Creighton v. United Airlines, Inc.

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TAMRA J. CREIGHTON, Appellant, v. UNITED AIRLINES, INC., AND DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

No. 58293-7-II

Court of Appeals of Washington, Division 2

August 27, 2024

UNPUBLISHED OPINION

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 claim: a 2003 cervical fusion^[1] at C5, C6, and C7; and a 2016 laminectomy and decompression^[2] 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, 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 measuring from L1 to L5," lateral listhesis and anterolisthesis^[5] 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.

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 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.

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...