FILED
JUNE 23, 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
RUBEN C. LEON, ) No. 37014-3-III )
Respondent, )
)
v. ) UNPUBLISHED OPINION )
McCAIN FOODS, )
)
Appellant. )
LAWRENCE-BERREY, J. — McCain Foods USA, Inc. (McCain Foods)1 appeals after the trial court awarded Ruben Leon additional time-loss compensation and pension benefits. McCain Foods mostly takes issue with the trial court’s factual findings. Because substantial evidence supports those findings, we affirm.
FACTS
Summary of injury Ruben Leon worked for McCain Foods for approximately 25 years. On April 27, 2012, Leon and a coworker were sent to unplug a clogged valve underneath a fryer. They
1 Ruben Leon’s initial pleading filed with the Adams County Superior Court is captioned “Ruben C. Leon v. McCain Foods.” Clerk’s Papers (CP) at 1. As reflected in the record, the employer’s correct name is McCain Foods USA, Inc.
No. 37014-3-III Leon v. McCain Foods
were told the oil in the fryer was cool and they could safely work on the plug. This was not true. When Leon started to work on the valve, scalding hot oil gushed out over his face and upper body.
Leon’s coworker pulled him to safety and put him in cold water. An ambulance arrived and took Leon to a nearby hospital. Due to the severity of his burns, Leon was flown from the local hospital to Harborview Medical Center in Seattle and admitted to the burn unit. Leon spent a considerable period of time at Harborview Medical Center where he received a number of surgeries and skin grafts. He continued to receive follow-up treatment from Harborview until his final skin graft in 2014. Leon takes morphine three times a day for pain, as prescribed by his doctor, Dr. Randel Bunch.
In February 2015, McCain Foods offered Leon a forklift driver position. Leon rejected the offer because he believed he could not safely operate a forklift, given his daily use of morphine and difficulty sleeping at night.
Procedure The Department of Labor and Industries provided Leon time-loss compensation for almost three years. By order of January 26, 2016, the Department closed Leon’s claim. The order awarded Leon time-loss compensation through April 16, 2015, and
3
No. 37014-3-III Leon v. McCain Foods
$96,363.84 for permanent impairment of his left upper extremity, his skin, and his mental health.
Leon timely appealed the Department’s order to the Board of Industrial Insurance Appeals. He asserted he was temporarily totally disabled from April 17, 2015, through January 25, 2016, and permanently totally disabled thereafter. Industrial Appeals Judge (IAJ) Heidi Bolong scheduled an evidentiary hearing for late October 2016. The parties presented live and depositional testimony. Leon’s lay witnesses described how the industrial accident changed Leon from a friendly, independent person into an angry, dependent person. These testimonies were punctuated by evidence that Leon had missed only one day of work during 25 years at McCain Foods, but now was dependent on others to perform simple tasks. In March 2017, IAJ Bolong issued her “Proposed Decision and Order” that granted Leon’s requested relief. Clerk’s Papers (CP) at 45.
McCain Foods appealed the Proposed Decision and Order to the Board. The Board disagreed with the proposed decision and entered its own findings of fact and conclusions of law that confirmed the Department’s closing order and awards.
Leon then appealed the Board’s decision to Adams County Superior Court. The court issued a brief letter decision, which we quote in part:
4
No. 37014-3-III Leon v. McCain Foods
[A]fter reviewing the entire record on a de nov[o] basis, I believe that a fair preponderance of the evidence overcomes the presumption of correctness enjoyed by the Board’s decision and instead preponderates in conformity with the Proposed Decision and Order of Industrial Appeals Judge Bolong of March 7, 2017.
I agree with Judge Bolong that the expert evidence and particularly the lay evidence, indicates that Mr. Leon’s horrifying experience, functional illiteracy, twice [sic] daily morphine intake, PTS[D], major depression and untreatable mental health impairment prevented him from accepting even the substantially dumbed down forklift operator position offered by defendant at the same plant which plaintiff can’t even stand to look at and which [exudes] the terrifying smell of hot potato frying oil. Mr. Leon would want nothing more but to got [sic] back to work, but he cannot do so and probably never will. He only missed one day of work in 25 previous years at the plant.
The Board’s Decision and Order of May 19, 2017 shall be reversed and the matter shall be remanded to the Department to reinstate the March 7, 2017 proposed Decision and Order of the Industrial Appeals Judge and take action in conformity therewith.
CP at 497. Because the trial court found that the evidence conformed to the Proposed Decision and Order, we attach it as an appendix to this opinion.
Four months later, the trial court entered findings of fact, including:
2. Ruben Leon sustained an industrial injury on April 27, 2012, when he was splashed with hot oil while unplugging a valve underneath a fryer, resulting in burns on his left arm, left leg, and the right side of his face, as well as post-traumatic stress disorder, somatic symptom disorder, and major depressive disorder.
3. Mr. Leon is a 49-year-old man with a sixth-grade education, work experience as a potato peeler, receiver, machine operator, and in maintenance, who is illiterate in English.
5
No. 37014-3-III Leon v. McCain Foods
4. Mr. Leon is unable to maintain attention and concentration for extended periods, to get along with coworkers or peers without behavioral extremes, and to interact appropriately with the general public, as of April 17, 2015.
5. Mr. Leon [w]as unable to perform or obtain gainful employment on a reasonably continuous basis from April 17, 2015, through January 25, 2016, due to the residuals of the industrial injury and taking into account the claimant’s age, education, work history, and preexisting conditions.
6. As of April 17, 2015, Mr. Leon’s conditions proximately caused by the industrial injury were fixed and stable.
7. Mr. Leon was unable to perform or obtain gainful employment on a reasonably continuous basis as of January 26, 2016, due to the residuals of the industrial injury and taking into account the claimant’s age, education, work history, and preexisting conditions.
CP at 500-01.
The trial court remanded the appeal to the Department with instructions to award Leon time-loss compensation from April 17, 2015, through January 25, 2016. It also ordered the Department to award pension benefits to Leon effective January 26, 2016, as a permanently and totally disabled injured worker.
McCain Foods timely appealed the trial court’s decision.
ANALYSIS
McCain Foods argues (1) Leon failed to meet his burden of proof to overcome the correctness of the Board’s decision, (2) the trial court erred by failing to give Leon’s treating physician special consideration, (3) the preponderance of medical and vocational
6
No. 37014-3-III Leon v. McCain Foods
opinions establishes Leon is capable of performing the offered forklift position, and (4) the Board correctly sustained the Department’s finding that Leon had a category 3 permanent partial disability mental health impairment. We first address McCain Foods’ second argument and then address its remaining three arguments together.
A. SPECIAL CONSIDERATION TO ATTENDING PHYSICIAN’S OPINIONS McCain Foods contends the trial court erred by not giving sufficient consideration to the opinions of Dr. Bunch, Leon’s attending physician.
In a workers’ compensation case, the opinions of the claimant’s attending physician must be given special consideration. Hamilton v. Dep’t of Labor & Indus., 111 Wn.2d 569, 571, 761 P.2d 618 (1988). However, the Hamilton court makes clear:
“We are not saying that the trier of the facts should believe the testimony of the treating physician; the trier of the facts determines whom it will believe; but it should, in its findings, indicate that it recognizes that we have, in several cases, emphasized the fact that special consideration should be given to the opinion of the attending physician.”
Id. at 572 (quoting Groff v. Dep’t of Labor & Indus., 65 Wn.2d 35, 45, 395 P.2d 633 (1964)).
McCain Foods contends the trial court did not give Dr. Bunch’s opinions special consideration. Leon contends it did, but it did not believe Dr. Bunch over the rest of the evidence. The disagreement boils down to a key question: Did the trial court give Dr.
7
No. 37014-3-III Leon v. McCain Foods
Bunch’s opinions special consideration? If it did, then the trial court’s decision on whether it believed Dr. Bunch or not was a question of credibility, which this court will not examine. Cantu v. Dep’t of Labor & Indus., 168 Wn. App. 14, 22, 277 P.3d 685 (2012).
As stated in Hamilton, a trial court should enter a finding of fact that indicates it recognized the special consideration deserved by an attending physician. Here, the trial court failed to do this. But we do not believe this failure requires reversal or remand.
Both parties briefed this rule and later argued it to the trial court. The trial court itself mentioned this rule, calling it a “particular” consideration before defense counsel interrupted and noted the phrase was “special” consideration. Report of Proceedings at 21. Nothing in the record indicates the trial court did not know or correctly apply the rule. While it is true the trial court did not enter a written finding in this regard, that failure has more to do with claimant counsel’s preparation of the findings of fact than any confusion on the part of the trial court. We are confident the trial court knew and correctly applied the rule that required it to give Dr. Bunch’s opinions special consideration.
8
No. 37014-3-III Leon v. McCain Foods
B. SUFFICIENCY OF THE EVIDENCE McCain Foods contends the trial court’s findings are not supported by substantial evidence. It argues the overwhelming medical and vocational evidence supports the Board’s decision and this court should reverse the trial court’s findings of fact. Leon notes McCain Foods failed to assign error to any of the trial court’s findings and urges us to treat those findings as verities.
Failure to assign error to findings of fact RAP 10.3(g) requires a party to separately assign error to each finding of fact the party challenges and refer to the challenged finding by number. An “appellate court will only review a claimed error which is included in an assignment of error or clearly disclosed in the associated issue pertaining thereto.” RAP 10.3(g). Nevertheless, we will waive a strict application of this rule if the briefing makes clear the nature of the challenge, the violation is minor, there is no prejudice to the opposing party, and there is minimal inconvenience to the appellate court. Union Elevator & Warehouse Co. v. State, 144 Wn. App. 593, 601, 183 P.3d 1097 (2008). It is clear that McCain Foods is challenging the trial court’s findings of fact 4, 5, and 7, and Leon provided a full rebuttal to the factual challenges in his brief. We are not inconvenienced by McCain Foods’
9
No. 37014-3-III Leon v. McCain Foods
technical rule violation and will address its sufficiency of evidence challenge on the merits.
Sufficiency of evidence
For cases involving the Industrial Insurance Act (IIA), Title 51 RCW, the trial court applies a modified standard of review. Gorre v. City of Tacoma, 184 Wn.2d 30, 36, 357 P.3d 625 (2015). RCW 51.52.115 grants a statutory presumption of correctness to the Board’s decision. This presumption is overcome by a trial court finding that the preponderance of evidence is against the Board’s findings. Cantu, 168 Wn. App. at 20. “Only if it finds the evidence to be equally balanced does the presumption require the findings of the board to stand.” Id. at 20-21 (citing Allison v. Dep’t of Labor & Indus., 66 Wn.2d 263, 268, 401 P.2d 982 (1965)).
On appeal from the superior court’s decision, this court reviews whether there is substantial evidence to support the superior court. Ruse v. Dep’t of Labor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999). “‘Substantial evidence’ is evidence that would persuade a fair-minded person of the truth or correctness of the matter.” Erection Co. v. Dep’t of Labor & Indus., 160 Wn. App. 194, 202, 248 P.3d 1085 (2011).
Dr. Donald Williams provided the only medical opinion to support Leon’s contention that he could not return to work at McCain Foods. Dr. Williams testified that
10
No. 37014-3-III Leon v. McCain Foods
Leon’s posttraumatic stress disorder (PTSD) would cause flashbacks if he was required to return to McCain Foods and those flashbacks, prompted even by the smell of potato frying oil, would prevent him from returning to work there. McCain Foods makes worthy arguments why a trier of fact should not have believed Dr. Williams. Chief among these arguments are (1) medical tests indicated that Leon’s answers describing his mental health limitations were unreliable, (2) Dr. Williams met with Leon only once, and (3) three other doctors disagreed with Dr. Williams.2 We reject McCain Food’s sufficiency challenge for two reasons. First, the trial court did not base its decision solely on the weight of medical evidence. Rather, the trial court found that Leon and his witnesses who described Leon’s severe limitations were credible. “I agree with Judge Bolong that the expert evidence and particularly the lay evidence, indicates that Mr. Leon’s horrifying experience, functional illiteracy, twice [sic] daily morphine intake, PTS[D], major depression and untreatable mental health impairment” prevented him from accepting the forklift operator job offered by McCain Foods. CP at 497; see Ellerman v. Centerpoint Prepress, Inc., 143 Wn.2d 514, 523 n.3, 22 P.3d 795 (2001) (“A memorandum opinion may be considered as supplementation of
2 We note that IAJ Bolong set forth numerous reasons why she found Dr.
Williams’s testimony credible and the three other doctors’ testimonies inconsistent and not credible. See Appendix.
11
No. 37014-3-III Leon v. McCain Foods
formal findings of fact and conclusions of law.”). In addition, the trial court noted that Leon wanted to return to work, as shown by his 25 years of work with only one absence. The trial court credited this fact to Leon and impliedly rejected McCain Foods’ argument that Leon exaggerated his mental health disability.
Second, substantial medical and lay evidence supports the trial court’s findings in this regard. The testimonies of several witnesses described Leon both before and after his extensive injuries. Leon was once friendly and independent. He is now angry and unable to work with others. Leon’s partner of several years testified that Leon experienced great fear the one time she drove them past McCain Foods. Because substantial evidence supports the trial court’s contested findings, we reject McCain Foods’ sufficiency of the evidence challenge. We confirm the trial court’s award to Leon of additional time-loss compensation and pension benefits.3 C. ATTORNEY FEES Leon requests attorney fees and cites RCW 51.52.130. In the context of the IIA, when a lower court’s decision is appealed by a party other than the injured worker and the
3 McCain Foods correctly notes that permanent partial disability for an injury cannot be compensated when a worker receives a total disability pension for the same injury. Appellant’s Br. at 5. Because Leon is entitled to pension benefits due to his mental health disability, we need not address McCain Foods’ final argument that Leon is entitled to a category 3 permanent partial disability mental health impairment award.
12
No. 37014-3-111 Leon v. McCain Foods
injured worker's right to recover is sustained, the court appealed to is required to grant attorney fees. RCW 51.52.130. Because we sustain Leon's right to recover additional time-loss compensation and pension benefits, we additionally award Leon reasonable attorney fees on appeal.
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.
j
WE CONCUR:
Fearing, J.
13
No. 37014-3-III Leon v. McCain Foods Appendix
14
No. 37014-3-III Leon v. McCain Foods Appendix
15
No. 37014-3-III Leon v. McCain Foods Appendix
16
No. 37014-3-III Leon v. McCain Foods Appendix
17
No. 37014-3-III Leon v. McCain Foods Appendix
18
No. 37014-3-III Leon v. McCain Foods Appendix
19
No. 37014-3-III Leon v. McCain Foods Appendix
20
No. 37014-3-III Leon v. McCain Foods Appendix
21
No. 37014-3-III Leon v. McCain Foods Appendix