Abdi v. Dep't of Labor & Indus.

HINDA ABDI, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES,BOARD OF INDUSTRIAL INSURANCE APPEALS, Respondent.

No. 80149-0-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

June 15, 2020

UNPUBLISHED OPINION

APPELWICK, J. — Pro se Abdi challenges a superior court order affirming the Board ruling dismissing her application to reopen her industrial injury claim. Abdi asserts that the evidence establishes that her depression and pain disorders worsened after her claim was closed and that this worsening was proximately caused by the original injury. But, Abdi's expert witnesses conceded that they could not relate any change in the allowed conditions to her original injury. And, a prior unappealed Board decision determined that Abdi's depression and pain disorders were not related to her injury, thus precluding relitigation of that claim. None of Abdi's remaining assertions of error provide a basis for reversal. We affirm.

FACTS

Hinda Abdi emigrated from Somalia to the United States in 1992. She began working soon after she arrived. On February 8, 2012, while working as a housing stability case manager for Neighborhood House, Abdi was holding a large number of files while seated on a chair. As she began to stand up, the chair moved unexpectedly, causing her to fall and injure her right shoulder, elbow, wrist, and hand.

On June 15, 2012, the Department of Labor and Industries (Department) allowed Abdi's claim for benefits, and she received treatment for these physical conditions. The Department closed Abdi's claim effective September 26, 2013. Abdi's last day working for Neighborhood House was September 27, 2013. She has remained unemployed employed ever since.

After Abdi lost her job, she manifested mental health conditions which were diagnosed as a depressive disorder and a pain disorder. On September 5 and September 8, 2014, the Department entered orders denying responsibility for these disorders based on its determination that they were not proximately caused or aggravated by her allowed industrial injury claim. On September 9, 2014, the Department closed Abdi's claim with no award for permanent partial disability. On April 28, 2016, an industrial appeals judge (IAJ) dismissed Abdi's appeals related to her depressive and pain disorders and affirmed the order closing her claim. On September 6, 2016, the Board upheld that decision.

Abdi did not appeal the Board's dismissal of those appeals to superior court. Instead, she applied to reopen her claim. On November 14, 2016, the Department notified Abdi that her application was denied because "[t]he medical record shows the conditions caused by the injury have not worsened since the final claim closure." On January 13, 2017, Abdi appealed the Department's order to the Board.

On June 20, 2018, an IAJ conducted a hearing on the issue of whether Abdi's conditions proximately caused by her industrial injury worsened between September 9, 2014 and November 14, 2016. Abdi appeared at the hearing pro se and called four doctors as witnesses.

Abdi testified that she continues to have difficulty performing basic functions such as writing, cooking, cleaning, or caring for herself and her children. She stated that she believes her pain got worse because she did not receive appropriate medical treatment and because her employer failed to put her on light duty after her fall. She further testified that she suffers from "lack of hope," has trouble concentrating, and wastes a lot of time on Facebook.

Dr. Holly Holbrooks-Kuratek, a psychiatrist, began treating Abdi in August 2016. She opined that Abdi exhibited a "consistent pattern of depression directly related to the injury" based on Abdi's "strong focus on this issue . . . with few other factors coming into play in our conversation." Upon reviewing Abdi's treatment notes, she further opined that Abdi's depression worsened beginning in April 2015.

Dr. Benjamin Balderson, a clinical psychologist, began treating Abdi in May 2017. He stated that Abdi's current diagnoses are "major depressive disorder, single episode, and chronic pain syndrome." He opined that Abdi's mental health conditions are more probably than not related to her work injury. However, Dr. Balderson did not express an opinion as to whether Abdi's mental health condition worsened between 2014 and 2016.

Dr. Chalib Husseini, an orthopedic surgeon, first saw Abdi in April 2016 when she came to him seeking a second opinion regarding her physical pain. Dr. Husseini opinedon a more probable than not basis that Abdi's shoulder and thumb conditions worsened between September 2014 and November 2016. However, he could not say on a more probable than not basis that her condition worsened as a result of her industrial injury "because it's possible they could get worse just with the passage of time." And, Dr. Gary Kegel, an orthopedic surgeon, similarly testified that although "there were signs of worsening of some of these conditions" between December 2013 and September 2016, he could not "conclusively say that the industrial injury caused the worsening."

On September 13, 2018, the IAJ issued a proposed decision and order dismissing Abdi's claim. The judge found that the record contained no evidence that the physical conditions proximately caused by her industrial injury objectively worsened between September 2014 and November 2016. The judge further found that the record contained no evidence that the depression or pain disorder worsened as a result of her industrial injury during this period.

On September 28, 2018, Abdi petitioned the Board for review of the IAJ's proposed decision and order. Her petition included new medical evidence. On October 19, 2018, the Board rejected the new evidence, denied Abdi's petition for review, and adopted the proposed decision and order as the final order of the Board.

On November 6, 2018, Abdi appealed the Board's decision in superior court. On June 12, 2019, the superior court entered findings of fact, conclusions of law, and judgment affirming the Board's decision. Abdi appealed.

ANALYSIS

Abdi argues the superior court erred in affirming the Board's decision to dismiss her application to reopen her industrial injury claim because she presented prima facie evidence of her worsening conditions and their relationship to her industrial injury. She challenges the following relevant findings of fact:

1.2.9 On September 9, 2014, Ms. Abdi had no objective findings proximately caused by the industrial injury.

1.2.10 On November 16, 2016, Ms. Abdi had no objective findings proximately caused by the industrial injury.

1.2.11 The record does not include evidence that the physical conditions proximately caused by industrial injury worsened between September 9, 2014 and November 16, 2016.

1.2.12 Ms. Abdi did not present evidence that her right thumb condition was proximately caused by, or objectively worsened, as a result of the industrial injury between September 9, 2014 and November 16, 2016.

1.2.13 The record does not contain evidence that Ms. Abdi's depression worsened as a result of the industrial injury between September 9, 2014 and November 16, 2016.

1.2.14 The record does not include evidence that Ms. Abdi's pain disorder worsened as a result of her industrial injury between September 9, 2014 and November 16, 2016.

A worker may apply to the Department to reopen an earlier workers' compensation claim due to aggravation or worsening of her industrial injury. RCW 51.32.160(1)(a). The Department's decision to deny reopening of a claim may be appealed to the Board, and the Board's decision may in turn be appealed in superior court. RCW 51.52. 060, RCW 51.52.110.

The superior court's review of a Board order is de novo and based solely on the evidence and testimony presented to the Board. Butson v. Dep't of Labor & Indus., 189Wn. App. 288, 295, 354 P.3d 924 (2015); RCW 51.52.115. "In granting a motion to dismiss under CR 41(b)(3), the court may weigh the evidence and make a factual determination that the plaintiff has failed to come forth with credible evidence of a prima facie case, or the court may view the evidence in the light most favorable to the plaintiff and rule as a matter of law that the plaintiff has failed to establish a prima facie case." Hendrickson v. Dep't of Labor & Indus., 2 Wn. App. 2d 343, 352, 409 P.3d 1162, review denied, 190 Wn.2d 1030, 421 P.3d 450 (2018). 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 were incorrect. Ruse v. Dep't of Labor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999) (quoting McClelland v. ITT Rayonier, Inc., 65 Wn. App. 386, 390, 828 P.2d 1138 (1992). The Board's decision is considered prima facie correct and the opposing party must support its challenge by a preponderance of the evidence. RCW 51.52.115; Eastwood v. Dep't of Labor & Indus., 152 Wn. App. 652, 657, 219 P.3d 711 (2009).

Our review is governed by RCW 51.52.140, which provides that an "[a]ppeal shall lie from the judgment of the superior court as in other civil cases." In reviewing the superior court's decision, we determine "'whether substantial evidence supports the trial court's factual findings and then review, de novo, whether the trial court's conclusions of law flow from the findings.'" Rogers v. Dep't of Labor & Indus., 151 Wn. App. 174, 180, 210 P.3d 355 (2009) (quoting Watson v. Dep't of Labor & Indus., 133 Wn. App. 903, 292, 138 P.3d 177 (2006)). Substantial evidence is evidence "sufficient to persuade a rational,fair-minded person that the finding is true." Cantu v. Dep't of Labor & Indus., 168 Wn. App. 14, 21, 277 P.3d 685 (2012).

Under Washington's Industrial Insurance Act, Title 51 RCW, a claimant must establish the following four elements by medical testimony and objective symptoms to reopen an industrial injury claim on the basis of aggravation: (1) a "causal relationship between the...