Rodolfo M. Apostol, Appellant V. Dept. Of L & I, State Of Wa, Respondent
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
RODOLFO M. APOSTOL,
No. 39370-1-II
Appellant,
ORDER CORRECTING CAPTION
v.
DEPARTMENT OF LABOR &
INDUSTRIES,
Respondent.
The unpublished opinion for this appeal was filed on December 8, 2009. Due to an
inadvertent error, the incorrect respondent was named in the filed opinion. The correct
respondent is Department of Labor & Industries. It is hereby
ORDERED that respondent Board of Industrial Insurance Appeals is removed from the
caption of the filed opinion and Department of Labor and Industries is inserted as respondent.
IT IS SO ORDERED.
DATED this _________ day of _______________________________, 2010.
Armstrong, J.
We concur:
Quinn-Brintnall, J.
Van Deren, C.J.
No. 39370-1-II
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
RODOLFO M. APOSTOL,
No. 39370-1-II
Appellant,
UNPUBLISHED OPINION
v.
BOARD OF INDUSTRIAL INSURANCE
APPEALS,
Respondent.
Armstrong, J. – Rodolfo Apostol appeals the superior court’s decision rejecting his claim
for workers’ compensation benefits because he neither sustained an industrial injury nor suffered
from an occupational disease. We affirm.
Facts
Apostol began working as a maintenance technician for Ronald Wastewater District in
1994. On September 21, 2005, at 4:25 pm, his immediate supervisor called him into the general
manager’s office. Apostol requested the presence of a union representative, but management
denied his request because the meeting was not an investigation. Rather, the general manager
presented Apostol with a letter instructing him to improve his work performance. Apostol denied
the allegations and refused to sign for receipt of the letter.
Apostol decided to leave but was instructed to stay and complete the meeting. When he
insisted on leaving, he was told the meeting would continue the next morning. Apostol went to
his car, left a message for his union representative, called his attorney, and then “broke down.”
Administrative Record (AR) at 10. He did not return to work and eventually was fired.
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No. 39370-1-II
Apostol then filed a claim for workers’ compensation benefits based on his psychological
condition. The Department of Labor and Industries rejected Apostol’s claim because there was
no proof of a specific injury at a definite time and place in the course of employment and because
his condition was not the result of an occupational disease. Apostol appealed to the Board of
Industrial Insurance Appeals, stating in his notice of appeal that he could not tolerate the trauma
received “at my workplace environment from co-workers[’] abuse, assau[l]ts, and being shot at.”
AR at 9, 17-19.
Apostol appeared pro se at the Board hearings, and the industrial appeals judge devoted
considerable time to ensuring that he understood the proceedings and the issues that needed
resolution.1 Apostol presented his own testimony and the testimony of a former coworker and
manager. He also presented the testimony of a psychologist, David M. Dixon, who evaluated
Apostol after the industrial appeals judge continued the hearing so that Apostol could secure the
medical evidence required to support his claim.
Apostol alleged that for several years before he left the District in the fall of 2005, his
coworkers continuously harassed him and management did not interfere. He also alleged that
management took unwarranted disciplinary actions against him during that time.
Apostol
described the September 21 meeting at the hearing and to Dixon, but did not report any yelling,
shouting, physical contact, or threatening behavior. Apostol characterized the September 21
meeting as a single, traumatic event that caused his mental health condition, yet he also
maintained that his mental disability was the result of long-term and repeated abuse, hostility, and
retaliation.
1
Apostol has represented himself at every stage of this case.
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No. 39370-1-II
Dixon concluded that Apostol has suffered from an anxiety disorder for some time and
that his distinctive personality contributed to his response to his work environment. Dixon agreed
with the industrial appeals judge that Apostol suffers from a pre-existing symptomatic condition;
“the affective disorder with the depressive and anxiety features.” AR (Feb. 20, 2007) at 15, 32.
Dixon opined that the September 21 meeting was the culmination of a series of events that
Apostol considered traumatic. The meeting exacerbated his underlying anxiety disorder, which
then became more flagrant, more pronounced, and more disabling.
The industrial appeals judge issued a proposed decision explaining that to prevail on
appeal, Apostol was required to demonstrate that a single traumatic event occurred on September
21, 2005, resulting in his mental health condition. The judge found it clear that Apostol suffers
from several mental health conditions but noted that his only expert witness had opined that they
resulted from a series of events that Apostol considered traumatic.
By itself, the meeting of September 21, 2005, was nothing more than a permitted
disciplinary action by Mr. Apostol’s management; the conversation was verbal,
nonviolent, and not vulgar or abusive; and when Mr. Apostol insisted he needed to
leave, he was permitted to do so with the understanding the meeting would
continue the next morning.
AR at 12. The judge entered the following key findings:
2. The September 21, 2005 meeting . . . was a verbal exchange that was not
violent, vulgar, abusive, or constituted a physical threat to Mr. Apostol’s safety or
well-being. This meeting was held to present Mr. Apostol with a letter requesting
improvement in his work performance and management’s desire for Mr. Apostol
to improve his work performance.
3. On September 21, 2005, Rodolfo M. Apostol did not experience a sudden and
tangible happening of a traumatic nature, which produced an immediate result in
the course of his employment with Ronald Wastewater District. Mr. Apostol’s
stress-related mental health condition is not the result of the alleged September 21,
2005 meeting.
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4. Rodolfo M. Apostol’s mental health condition diagnosed after September 21,
2005, was a culmination of a series of events that Mr. Apostol considered
traumatic, exacerbating an underlying anxiety disorder, which then became more
flagrant, more pronounced, and more disabling to Mr. Apostol.
AR at 13. The judge concluded that Apostol did not sustain an industrial injury on September 21,
2005, and that his claim for a stress-related mental condition from a culmination of a series of
events was not an occupational disease. The judge recommending affirming the Department’s
dismissal of Apostol’s claim.
In his petition for review, Apostol argued that he had provided sufficient evidence to
support his claim and that the industrial appeals judge had erred:
The ploy used by my employer for over eleven and a half years of employment
consisted of constant threats of false write-ups and false accusations, verbal and
physical abuse, demotions, denied opportunity for advancement, and threats of my
firing. . . . The physical and mental injuries I suffered during my course of
employment culminated on September 21, 2005 which [sic] my employer made
false accusations and threats which were precursors of me being fired.
AR at 3-4. The three-member Board denied his petition and adopted the proposed decision and
order as its final decision and order. Apostol then appealed to the Thurston County Superior
Court. Following a bench trial, the superior court affirmed the Board’s decision and adopted its
findings and conclusions. Apostol petitioned for direct review to the Washington Supreme Court,
which transferred his case here.
ANALYSIS
I. Recovery for Industrial Injury and Occupational Disease
A.
Standard of Review
The decision of the Board of Industrial Insurance Appeals is prima facie correct, and a
party attacking that decision must support its challenge by a preponderance of the evidence.
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No. 39370-1-II
RCW 51.52.115; Ruse v. Dep’t of Labor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999). On
review, the superior court may substitute its own findings and decision for the Board’s only if it
finds, from a preponderance of the evidence, that the Board’s findings and decision are incorrect.
Ruse, 138 Wn.2d at 5. Appellate review is limited to examining the record to see whether
substantial evidence supports the findings made after the superior court’s de novo review and
whether the court’s conclusions of law flow from the findings. Young v. Dep’t of Labor & Indus.,
81 Wn. App. 123, 128, 913 P.2d 402 (1996).
Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth of
the declared premise. Garrett Freightlines, Inc. v. Dep’t of Labor & Indus., 45 Wn. App. 335,
340, 725 P.2d 463 (1986). Where there is disputed evidence, the substantial evidence standard is
satisfied if there is any reasonable view that substantiates the trial court’s findings, even though
there may be other reasonable interpretations. Garrett Freightlines, Inc., 45 Wn. App. at 340.
The superior court adopted the Board’s findings of fact. Apostol appears to challenge
findings 3 and 4 in his opening brief to this court. We will examine the record to determine
whether substantial evidence supports these findings and whether they, in turn, support the
conclusions that Apostol did not sustain an industrial injury or occupational disease for which he
can recover workers’ compensation benefits under the Industrial Insurance Act, chapter 51 RCW.
B.
Industrial Injury and the September 21 Meeting
An industrial injury is “a sudden and tangible happening, of a traumatic nature, producing
an immediate or prompt result, and occurring from without, and such physical conditions as result
therefrom.” RCW 51.08.100. Finding of fact 3 alludes to this definition in stating that Apostol
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No. 39370-1-II
did not experience a sudden and tangible happening of a traumatic nature on September 21, which
produced an immediate result in the course of his employment, and in adding that Apostol’s stressrelated mental health condition was not the result of the September meeting. Finding of fact 4
adds that Apostol’s mental health condition after September 21 was the result of a series of events
that he considered traumatic.
Apostol does not challenge an earlier finding stating that the September 21 meeting was
not violent, vulgar, abusive, or physically threatening to Apostol’s safety or well-being, and that it
was held only to present a letter requesting improvement in his work performance. Apostol
testified that the meeting left him in a state of emotional trauma, but he admitted that he was on
antidepressants beforehand. He also described a series of traumatic events that occurred at work
before the September 21 meeting that caused his mental health to deteriorate. Dixon stated that
the experiences over the last two to five years had caused Apostol’s preexisting depression and
generalized anxiety to develop into post-traumatic stress disorder. He testified that the September
21 meeting was the culmination of a series of events that Apostol experienced as traumatic and
that the meeting made his anxiety disorder more flagrant, more pronounced, and more disabling.
Despite this testimony, Apostol insists that the September 21 meeting constituted a
traumatic event sufficient to cause industrial injury, and he cites as support Boeing Co. v. Key,
101 Wn. App. 629, 5 P.3d 16 (2000). In Boeing, the court approved a jury instruction stating
that:
A worker may not receive benefits for a mental disability caused by stress resulting
from relationships with supervisors, co-workers, or the public, unless she has a
mental disability caused by stress which is the result of exposure to a sudden and
tangible happening of a traumatic nature producing an immediate and prompt
result.
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No. 39370-1-II
Boeing Co., 101 Wn. App. at 632. The evidence showed that stress between Key and a coworker
had been building up for some time before Key became distraught after a meeting in which she
allegedly received death threats from the coworker. Boeing Co., 101 Wn. App. at 634. Key
sought workers’ compensation benefits for the post-traumatic stress disorder caused by her
employment, but the jury rejected her claim. Boeing Co., 101 Wn. App. at 631-32. Division One
affirmed, reasoning that the jury could have found that Key’s claim did not meet the definition of
an industrial injury because her emotional distress resulted from a result of events that unfolded
gradually over a period of time, rather than from a sudden, tangible, traumatic incident that
produced an immediate result. Boeing Co., 101 Wn. App. at 634.
Here, the superior court found that Apostol’s claim did not meet the definition of an
industrial injury because his emotional distress was the result of events that unfolded over a period
of time. Substantial evidence supports the superior court’s finding that the September 21 meeting
did not constitute a sudden and tangible happening of a traumatic nature, and this finding supports
the conclusion that Apostol did not sustain an industrial injury.
C.
Occupational Disease
The findings of fact cited above also led the superior court to conclude that Apostol did
not suffer from an occupational disease for which he may recover workers’ compensation
benefits. The Industrial Insurance Act defines “occupational disease” as “such disease or infection
as arises naturally and proximately out of employment under the mandatory or elective adoption
provisions of this title.” RCW 51.08.140. In 1988, the legislature directed the Department to
adopt a rule stating that claims based on mental conditions or mental disabilities caused by stress
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No. 39370-1-II
do not fall within the statutory definition of occupational disease. RCW 51.08.142. The resulting
rule, WAC 296-14-300, provides:
(1) Claims based on mental conditions or mental disabilities caused by
stress do not fall within the definition of an occupational disease in RCW
51.08.140.
Examples of mental conditions or mental disabilities caused by stress that
do not fall within occupational disease shall include, but are not limited to, those
conditions and disabilities resulting from:
(a) Change of employment duties;
(b) Conflicts with a supervisor;
(c) Actual or perceived threat of loss of a job, demotion, or disciplinary
action;
(d) Relationships with supervisors, coworkers, or the public;
(e) Specific or general job dissatisfaction;
(f) Work load pressures;
(g) Subjective perceptions of employment conditions or environment;
(h) Loss of job or demotion for whatever reason;
(i) Fear of exposure to chemicals, radiation biohazards, or other perceived
hazards;
(j) Objective or subjective stresses of employment;
(k) Personnel decisions;
(l) Actual, perceived, or anticipated financial reversals or difficulties
occurring to the businesses of self-employed individuals or corporate officers.
(2) Stress resulting from exposure to a single traumatic event will be
adjudicated with reference to RCW 51.08.100.
Although there are no stress-related exclusions for industrial injury claims, RCW
51.08.142 and WAC 296-14-300 proscribe claims for occupational disease based on stress-caused
mental conditions or mental disabilities. Boeing, 101 Wn. App. at 632. The rule expressly
excludes relationships with supervisors and coworkers as well as actual or perceived threats of
disciplinary action as grounds for a stress-related occupational disease claim.
WAC 296-14-
300(1)(c),(d); Boeing, 101 Wn. App. at 632.
As the industrial appeals judge observed, most if not all of Apostol’s complaints about his
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No. 39370-1-II
working environment fall within the examples in WAC 296-14-300. The superior court agreed,
noting that Apostol’s claim of occupational disease might have succeeded before the rule’s
adoption in 1988. Under current law, however, Apostol’s claim could not succeed as either an
occupational disease or an industrial injury because it was based on long-term employment stress.
The court explained to Apostol the narrow exception currently allowed for stress-related injury:
We’re going to leave a small room where if there’s a single traumatic event that
kicks off something like post-traumatic stress syndrome, we’ll look at that. An
example might be say you’re an ironworker and you’re working on the job and
somebody drops a big steel girder right at your feet, and that causes you from that
point on to have post-traumatic stress disorder and you can no longer [work] the
steel work because of what they did to you. That might qualify you for an
industrial injury of post-traumatic stress syndrome. But that’s different than the
occupational disease. . . . [T]he legislature has said we’re not going to compensate
for work-related stress conditions any more since 1988. And that’s where you’re
caught.
Report of Proceedings (Jan. 25, 2008) at 36.
The superior court’s findings support its conclusion that Apostol did not suffer from an
occupational disease sufficient to support a claim for workers’ compensation benefits.
D.
Other Claims
Apostol raises several claims related to the two issues already discussed. He first contends
that the industrial appeals judge erred in failing to give a jury instruction on the “lighting up”
theory. See McDonagh v. Dep’t of Labor & Indus., 68 Wn. App. 749, 751 n.1, 845 P.2d 1030
(1993) (where a pre-existing dormant or latent condition is activated or “lighted-up” by an
industrial injury or occupational disease, the worker is entitled to benefits for the disability
resulting therefrom). This claim fails for several reasons. First, there was no jury to instruct
during the hearing before the industrial appeals judge. Apostol could have requested a jury trial in
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No. 39370-1-II
the superior court, but he did not. RCW 51.52.115. Second, Apostol did not mention this theory
in his petition for review to the Board, so he cannot raise it now. See Garrett, 45 Wn. App. at
346 (employee waived claim that injury was occupational disease by failing to raise issue in appeal
to Board); RCW 51.52.070. Finally, even if this claim of error were preserved, it would not
succeed. Apostol’s pre-existing condition was symptomatic rather than dormant, and he did not
suffer any industrial injury or occupational disease.
Apostol’s related argument that the industrial appeals judge did not assist him in
presenting his claim is inaccurate and misplaced. The judge held several discussions with Apostol
about the law and how he needed to present his case. Moreover, pro se litigants are held to the
same standard as attorneys in putting on their cases. In re Marriage of Olson, 69 Wn. App. 621,
626, 850 P.2d 527 (1993).
Apostol also argues that refusing him workers’ compensation benefits would be
unconstitutional and that RCW 49.60.030, which prohibits employment discrimination, supports
his case. Apostol fails to provide either reasoned argument or citation of authority for these
arguments, and we do not consider them further. See RAP 10.3(a)(6). Apostol also asserts that
he is seeking a remedy for the emotional distress suffered during the proceedings related to his
claim, apart from the distress he suffered during his employment. The Industrial Insurance Act
provides the exclusive remedy for workers injured in the course of employment and does not
authorize the tort recovery Apostol seeks. Rushing v. ALCOA, Inc., 125 Wn. App. 837, 841, 105
P.3d 996 (2005); RCW 51.04.010.
Finally, Apostol asserts in his reply brief that his real
complaint is with the Department’s inadequate investigation of his claim. We do not consider a
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No. 39370-1-II
claim of error raised for the first time in a reply brief. Cowiche Canyon Conservancy v. Bosley,
118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so
ordered.
Armstrong, J.
We concur:
Quinn-Brintnall, J.
Van Deren, C.J.
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