Garcia v. Growers

523 P.3d 788

Rafael BARRETO GARCIA, Respondent,

v.Stemilt GROWERS, Appellant.

No. 38676-7-III

Court of Appeals of Washington, Division 3.

Filed December 13, 2022

Ordered Published Date January 31, 2023

Lawrence Edward Mann, Wallace Klor Mann Capener & Bishop PC, 5800 Meadows Rd Ste. 220, Lake Oswego, OR, 97035-8246, for Appellant.

Marcus Richard Henry, Smart Law Offices P.S., P.O. Box 7284, Kennewick, WA, 99336-0617, Anastasia R. Sandstrom, Attorney General's Office, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-318, for Respondent.

Lawrence-Berrey, A.C.J.

¶ 1 Stemilt Growers appeals the trial court's order reopening Rafael Barreto Garcia's industrial insurance claim on the basis that his condition is not "fixed and stable" within the meaning of WAC 296-20-01002(3). We hold that a condition is not "fixed and stable" if a fundamental or marked change in an accepted condition can be expected with or without treatment. In so holding, we affirm the superior court and grant Mr. Barreto Garcia's request for attorney fees.

FACTS

¶ 2 In October 2016, Rafael Barreto Garcia fell from an orchard ladder while picking apples for Stemilt Growers, a self-insured employer. As he fell, his chest hit a branch. Workers called an ambulance. On the way to the hospital, Mr. Barreto Garcia suffered cardiac arrest. He remained in a coma for eight days and was discharged eight days later. Since his industrial accident, he has returned to Mexico and has not worked because even light exertion causes him to have difficulty breathing.

¶ 3 On January 9, 2018, the Department of Labor and Industries (Department) notified Mr. Barreto Garcia it was closing his claim because "[t]he medical record shows treatment is no longer necessary and there is no permanent partial disability." Clerk's Papers (CP) at 88. Mr. Barreto Garcia requested reconsideration, but the Department affirmed its decision and closed his claim on March 22.

Administrative appeal

¶ 4 Mr. Barreto Garcia appealed the Department's decision. In his written notice of appeal, he requested treatment, time loss, and permanent partial disability or permanent total disability. At the hearing, he argued he was entitled to further proper and necessary medical treatment, and he was temporarily totally disabled through March 22, 2018, the claim closure date.

¶ 5 Mr. Barreto Garcia's treating physician, Dr. Jose Puente, testified telephonically at the February 7, 2019 administrative hearing. Dr. Puente had been seeing Mr. Barreto Garcia approximately monthly since March 2017. Testing showed problems in Mr. Barreto Garcia's left ventricle. Dr. Puente explained, "it's difficult for the heart to relax and to fill up with blood, and that causes ... difficulty in the ventricular function." CP at 100. He diagnosed Mr. Barreto Garcia's condition as heart failure caused by trauma to his chest from the industrial injury.

¶ 6 Dr. Puente had seen discrete improvements with fluctuations as he adjusted Mr. Barreto Garcia's medications. The medications Dr. Puente prescribed were "support treatment" that would not heal Mr. Barreto Garcia's condition. CP at 101.

¶ 7 Dr. Puente testified that Mr. Barreto Garcia's physical limitations would not improve with time. However, if Mr. Barreto Garcia ceased taking his medications, he "would develop difficulty breathing, and possibly after that he would develop pulmonary edema requiring hospital admission." CP at 111.

¶ 8 Dr. Daniel Gottlieb, Stemilt Growers's consulting expert, linked all of Mr. Barreto Garcia's heart dysfunction to preexisting high blood pressure unrelated to the claimant's industrial injury. He "disagree[d] with almost every word" of Dr. Puente's diagnosis of heart failure caused by the industrial injury. CP at 174. At the time of his review in October 2017, Dr. Gottlieb believed Mr. Barreto Garcia had reached maximum medical improvement of his cardiac issues.

¶ 9 The industrial appeals judge concluded that Mr. Barreto Garcia was entitled to additional time-loss benefits through the claim closure date, but that his heart condition was at maximum medical improvement and the Department should deny further treatment and close his claim.

¶ 10 Mr. Barreto Garcia petitioned the Board of Industrial Insurance Appeals (Board) for review of the industrial appeals judge's decision. He challenged the judge's findings that he had preexisting high blood pressure and high cholesterol before the industrial injury and that his condition was fixed and stable and not in need of further proper and necessary treatment. He further challenged the judge's conclusion that he was not entitled to further treatment. He did not argue he was permanently disabled. Stemilt Growers cross petitioned for review, challenging the judge's findings and conclusions supporting its award of additional time-loss benefits.

¶ 11 The Board adopted the industrial appeals judge's findings of fact and conclusions of law, noting that the judge

correctly concluded that Mr. Barreto Garcia's cardiac condition reached maximum medical improvement because the recommended medications will not result in a more complete recovery and the cardiac permanent impairment rule accepts that workers with a cardiac impairment can reach maximum medical improvement when they continue to need therapy.

CP at 8 (footnote omitted). It noted that Mr. Barreto Garcia had waived his claims for permanent disability.

Superior court appeal

¶ 12 Mr. Barreto Garcia appealed the Board's decision to the Benton County Superior Court. He asserted that WAC 296-20-01002 "indicates that a condition is not fixed and stable so long as a marked change can be expected without treatment." Report of Proceedings at 6. He pointed to testimony from his treating physician, that he needed to continue taking his medications or his condition would deteriorate. Stemilt Growers responded that the Board correctly ordered Mr. Barreto Garcia's claim to be closed because his medications merely maintained his condition, it would not result in a more complete recovery.

¶ 13 The superior court issued its decision in a written ruling. It explained that Dr. Puente

opined that if Mr. Barreto Garcia discontinues to take his prescription medications (treatment) he will develop difficulty breathing and possibly after that he would develop pulmonary edema requiring hospital admission. ... Mr. Barreto Garcia's medications are not for maintenance. His medications change regularly, and cessation would result in dire and certain consequences like a swift and life-threatening exacerbation in his heart condition. The court appreciates the doctor's testimony that Mr. Barreto Garcia's treatment is not curative in that he will not get better. However, it is curative in that it will prevent his condition to worsen to a dangerous degree.

CP at 216. Formal findings and conclusions later were entered. The court found:

1) Mr. Barreto Garcia sustained an industrial injury on October 30, 2016.

2) In addition to other injuries, Mr. Barreto Garcia is still suffering from congestive heart failure as proximately caused by his industrial injury.

3) Mr. Barreto Garcia is unable to perform or obtain gainful employment.

4) Mr. Barreto Garcia's heart condition is not fixed and stable at this time.

CP at 218. It thus concluded:

1) That Mr. Barreto Garcia is entitled to further proper and necessary treatment.

2) That Mr. Barreto Garcia was a temporarily and totally disabled worker from November 20th, 2017, through March 22nd, 2018.

CP at 218. It ordered that Mr. Barreto Garcia's claim be reopened, that he receive proper and necessary treatment and that he receive time-loss compensation through March 22, 2018. Stemilt Growers timely appealed.

ANALYSIS

Standard of review

¶ 14 Under the Industrial Insurance Act, Title 51 RCW, appeals from the superior court are reviewed under the ordinary standards of civil review. RCW 51.52.140 ; see also Rogers v. Dep't of Lab. & Indus. , 151 Wash. App. 174, 179-81, 210 P.3d 355 (2009). Our review is limited to evaluating whether substantial evidence supports the superior court's findings of fact and whether the superior court's conclusions of law flow from those findings. Ruse v. Dep't of Lab. & Indus. , 138 Wash.2d 1, 5, 977 P.2d 570 (1999). When, as here, the trial court prepares a memorandum opinion, we consider that as a supplement to its formal findings and conclusions. Zavala v. Twin City Foods , 185 Wash. App. 838, 859, 343 P.3d 761 (2015).

General principles

¶ 15 Under the definition for "proper and necessary," "[t]he department or self-insurer pays for proper and necessary health care services that are related to the diagnosis and treatment of an accepted condition." WAC 296-20-01002(1). "The department or self-insurer stops payment for health care services once a worker reaches a state of maximum medical improvement." WAC 296-20-01002(3). Maximum medical improvement is the same as fixed and stable. Id. Once a worker's condition is fixed and stable, they may qualify for a disability award. See WAC 296-20-19000.

A. FIXED AND STABLE

¶ 16 Stemilt Growers contends that Mr. Barreto Garcia's heart condition is fixed and stable. We disagree.

¶ 17 A condition is fixed and stable "when no fundamental or marked change in an accepted condition can be expected, with or without treatment." WAC 296-20-01002(3). The Board's decisions construing this administrative rule are inconsistent.

¶ 18 In In re Hicks , Nos. 01 14838, 02 12943, 02 18743, 02 21737, 02 21738, 02 23787, 02 23788, 03 11379, 03 11380, 03 11381, & 03 11382, 2004 WL 437358 (Wash. Bd. of Indus. Ins. Appeals Jan. 21, 2004), the claimant had a painful degenerative spine condition, aggravated by a workplace injury. Id. at *2. One of her experts testified that stopping the prescribed opioid medication would have disastrous results, rendering the claimant unable to maintain even her very limited functional capacity. Id. Another of her experts testified that without frequent, on-going psychotherapy for depression, the claimant's...