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Street v. Weyerhaeuser Co.

Supreme Court of Washington, En Banc

August 10, 2017

ROGER A. STREET, Respondent,

          STEPHENS, J.

         Weyerhaeuser Company, Roger A. Street's former employer, challenges Street's award of industrial insurance benefits for his low back condition, a claimed occupational disease. An "occupational disease" is a disease that "arises naturally and proximately out of employment." RCW 51.08.140. In Dennis v. Department of Labor & Industries, 109 Wn.2d 467, 477, 745 P.2d 1295 (1987), this court held that a worker seeking benefits for an occupational disease must present expert medical testimony that the disease "arise[s] 'proximately'" out of employment. Weyerhaeuser argues that in light of Dennis, such a worker must also present expert medical testimony that the disease "arises naturally" out of employment.

         The Court of Appeals rejected Weyerhaeuser's argument, holding that neither Dennis nor any other appellate decision requires Street to present expert medical testimony to show that his back condition "arose naturally" from employment. Because there was medical testimony supporting the "arises proximately" requirement and lay testimony supporting the "arises naturally" requirement, the appeals court held that Street proved his low back condition is an occupational disease and affirmed the jury award of benefits. We affirm the Court of Appeals.


         Street worked for Weyerhaeuser or its subsidiary (Norpac) his entire career. In 1991, Street began working in one of Norpac's paper mills, where he held various positions for the next 20 years. Although Street had back problems prior to working in the paper mill, he did not find the problems disabling until he was injured at the mill in 2011. More than one year later, Street applied for workers' compensation benefits due to that injury. The Department of Labor and Industries (Department) treated the application as an injury claim and denied it as untimely.

         Later that year, the Department affirmed the denial and sent Street a separate letter stating that the claim was for an injury, not an occupational disease. Compare RCW 51.28.050 (worker must file injury claim within one year of the date on which the injury occurred), with RCW 51.28.055(1) (worker must file occupational disease claim within two years of the date the worker had notice of the occupational disease or of the ability to file a claim for disability benefits). Street appealed the Department's order and letter to the Board of Industrial Insurance Appeals (Board), clarifying that he intended to file an occupational disease claim. Weyerhaeuser moved for an order granting summary judgment and dismissing Street's appeal. An industrial appeals judge granted Weyerhaeuser partial summary judgment, dismissing Street's claim as untimely to the extent he alleged an injury, but directing the case to go forward on an occupational disease theory.

         The industrial appeals judge conducted hearings, at which Street, his family members, his supervisor, and three medical experts testified.

         Street testified that his duties as an assistant winder operator included placing cores-dense cardboard at the center of a paper roll-into the winder of the paper machine so that the machine could produce individual paper rolls. His duties also included monitoring paper machines, repairing broken machines, "manhandling" paper rolls by grabbing and pushing the core of the roll, bending over to sand cores, and tacking bar codes onto the finished paper rolls. The paper rolls were approximately 40 to 50 inches in diameter and weighed on average 1, 000 pounds. The cores, on which the rolls were placed, weighed on average 2 to 10 pounds. Street worked 12-hour shifts with few breaks, if any. Some of Street's work became automated over the last 10 years, and during the last couple of years, Street worked in a less demanding monitoring role about 30 percent of the time.

         Richard T. Moore, Street's supervisor of two to five years, gave slightly different testimony regarding Street's role. Moore testified that Street held the less demanding monitoring role about 75 percent of the time, that Street sat approximately 20 percent of the time as an assistant winder operator, and that workers typically had help manhandling the paper rolls, which might happen 0 to 12 times a day.

         Dr. Patricia Peterson, Street's primary care physician of 20 years, testified that she was familiar with the nature of Street's work "[t]o some degree" and described his role in the paper mill as a "very heavy job, ... a moving job, ... [not] just a sit around and watch things go job." Clerk's Papers (CP) at 313, 315, 319, 321. She testified that she diagnosed Street with chronic low back pain related to degenerative arthritis and degenerative disease of the spine, which can occur over time from repetitive use. Although on Street's short-term disability claim form she had checked a box indicating that the condition was not work related, she later testified on a more probable than not basis that the kind of work Street did, as opposed to everyday wear and tear of daily living, at least in part caused Street's low back condition because he used "a lot of his body weight" and his "abdominal muscles" in manhandling paper rolls. Id. at 322-23, 326. Dr. Peterson acknowledged that even though Street had come in with complaints of low back pain unrelated to work (e.g., moving furniture, doing yard work), the repetition of handling paper rolls was a factor contributing to Street's low back condition.

         Dr. Yuri Tsirulnikov, an osteopathic physician who treated Street five to six times, testified that Street's work more probably than not contributed to his low back condition, though he could not say to "what extent" it contributed. Id. at 362, 364, 367-68, 371. He indicated that Street's weight, genetics, and "probably some other physical activities that he did at home" also contributed to Street's low back condition. Id. at 384.

         Dr. Thomas Rosenbaum, a neurosurgeon who examined Street at Weyerhaeuser's request, opined that Street's work did not proximately cause his low back condition. He diagnosed Street with lumbar spondylosis and degenerative disc disease, and testified that genetics and age are the main factors contributing to these conditions. In his opinion, Street's physical exertion at work contributed to his low back condition "maybe ... two or three percent, " if at all. Id. at 431-32.

         At the conclusion of the proceedings, the industrial appeals judge issued a proposed order and decision reversing the Department's denial of benefits. Weyerhaeuser petitioned the full Board for review. The full Board affirmed the Department's denial of benefits, but directed the Department to find that Street filed an occupational disease claim that was rejected because he failed to prove his low back condition arose "naturally and proximately" out of distinctive conditions of his employment. Id. at 49, 54-55.

         Street appealed the Board's order to Cowlitz County Superior Court. Weyerhaeuser moved for judgment as a matter of law on the ground that Street failed to present expert medical testimony that his low back condition "arose naturally" out of distinctive conditions of his employment. The superior court denied the motion and sent the case to trial. The jury found that Street's back condition is an occupational disease that arose "naturally and proximately" out of the distinctive conditions of his employment. Id. at 532. Based on the verdict, the superior court reversed the Board's order and remanded to the Department with directions to accept Street's occupational disease claim. Mat 534-35.

         Weyerhaeuser appealed to Division Two of the Court of Appeals, which transferred the matter to Division One of the Court of Appeals. Order Transferring Cases, Street v. Weyerhaeuser Co., No. 48559-1-II (Wash.Ct.App. Aug. 16, 2016). In an unpublished decision, the Court of Appeals affirmed, holding that Street was not required to present medical testimony to satisfy the "arises naturally" requirement, and that the evidence was sufficient to support a finding that Street's back condition qualifies as an occupational disease. Street v. Weyerhaeuser Co., No. 75644-3-1, slip op. at 1, 4, 7 (Wash.Ct.App. Nov. 28, 2016) (unpublished), http://www.courts.

         Weyerhaeuser then filed a petition for review in this court, which we granted. Street v. Weyerhaeuser Co., 187 Wn.2d 1025, 391 P.3d 457 (2017).


         The Industrial Insurance Act (IIA), Title 51 RCW, provides "sure and certain relief for workers, injured in their work." RCW 51.04.010. Workers "who suffer[] disability from an occupational disease in the course of employment" are entitled to "the same compensation benefits" as injured workers. RCW 51.32.180. In the present case, Street alleges that his chronic low back condition is an occupational disease. CP at 57.

         "'Occupational disease' means such disease ... as arises naturally and proximately out of employment." RCW 51.08.140. In Dennis,109 Wn.2d 467, this court discussed the requirements for such a claim. "Arises proximately" means that employment conditions "'must be the proximate cause of the disease ... so that the disease would not have been contracted but for the [employment] condition.'" Id. at 477 (footnote omitted) (quoting Simpson Logging Co. v. Dep't of Labor & Indus.,32 Wn.2d 472, 479, 202 P.2d 448 (1949)). This "causal connection... must be established by competent ...

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