Appeal from Franklin Superior Court. Docket No: 11-2-50388-0. Judge signing: Honorable Carrie L Runge. Judgment or order under review. Date filed: 08/27/2013.
Scott E. Rodgers and Norma Rodriguez (of Rodriguez & Associates ), for appellant.
William A. Masters and Schuyler T. Wallace Jr. (of Wallace Klor & Mann PC ), for respondent.
Authored by George B. Fearing. Concurring: Kevin M. Korsmo, Robert E. Lawrence-Berrey.
[185 Wn.App. 841]
¶ 1 The Board of Industrial Insurance Appeals closed Ana Zavala's industrial insurance claim, which ruling the Franklin County Superior Court affirmed. Zavala appeals and asks this court to reopen her claim or, in the alternative, to increase her disability rating. The appeal requires discussion of the " lit up" doctrine under workers' compensation
law. Zavala primarily argues that her testimony and the testimony of friends and family that she experienced no pain before her work injury requires the trial court to find that she suffered from no preexisting condition, despite medical testimony to the contrary. Because the trial court has the discretion to believe the testimony of physicians over lay witnesses and because we defer to the trial court's findings, we affirm the superior court.
¶ 2 On September 17, 2007, Ana Zavala, then age 52, injured her left knee in the course of employment with Twin City Foods. Zavala testified concerning the circumstances of the injury:
[185 Wn.App. 842] I was cleaning an area, and my supervisor said, " This area needs to be clean in 15 minutes, it has to be very clean," and I was hurrying up. I was putting chlorine and soap and I was washing the area quickly, and I hit my knee, and ever since then I have not been able to walk.
Admin. Record (AR) at 461. Zavala hit her knee against the flat edge of a tub. Zavala finished her work on September 17, but then went to Lourdes Occupational Health Center for an assessment.
¶ 3 In October 2007, orthopedic surgeon Christopher Kontogianis examined Ana Zavala. An October 3, 2007, magnetic resonance imaging (MRI) showed fluid in her left knee, a tear of the posterior horn of the medial meniscus, and a complete tear of the medial collateral ligament from the tibial insertion. A meniscus is a " c" -shaped cartilage disk found in the knee. The medial meniscus lies on the inner side of the knee, and the lateral meniscus rests on the outer side of the knee. The menisci serve a critical function in the knee as shock absorbers or cushions, thereby minimizing the stress on the articular cartilage. The posterior horn is in the back ridge or bend of the meniscus. The medial collateral ligament is one of four major ligaments critical to the stability of the knee joint. This ligament spans the distance from the end of the femur to the top of the tibia and lies inside the knee joint.
¶ 4 On November 19, 2007, Ana Zavala applied for workers' compensation benefits with the Department of Labor and Industries. The department approved Zavala's claim and ordered Twin City Foods to pay all medical and time-loss compensation benefits for the industrial injury.
¶ 5 Dr. Christopher Kontogianis performed arthroscopic surgery to repair Zavala's left knee on November 21, 2007. The arthroscopy revealed significant degenerative change in the knee, diagnosed as osteoarthritis. Kontogianis injected Synvisc, an artificial lubricant, into Zavala's knee to treat her osteoarthritis.
[185 Wn.App. 843] ¶ 6 Ana Zavala received time-loss compensation through April 27, 2008. On June 16, 2008, the department closed Zavala's claim because the covered medical condition was stable. The department then ordered Twin City Foods to pay Zavala a permanent partial disability (PPD) award of ten percent of the amputation value of the left leg above the knee joint.
¶ 7 On July 18, 2008, Ana Zavala protested the closing of her claim by the Department of Labor and Industries. The department held its June 16 order in abeyance beginning November 7, 2008. The department cancelled this abeyance and reopened Zavala's claim on December 5, 2008.
¶ 8 The department again closed Ana Zavala's claim on August 21, 2009. This closure recognized the same time-loss compensation, paid through April 27, 2008, and the same ten percent permanent partial disability award. Zavala again protested the closure, and the department cancelled the August 21 closure on October 30, 2009. Twin City Foods appealed the cancellation of the closure.
¶ 9 The Board of Industrial Insurance Appeals conducted a hearing on Twin City Foods' appeal on September 30 and November 1, 2010. At the hearing, Ana Zavala, her son Jose Zavala, her coworkers Maria Martinez and Josefina Vargas, her friend from childhood Floretino Ledesma, and her friend from church Irma Mendoza testified. All
testified that Zavala showed no signs of pain or injury prior to her September 17, 2007 injury. All testified that following her September 17, 2007 injury, Zavala limped and her knee visibly caused her pain.
¶ 10 The board considered testimony from four orthopedic surgeons. Twin City Foods called Christopher Kontogianis, Patrick Bays, and Larry Iversen to testify. Ana Zavala called Thomas Gritzka to testify.
¶ 11 Dr. Christopher Kontogianis testified that the November 21, 2007, arthroscopy revealed " significant degenerative [185 Wn.App. 844] change in her knee, as well as a torn medial meniscus." AR at 507. Kontogianis attributed the medial meniscal tear to Zavala's September 17 injury. Kontogianis diagnosed the significant degenerative change as arthritis and near grade 4 chondromalacia, meaning near bone on bone contact on one side of Zavala's knee joint. Kontogianis believed the degenerative arthritis and chondromalacia existed prior to the September 17, 2007 industrial injury. Kontogianis continued:
Q. Based on the surgery you did in November 2007, would someone with those type of degenerative findings have what we term a symptomatic knee prior to her September industrial injury?
A. Most likely.
Q. And why is that?
A. Why would somebody have symptoms from having severe degenerative arthritis of the knee?
A. Because it hurts.
AR at 512.
¶ 12 Christopher Kontogianis testified that the industrial injury temporarily aggravated the preexisting arthritis, but Zavala became " mostly fixed and stable" as of March 2008. AR at 510. Dr. Kontogianis reviewed a June 4, 2009 independent medical exam report and agreed that no further medical intervention for her industrial condition was needed. Kontogianis rated Zavala's knee as ten percent disabled. Kontogianis and Zavala discussed the possibility of a total knee replacement, but Kontogianis believed any need for such replacement was not related to Zavala's industrial injury.
¶ 13 Dr. Patrick Bays examined Ana Zavala on April 17, 2009, and he reviewed reports from doctors who treated Zavala. Zavala reported to Dr. Bays pain and numbness throughout her leg. On a scale of one to ten, Zavala rated her pain at ten. Bays assessed Zavala's major nerves to the [185 Wn.App. 845] brain as normal, Zavala's motor strength in the left leg as five out of five, and Zavala's deep tendon reflexes as normal. Zavala complained of global sensory deficit, yet told Bays that her entire leg was sensitive to touch. AR at 541, 549. Bays found this symptom strange, testifying:
Now, that can happen with certain types of conditions, such as an amputation or a severe circumferential nerve injury, where you've traumatized all of the nerves around an entire limb, but it is completely nonanatomic or it does not fit a normal known anatomic pathway if somebody doesn't have that type of an injury and yet they complain of global sensory deficit. So for us that's another red flag. That means that what the patient is experiencing and telling us does not fit with any known normal anatomic pathway. It doesn't fit with science. It doesn't fit with medical documentation and acumen that we know of.
AR at 542.
¶ 14 Dr. Bays testified that, during the examination, Zavala walked with a limp when aware that Bays observed her but without a limp when unaware of being watched. Bays believed that Zavala's " obvious symptom magnification would be completely and wholly unrelated to the subject injury of September 17th of 2007, on a more-probable-than-not basis." AR at 552.
¶ 15 According to Patrick Bays, an earlier MRI showed swelling in Zavala's left knee. But at the April 17, 2009 examination, Bays found " no evidence of an effusion or swelling anywhere around the left knee joint." AR at 547. Dr. Bays reviewed a September 27, 2007 X ray, an October 3, 2007 MRI, September 30, 2008 X ray, and Dr. Kontogianis's report. Bays opined:
It would be a virtual impossibility to develop the arthritic changes that were identified on the imaging studies within
that timeframe. Degenerative changes such as those that were displayed by Ms. Zavala would have taken years and years to have developed. And so it would have been an impossibility for those imaging studies to have been caused by a work injury of 9-17-2007.
[185 Wn.App. 846]. ...
Typically, wear-and-tear arthritis, that has happened over a long period of time, typically one's lifetime, will affect all three compartments. And that's exactly what happened in this case. There was grade three to four chondromalacia to all three of those compartments. Again, this is a wear-and-tear arthritis, age related, nontraumatic in nature. These arthritic changes were occurring over many, many years and had absolutely nothing to do with bumping the knee at the time of injury.
My final diagnosis was that of a left knee medial and lateral meniscus tear, status post left knee arthroscopic partial medial and partial lateral menisectomy.
AR at 552.
¶ 16 Dr. Bays testified that neither the industrial injury nor Dr. Kontogianis' surgery worsened or accelerated Ana Zavala's arthritis. Bays continued:
Q. If the Judge or board in this case finds that the September 17,  injury lit up a prior asymptomatic knee joint and there was some aggravation in this case, would you think that that aggregation [sic] was temporary or permanent, as it relates to Ms. Zavala?
A. Well, in my opinion, there was no aggravation, first of all, of the preexisting arthritic process. I don't even think that the, in my opinion, that the meniscus tears were caused by the subject mechanism of injury. Having said that, I would say that if in fact it is confirmed that there was an aggravation of a preexisting left knee condition, in my opinion that aggravation would be reflective only of the meniscus tears, which in my opinion were preexisting, and not of the arthritic condition. The meniscus tears, the aggravation was dealt with arthroscopically. The torn portion of the menisci was removed. The remainder of the menisci was entirely normal. And so at that point the temporary aggravation would have abated and she was left with an impairment that involved only the meniscus that was taken out. That would be a 10 percent impairment. There was no impairment related to the preexisting arthritis, in my opinion.
[185 Wn.App. 847] AR at 562-63. Dr. Bays added:
A. ... Degenerative arthritis is more of a wear-and-tear arthritis that happens over the course of time throughout one's natural life, where as a true inflammatory arthritis would be more consistent with a rheumatoid arthritis, would be more consistent with a gouty arthritis, and not as consistent with a degenerative arthritis.
Q. Is it possible that an injury, such as--that Ms. Zavala experienced, could aggravate or exacerbate osteoarthritis or at least the symptoms of osteoarthritis?
Q. Is it possible for a person with osteoarthritis to be completely asymptomatic one day and then the very next day experience major adverse outcomes or adverse status with respect to activities of daily living?
Q. Is it possible for a person with osteoarthritis to one day be completely asymptomatic, with respect to pain, and then the next day experience great levels of pain?
AR at 574-76.
¶ 17 Dr. Patrick Bays refrained from commenting on whether Zavala was symptomatic prior to her industrial injury, pointing to the lack of a " paper trail." AR at 563. Bays testified, however, that someone with Zavala's arthritic degradation could be without symptoms. Dr. Bays further declared that less than ten to fifteen percent of patients go from completely asymptomatic to requiring a total knee replacement within two to three years. Bays believed Zavala's industrial injury
was fixed and stable when he examined her.
¶ 18 Dr. Bays testified to Ana Zavala's permanent impairment by reason of her work injury. He stated, " Using the American Medical Association Guidelines, 5th edition, and citing the specific tables, if one undergoes a partial [185 Wn.App. 848] medial and a partial lateral menisectomy, it is automatically a 10 percent impairment to the left lower extremity." AR at 564. Bays opined that Zavala does not need a total knee replacement, or any other treatment. According to Dr. Bays, Zavala needs no treatment because her complaints are unrelated to " a normal scientific arthritis problem." AR at 566.
¶ 19 Dr. Larry Iversen evaluated Ana Zavala on December 29, 2009. As part of that evaluation, Iversen reviewed a plethora of records related to Zavala's injury, including medical chart notes, other physicians' independent evaluations, and X rays. Based on those records, Iversen believed that Zavala suffered from severe osteoarthritis prior to her September 17, 2007 industrial injury. " In her case, it's the degenerative arthritis that occurs as one gets older. And, in lay terms, it is a wear-and-tear type of the cartilage in the knee joint." AR at 710. Dr. Iversen testified that this arthritis and Zavala's work injury were not related, in part, because of a lack of bruising from the industrial injury.
¶ 20 Dr. Larry Iversen testified to a belief that Ana Zavala failed to report a previous injury:
The MRI that was done in October 2007, showed that this ligament had been pulled off or stripped off or completely ruptured off the tibia. This is a significant injury. This requires a violent force, usually from the lateral side of the knee, pushing the knee towards the other side to cause that to get pulled loose. Interestingly, is usually we don't have to operate on those, because they reattach themselves with time. In her case, the injury and the violence was enough that it never did reattach, so I'm convinced there is something that happened in the past that we don't know about that's injured that knee.
AR at 711-12.
¶ 21 Dr. Iversen further testified:
Q. Now, have you formed an opinion, based on a more-probable-than-not basis, as to whether the industrial injury of September 17, 2007, somehow aggravated or lit up the underlying degenerative condition in the knee, the left knee?
[185 Wn.App. 849] A. I have.
Q. What is that opinion?
A. I'm trying to give her the benefit of the doubt. I will opine that the industrial incident of September 2007, caused a temporary subjective exacerbation of her preexisting arthritis, but did not cause a ...