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FILED JANUARY 31, 2023 In the Office of the Clerk of Court WA State Court of Appeals, Division III
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON RAFAEL BARRETO GARCIA, ) No. 38676-7-III ) Respondent, ) ) v. ) ORDER GRANTING ) MOTION TO PUBLISH STEMILT GROWERS, ) ) Appellant. )
THE COURT has considered respondent’s motion to publish the court’s opinion
filed on December 13, 2022, and the response thereto, and is of the opinion the motion
to publish should be granted. Therefore,
IT IS ORDERED the motion to publish is granted. The opinion filed by the court
on December 13, 2022, shall be modified on page 1 to designate it is a published
opinion and on page 13 by deletion of the following language:
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.
PANEL: Judges Lawrence-Berrey, Fearing, and Staab
FOR THE COURT:
________________________________ LAUREL SIDDOWAY CHIEF JUDGE For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
FILED DECEMBER 13, 2022 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
RAFAEL BARRETO GARCIA, ) No. 38676-7-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) STEMILT GROWERS, ) ) Appellant. )
LAWRENCE-BERREY, A.C.J. — Stemilt Growers appeals the trial court’s order
reopening Rafael Barreto Garcia’s industrial insurance claim on the basis that his
condition is not “fixed and stable” within the meaning of WAC 296-20-01002(3). We
hold that a condition is not “fixed and stable” if a fundamental or marked change in an
accepted condition can be expected with or without treatment. In so holding, we affirm
the superior court and grant Mr. Barreto Garcia’s request for attorney fees.
FACTS
In October 2016, Rafael Barreto Garcia fell from an orchard ladder while picking
apples for Stemilt Growers, a self-insured employer. As he fell, his chest hit a branch.
Workers called an ambulance. On the way to the hospital, Mr. Barreto Garcia suffered For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 38676-7-III Barreto Garcia v. Stemilt Growers
cardiac arrest. He remained in a coma for eight days and was discharged eight days later.
Since his industrial accident, he has returned to Mexico and has not worked because even
light exertion causes him to have difficulty breathing.
On January 9, 2018, the Department of Labor and Industries (Department) notified
Mr. Barreto Garcia it was closing his claim because “[t]he medical record shows
treatment is no longer necessary and there is no permanent partial disability.” Clerk’s
Papers (CP) at 88. Mr. Barreto Garcia requested reconsideration, but the Department
affirmed its decision and closed his claim on March 22.
Administrative appeal
Mr. Barreto Garcia appealed the Department’s decision. In his written notice of
appeal, he requested treatment, time loss, and permanent partial disability or permanent
total disability. At the hearing, he argued he was entitled to further proper and necessary
medical treatment, and he was temporarily totally disabled through March 22, 2018, the
claim closure date.
Mr. Barreto Garcia’s treating physician, Dr. Jose Puente, testified telephonically at
the February 7, 2019 administrative hearing. Dr. Puente had been seeing Mr. Barreto
Garcia approximately monthly since March 2017. Testing showed problems in Mr.
Barreto Garcia’s left ventricle. Dr. Puente explained, “it’s difficult for the heart to relax
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
and to fill up with blood, and that causes . . . difficulty in the ventricular function.”
CP at 100. He diagnosed Mr. Barreto Garcia’s condition as heart failure caused by
trauma to his chest from the industrial injury.
Dr. Puente had seen discrete improvements with fluctuations as he adjusted Mr.
Barreto Garcia’s medications. The medications Dr. Puente prescribed were “support
treatment” that would not heal Mr. Barreto Garcia’s condition. CP at 101.
Dr. Puente testified that Mr. Barreto Garcia’s physical limitations would not
improve with time. However, if Mr. Barreto Garcia ceased taking his medications, he
“would develop difficulty breathing, and possibly after that he would develop pulmonary
edema requiring hospital admission.” CP at 111.
Dr. Daniel Gottlieb, Stemilt Growers’s consulting expert, linked all of Mr. Barreto
Garcia’s heart dysfunction to preexisting high blood pressure unrelated to the claimant’s
industrial injury. He “disagree[d] with almost every word” of Dr. Puente’s diagnosis of
heart failure caused by the industrial injury. CP at 174. At the time of his review in
October 2017, Dr. Gottlieb believed Mr. Barreto Garcia had reached maximum medical
improvement of his cardiac issues.
The industrial appeals judge concluded that Mr. Barreto Garcia was entitled to
additional time-loss benefits through the claim closure date, but that his heart condition
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
was at maximum medical improvement and the Department should deny further treatment
and close his claim.
Mr. Barreto Garcia petitioned the Board of Industrial Insurance Appeals (Board)
for review of the industrial appeals judge’s decision. He challenged the judge’s findings
that he had preexisting high blood pressure and high cholesterol before the industrial
injury and that his condition was fixed and stable and not in need of further proper and
necessary treatment. He further challenged the judge’s conclusion that he was not
entitled to further treatment. He did not argue he was permanently disabled. Stemilt
Growers cross petitioned for review, challenging the judge’s findings and conclusions
supporting its award of additional time-loss benefits.
The Board adopted the industrial appeals judge’s findings of fact and conclusions
of law, noting that the judge
correctly concluded that Mr. Barreto Garcia’s cardiac condition reached maximum medical improvement because the recommended medications will not result in a more complete recovery and the cardiac permanent impairment rule accepts that workers with a cardiac impairment can reach maximum medical improvement when they continue to need therapy.
CP at 8 (footnote omitted). It noted that Mr. Barreto Garcia had waived his claims for
permanent disability.
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Superior court appeal
Mr. Barreto Garcia appealed the Board’s decision to the Benton County Superior
Court. He asserted that WAC 296-20-01002 “indicates that a condition is not fixed and
stable so long as a marked change can be expected without treatment.” Report of
Proceedings at 6. He pointed to testimony from his treating physician, that he needed to
continue taking his medications or his condition would deteriorate. Stemilt Growers
responded that the Board correctly ordered Mr. Barreto Garcia’s claim to be closed
because his medications merely maintained his condition, it would not result in a more
complete recovery.
The superior court issued its decision in a written ruling. It explained that Dr.
Puente
opined that if Mr. Barreto Garcia discontinues to take his prescription medications (treatment) he will develop difficulty breathing and possibly after that he would develop pulmonary edema requiring hospital admission. . . . Mr. Barreto Garcia’s medications are not for maintenance. His medications change regularly, and cessation would result in dire and certain consequences like a swift and life-threatening exacerbation in his heart condition. The court appreciates the doctor’s testimony that Mr. Barreto Garcia’s treatment is not curative in that he will not get better. However, it is curative in that it will prevent his condition to worsen to a dangerous degree.
CP at 216. Formal findings and conclusions later were entered. The court found:
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
1) Mr. Barreto Garcia sustained an industrial injury on October 30, 2016. 2) In addition to other injuries, Mr. Barreto Garcia is still suffering from congestive heart failure as proximately caused by his industrial injury. 3) Mr. Barreto Garcia is unable to perform or obtain gainful employment. 4) Mr. Barreto Garcia’s heart condition is not fixed and stable at this time.
CP at 218. It thus concluded:
1) That Mr. Barreto Garcia is entitled to further proper and necessary treatment. 2) That Mr. Barreto Garcia was a temporarily and totally disabled worker from November 20th, 2017, through March 22nd, 2018.
CP at 218. It ordered that Mr. Barreto Garcia’s claim be reopened, that he receive proper
and necessary treatment and that he receive time-loss compensation through March 22,
2018. Stemilt Growers timely appealed.
ANALYSIS
Standard of review
Under the Industrial Insurance Act, Title 51 RCW, appeals from the superior court
are reviewed under the ordinary standards of civil review. RCW 51.52.140; see also
Rogers v. Dep’t of Lab. & Indus., 151 Wn. App. 174, 179-81, 210 P.3d 355 (2009). Our
review is limited to evaluating whether substantial evidence supports the superior court’s
findings of fact and whether the superior court’s conclusions of law flow from those
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
findings. Ruse v. Dep’t of Lab. & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999). When,
as here, the trial court prepares a memorandum opinion, we consider that as a supplement
to its formal findings and conclusions. Zavala v. Twin City Foods, 185 Wn. App. 838,
859, 343 P.3d 761 (2015).
General principles
Under the definition for “proper and necessary,” “[t]he department or self-insurer
pays for proper and necessary health care services that are related to the diagnosis and
treatment of an accepted condition.” WAC 296-20-01002(1). “The department or self-
insurer stops payment for health care services once a worker reaches a state of maximum
medical improvement.” WAC 296-20-01002(3). Maximum medical improvement is the
same as fixed and stable. Id. Once a worker’s condition is fixed and stable, they may
qualify for a disability award. See WAC 296-20-19000.
A. FIXED AND STABLE
Stemilt Growers contends that Mr. Barreto Garcia’s heart condition is fixed and
stable. We disagree.
A condition is fixed and stable “when no fundamental or marked change in an
accepted condition can be expected, with or without treatment.” WAC 296-20-01002(3).
The Board’s decisions construing this administrative rule are inconsistent.
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In In re Hicks, Nos. 01 14838, 02 12943, 02 18743, 02 21737, 02 21738,
02 23787, 02 23788, 03 11379, 03 11380, 03 11381, & 03 11382, 2004 WL 437358
(Wash. Bd. of Indus. Ins. Appeals Jan. 21, 2004), the claimant had a painful degenerative
spine condition, aggravated by a workplace injury. Id. at *2. One of her experts testified
that stopping the prescribed opioid medication would have disastrous results, rendering
the claimant unable to maintain even her very limited functional capacity. Id. Another of
her experts testified that without frequent, on-going psychotherapy for depression, the
claimant’s depression would deepen to the point that she would not be able to care for
herself, and her risk of suicide would increase. Id. at *3. Citing WAC 296-20-01002(3),
the Board held that a claimant’s condition is not fixed and stable if a fundamental or
marked change in their condition can be expected without treatment. Id. Applying that
standard to the facts before it, the Board noted, “[w]ithout treatment, [the claimant’s]
deterioration will be swift and life threatening.” Id. The Board concluded that the
claimant’s condition was not fixed and stable and that her claim should remain open.
Id. at *5.
In In re Thorsen, No. 05 23423 (Wash. Bd. of Indus. Ins. Appeals Jan. 24, 2007),
the claimant suffered a lumbar sprain/strain that worsened his preexisting degenerative
disc disease. Id. at *3. After two surgeries, the claimant still suffered from chronic back
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
pain and had permanent nerve damage. Id. The medical testimony confirmed that the
claimant had reached maximum medical improvement, with a Category 4 low back
impairment, but that various pain medications “constituted proper and necessary care,
without which the claimant’s condition would deteriorate, rendering him unable to
continue working.” Id. at *4. Construing Hicks and similar cases, the Board wrote:
“[O]ur focus is on whether [the claimant’s] condition would likely deteriorate without
treatment. If so, his condition was not fixed and stable as of [the claim closure date].”
Id. at *5. Because, without medication, the claimant’s condition would deteriorate so he
could not work, the Board concluded that his condition was not fixed and stable and his
claim should remain open.
We contrast these two cases with the case relied on by Stemilt Growers, In re
Givich No. 17 21454, 2019 WL 2486487 (Wash. Bd. of Indus. Ins. Appeals May 2,
2019). In Givich, the claimant had developed asthma because of her work at an
aluminum smelter. Id. at *1. She received treatment continuously for six years after her
diagnosis, but her condition had not worsened or improved. Id. at *2. Her asthma
required a battery of respiratory medications that her doctor regularly tweaked. Id.
Medical testimony at the administrative hearing established that asthma attacks rarely
resulted in death. Id. Paraphrasing Hicks, the Board wrote: “Stopping coverage for
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
[claimant’s] medication would not result in dire and certain consequences like a ‘swift
and life-threatening’ exacerbation or job-threatening disability.” Id. at *4. For this
reason, the Board held that the claimant’s condition was fixed and stable and her claim
should be closed. Id.
The Board’s decisions are not binding on this court, but we may give appropriate
weight to an agency’s interpretation of the laws it is charged with enforcing. Lynn v.
Dep’t of Lab. & Indus., 130 Wn. App. 829, 836, 125 P.3d 202 (2005). We decline to give
Givich weight. It fails to meaningfully apply WAC 296-20-01002(3), which requires an
analysis of whether a fundamental or marked change can be expected to occur with or
without treatment. The standard Givich employs—whether ceasing treatment would
result in dire and certain consequences—has no basis in any statute or administrative rule.
Here, the superior court, borrowing language from Hicks, reasoned that Mr.
Barreto Garcia’s medications were not for maintenance because stopping them “would
result in dire and certain consequences like a swift and life-threatening exacerbation in his
heart condition.” CP at 216. The standard relied on by the superior court was
unnecessarily high. Hicks held that a claim should remain open if, without treatment,
deterioration will be swift and life threatening. This holding does not imply the negative,
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
i.e., that a claim should be closed if, without treatment, deterioration will not be swift and
life threatening. Rather, the applicable standard is WAC 296-20-01002(3).
According to WAC 296-20-01002(3), a worker’s condition is not fixed and stable
if a fundamental or marked change in an accepted condition can1 be expected with or
without treatment. Here, Dr. Puente testified that if the claimant discontinued his
medications, he “would develop difficulty breathing, and possibly after that he would
develop pulmonary edema requiring hospital admission.” CP at 111. This testimony
meets the required standard. Pulmonary edema, a condition requiring hospitalization, is a
fundamental or marked change compared to Mr. Barreto Garcia’s current stable
condition.
B. PROPER AND NECESSARY CARE
Stemilt Growers argues Mr. Barreto Garcia’s prescribed medications are not
proper and necessary health care services. We disagree.
“Proper and necessary” health care services are classified as either curative
treatment or rehabilitative treatment. WAC 296-20-01002(2)(b). “Curative” treatment is
defined as treatment that produces permanent changes, which eliminate or lessen the
1 “Can” indicates possibility, https://www.merriam-webster.com/dictionary/can (last visited December 12, 2022).
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
clinical effects of an accepted condition. Id. “Rehabilitative” treatment is defined as
treatment that allows an injured or ill worker to regain functional activity in the presence
of an interfering accepted condition. Id. Curative and rehabilitative care produce long-
term results. Id.
Here, the clinical effect of Mr. Barreto Garcia’s heart condition is pulmonary
edema, i.e., excess fluid in the lungs. By continuing his medications, this effect is
permanently lessened. The treatment, therefore, is curative.
A contrary conclusion would result in the absurd notion that medications that
prevent possible hospitalization are not proper and necessary care. We avoid construing
an administrative rule in a manner that would lead to an absurd result. Overlake Hosp.
Ass’n v. Dep’t of Health, 170 Wn.2d 43, 52, 239 P.3d 1095 (2010).
C. ATTORNEY FEES
Mr. Barreto Garcia requests attorney fees under RCW 51.52.130. This statute
authorizes an award of attorney fees on appeal when a worker’s right to relief is
sustained. Because we sustain Mr. Barreto Garcia’s right to relief, we grant his request
for attorney fees.
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
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, A.~}
I CONCUR:
Fearing, i: )
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 38676-7-III
STAAB, J. (dissenting) — Mr. Garcia has been diagnosed with chronic heart failure
due to trauma to his chest from an industrial injury. His treating physician prescribed
medication that will not cure him, or make his condition better, but will prevent his
condition from getting worse. The question presented is whether Mr. Garcia’s condition
has reached maximum medical improvement. As the majority notes, maximum medical
improvement is the same as fixed and stable. A condition is fixed and stable “when no
fundamental or marked change in an accepted condition can be expected, with or without
treatment.” WAC 296-20-01002(3) (emphasis added).
Here, the majority agrees there is no evidence that Mr. Garcia’s condition will
improve with medication. In other words, with treatment, Mr. Garcia’s condition will not
change. Nevertheless, the majority concludes that because his condition will change
without treatment, his condition is not fixed and stable. This conclusion rewrites the
regulation and changes the disjunctive to a conjunctive; the “or” to an “and.” Under the
majority’s reasoning, the condition must be fixed and stable with treatment and without
treatment.
In a similar fashion, the majority skews the meaning of “curative” and
“rehabilitative” treatment under WAC 296.20-01002(2)(b). The issue is whether Mr. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 38676-7-III Garcia v. Stemilt Growers–Dissent
Garcia’s medications are proper and necessary health care services, which are classified
as either curative or rehabilitative treatments. The regulatory definitions of “curative”
and “rehabilitative” coincide with the ordinary meanings. Here, Mr. Garcia’s physician
testified that Mr. Garcia’s condition is chronic and the medication will not cure him. It
will simply keep his condition from getting worse. Still, the majority reasons that so long
as Mr. Garcia takes his medication, he is cured and rehabilitated. This application does
not comport with the common-sense definition of the terms.
I recognize that Mr. Garcia presents compelling circumstances. It is not clear
from the record why he did not appeal his claim for permanent disability. Still, as courts,
our duty is to interpret the regulations, not rewrite them.
_________________________________ Staab, J.