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Boyd v. City of Olympia

Court of Appeals of Washington, Division 2

October 24, 2017

RICHARD BOYD, Appellant,
v.
CITY OF OLYMPIA and DEPARTMENT OF LABOR & INDUSTRIES, Respondents.

          BJORGEN, C.J.

         Richard Boyd appeals the superior court's order affirming the decision of the Board of Industrial Insurance Appeals (Board) to grant summary judgment in favor of the City of Olympia in Boyd's appeal under the Industrial Insurance Act (IIA).

         Boyd received workers' compensation benefits for a low back injury he suffered while in the City's employ. After several years, the Department of Labor and Industries (Department) issued a final order closing Boyd's claim and finding his medical condition stable. Boyd did not file a timely protest to that order, but one of his health care providers, Dr. Ashwin Rao, sent a chart note and bill to the City. The City did not construe the chart note and bill as a protest.

         Several months later, Boyd appealed the Department's final order to the Board, which assigned it to an industrial appeals judge (IAJ). Boyd argued that Rao's chart note and bill were a protest to the closing of Boyd's claim that should have automatically put the Department's final order in abeyance. The IAJ, and later the Board and superior court, determined that Rao's chart note and bill did not put the Department on notice that he was protesting the Department's final closure order of Boyd's claim.

         We agree with these rulings and hold that the chart note and bill did not reasonably put the Department on notice that Rao was protesting[1] the Department's final closure order of Boyd's claim. We also reject Boyd's additional arguments related to evidentiary matters, judicial estoppel, and attorney fees. Accordingly, we affirm.

         FACTS

         In October 2009, during his employment as a firefighter with the City, Boyd injured his low back. In November, he filed a claim for workers' compensation benefits for that injury, which the Department allowed.

         On October 10, 2013, the Department issued an order closing Boyd's claim and directing the City to pay him a permanent partial disability award for his "Permanent Dorso-Lumbar and/or Lumbosacral Impairments."[2] Certified Appeal Board Record (CABR) at 222.

         On November 15, 2013, Carrie Fleischman of Matrix Absent Management, the City's third party workers' compensation administrator, received a chart note dated September 24, 2013 from Dr. John Green, providing the following details regarding Boyd's condition:

ASSESSMENT
1. Left internal and external snapping hip.
2. Status post left arthroscopic debridement and osteoplasty.
3. Chronic low back pain with primarily right-sided lower extremity residual.
DISPOSITION
I am sending [Boyd] to see one of my partners for an ultrasound-guided injection of both his psoas and his greater trochanteric bursa, and then, he is going to do physical therapy for stretching and strengthening of both his psoas and hip abductors, iliotibial band.
He has some difficulties resolving his . . . [labor and industries'] claim as he has got 2 separate I[ndependent] M[edical] E[xamination] [IME] assessments. I recommended to him a third EVIE assessment to break the tie. These are some new symptoms of his hips that are unlikely to be related [to] his previously work-related problem.

CABR at 475. As a result of Green's chart note, the October 10, 2013 closure order was held in abeyance.

         On January 10, 2014, the City's attorney sent a letter to the Department's claims adjudicator, indicating that Green's chart note "served as a protest to the October 10, 2013 closing order."[3] CABR at 87. In this same letter, the City also protested the order closing Boyd's low back injury claim, contending that Boyd's permanent partial disability award overpaid him because he had received a comparable award for a similar injury several years before.

         On approximately January 15, 2014, Fleischman received a concurrence report from Green, which clarified his September 24, 2013 chart note. Among other things, Green confirmed that "Mr. Boyd had new hip symptoms [that] . . . were probably unrelated to his industrial injury under this claim." CABR at 234.

         On January 27, 2014, the Department issued a new order, which addressed the City's protest and reversed the October 10, 2013 order. It states, in part:

         The order and notice dated 10/10/13 is reversed.

Labor and Industries is closing this claim [SC770117] [for Boyd's 2009 low back injury] because the covered medical condition ... is stable. No additional permanent partial disability will be paid over and above that paid under claim number S.C. 74311 [Boyd's comparable award raised by the City].
[Boyd is] directed to pay the [City] for the overpayment of permanent partial disability.

CABR at 244.

         The January 27, 2014 order was sent to Boyd's attorney and to Michael Lee, who was identified as Boyd's attending physician. On January 29 Boyd protested the Department's January 27 order. On February 18 the Department issued an order affirming its January 27 order.

         On February 24, 2014, Fleishmann received a chart note and bill from Rao, to whom Green had referred Boyd for his hip injection, as noted in Green's chart note. Although these documents were received on February 24, 2014, Rao's chart note reflected treatment provided to Boyd on February 13, five days before the Department's February 18 order affirming the closing of Boyd's claim. In pertinent part, the chart note states:

Office Visit
2/13/2014 Occupational Health Richard Lee Boyd . . .
. . .
Reason for Visit
Procedure hip injection
. . .
Progress Notes
. . .
CC: Ongoing L hip, referral by Dr. Green
HPI: Richard Lee Boyd is a 63 year old male[ ]presenting today for f/u L hip pain. He had arthroscopic labral[ ]debridement in early 2012, and last met me for a diagnostic hip[ ]injection. He did get several months of benefit from the surgery, but the pain has since returned, maybe more severe than before. . . . [H]istory is complicated somewhat by back pain and suspected lumbar[ ]radiculopathy, affecting the calf, causing atrophy, for which he's[ ]seen Dr. Michael Lee. Richard reports pain along the anterolateral[ ]hip, particularly with sleeping at night, which causes pain to[ ]linger t[hr]ough the night, challenging his sleep. He has some added[ ]lateral groin pain, and initially Dr[.] Green has suggested injections[]to the trochanter and psoas. He remains active, and hopes that he[]can make progress with injections, as he's been doing home[ ]PT.
. . .
Diagnoses
Hip[ ]pain - Primary
Trochanteric bursitis of left[ ...

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