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Sandven v. Associated Sand and Gravel Co.

January 21, 1997

MARVEN D. SANDVEN, APPELLANT,
v.
ASSOCIATED SAND AND GRAVEL CO., RESPONDENTS, AND THE DEPARTMENT OF LABOR AND INDUSTRIES, DEFENDANT.



Appeal from Superior Court of Snohomish County. Docket No: 92-2-05118-2. Date filed: 12/14/94. Judge signing: Hon. Joseph Thibodeau.

Petition for Review Denied June 3, 1997,

Authored by Susan R. Agid. Concurring: C. Kenneth Grosse, Ronald E. Cox.

The opinion of the court was delivered by: Agid

AGID, J. -- An occupational disease claim for workers' compensation benefits may be based on work-related aggravation of a preexisting condition. But in this case, the Board of Industrial Insurance Appeals entered an earlier order denying a claim by Marven Sandven for aggravation of the same condition on which his current claim and this appeal is based. We therefore hold that this claim is barred by res judicata and affirm. *fn1

FACTS

Sandven began working for Associated Sand and Gravel as a concrete truck driver in June 1977. On February 6, 1978, Sandven was injured. He was unloading concrete products at a job site when a power line fell and struck him, causing both electrical burns and injury to the supporting ligaments and muscles of his lower back. Sandven filed a workers' compensation claim with the Department of Labor and Industries (Department) which closed in 1982 with a category III permanent partial disability award for residual impairment of his lower back. See WAC 296-20-280. After recovering from the accident itself, Sandven returned to work full time driving trucks for Associated Sand and Gravel over long distances within Washington state. In October 1988, Sandven filed an aggravation claim, contending that the continual jarring and jostling to which his lower back was subjected in the course of his work had aggravated the back problems that resulted from the 1978 injury. On August 24, 1990, the Board of Industrial Insurance Appeals (Board) affirmed the Department's order rejecting Sandven's aggravation claim. That decision was based in part on its finding that between December 15, 1982 and July 21, 1989, claimant's condition causally related to the industrial injury of February 6, 1978 did not worsen or become aggravated or cause him to have increased impairment or disability. Sandven did not appeal that decision.

On July 23, 1990, Sandven filed a new claim for benefits alleging that his lower back condition is also an occupational disease. *fn2 Although the industrial appeals Judge who initially heard Sandven's claim found in his favor, the Board affirmed the Department's denial of Sandven's claim on August 13, 1992. Sandven appealed the Board's decision to the superior court. The parties waived jury and, after reviewing the evidence not once but twice, Judge Joseph Thibodeau concluded that Sandven had failed to meet his burden to overcome the presumption that the Board's Conclusion that his condition was not an occupational disease was correct. Judge Thibodeau noted that the aggravation claim was not before him because it had previously been separately heard and decided. He therefore affirmed the Board's decision. Sandven appeals.

Discussion

Sandven appeals the superior court's order affirming the Board of Industrial Insurance Appeals' denial of his claim for workers' compensation benefits based on its Conclusion that his condition is not an occupational disease. This court's review of the superior court's decision is governed by RCW 51.52.140, which provides for appeal from the judgment in the same way as in other civil cases. McClelland v. ITT Rayonier, Inc., 65 Wash. App. 386, 390, 828 P.2d 1138 (1992). The superior court's review of the Board's decision is de novo, but based on the same evidence and testimony that was before the Board. McClelland, 65 Wash. App. at 390. Although the Board's findings and decision are presumed correct, the superior court may substitute its own findings and decision for those of the Board if it finds "'from a fair preponderance of credible evidence'" that the Board's findings and decision are incorrect. McClelland, 65 Wash. App. at 390 (quoting Weatherspoon v. Department of Labor & Indus., 55 Wash. App. 439, 440, 777 P.2d 1084 (1989)).

"Occupational disease" is defined in RCW 51.08.140 as a disease that "arises naturally and proximately out of employment." A disease is "proximately" caused by conditions of employment when "'there [is] no intervening independent and sufficient cause for the disease, so that the disease would not have been contracted but for the condition existing in the . . . employment.'" Intalco Aluminum Corp. v. Department of Labor & Indus., 66 Wash. App. 644, 654, 833 P.2d 390 (1992), review denied, 120 Wash. 2d 1031, 847 P.2d 481 (1993) (quoting Simpson Logging Co. v. Department of Labor & Indus., 32 Wash. 2d 472, 479, 202 P.2d 448 (1949)). A medical condition arises "naturally" out of a worker's employment when it is a natural incident of conditions of his or her particular employment, i.e., the medical condition was more probably caused by conditions peculiar to the worker's particular employment than conditions in everyday life or all employment in general. Intalco, 66 Wash. App. at 654. In occupational disease cases, it is the resulting disability, not the disease, that is compensable. McClelland, 65 Wash. App. at 391.

Here, after weighing the testimony of the various physicians called by the parties, the Board found that Sandven's condition was not an occupational disease. Although Sandven is correct that the opinion of the attending physician must be given special consideration, *fn3 here the Board was not persuaded by the testimony of Dr. Del Whetstone, Sandven's attending physician. It concluded that his testimony that Sandven's back condition was caused by a combination of the residual effects of the 1978 injury and the jostling and jarring from driving trucks was inconsistent with his prior testimony that the sole cause of Sandven's back condition was the 1978 injury. The Board was instead persuaded by the testimony of Dr. John R. Mullins that Sandven suffered from a degenerative disc disease prior to the 1978 injury which hampered his recovery from the damage that injury did to the supporting ligaments and muscles of his lower back. Dr. Mullins testified that, in his opinion, the jarring and jostling interfered with the healing of the ligament and muscle injury causing it to become a chronic condition but did not affect the process of the degenerative disc disease. Like the trial court, we cannot conclude that this decision was in error. Because it was not the jostling and jarring itself that naturally and proximately caused either the degenerative disc disease or the ligament and muscle injury, the Board correctly concluded that the condition was not an "occupational disease" within the meaning of RCW 51.08.140.

An occupational disease claim can also be based on work-related aggravation of a preexisting condition. Dennis v. Department of Labor & Indus., 109 Wash. 2d 467, 476, 745 P.2d 1295 (1987); McClelland, 65 Wash. App. at 391. The problem in this case is that Sandven is now precluded from pursuing a claim based on the aggravation of his 1978 injury. Sandven did not appeal the Board's earlier order affirming the denial of his aggravation claim and finding that his back condition stemming from the 1978 injury had not worsened. Res judicata bars a new claim based on these prior unappealed adverse determinations. See Winchell's Donuts v. Quintana, 65 Wash. App. 525, 530, 828 P.2d 1166 (a quasi-judicial order of the Board of Industrial Insurance Appeals acquires preclusive effect to the same extent as the order of a court), review denied, 120 Wash. 2d 1017, 844 P.2d 436 (1992); Lejeune v. Clallam County, 64 Wash. App. 257, 266, 823 P.2d 1144 (the policy underlying the doctrine of res judicata is that every plaintiff is entitled to one, but not more than one, fair adjudication of a claim), review denied, 119 Wash. 2d 1005, 832 P.2d 488 (1992). Sandven agreed below that the symptoms on which this claim is based are the "exact same" as those on which he based his 1988 aggravation claim. Because Sandven's condition is not an occupational disease arising directly from his employment and his aggravation claim is barred by res judicata, the trial court properly affirmed the Board's order denying Sandven's appeal.

Affirme ...


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