Hendrickson v. Dep't of Labor & Indus. of Wash.

409 P.3d 1162

Tera L. HENDRICKSON, Appellant,

v.DEPARTMENT OF LABOR AND INDUSTRIES OF the STATE of Washington, Respondent.

No. 75475-1-I

Court of Appeals of Washington, Division 1.

FILED: January 29, 2018

Ryan Anthony Johnson, Vail, Cross-Euteneier & Associates, P.O. Box 5707, Tacoma, WA, 98415-0707, for Appellant.

Sharon M. James, Washington Attorney General's Office, P.O. Box 40100, 1125 Washington St. S.E., Olympia, WA, 98504-0100, Anastasia R. Sandstrom, Attorney General's Office, 800 5th Ave., Ste. 2000, Seattle, WA, 98104-3188, for Respondent.

PUBLISHED OPINION

Schindler, J.¶1 Under the Industrial Insurance Act, Title 51 RCW, an injured worker can file an application to reopen a claim to obtain additional medical treatment for aggravation of the injury.¹ Established case law requires the worker to present some objective medical evidence that the injury has worsened since the closure of the claim. In 2007, Tera Hendrickson suffered a mid- and low-back injury while working as a truck driver. In 2012, the Washington State Department of Labor and Industries closed the claim with a permanent partial disability award for a category 4 permanent dorso-lumbar and/or lumbosacral impairment. In September 2013, Hendrickson filed an application to reopen her claim. Substantial evidence supports finding Hendrickson did not present objective medical evidence that the injury worsened since the department closed the claim. We affirm the superior court decision upholding dismissal of the application to reopen.

FACTS

¶2 Tera Hendrickson worked for Staffmark LLC-Pacific as a truck driver. On October 9, 2007, Hendrickson "heard and felt a pop" in her middle and lower back when she stepped out of a truck at work. On October 19, Hendrickson filed a claim for disability benefits. The Washington State Department of Labor and Industries (Department) allowed the claim and paid benefits. Hendrickson underwent back surgery and received several rounds of physical therapy, cortisone injections, and laser treatments.

¶3 Hendrickson continued to have "pain in her head, neck, mid-back, and low back, as well as sciatic pain ... and numbness." When Hendrickson saw orthopedic spine surgeon Dr. Michael Martin on April 16, 2012, she reported "ongoing pain all over." Dr. Martin diagnosed Hendrickson with "postlaminectomy syndrome lumbar spine, sprain-strain, and cervical radiculopathy."

¶4 On May 10, 2012, the Department closed her claim with a permanent partial disability award for "category 4 permanent dorso-lumbar and/or lumbosacral impairments."²

¶5 Hendrickson moved to Hawaii and in May 2013, enrolled in school to complete her bachelor's degree. In July 2013, Hendrickson moved back to Washington and started working for Freight Northwest, driving a truck with flatbed trailers.

¶6 On September 25, 2013, Hendrickson filed an application to reopen her industrial injury claim. Hendrickson saw Dr. Martin on January 6, 2014. Hendrickson "was again complaining of pain ... ‘all over.’ " Dr. Martin examined Hendrickson and ordered "repeat [MRI³ ] scans of her cervical and lumbar spine[ ]." The 2014 MRI scans were "essentially unchanged from the scans performed previously in the cervical spine in 2011 and the lumbar spine in 2012."

¶7 On February 12, 2014, the Department denied the application to reopen the claim. The "Notice of Decision" states, "The medical record shows the conditions caused by the injury have not worsened since the final claim closure." Hendrickson filed a motion for reconsideration. The Department issued a Notice of Decision affirming denial of the application to reopen.

¶8 Hendrickson appealed the decision to the Washington State Board of Industrial Insurance Appeals (Board). An industrial appeals judge (IAJ) held a hearing. Hendrickson, her daughter, and a friend of Hendrickson's testified. Hendrickson submitted the deposition testimony of Dr. Martin. The IAJ admitted the deposition testimony into evidence.

¶9 Dr. Martin testified that when he saw Hendrickson on January 6, 2014, he performed a "review of symptoms" and a physical examination. The review of symptoms was "unremarkable." The physical examination showed "[m]otor strength was normal in the upper and lower extremities" but "[s]ensation was decreased in the C6 ^{[4 ]} dermatome on the left, the C7 dermatome on the left, the C8 and T1 ^{[5 ]} dermatomes also on the left." Dr. Martin ordered repeat MRI scans.

¶10 Dr. Martin compared the results of the January 17, 2014 MRI scans with the 2011 and 2012 MRI scans. Dr. Martin testified that "the problems indicated by the MRI" are "considered objective." Dr. Martin testified the MRI results were "essentially unchanged." Dr. Martin testified the January 2014 MRI showed "multilevel cervical spine disk and facet degeneration" that was "similar when compared" to the August 18, 2011 MRI.

Q What, if anything, did you learn from those [2014] scans?

A They were essentially unchanged from the scans performed previously in the cervical spine in 2011 and the lumbar spine in 2012.

¶11 Dr. Martin said Hendrickson "had similar symptoms for several years dating from [the] injury of 2007." Dr. Martin testified on "a medically more-probable-than-not basis," Hendrickson was "feeling worse."

Q ... In this case, on a medically more-probable-than-not basis, do you believe that Ms. Hendrickson's symptoms are worse?

A Yes, she is feeling worse.

¶12 Dr. Martin stated, "I cannot disagree" with the conclusion of independent medical examiner Dr. James Kopp that there was " ‘nothing on the physical examination or in the MRI studies that would indicate criteria that would qualify for objective evidence of reopening.’ " Dr. Kopp concluded, in pertinent part:

"The reopening application indicates we need to determine that she is worse than a Category 4, which apparently has been awarded for her dorsolumbar and lumbosacral impairment. There is nothing on the physical examination that would suggest worse than a Category 4.... While we sympathize that the claimant has ongoing discomfort, she is functional and is working as a truck driver, and there is nothing on the physical examination or in the MRI studies that would indicate criteria that would qualify for objective evidence of reopening."

¶13 When asked what evidence "supports reopening of the claim," Dr. Martin testified, "I believe that she subjectively feels worse." Dr. Martin testified that in his opinion, the "conditions related to the October of 2007 industrial injury have worsened ... [s]ubjectively." Dr. Martin conceded that there were "no objective findings of worsening" and that his opinion was based on her "subjective complaints of ... pain."

Q There are no objective findings of worsening in this case, are there, Doctor?

A No.

Q They're all based on subjective complaints of essentially pain that she is experiencing?

A Yes.

¶14 At the conclusion of the evidence presented by Hendrickson, the Department filed a motion to dismiss the appeal to reopen the claim. The Department argued Hendrickson did not present any objective medical evidence that her condition had worsened. Hendrickson argued her subjective complaints of increased pain were "supported by the objective evidence of the MRI."

¶15 The IAJ granted the motion to dismiss the appeal. The IAJ found Hendrickson did not present any "objective evidence of worsening." The IAJ issued a "Proposed Decision and Order." The June 8, 2015 Proposed Decision and Order states, in pertinent part:

Michael Martin, M.D., testified that he is an orthopedic surgeon, certified in his field. He has been Tera Hendrickson's treating physician since the mid-1990s....

When seen in April 2012, Ms. Hendrickson complained that she had ongoing pain all over. When seen in January 2014, she again complained that she had pain all over.... Dr. Martin ordered scans of her cervical and lumbar spine. They were essentially unchanged from the scans of her cervical spine in 2011 and lumbar spine in 2012. Some of her symptoms fit with the findings on those imaging studies.

Ms. Hendrickson's diagnoses were postlaminectomy syndrome lumbar spine, strain/sprain, and cervical radiculopathy, related to her October 9, 2007 industrial injury. She had similar symptoms for several years dating from that injury of 2007.

Comparing Ms. Hendrickson's cervical MRIs of August 2011 and January 2014, Dr. Martin doesn't see much difference. [Hendrickson] had increased subjective complaints in January 2014, but it isn't unusual for symptoms to worsen without any demonstrable change on imaging studies. Her worsening symptoms fit the pathology on her imaging studies. By January 2014, her diagnoses were unchanged, but she was more symptomatic. Dr. Martin agrees that there is nothing on examination suggesting an impairment worse than the Category 4 previously awarded for Ms. Hendrickson's dorsolumbar and lumbosacral impairment. But he believes that subjectively she feels worse. There are no objective findings of worsening in this case.

¶16 The IAJ rejected Hendrickson's argument that Dr. Martin's testimony supported finding "there is no way to objectively measure the progression of her injury-related condition." The IAJ found Dr. Martin "never said that. In fact, he compared MRIs" and found no "objective progression of her condition."

Medical testimony is required to show that there actually was a worsening or aggravation between the terminal dates.

Lewis v. ITT Continental Baking [Co.], 93 Wn.2d 1 (1979). It must be based at least in part on objective medical findings. Dinnis v. Department of Labor & Indus., 67 Wn.2d 654[, 409 P.2d 477 (1965) ]. The exception is when there is no way to objectively measure the progression of a condition. In re Charles Lewis, [No.] 07 16483 [ (Wash. Bd. of Indus. Appeals Oct. 10, 2008) ]. Claimant suggests that Dr. Martin established that there is no way to objectively measure the progression of her injury-related condition. But Dr. Martin never said that. In fact, he compared MRIs to see if there was

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