IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
AUTUMN L. MATTO, No. 73717-1-1
r-o
Respondent,
v.
HAGGEN, INC.,
O
Appellant,
WASHINGTON STATE DEPARTMENT UNPUBLISHED OPINION
OF LABOR & INDUSTRIES,
FILED: April 18, 2016
Respondent.
Verellen, C.J. — In this industrial insurance appeal, the superior court found
Autumn Matto's low back condition proximately caused by her work injury objectively
worsened from March 2009 to April 2013. Matto's former employer, Haggen, Inc.,
appeals, challenging the sufficiency of the evidence supporting the superior court's
findings. Because substantial evidence in the record supports the superior court's
findings that in turn support its conclusions, we affirm.
FACTS
Matto worked in the deli at Haggen for several years. In September 2008, Matto
injured her low back at work when she bent over to pick up a box of cucumbers. She
heard a crunch and felt a sharp pinch in her low back. Matto saw her attending
physician, Dr. Stephen Aldrich, for treatment.
No. 73717-1-1/2
Dr. Aldrich examined Matto's low back and ordered a magnetic resonance
imaging (MRI) test. The MRI revealed Matto had degenerative disc disease at the
L5-S1 disc level of her low back. Dr. Aldrich prescribed Matto ibuprofen and referred
her to physical therapy. Matto then filed an application for benefits with the
Department of Labor and Industries.
Matto progressed in treatment and returned to work full time in November 2008.
In December 2008, Matto quit Haggen and a few months later moved to Florida. In
March 2009, the Department closed Matto's claim for her work injury with no present
disability award. At that time, Matto's low back hurt only if she "overdid it."1
In July 2012, Matto moved back to Washington. She applied to reopen her claim
with the Department due to an aggravation of her work injury. Matto resumed treatment
with Dr. Aldrich.
The Department denied Matto's application to reopen her claim, concluding the
condition caused by her industrial injury had not objectively worsened. Matto sought
reconsideration. The Department affirmed the denial of reopening Matto's claim.
Matto petitioned for review before the Board of Industrial Insurance Appeals.
The parties relied upon the deposition testimony of several medical experts. Dr. Aldrich
testified that Matto's low back condition caused by her industrial injury had objectively
worsened between March 2009, the date the claim closed, and April 2013, the date the
Department denied reopening of the claim. He noted specific objective reduced disc
heights at her L4-5 and L5-S1 levels. He found a causal relationship between the work
injury and the degeneration of her lower back.
1 Clerk's Papers (CP) at 129.
No. 73717-1-1/3
Two independent physicians, Dr. William Stump and Dr. Gerald Seligman,
evaluated and examined Matto. They testified that the worsening of Matto's low back
condition from March 2009 to April 2013 was caused by the progression of her
degenerative disc disease and natural aging.
An industrial appeals judge issued a detailed proposed decision and order. The
proposed decision and order reversed the Department's order denying the reopening of
Matto's claim for permanent partial disability benefits. Haggen petitioned for review.
The Board of Industrial Insurance Appeals affirmed the Department's order, concluding
Matto's condition proximately caused by the work injury did not objectively worsen from
March 2009 to April 2013.
Matto appealed to the superior court. After a bench trial, the superior court
issued its letter ruling reversing the Board's decision and order. The court then entered
findings of fact, conclusions of law, and judgment. The court found:
2. On March 4, 2009, Ms. Matto's objective findings proximately
caused by the industrial injury were the findings on imaging studies
which revealed degenerative disc disease at the L5-S1.
3. On April 5, 2013, Ms. Matto's objective findings proximately caused
by the industrial injury were the progression of the findings on
imaging studies that revealed an increase in the degenerative disc
disease of the L4-5 and L5-S1 levels of her low back.
4. Mr. Matto's condition proximately caused by the industrial injury
objectively worsened from March 4, 2009 and April 5, 2013.[2]
The court concluded that "[bjetween March 4, 2009 and April 5, 2013, Ms. Matto's
condition proximately caused by the industrial injury objectively worsened within the
meaning of RCW 51.32.160."3
2 CP at 356.
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Haggen appeals the superior court's judgment.
ANALYSIS
Haggen challenges the superior court's findings and conclusions, contending
Matto's condition proximately caused by her work injury did not objectively worsen from
March 2009 to April 2013. We disagree.
We review a superior court's decision in this context under the usual civil
standards.4 We review the court's findings of fact for substantial evidence.5 We review
de novo whether the findings in turn support the court's conclusions.6 Substantial
evidence is evidence "sufficient to persuade a rational fair-minded person the premise is
true."7 We do not reweigh competing testimony and inferences.8 We view the record
and all reasonable inferences in the light most favorable to the prevailing party.9
A worker may have a claim reopened for aggravation of a condition caused by a
work injury.10 Establishing aggravation requires medical testimony that objective
symptoms show a causal relationship between the injury and increased disability after
3 CP at 357.
4 RCW 51.52.140: Rogers v. Dep't of Labor & Indus., 151 Wn. App. 174, 180-81,
210 P.3d 355 (2009); Malana v. Dep't of Labor and Indus., 139 Wn. App. 677, 683, 162
P.3d 450 (2007).
5 Ruse v. Dep't of Labor & Indus.. 138 Wn.2d 1, 5, 977 P.2d 570 (1999).
6 Rogers, 151 Wn. App. at 180.
7 Sunnvside Vallev Irrigation Dist. v. Dickie. 149 Wn.2d 873, 879, 73 P.3d 369
(2003).
8 Foxv. Dep't of Ret. Svs., 154 Wn. App. 517, 527, 225 P.3d 1018 (2009).
9 Zavala v. Twin City Foods, 185 Wn. App. 838, 859, 343 P.3d 761 (2015).
10 RCW 51.32.160; Eastwood v. Dep't of Labor & Indus., 152 Wn. App. 652, 656,
219P.3d711 (2009).
4
No. 73717-1-1/5
the claim closure.11 A trier of fact in this context should give special consideration to an
attending physician's opinion.12
Dr. Aldrich testified that Matto's work injury "was a material contributor to her
current disability"13 and that the work injury "likely contributed to" the acceleration of her
preexisting degenerative disc disease.14
[0]n a more probable than not basis I think she is significantly more
disabled simply because of the restrictions of pain preventing her from
pursuing some activities that would be a normal part of daily living. So I
think her disability is progressing just as her objective evidence of the
spinal deterioration has progressed.[15]
Although Dr. Aldrich testified it was difficult to determine if Matto's L4-5 disc level
degeneration was caused by the work injury, he did conclude that her work injury
contributed to her L4-5 disc issues:
Given that she had very little evidence of previous dis[c] deteriorative
changes at L4-5 prior to the injury or right after the injury's imaging
studies, I have to conclude that the stress is occurring because of her
lifting up those . . . cucumbers in all cases probably strained that area or
delivered some pressure stress to the area that may very well have
accelerated an underlying degenerative process that was at the time not
symptomatic and most of her symptoms were really around the already
declining . . . L5-S1 dis[c]. So I don't think you can rule out that thatinjury
had some contributing factors as far as the L4-5 dis[c] is concerned.[™]
He testified that Matto's condition at her L4-5 and L5-S1 disc levels proximately caused
by her work injury worsened from March 2009 to April 2013. For example, when
11 Phillips v. Dep't of Labor & Indus., 49 Wn.2d 195, 197, 298 P.2d 1117(1956).
12 Zavala. 185 Wn. App. at 867.
13 CP at 220.
14 CP at 207.
15 CP at 197.
16 CP at 221 (emphasis added).
No. 73717-1-1/6
Dr. Aldrich compared Matto's x-rays from July 2012, he found a loss of L5-S1 disc
height from 1.11 centimeters in 2007 to .066 centimeters in 2012 and a loss of L4-5 disc
height from 1.47 centimeters in 2007 to 1.15 centimeters in 2012. Matto "definitely had
objective evidence of worsening" and "narrowing" of her L4-5 and L5-S1 disc levels,17
and the "significant roots of this symptom" arose from her work injury.18
Therefore, viewing the evidence in the light most favorable to Matto, we conclude
substantial evidence in the record supports the superior court's findings, which in turn
support its conclusion that Matto's condition proximately caused by the work injury
objectively worsened from March 2009 to April 2013.
On appeal, Haggen asserts Dr. Aldrich's testimony should not be given "greater
weight or credibility."19 This is so, according to Haggen, because its physicians are
more credible. Haggen effectively asks us to reweigh the evidence and to make
credibility determinations. We do neither.20
Contrary to Haggen's contention, the superior court here did not improperly rely
on the industrial appeals judge's proposed decision and order. The superior court's
letter ruling mentions the proposed decision and order in passing only to note the
significance of the attending physician's opinion. The record does not suggest the
superior court deferred to the industrial appeals judge or put "greater weight" on the
proposed decision and order solely by virtue of its length.
17 CP at 192.
18 CP at 194.
19 Appellant's Br. at 20.
20 Raum v. City of Bellevue. 171 Wn. App. 124, 151, 286 P.3d 695 (2012).
No. 73717-1-1/7
CONCLUSION
Substantial evidence in the record supports the superior court's findings that in
turn supports its conclusion that Matto's condition proximately caused by her work injury
objectively worsened from March 2009 to April 2013. Therefore, we affirm the superior
court's judgment.
WE CONCUR:
£dx,J. o-
Vfe^e
Autumn L. Matto v. Haggen, Inc.
Combined Opinion