Ruse v. Department of Labor & Industries

977 P.2d 570, 138 Wash. 2d 1, 1999 Wash. LEXIS 355
Washington Supreme Court·Decided June 3, 1999·No. No. 65679-7·Published·Cited by 150 cases

Opinion

Ireland, J.

— Everett Ruse quit his job because of severe

back pain, and the Department of Labor and Industries denied his subsequent workers’ compensation claim. We affirm baséd upon Ruse’s failure to prove the causal connection between his disability and his employment.

FACTS

For a full discussion of the facts, see Ruse v. Department [4]*4of Labor & Indus., 90 Wn. App. 448, 966 P.2d 909 (1998). Our recitation here is brief. Everett Ruse worked in heavy labor positions for most of his life and was forced to quit his job on August 17, 1989, because of severe back pain. Ruse filed a claim for workers’ compensation benefits in November 1990.

The Department of Labor and Industries (the Department) denied Ruse’s claim for benefits, finding Ruse’s back condition was not an occupational disease as contemplated by RCW 51.08.140. In April 1995, the Board of Industrial Insurance Appeals (the Board) denied Ruse’s appeal. The Board found Ruse’s degenerative arthritis was “associated with natural progression of unrelated pre-existing conditions or disease processes.” Proposed Decision and Order (PDO) at 8.1 The Spokane County Superior Court affirmed the Board’s decision, finding, in part, “Mr. Ruse suffered from a degenerative arthritis which would have appeared and progressed despite his employment.” Clerks Papers (CP) at 5-6.

Ruse appealed to the Court of Appeals, which affirmed the superior court. Ruse, 90 Wn. App. 448. We granted Ruse’s Petition for Discretionary Review. Ruse v. Department of Labor & Indus., 136 Wn.2d 1007 (1998).

A brief recitation of the medical testimony offered to the Board is necessary for our analysis. Dr. Gilman, an osteopathic family physician, provided Ruse’s primary health care from July 1981 through 1989. According to Dr. Gilman’s notes, Ruse reported having a long history of back problems preceding 1981, and Ruse’s back pains continued during the eight years he saw Dr. Gilman. Dr. Gilman x-rayed Ruse’s lower back in 1986 and saw no problems in the x-rays. He diagnosed Ruse’s back pains as “musculoskeletal effects of his age.” Dep. of David C. Gil-man, D.O., at 8.

On January 23, 1990, Ruse saw Dr. Shanks, an orthopedic specialist. Dr. Shanks viewed current x-rays and ordered [5]*5an MRI (Magnetic Resonance Imaging). Based upon this one examination, Dr. Shanks diagnosed Ruse with moderate arthritis in the form of degenerative disc disease in his lumbar spine. Dr. Shanks sent an opinion letter to the Department, in which he stated that Ruse had a long history of back problems, he did not see Ruse’s arthritis as an industrial or occupational disease, and Ruse’s “arthritis probably would have occurred despite his employment, although, he did do fairly heavy work.” Bd. of Indus. Appeals, Ex. 2 (Letter from Dr. Shanks) at 2 (emphasis added). Dr. Shanks later testified in a deposition that Ruse’s condition was aggravated by his “long term heavy labor work” on a “more probable than not” basis. Dep. of William Shanks, M.D., at 21. On cross-examination, Dr. Shanks stated the 1993 opinion letter accurately reflected his current opinion.

STANDARD OF REVIEW

The Board’s decision is prima facie correct under ROW 51.52.115, and a party attacking the decision must support its challenge by a preponderance of the evidence. Ravsten v. Department of Labor & Indus., 108 Wn.2d 143, 146, 736 P.2d 265 (1987). On review, the superior court may substitute its own findings and decision for the Board’s only if it finds “ ‘from a fair preponderance of credible evidence’, that the Board’s findings and decision are incorrect.” McClelland v. ITT Rayonier, Inc., 65 Wn. App. 386, 390, 828 P.2d 1138 (1992) (quoting Weatherspoon v. Department of Labor & Indus., 55 Wn. App. 439, 440, 777 P.2d 1084 (1989)). In this appeal, “review is limited to examination of the record to see whether substantial evidence supports the findings made after the superior court’s de novo review, and whether the court’s conclusions of law flow from the findings.” Young v. Department of Labor & In[6]*6dus., 81 Wn. App. 123, 128, 913 P.2d 402 (1996) (citations omitted).

ANALYSIS

First Issue: Did the Court of Appeals properly apply the attending physician doctrine?

An attending physician who has cared for and treated a patient over a period of time “is better qualified to give an opinion as to the patient’s disability than a doctor who has seen and examined the patient once.” Spalding v. Department of Labor & Indus., 29 Wn.2d 115, 128-29, 186 P.2d 76 (1947). Ruse argues, without citation to authority, that a doctor who has not diagnosed the claimed occupational disease cannot be considered an attending physician. Because Dr. Gilman did not diagnose. Ruse’s degenerative spinal arthritis, Ruse argues he is not an attending physician whose testimony should be given special consideration.

Dr. Gilman was Ruse’s primary physician for eight years, and he treated Ruse for back problems throughout those eight years—years during which Ruse worked in heavy labor. In contrast, Dr. Shanks examined Ruse only once, in January 1990, which was over five months after Ruse quit his job. From this single examination, Dr. Shanks diagnosed degenerative arthritis. We find the Board and the superior court were entitled under the evidence and the rule to consider Dr. Gilman as the attending physician. The Court of Appeals is affirmed on this issue.

Second Issue: Did Ruse establish heavy labor aggravated his preexisting back condition to result in a disability?

While the Industrial Insurance Act should be liberally construed in favor of injured workers, Dennis v. Department of Labor & Indus., 109 Wn.2d 467, 470, 745 P.2d 1295 (1987), a worker claiming entitlement to disability benefits for an occupational disease carries the burden of proving the disabling condition arose naturally and proximately out of employment. Dennis, 109 Wn.2d at 481; Dillon v. Seattle [7]*7Police Pension Bd., 82 Wn. App. 168, 171, 916 P.2d 956 (1996). A worker is entitled to benefits if the employment either causes a disabling disease, or aggravates a preexisting disease so as to result in a new disability. Dennis, 109 Wn.2d at 474 (“ [C]ompensation may be due where disability results from work-related aggravation of a preexisting non-work-related disease.”). In an aggravation case, the employment does not cause the disease, but it causes the disability

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Ruse v. Department of Labor & Industries, 977 P.2d 570, 138 Wash. 2d 1, 1999 Wash. LEXIS 355 (Wash. 1999).

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