Filed Washington State Court of Appeals Division Two
August 27, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II TAMRA J. CREIGHTON, No. 58293-7-II
Appellant,
v.
UNITED AIRLINES, INC., AND UNPUBLISHED OPINION DEPARTMENT OF LABOR AND INDUSTRIES,
Respondent.
LEE, J. — Tamra J. Creighton appeals the superior court’s order confirming the decision
by the Board of Industrial Insurance Appeals (Board) to close Creighton’s workers’ compensation
claim under the Industrial Insurance Act (IIA), title 51 RCW, denying her further treatment, ending
time loss benefits, and making a permanent partial disability award. Because substantial evidence
supports the superior court’s findings, and those findings support the superior court’s conclusion
that Creighton was at maximum medical improvement and was only partially, not totally, disabled,
we affirm the superior court’s order.
FACTS
A. BACKGROUND OF INJURY CLAIM
In February 2001, Creighton suffered an industrial injury while working for United Airlines
(United). As she loaded heavy bags onto a cart, Creighton fell, hurting her back, chest, and neck.
Creighton subsequently filed a workers’ compensation claim, which the Department of
Labor and Industries (Department) accepted. Creighton had two surgeries under her covered No. 58293-7-II
claim: a 2003 cervical fusion1 at C5, C6, and C7; and a 2016 laminectomy and decompression2
surgery at L3, L4, and L5.3 The cervical fusion addressed Creighton’s cervical degenerative disc
disease, while the laminectomy and decompression surgery addressed Creighton’s spinal canal
stenosis and degenerative changes in her lumbar spine.
Creighton considered additional treatment following the 2016 surgery. In a 2017 clinic
note, Creighton’s then doctor wrote, “Surgery can be considered. However, this would likely
entail not just the [L]3-4 and [L]4-5 fusion, but most likely a fusion from L2 to down to L5,
potentially even to the sacrum, clearly a major procedure.” Clerk’s Papers (CP) at 314. In a 2018
clinic note, the same doctor noted that while “[s]urgery is not unreasonable,” he was “very
skeptical about the chances of significant functional improvement with further surgery.” CP at
311.
On March 19, 2019, the Department closed Creighton’s claim, finding her covered
conditions were stable. Wanting additional treatment, Creighton appealed the March 2019 order,
1 A cervical or spinal fusion is a “‘welding’” process used to correct problems with the small bones in the spine (vertebrae). Clerk’s Papers (CP) at 147. The procedure fuses together two or more vertebrae into a single, solid bone to eliminate painful movement and restore spinal stability. 2 A decompression (laminectomy) procedure involves alleviating pressure on the spinal nerves by removing the bone and diseased tissues. 3 The human spine is made up of 33 vertebrae stacked on top of one another, and can be grouped into five segments. Spine Structure and Function, Cleveland Clinic (Oct. 18, 2023), https://my.clevelandclinic.org/health/body/10040-spine-structure-and-function. The top of the spine is the cervical spine (neck) and is made up of seven vertebrae, C1-C7. Spine Structure and Function. The middle back, or thoracic spine, is made up of 12 vertebrae, T1-T12. Spine Structure and Function. The lower back, or lumbar spine, is made up of five vertebrae, L1 to L5. Spine Structure and Function. The sacrum is below the lumbar spine and is made up of five sacral vertebrae, S1-S5. Spine Structure and Function. Finally, the coccyx, or tailbone, is a piece of bone at the bottom of the spine composed of four fused vertebrae. Spine Structure and Function.
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and on July 10, 2019, the Department affirmed its March 2019 order closing Creighton’s claim.
Creighton then appealed the Department’s July 2019 order to the Board, seeking a reopening of
her claim, authorization for an additional fusion surgery to her lumbar spine, and time loss benefits.
B. BOARD OF INDUSTRIAL INSURANCE APPEALS
At a hearing before the Industrial Appeals Judge (IAJ), several witnesses testified by
deposition and Creighton herself testified live. Testimony relevant to this appeal is included
below.
1. Medical Testimony
a. Dr. Bransford’s testimony
Dr. Richard Bransford is an orthopedic surgeon with training in adult spinal surgery. Dr.
Bransford saw Creighton in November 2020. Creighton reported that she had scoliosis 4 and
complained of “significant bilateral lower pain and neuropathy, particularly aggravated from lying
down to sitting, sitting to standing.” CP at 948.
Dr. Bransford reviewed some of Creighton’s imaging studies from 2016, 2018, and 2020.
Dr. Bransford explained those studies showed Creighton had “a 20 degree right-sided scoliosis
4 Dr. Bransford explained “scoliosis” as follows:
[W]hen we look at somebody from a front view, their vertebral bodies are supposed to be all stacked properly on top of one another. If they are not stacked up properly, well, that’s when scoliosis develops and then you get these eccentric loads and it’s like . . . kids stacking building blocks, they start to topple over and they can’t keep their balance.
CP at 950.
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measuring from L1 to L5,” lateral listhesis and anterolisthesis5 of L3 on L4, and significant disc
collapse at L3-4 and L4-5. CP at 949. Dr. Bransford opined that Creighton had multilevel
stenosis,6 which was worst from L3-S1. Dr. Bransford explained that scoliosis “changes the
alignment of the foramen or where the nerves are supposed to exit, and as that happens, then the
nerves can get pinched through their exiting corridors and that can lead to leg pain and
radiculopathy.” CP at 950. Scoliosis can also “change the loading of the spine . . . and that can
lead to degeneration through the disc” and “just sort of starts this whole cascade of things.” CP at
950-51. Dr. Bransford could not say whether Creighton had scoliosis before her industrial injury.
Based on Creighton’s subjective complaints and her imaging studies, Dr. Bransford opined
that Creighton’s back was not “fixed and stable” and recommended she undergo a T10-pelvis
decompression fusion. CP at 980. The surgery would relieve some of the pressure on her
compressed nerve roots, “correct her scoliosis,” and stabilize her spine. CP at 966. In other words,
such an extensive surgery “allows you to sort of try and do everything in one fell swoop.” CP at
992 However, Dr. Bransford could not say, on a more probable than not basis, that Creighton’s
need for surgery was related to her industrial injury and the conditions accepted under her claim.
5 “Listhesis” is the “translation” or movement of one vertebral body in relation to another. CP at 952. For example, “a lateral listhesis is looking at somebody from the front,” and “in [Creighton’s] case . . . L3 is sliding to the side on top of L4.” CP at 952. Similarly, “anterolisthesis means that one vertebral body is moving anteriorly with respect to the other vertebral body, and [Creighton] has an anterolisthesis also looking at her from the side-view . . . of L3 on L4.” CP at 952. 6 “Stenosis” “means narrowing.” CP at 962. Central stenosis occurs where a nerve’s exit is “pinch[ed] centrally around the spinal cord or the nerve root centrally” while foraminal stenosis is “where the nerve is sort of exiting underneath the pedicle and underneath the joint.” CP at 963.
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b. Dr. Holmes’s testimony
Dr. Mark Holmes is a board certified neurologist who performed an independent medical
examination (IME) of Creighton in February 2017. During the examination, Creighton reported
“pain in her lower back and right buttock area” and “in the left buttock . . . all the way . . . down
her leg,” with “numbness throughout her left lower extremity.” CP at 1184.
Dr. Holmes performed a neurological examination, looking for “clinical evidence to
support [Creighton’s] symptoms.” CP at 1186. Dr. Holmes testified that he found no clinical
evidence of a nerve root injury and no evidence that Creighton had any “sciatic pain or
radiculopathy or any other limitations associated with her lumber spine from a neurological
perspective.” CP at 1189.
Based on his examination, Dr. Holmes opined that as of 2017, Creighton was at maximum
medical improvement and did not recommend further treatment. Dr. Holmes testified that he
reviewed a 2018 IME conducted by Dr. Robert Kalb and that as of May 2018, Creighton was still
at maximum medical improvement and further treatment was still unnecessary. Dr. Holmes also
opined that Dr. Bransford’s recommended fusion surgery was not related to Creighton’s industrial
injury and that, in the absence of clinical findings, the surgery was not justified.
c. Dr. Kalb’s testimony
Dr. Kalb is a board certified orthopedic surgeon who conducted an IME of Creighton in
May 2018. Based upon his examination, Dr. Kalb opined that Creighton was not in need of further
treatment and that any additional treatment “could [not] be considered curative.” CP at 1349.
As for the fusion surgery recommended by Dr. Bransford, Dr. Kalb testified it was not
medically proper or necessary. Dr. Kalb explained that Creighton’s 1999 imaging studies
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indicated she had scoliosis before her industrial injury, and that her industrial injury did not cause
the scoliosis. Nor did the 2016 surgery cause or aggravate Creighton’s scoliosis. Dr. Kalb also
explained that the 2016 surgery did not “affect the aging process or the long-term outcome of
[Creighton’s] spine.” CP at 1362. And the listhesis at L3-4 did not itself justify Dr. Bransford’s
recommended surgery in the absence of objective evidence of a worsening of the listhesis. Thus,
in light of the results of the 2016 surgery, Dr. Bransford’s recommended surgery was particularly
unlikely to produce positive results.
Dr. Kalb also testified that based on his review of the record, the two accepted conditions
under Creighton’s claim were degenerative disc disease at C5, C6, and C7, and degenerative disc
disease of the lumbar spine at L3, L4, and L5. Dr. Kalb then testified it was “possible” that Dr.
Bransford’s recommended “fusion surgery would be in part to treat conditions that were already
accepted on the claim.” CP at 1732 (emphasis added). However, on redirect, Dr. Kalb explained
that “multiple level degenerative disease of the lumbar spine” was actually a “contraindication . .
. for a lumbar fusion.” CP at 1747. Dr. Kalb explained that “the more levels you attempt to fuse
the higher chance of . . . non union at one or more of those levels” and that such a surgery results
in “a serious, solid segment of spine followed by the first mobile segment above and below, which
then has a much higher right [sic] of deterioration.” CP at 1747.
2. Employability Testimony
John DeLapp, a vocational rehabilitation counselor, testified that as of July 10, 2019,
Creighton was capable of working as a customer service representative. DeLapp also testified that
he reviewed records from a prior vocational expert who found Creighton employable as of March
27, 2018, and concluded that the finding was still applicable.
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DeLapp explained that when considering customer service representatives, soft skills,
which are skills “that are not necessarily knowledge based,” are particularly important. CP at
1469. The soft skills required of a customer service representative include effective
communication, conflict resolution, investigation, phone etiquette, documentation, and problem-
solving. DeLapp also explained that a customer service representative is expected to interact with
customers, transmit information “about accounts, products, and services,” “address customer
concerns” and “mak[e] decisions relative to the industry or the type of business in which you’re
being involved.” CP at 1466. DeLapp testified that Creighton, while working at Untied, would
have used the soft skills employers look for in customer service representatives. And while
Creighton used a specific software system while with United, customer service representative
applicants could expect “some sort of training,” including on particular computer software, “once
they have satisfied those soft skills that employers look for.” CP at 1470.
As for physical limitations, DeLapp classified the customer service representative position
as a sedentary position, meaning lifting and carrying were limited to 10 pounds or less. DeLapp
testified that the position would require constant sitting or a combination of sitting and standing
on an occasional basis, occasional standing and walking, constant talking, occasional reaching out,
rarely reaching up or down, and frequent keyboarding. DeLapp explained that many of these
demands or activities could be modified to accommodate physical limitations: “Modifications in
work sites,” such as sit-stand stations, “are common these days.” CP at 1468. Ultimately, DeLapp
opined that Creighton could physically work as a customer service representative within her
physical limitations.
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Creighton herself confirmed that she had many of the soft skills employers look for, like
listening, effective communication, information gathering, problem solving, and conflict
resolution. In fact, Creighton testified that while she worried about her physical limitations and
her patience, she thought she could work in a customer service job. Creighton also testified that
she can alternate between sitting, standing, and walking, can drive, and can sit for up to an hour,
as long as she changes positions occasionally.
Other witnesses also opined on Creighton’s ability to work. For example, Dr. Kalb testified
that Creighton was capable of obtaining and maintaining continuous and gainful employment so
long as she avoided overhead work, more than occasional lifting and bending, and lifting more
than 35 pounds generally or more than 15 pounds frequently. Christina Casady, an occupational
and rehabilitation expert, acknowledged that Creighton could work as a customer service
representative so long as she could work within the limitations her evaluations identified. For
example, Creighton could alternate between sitting, walking, and standing for eight hours at a time.
And while Creighton’s own vocational expert, Merrill A. Cohen, worried about Creighton’s
postural limitations, Cohen also acknowledged that accommodations would allow Creighton to
“meet . . . the physical demands of the job.” CP at 893.
3. Orders
The IAJ issued a proposed decision and order (proposed order) on September 16, 2021.
The proposed order affirmed the Department’s July 2019 order.
Creighton petitioned for review of the IAJ’s proposed order. The Board affirmed the IAJ’s
proposed order and adopted it as the Board’s final order.
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C. SUPERIOR COURT PROCEEDINGS
Following the Board’s final order, Creighton appealed to the superior court. The superior
court held a bench trial on January 17, 2023, and issued a written judgment and order affirming
the Board’s decision. The superior court also issued the following relevant written findings of fact
and conclusions of law:
I. Findings of Fact ....
2. Tamra J. Creighton sustained an industrial injury on February 12, 2001, while working for United Airlines. Ms. Creighton was injured when she fell while loading a 70 pound bag onto a cart.
....
4. The Court is not persuaded that the holding in Maphet[7]entitles Ms. Creighton to the sought-after surgery. The Court interprets Maphet in a narrower sense than Ms. Creighton. The Court is not persuaded by Dr. Bransford’s sole opinion that the condition he identified and surgery he recommended are related to the industrial injury when that opinion is contradicted by other medical professionals and even qualified by Dr. Bransford himself. After a de novo review of the [Certified Appeal Board Record], the Court is persuaded that the most persuasive, credible medical testimony established that Ms. Creighton’s condition was at maximum medical improvement.
5. As of July 10, 2019, Ms. Creighton’s conditions proximately caused by the industrial injury were fixed and stable and did not need further proper and necessary treatment.
6. Ms. Creighton is 58 years of age. Ms. Creighton did not complete high school but obtained her GED. Ms. Creighton began working for United Airlines in 1986 and worked there for 21 years. Prior to working for United Airlines, she worked as a garments worker and an officer helper for a construction company.
7. Due to the February 12, 2001 industrial injury, Ms. Creighton has physical restrictions to include lifting, bending, and overhead activity.
7 Clark County v. Maphet, 10 Wn. App. 2d 420, 451 P.3d 713 (2019).
9 No. 58293-7-II
8. Due to the February 12, 2001 industrial injury, Ms. Creighton does not have any mental health restrictions.
9. Ms. Creighton is able to perform sedentary to light-duty positions.
10. The Court declines to apply the Odd Lot doctrine as Ms. Creighton has not proven that she cannot perform light or sedentary work of a general nature.
11. Ms. Creighton was able to perform and obtain gainful employment on a reasonably continuous basis from March 27, 2018, through July 10, 2019, and thereafter.
12. As of July 10, 2019, Ms. Creighton had a permanent partial disability proximately caused by the industrial injury equal to Category 3 for the cervicodorsal and Category 2 for the lumbosacral spine.
II. Conclusions of Law
2. Ms. Creighton’s conditions proximately caused by the industrial injury are fixed and stable as of the July 10, 2019 Department order and she is not entitled to further treatment. RCW 51.36.010.
3. Ms. Creighton was not a temporarily totally disabled worker within the meaning of RCW 51.32.080 from March 27, 2018, through July 10, 2019.
4. On July 10, 2019, Ms. Creighton did have a permanent partial disability, within the meaning of RCW 51.32.080, proximately caused by the industrial injury.
5. Ms. Creighton was not a permanently totally disabled worker within the meaning of RCW 51.08.160 as of July 10, 2019.
6. The Department order dated July 10, 2019, is correct and is affirmed.
CP at 1982-83.
Creighton appeals the superior court’s order.
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ANALYSIS
A. STANDARD OF REVIEW
Under the IIA, workers injured on the job are entitled to compensation for their injuries.
RCW 51.32.010. In addition to compensation, an injured worker is entitled to “proper and
necessary” care, including surgery, for the period of their disability. RCW 51.36.010(2)(a).
We review the superior court’s order, not the Board’s order,8 to determine whether the
superior court’s findings of fact are supported by substantial evidence and whether the court’s
conclusions of law flow from those findings. Birgen v. Dep’t of Lab. & Indus., 186 Wn. App. 851,
856, 347 P.3d 503, review denied, 184 Wn.2d 1012 (2015); Rogers v. Dep’t of Lab. & Indus., 151
Wn. App. 174, 180, 210 P.3d 355, review denied, 167 Wn.2d 1015 (2009).
Substantial evidence supports a finding of fact when the evidence is sufficient to persuade
a fair-minded, rational person of the truth of the matter. Perez v. Dep’t of Lab. & Indus., 28 Wn.
App. 2d 916, 921, 542 P.3d 584 (2023), review denied, 2 Wn.3d 1033 (2024). In reviewing
findings of fact for substantial evidence, the record is viewed in the light most favorable to the
party that prevailed before the superior court. Stone v. Dep’t of Lab. & Indus., 172 Wn. App. 256,
260, 289 P.3d 720 (2012). We do not reweigh or rebalance competing testimony or inferences nor
do we make or review credibility determinations. Id.; Cantu v. Dep’t of Lab. & Indus., 168 Wn.
8 When the superior court confirms “the Board’s decision . . . it is unnecessary for the superior court to make its own findings. The superior court can make its own findings or reach a different result only if the judge finds by a preponderance of the evidence that the Board’s findings and decision are erroneous.” Harder Mech., Inc. v. Tierney, 196 Wn. App. 384, 391, 384 P.3d 241 (2016). Here, the superior court confirmed the Board’s decision was correct, but made its own findings of fact and conclusions of law. Thus, we review the superior court’s findings of fact and conclusions of law.
11 No. 58293-7-II
App. 14, 22, 277 P.3d 685 (2012). Also, unchallenged factual findings are verities on appeal.
Stone, 172 Wn. App. at 260.
Here, Creighton assigns error to Conclusions of Law 2, 3, 5, and 6 and Findings of Fact 4
and 10. Thus, all factual findings besides Findings 4 and 10 are verities on appeal and make up
“the facts of the case.” Id.; Davis v. Dep’t of Lab. & Indus., 94 Wn.2d 119, 123, 615 P.2d 1279
(1980). Accordingly, review is limited to whether substantial evidence supports Findings 4 and
10, and whether the challenged conclusions flow from the superior court’s findings. Rogers, 151
Wn. App. at 180.
B. ADDITIONAL TREATMENT
Creighton argues that she is entitled to further treatment under her worker’s compensation
claim and that the superior court erred by concluding otherwise. Specifically, Creighton assigns
error to Finding of Fact 4 and Conclusion of Law 2, both of which touch on Creighton’s eligibility
for treatment under the IIA, and cites to Dr. Bransford’s testimony in support of the challenge.
United and the Department respond that the additional treatment Creighton seeks is not proper and
necessary as required under the IIA. We agree with United and the Department.
1. Finding of Fact 4
When a worker suffers an industrial injury, they are entitled to proper and necessary
medical care while disabled by their injury. RCW 51.36.010(2)(a). Proper and necessary care is
curative or rehabilitative. WAC 296-20-01002(Proper and necessary)(2)(b). But once the injured
“worker reaches a state of maximum medical improvement,” the injured worker is no longer
entitled to treatment. WAC 296-20-01002(Proper and necessary)(3). “Maximum medical
12 No. 58293-7-II
improvement occurs when no fundamental or marked change in an accepted condition can be
expected, with or without treatment.” WAC 296-20-01002(Proper and necessary)(3).
After reviewing the record de novo, the superior court found in Finding of Fact 4 that the
“credible medical testimony established that Ms. Creighton’s condition was at maximum medical
improvement.” CP at 1982. The superior court was not persuaded “by Dr. Bransford’s sole
opinion that the condition he identified and surgery he recommended are related to the industrial
injury when that opinion is contradicted by other medical professionals and even qualified by Dr.
Bransford himself.” CP at 1982. The superior court also found that based on “the most persuasive,
credible medical testimony” in the record—which did not include Dr. Bransford’s opinion—“Ms.
Creighton’s condition was at maximum medical improvement.” CP at 1982. As stated above, in
determining whether substantial evidence supports a finding of fact, we “do not reweigh or
rebalance the competing testimony,” nor do we disturb credibility determinations made by the trier
of fact. Stone, 172 Wn. App. at 260; Cantu, 168 Wn. App. at 22.
Here, the evidence shows that the additional treatment was not related to Creighton’s
industrial injury and that Creighton was at maximum medical improvement. For example, Dr.
Holmes testified that, in the absence of sufficient clinical findings supporting Creighton’s
complaints, the surgery she sought was not justified. Dr. Holmes also testified that the surgery
was unrelated to Creighton’s industrial injury—the degenerative disease in Creighton’s spine “is
preexisting and would have occurred whether or not she was working.” CP at 1212. Ultimately,
Dr. Holmes opined that Creighton was at maximum medical improvement as of her 2017 IME.
Dr. Kalb also testified that the additional treatment was unrelated to Creighton’s injury and
that further treatment was not proper and necessary. While Dr. Bransford testified that his
13 No. 58293-7-II
recommended surgery would correct Creighton’s scoliosis, Dr. Kalb testified that Creighton’s
scoliosis predated her industrial injury and was not caused by that injury. Dr. Kalb further testified
that in light of the results of the 2016 failed surgery, additional treatment was particularly unlikely
to produce positive results. Instead, the “multiple level degenerative disease of the lumbar spine,”
like Creighton had, was actually a “contraindication . . . for a lumbar fusion.” CP at 1747.
Ultimately, even Dr. Bransford could not fully relate his recommended surgery to
Creighton’s industrial injury: when asked whether he could testify, on a medically more probable
than not basis, that Creighton’s “need for surgery is related to that original industrial injury and
the accepted conditions on her claim,” Dr. Bransford testified that he could not. CP at 977.
Instead, Dr. Bransford stated such a connection was “just probable,” and stressed how difficult it
was to determine how much of Creighton’s alleged need for surgery was due to her industrial
injury and how much was due to the natural progression of her spine. CP at 978. While Dr.
Bransford did opine that as of the closure of Creighton’s claim, her condition was not fixed and
stable, he also admitted that he “did not read all of [the records]” in this case and could not “recall
all of them in detail.” CP at 974.
Creighton seeks to have this court reverse the superior court by rejecting the superior
court’s credibility determinations, reweigh the evidence, and rely on Dr. Bransford’s testimony,
which the superior court found not credible. We cannot usurp the trier of fact’s credibility
determinations and reweigh the evidence. Stone, 172 Wn. App. at 260; Cantu, 168 Wn. App. at
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22. Accordingly, we hold that the superior court did not err in finding that Creighton’s condition
was at maximum medical improvement and that Creighton was not entitled to further treatment. 9
2. Maphet
Creighton argues that the superior court misapplied Maphet and that Maphet supports
finding “United Airlines accepted and is responsible for the lumbar strain and permanent
aggravation of Creighton’s pre-existing lumbar degenerative disease.” Br. of Appellant at 26. We
disagree.
In Maphet, the worker injured her knee at work, and her self-insured employer authorized
several surgeries to address the injury. 10 Wn. App. 2d at 424. As a result of the fifth authorized
surgery, the worker developed a patellofemoral instability. Id. The Department authorized a sixth,
seventh, and eighth surgery to address the patellofemoral instability, but then refused to authorize
a ninth surgery also intended to treat the patellofemoral instability. Id.
On appeal, we explained that “[i]f the self-insured employer authorizes a surgery, the self-
insured employer has accepted the condition” the surgery was intended to treat. Id. at 435. We
further explained that, “when the [employer] authorized the sixth, seventh, and eighth surgeries to
treat patellofemoral instability, it ‘accepted’ the condition and therefore was responsible for the
ninth surgery, which addressed the same condition.” Id. We did not address whether the ninth
surgery was proper and necessary medical treatment because the employer had already conceded
it was. Id. at 423.
9 Moreover, the superior court, in Finding of Fact 5, found that Creighton’s conditions that were “proximately caused by the industrial injury were fixed and stable and did not need further proper and necessary treatment.” CP at 1982. Creighton does not assign error to Finding of Fact 5; therefore, this finding is a verity on appeal. Davis, 94 Wn.2d at 123.
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Here, the superior court referenced Maphet in Finding of Fact 4, stating it was “not
persuaded that the holding in Maphet entitles Ms. Creighton to the sought-after surgery” because
it “interprets Maphet in a narrower sense than Ms. Creighton.” CP at 1982. Even assuming
without deciding that the superior court erred in its interpretation of Maphet, any such error is
harmless because Maphet is distinguishable from and inapplicable to Creighton’s case.
First, there is no evidence that the additional treatment sought was to address a condition
that resulted from a previously authorized treatment. In fact, to the extent Dr. Bransford traced
Creighton’s need for surgery to a particular happening, he traced it to her industrial injury, not her
2016 surgery.
Second, the superior court found in Finding of Fact 5 that “[a]s of July 10, 2019, Ms.
Creighton’s conditions proximately caused by the industrial injury were fixed and stable and did
not need further proper and necessary treatment.” CP at 1982. Creighton does not assign error to
Finding of Fact 5; therefore, this finding is a verity on appeal. Stone, 172 Wn. App. at 260. Thus,
Maphet is inapplicable because the additional treatment Creighton seeks is not proximately caused
by the industrial injury, and because Creighton’s conditions were fixed and stable, no further
treatment was proper and necessary.
Unlike the worker in Maphet, Creighton fails to show that the additional treatment was to
treat a condition that resulted from previous treatments that were authorized by United. And
Finding of Fact 5 establishes that the additional treatment was not proper and necessary to treat
conditions related the industrial injury because Creighton’s conditions were fixed and stable, while
Finding of Fact 4 establishes that Creighton had reached maximum medical improvement.
16 No. 58293-7-II
3. Conclusion of Law 2
The superior court’s Conclusion of Law 2 states that “as of . . . July 10, 2019 . . . [Creighton]
is not entitled to further treatment” because her conditions were “fixed and stable,” and that
conclusion flows from the superior court’s findings. CP at 1983. In Finding of Fact 4, the superior
court found that Creighton was at maximum medical improvement. “‘Maximum medical
improvement’ is equivalent to ‘fixed and stable.’” WAC 296-20-01002(Proper and necessary)(3).
Also, in Finding of Fact 5, the superior court found that Creighton’s conditions proximately caused
by the industrial injury were fixed and stable, and Creighton did not need further proper and
necessary treatment. Thus, Conclusion of Law 2 is supported by the superior court’s findings.
Accordingly, the trial court did not err in Finding of Fact 4 or Conclusion of Law 2.10
C. DISABILITY FINDINGS CONCLUSIONS
Creighton argues that the superior court erred (1) when it failed to correctly apply the Odd
Lot Doctrine; (2) in Conclusion of Law 3, which stated, “Ms. Creighton was not a temporarily
totally disabled worker within the meaning of RCW 51.32.080 from March 27, 2018, through July
10, 2019”; (3) in Conclusion of Law 5, which stated, “Ms. Creighton was not a permanently totally
disabled worker within the meaning of RCW 51.08.160 as of July 10, 2019”; and (4) in Conclusion
10 Creighton also argues that, under the compensable consequences doctrine, she is entitled to further treatment because her previous surgery worsened her injury. However, Creighton did not raise this argument before the Board, or in the superior court, and may not do so for the first time on appeal.
RCW 51.52.104 requires that any petition for review to the Board “shall set forth in detail the grounds therefor and the party or parties filing the same shall be deemed to have waived all objections or irregularities not specifically set forth therein.” Therefore, because Creighton did not raise the compensable consequences doctrine in her petition to the Board, it is deemed waived.
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of Law 6, which stated, “The Department order dated July 10, 2019, is correct and is affirmed.”
CP at 1983. We disagree.
1. Legal Principles
If an injury renders a worker temporarily totally disabled, the worker receives “time loss”
benefits to replace the wages the worker forgoes as a result of their injury. WAC 296-20-
01002(Total temporary disability); Hubbard v. Dep’t of Lab. & Indus., 140 Wn.2d 35, 43, 992
P.2d 1002 (2000). A worker is temporarily totally disabled if the condition caused by their
industrial injury “temporarily incapacitates [the] worker from performing any work at any gainful
employment.” Hubbard, 140 Wn.2d at 43. Thus, a worker’s ability “to earn a wage at any kind
of reasonably continuous and generally available employment” ends any temporary disability
benefits. Id. Once a worker reaches maximum medical improvement, their temporarily disability
claim is closed and the Department determines what, if any, permanent disability award the worker
is entitled to. See Pybus Steel Co. v. Dep’t of Lab. & Indus., 12 Wn. App. 436, 438, 530 P.2d 350
(1975) (“The condition of an injured workman must be fixed before a rating of permanent . . .
disability can be given.”); WAC 296-20-01002(Proper and necessary)(3) (“‘Maximum medical
improvement’ is equivalent to ‘fixed and stable.’”).
“‘Permanent total disability’ means loss of both legs, or arms, or one leg and one arm, total
loss of eyesight, paralysis or other condition permanently incapacitating the worker from
performing any work at any gainful occupation.” RCW 51.08.160. The concept of total disability
is “a combination of medical and vocational factors, ‘the medical fact of loss of function and
disability, together with the inability to perform and the inability to obtain work as a result of . . .
industrial injury.” Leeper v. Dep’t of Lab. & Indus., 123 Wn.2d 803, 817, 872 P.2d 507 (1994)
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(emphasis in original) (alteration in original) (quoting Focthman v. Dep’t of Lab. & Indus., 7 Wn.
App. 286, 294, 499 P.2d 255 (1972)). Our supreme court has set out a whole person approach to
determining total disability, whereby the trier of fact must consider the worker’s “weaknesses and
strengths, age, education, training and experience, reaction to the injury, loss of function, and other
factors relevant to whether the worker is, as a result of the injury, disqualified from employment
generally available in the labor market.” Id. at 814-15. The only difference between temporary
and permanent disability is “the duration of disability, and not in its character.” Hubbard, 140
Wn.2d at 43; see also Bonko v. Dep’t of Lab. & Indus., 2 Wn. App. 22, 25, 466 P.2d 526 (1970).
Under the “odd lot doctrine,” “a claimant must prove he or she is incapable of performing
light or sedentary work of a general nature.” Leeper, 123 Wn.2d at 815 (emphasis in original).
“General work” means “even light or sedentary work, if it is reasonably continuous, within the
range of the claimant’s capabilities, training and experience, and generally available on the
competitive labor market.” Young v. Dep’t of Lab. and Indus., 81 Wn. App. 123, 131, 913 P.2d
402, review denied, 130 Wn.2d 1009 (1996). A worker makes a prima facie case of total disability
if they establish they were
able to work prior to injury and [are] unable to do so after injury because of pain and the nature of the injury; when medical experts have testified to the loss of function and limitations on [the worker’s] ability to work; and when vocational experts have concluded that the workman is not employable in the competitive labor market.
Spring v. Dep’t of Lab. & Indus., 96 Wn.2d 914, 918, 640 P.2d 1 (1982). If the claimant proves
they are incapable of performing general light or sedentary work, “the burden of proof shifts to the
Department, and it must show odd jobs or special work exist in the local labor market that the
claimant could obtain.” Leeper, 123 Wn.2d at 815.
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2. The Odd Lot Doctrine is Not Applicable
Creighton argues that the superior court incorrectly applied the Odd Lot Doctrine. Here,
the superior court found in Finding of Fact 9 that “Ms. Creighton is able to perform sedentary to
light-duty positions.” CP at 1983. And in Finding of Fact 10, the superior court declined to apply
the Odd Lot Doctrine because “Creighton has not proven that she cannot perform light or sedentary
work of a general nature.” CP 1983. Creighton did not assign error to Finding of Fact 9; therefore,
it is a verity on appeal. Stone, 172 Wn. App. at 260. Creighton also did not explicitly assign error
to Finding of Fact 10, arguing instead that the superior court misapplied the Odd Lot Doctrine.
Even if Creighton’s argument can be construed as challenging Finding of Fact 10,
Creighton’s assertion that the superior court incorrectly applied the Odd Lot Doctrine fails because
substantial evidence supports the superior court’s finding that Creighton was able to perform
sedentary to light-duty work of a general nature. For example, DeLapp, a vocational rehabilitation
counselor, testified that as of July 10, 2019, Creighton was capable of working as a customer
service representative. DeLapp also testified that he reviewed records from a prior vocational
expert who found Creighton employable as of March 27, 2018, and concluded that the finding was
still applicable.
DeLapp explained that when considering customer service representatives, soft skills “that
are not necessarily knowledge based” were particularly important. CP at 1469. The soft skills
required of a customer service representative included effective communication, conflict
resolution, investigation, phone etiquette, documentation, and problem-solving. DeLapp
explained that a customer service representative would be expected to interact with customers,
transmit information “about accounts, products, and services,” “address customer concerns,” and
20 No. 58293-7-II
“mak[e] decisions relative to the industry or the type of business in which you’re being involved.”
CP at 1466. DeLapp testified that the soft skills Creighton would have used at United were
consistent with the soft skills employers are looking for in customer service representatives. And
while Creighton used a specific software system while with United, DeLapp testified that customer
service representative applicants could expect “some sort of training,” including on particular
computer software, “once they have satisfied those soft skills that employers look for.” CP at
1470.
Creighton herself confirmed that she had many of the soft skills employers would look for,
like listening, effective communication, information gathering, problem solving, delegation, and
conflict resolution. In fact, Creighton testified that while she worried about her physical
limitations and her patience, she thought she could work in a customer service job.
As for her physical limitations, DeLapp classified the customer service representative
position as a sedentary position, meaning lifting and carrying were limited to 10 pounds or less.
DeLapp testified that the position would require constant sitting or a combination of sitting and
standing on an occasional basis, occasional standing and walking, constant talking, occasional
reaching out, rarely reaching up or down, and frequent keyboarding. DeLapp explained that many
of these demands or activities could be modified to accommodate physical limitations:
“Modifications in work sites,” such as sit-stand stations, “are common these days.” CP at 1468.
Ultimately, DeLapp opined that Creighton could physically perform the job within her physical
limitations.
Other experts agreed. Dr. Kalb testified that Creighton was capable of obtaining and
maintaining continuous and gainful employment so long as she avoided overhead work, more than
21 No. 58293-7-II
occasional lifting and bending, and lifting more than 35 pounds generally or more than 15 pounds
frequently. Casady, an occupational and rehabilitation expert, acknowledged that Creighton could
work as a customer service representative so long as she could work within the limitations her
evaluations identified. For example, she testified that Creighton could alternate between sitting,
walking, and standing for eight hours at a time. And, while Creighton’s own vocational expert,
Cohen, worried about Creighton’s postural limitations, Cohen also acknowledged that
accommodations would allow Creighton to “meet . . . the physical demands of the job.” CP at
893. Creighton own testimony corroborated her physical ability—within limitations—to perform
the job: Creighton testified that she can alternate between sitting, standing, and walking, can drive,
and can sit for up to an hour, as long as she changes positions occasionally. 11
Thus, aside from unchallenged Finding of Fact 9 being a verity on appeal, substantial
evidence in the record supports the superior court’s Finding of Fact 10 that the Odd Lot Doctrine
did not apply because Creighton has not shown that she cannot perform light or sedentary work of
a general nature. Leeper, 123 Wn.2d at 815.
3. Conclusion of Law 3
Creighton challenges Conclusion of Law 3, which stated Creighton was not temporarily
totally disabled from March 27, 2018 through July 10, 2019.
Finding of Fact 11 states that “Creighton was able to perform and obtain gainful
employment on a reasonably continuous basis from March 27, 2018, through July 10, 2019, and
11 Nor would any of Creighton’s mental ailments preclude her from working as a customer service representative: the superior court found that “Creighton does not have any mental health restrictions.” CP at 1983. Because Creighton did not assign error to that finding of fact, it is a verity on appeal. Stone, 172 Wn. App. at 260.
22 No. 58293-7-II
thereafter.” CP at 1983. Creighton does not assign error to this finding; therefore, it is a verity on
appeal. Stone, 172 Wn. App. at 260. A worker’s ability “to earn a wage at any kind of reasonably
continuous and generally available employment” ends any temporary disability benefits.
Hubbard, 140 Wn.2d at 43. Therefore, Conclusion of Law 3 is supported by the findings.
4. Conclusion of Law 5
Creighton challenges Conclusion of Law 5, which stated that Creighton was not
permanently totally disabled as of July 10, 2019. Creighton relies on the testimony from Cohen,
a vocational expert, to support her challenge. We hold that Creighton’s challenge fails.
Here, there is no record that Creighton meets the requirements of RCW 51.08.160, which
defines permanent total disability as meaning the “loss of both legs, or arms, or one leg and one
arm, total loss of eyesight, paralysis or other condition permanently incapacitating the worker from
performing any work at any gainful occupation.” Moreover, the superior court found that
Creighton did not have any mental health restrictions due to the industrial injury; is capable of
performing sedentary to light-duty positions; and “was able to perform and obtain gainful
employment on a reasonably continuous basis from March 27, 2018, through July 10, 2019, and
thereafter.” CP at 1983. Creighton does not assign error to the findings; therefore, they are verities
on appeal. Davis, 94 Wn.2d at 123. These findings support the superior court’s Conclusion of
Law 5 that Creighton was not permanently totally disabled as of July 10, 2019.
5. Conclusion of Law 6
Creighton challenges Conclusion of Law 6, which states that “[t]he Department order dated
July 10, 2019, is correct and is affirmed.” CP at 1983. As discussed above, Creighton fails to
23 No. 58293-7-II
demonstrate any error in the challenged findings of facts or conclusions of law. Therefore, the
superior court did not err in Conclusion of Law 6.
D. ATTORNEY FEES
Creighton assigns error to the superior court’s award of attorney fees to United, but
Creighton provides no discussion or citation to any legal authority supporting her challenge to the
superior court’s award to United. Creighton also seeks attorney fees on appeal, but only states in
the conclusion of her opening brief that she should be awarded her attorney fees and costs on
appeal. In her reply brief, Creighton cites to RAP 18.1 to support her request for attorney fees and
costs on appeal. United requests an award of reasonable costs pursuant to RAP 14.2.
Here, the superior court awarded United “prevailing party costs” pursuant to RCW
4.84.030 and .080. CP at 1984. Creighton challenges the superior court’s award to United.
However, Creighton fails to provide any argument or legal basis to support her challenge to the
superior court’s award of costs to United. Therefore, we do not address Creighton’s challenge to
the superior court’s award of costs to United. RAP 10.3(a)(6); Cowiche Canyon Conservancy v.
Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
As to Creighton’s request for attorney fees and costs on appeal, Creighton fails to comply
with RAP 18.1, which requires appellants to dedicate a section of their opening brief to their
request for fees, and to identify the source entitling them to fees. See Hurley v. Port Blakely Tree
Farms LP, 182 Wn. App. 753, 774, 332 P.3d 469 (2014) (“RAP 18.1(b) requires ‘more than a bald
request for fees.’” (quoting Richards v. City of Pullman, 134 Wn. App. 876, 884, 142 P.3d 1121
(2006))), review denied, 182 Wn.2d 1008 (2015). Because Creighton did not dedicate a section of
her opening brief to her request for attorney fees and costs on appeal nor did she identify a source
24 No. 58293-7-II
entitling her to such fees and costs, we deny Creighton’s request for attorney fees and costs on
appeal.12
As to United’s requests for reasonable costs on appeal pursuant to RAP 14.2, that rule
allows the award of “costs to the party that substantially prevails on review.” Because United is
the prevailing party on appeal, we award United its reasonable costs, which will be determined by
the court commissioner.
CONCLUSION
Substantial evidence supports the challenged findings of fact, and the findings of fact
support the challenged conclusions of law. Therefore, we affirm the superior court’s order. Also,
we affirm the superior court’s award of attorney fees to United, deny Creighton’s requests for
attorney fees and costs on appeal, and grant United’s request for reasonable costs on appeal
pursuant to RAP 14.2.
12 Moreover, even if Creighton had complied with RAP 18.1, Creighton is not the prevailing party and, therefore, is not entitled to attorney fees on appeal. RAP 14.2.
25 No. 58293-7-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, J. We concur:
Glasgow, J.
Veljacic, A.C.J.