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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON LEROY DOPPENBERG, No. 71346-9- Appellant, DIVISION ONE v. WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES AND EAGLE HYDRAULICS, UNPUBLISHED OPINION Respondents. FILED: April 6. 2015 Spearman, C.J. — Leroy Doppenberg challenges the trial court's finding that his industrial injury did not worsen between the date his claim under the Industrial Insurance Act, Title 51 RCW (Act) was initially closed and the date his application to reopen the claim was denied, approximately two years later. He argues that the trial court improperly allowed the Department of Labor and Industries (Department) to relitigate the nature and extent of his industrial injury, an issue that was definitively established by the Department's final order on his claim. He also contends that the trial court's award of statutory attorney fees and costs to the Department was improper. We conclude that the Department's final order on the claim was res judicata as to the extent of Doppenberg's industrial injury at the time of the order, but not as to any subsequent aggravation of the injury alleged in his application to reopen the claim. We also find no error in the No. 71346-9-1/2 trial court's award of statutory attorney fees and costs to the Department. We affirm. FACTS On March 16, 2007, Leroy Doppenberg was injured during the course of employment when a heavy steel plate fell onto his right calf and rolled around, injuring his right ankle and foot. He filed an application for benefits under the Act. The Department allowed the claim and Doppenberg received treatment and other benefits under the Act. On April 25, 2008, the Department determined: The [Department] is not responsible for the condition diagnosed as lumbar stenosis, determined by medical evidence to be unrelated to the accepted condition under this [industrial] injury for which the claim was filed. CABR at 46. It does not appear that Doppenberg objected to this finding. The Department did accept responsibility for: the condition diagnosed as right peroneal nerve injury, determined by medical evidence to be related to the accepted condition under this [industrial injury] for which this claim is filed. CABR at 47. It issued a notice and order to that effect on June 26, 2008. It does not appear that either party objected to the order or took steps to modify it in any way. The Department issued an order closing Doppenberg's claim, which was affirmed by the Department on May 12, 2009. Eighteen months later, Doppenberg filed an application to reopen his claim on the basis that symptoms related to his industrial injury had worsened. The Department issued an order denying his application, finding that "the medical record shows the conditions caused by the injury have not worsened since the final claim closure, . . ." Certified Appeal Board Record (CABR) at 47. This order No. 71346-9-1/3 was affirmed on June 2, 2011. Doppenberg appealed the order denying his application to the Board of Industrial Appeals (Board), which conducted an evidentiary hearing. At the hearing, Doppenberg testified that he filed the application based on new and worsening symptoms. He testified that, shortly after sustaining the injury, his right foot "felt like someone was beating on [it] with a sledgehammer" but, by the time his initial claim was closed, this feeling had lessened in intensity to a "tingling sensation" similar to pin pricks. CABR (Doppenberg) at 7-8. Doppenberg testified that after his claim was closed, the unpleasant sensation in his foot worsened again. He stated: It's really prominent if I stand on it for any length of period of time, or walking any distance, it just starts, you know, feeling like you are stepping on nails. The longer I walk on it, the farther it feels like it jabs into the foot, into the right foot. CABR (Doppenberg) at 8. Doppenberg also complained of new mechanical difficulties with his right foot. He explained: [M]y foot was not working right. It's just not right. I mean, if I walk any slope—if I walk on a slope towards the left, my foot just wants to fall off from underneath me all the time. If I walk on a hill on the right, you know, I can walk on it fairly easily.^[1] CABR (Doppenberg) at 9. Dr. Wardle, a board certified foot and ankle podiatrist who assisted Doppenberg in filing the application, testified at the hearing by deposition.

No. 71346-9-1/9

Jury Instruction

Doppenberg also asserts that the trial court's refusal to give his proposed instruction 116 was error. We disagree.

Jury instructions are sufficient when they allow a party to argue his or her theory of the case, are not misleading, and, when read as a whole, properly inform the jury of the applicable law. Leeper v. Dep't of Labor & Indus., 123 Wn.2d 803, 809, 872 P.2d 507 (1994). We review a trial court's failure to give a proposed instruction for abuse of discretion. ]d.

Doppenberg's proposed instruction 11 advised the jury as follows:

The Worker's Compensation Act of this state applies to all persons engaged in employment, regardless of their age or the previous condition of their health. In determining the effect of an industrial accident upon a worker, such effect must always be determined with reference to the particular worker involved, rather than what effect, if any, such an accident would have had, if any, upon some other person. CP at 102. It is undisputed that the proposed instruction is a correct statement of the law. See Wendt v. Dep't of Labor & Indus., 18 Wn. App 674, 676, 571 P.2d 229 (1977). The question is whether it was necessary to give the instruction in order to permit Doppenberg to argue his theory of the case. Doppenberg contends it was because the proposed instruction allowed him to rebut the Department's theory that his "prior physical conditions worsened rather than the industrially related condition...." Brief of Appellant at 28. But even assuming this No. 71346-9-1/11

CP at 184. This instruction was sufficient to allow Doppenberg and the Department to argue their respective theories as to the cause of Doppenberg's new symptoms. The trial court did not abuse its discretion when it refused to give Doppenberg's proposed instruction 11. Statutory Attorney Fees and Costs Doppenberg challenges the trial court's award of $200 in statutory attorney fees pursuant to RCW 4.84.010(6). We find his argument without merit. RCW 51.52.140 addresses attorney fees and costs a workers' compensation appeal to superior court. It states, in relevant part, "Except as otherwise provided in this chapter, the practice in civil cases shall apply to appeals prescribed in this chapter." Accordingly, absent a contrary statute in RCW 51.52, the ordinary civil practice, including its cost provisions, applies to superior court proceedings. Doppenberg argues that the legislature intended for RCW 51.52.130 to be the exclusive statutory provision for attorney fees in a workers' compensation appeal to superior court. He argues that, "[consistentwith the Act's remedial purpose and the legislature's intent that injured workers have access to adequate legal representation in appeals to superior court, the Act does not provide attorney fees or costs on appeal to superior court to employers or to the Department." Br. of Appellant at 18. In his view, application of statutory provisions not contained in the Act, such as RCW 4.84.010(6), controverts legislative purpose. He further asserts that RCW 51.52.130, which applies No. 71346-9-1/12

specifically to workers' compensation appeals to superior court, prevails over the more general provisions of RCW 4.84.010 and 4.84.030.

But Washington courts have expressly rejected the argument that RCW 51.52.130 precludes an award of statutory attorney fees to the Department as prevailing party in superior court review of a workers' compensation claim. Frecenak v. Dep't of Labor & Indus.. 142 Wn. App. 713, 729-30, 175P.3d 1109 (2008) (affirming an award of statutory attorney fees on the grounds that the nominal fees authorized by the RCW 4.84.030 are different than those governed by RCW 51.52.130, which concerns actual attorney fees incurred by an injured worker or employer on appeal to the superior or appellate court), affirmed on other grounds sub nom, Kustura v. Dep't of Labor & Indus., 169 Wn.2d 81, 233 P.3d 853 (2010); see also, Black v. Dep't of Labor & Indus, of the State of Wash., 131 Wn.2d 547, 557-58, 933 P.2d 1025, 1031 (1997); Allan v. Dep't of Labor & Indus., 66 Wn. App. 415, 422-23, 832 P.2d 489 (1992). Under this authority, the Department, as prevailing party, was plainly entitled to an award of statutory attorney fees.8

Doppenberg also contends that the trial court's award of $691 in deposition transcription fees under RCW 4.84.010 was improper. We disagree.

RCW 4.84.010(7) provides that a prevailing party may recover the cost of transcribing depositions as follows:

To the extent that the court or arbitrator finds that it was necessary to achieve the successful result, the reasonable expense of the transcription of depositions used at trial or at the mandatory

Doppenberg does not claim that the amount of the award here-$200—was improper.

No. 71346-9-1/13

arbitration hearing: PROVIDED, That the expenses of depositions shall be allowed on a pro rata basis for those portions of the depositions introduced into evidence or used for purposes of impeachment. Doppenberg argues that the Department's transcription costs in this case are not recoverable under this provision because, since the transcripts were published by the Board as part of the CABR, associated transcription costs are a cost of litigation before the Board, not the superior court. He notes that "[t]he Department incurs these costs in its role as the trustee of Washington State's workers' compensation fund. These costs remain whether or not an appeal to superior court is ever filed." Brief of Appellant at 21.

But Doppenberg's focus on when the cost of transcription was incurred is misguided. RCW 4.84.010(7) does not distinguish between transcription costs incurred during a superior court action and those incurred during proceedings before the Board or elsewhere. Rather, the statute conditions an award of transcription costs on whether the depositions were "used at trial" and "necessary to achieve the successful result." RCW 4.84.010(7).

Doppenberg cites Tombari v. Blankenship-Dixon Co., 19 Wn. App. 145, 150, 754 P.2d 401 (1978), in support of his position that deposition expenses are not recoverable costs unless taken for trial purposes. But the case is not helpful for several reasons. First, the case did not interpret the "used at trial" and "necessary to achieve the successful result" language of RCW 4.84.010(7). Instead, the case interprets RCW 4.84.090, which permits an award of "the necessary expenses of taking depositions" to the prevailing party. Id. (citing RCW 4.84.090). Additionally, Tombari did not hold, as Doppenberg suggests, that a No. 71346-9-1/14

party is only entitled to its deposition costs ifthe depositions were both taken and used for trial purposes. ]dL Rather, it merely acknowledged that where a trial court's decision was based solely on a pretrial order, exhibits, and transcripts of depositions "taken and used for trial purposes," an award of transcription costs was appropriate. ]d. Finally, to the extent that Tombari can be interpreted as a limitation on the availability of transcription costs to those depositions "taken for" trial, the case has been superseded by enactment of RCW 4.84.010(7), which, by its plain language, lacks such a restriction. Compare, RCW 4.84.010(7) (enacted in 1983), with, Tombari, 19 Wn. App. at 150 (decided in 1978); see also, Laws of 1983, 1st Ex. Sess., ch. 45 § 7.

In this case, both conditions for an award of transcription costs under RCW 4.84.010(7) are met. The depositions of Dr. Soo and Dr. Almaraz were read to the jury and were, therefore, "used at trial." See, VRP (9/11/13) at 80- 114, 126-79. Further, the Department's theory that Doppenberg's new and worsening symptoms had a cause independent from the industrial injury depended on these doctors' medical causation testimony; thus, their testimony was necessary to achieve a successful result. The Department was entitled to an award of transcription costs.

We also affirm the amount of the award in this case. Doppenberg notes that portions of the depositions in this case were redacted by agreement ofthe parties or by order ofthe trial court and were not read to the jury. He contends that an award based on these redacted portions was improper. Although Doppenberg is correct that the Department was entitled only to a pro rata award No. 71346-9-1/15

based on those "portions of the depositions introduced into evidence or used for purposes of impeachment," he fails to provide copies of the redacted depositions or any other evidence of the extent of the redactions. RCW 4.84.010(7). Thus, the record is inadequate for this court to assess the trial court's award of transcription costs. Because Doppenberg bore the burden of perfecting the record on appeal, we decline to grant him relief as to the amount of the award. See, Bulzomi v. Dep't of Labor & Indus.. 72 Wn. App. 522, 525, 864 P.2d 996 (1994).

Finally, Doppenberg challenges the trial court's award of the $125 jury demand fee, arguing that the award has no basis in the law. The argument lacks merit. RCW 4.84.010 states that a prevailing party may obtain "costs otherwise authorized by law" in addition to those enumerated in the statute. A related title, chapter 4.44 RCW (Trial), provides: "[t]he jury fee paid by the party demanding a trial by jury shall be a part of the taxable costs in such action." RCW 4.44.110. Doppenberg is thus incorrect that there is no statutory basis for the award of the jury demand fee. To the extent he argues that only those costs enumerated in RCW 4.48.010 are recoverable under the statute, this argument has been expressly rejected by our supreme court. Blair v. Wash. State Univ., 108 Wn.2d 558, 572, 740 P.2d 1379 (1987) (holding that RCW 4.84.010 did not limit the costs recoverable in a discrimination action where the relevant discrimination statute includes an applicable cost provision).

No. 71346-9-1/16

Attorney Fees and Costs on Appeal

Doppenberg requests an award of reasonable attorney fees and costs on appeal pursuant to RAP 18.1(a) and RCW 51.52.130. Together, these provisions allow appellate courts to award a worker or beneficiary who, on appeal from the decision and order of the Board, successfully obtains reversal or modification of the decision and order and additional relief. Here, Doppenberg fails to obtain reversal, modification, or other relief from this court. Thus, we decline his request for an award of reasonable attorney fees and costs on appeal.

Affirmed.

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