he experienced sudden whole-body pain while cleaning the inside of an airplane fuselage. The following preexisting conditions were temporarily aggravated by the same distinctive conditions of employment in the allowed occupational disease claim: lumbar spondylolisthesis, lumbar spondylolysis, and degenerative cervical spine conditions. [Finding] 6: As of July 20, 2018, all claim-related conditions, including but not limited to Mr. Conklin’s aggravated preexisting lumbar spondylolisthesis, lumbar spondylolysis, and degenerative cervical spine conditions were fixed and stable and required no further proper and necessary treatment. [Conclusion] 1: As of July 20, 2018, the claim related aggravation to Conklin’s preexisting conditions were fixed and stable and he was not entitled to further treatment. [Conclusion] 4: Department orders dated July 20, 2018, August 15, 2018, and August 17, 2018 are incorrect and are reversed. [Conclusion] 5e: To close the claim effective July 20, 2018.
17 No. 84488-1-I/18
To the extent that these findings are intertwined with the above discussion
about the superior court’s scope of review, we conclude that they are supported
by substantial evidence. Those that are unaddressed, we decline to review. See
State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990) (“This court will not
consider claims insufficiently argued by the parties.”).
Attorney Fees
Conklin requests attorney fees under RCW 51.52.130, which provides a
fixed fee for workers who receive additional relief on appeal. Boeing requests
attorney fees under RAP 14.2, which allows this court to award fees and costs to
the substantially prevailing party. Because Conklin does not receive additional
relief on appeal, we do not award him fees. And because Boeing substantially
prevails on appeal, we award it fees.
We affirm.
WE CONCUR: