Hinda Abdi, Appellant V. Department Of Labor & Industries, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
HINDA ABDI,
Appellant,
v.
DEPARTMENT OF LABOR AND
INDUSTRIES, BOARD OF
INDUSTRIAL INSURANCE
APPEALS,
Respondent.
No. 80149-0-I
DIVISION ONE
UNPUBLISHED OPINION
APPELWICK, J. — Pro se Abdi challenges a superior court order affirming the Board
ruling dismissing her application to reopen her industrial injury claim. Abdi asserts that
the evidence establishes that her depression and pain disorders worsened after her claim
was closed and that this worsening was proximately caused by the original injury. But,
Abdi’s expert witnesses conceded that they could not relate any change in the allowed
conditions to her original injury. And, a prior unappealed Board decision determined that
Abdi’s depression and pain disorders were not related to her injury, thus precluding
relitigation of that claim. None of Abdi’s remaining assertions of error provide a basis for
reversal. We affirm.
FACTS
Hinda Abdi emigrated from Somalia to the United States in 1992. She began
working soon after she arrived. On February 8, 2012, while working as a housing stability

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case manager for Neighborhood House, Abdi was holding a large number of files while
seated on a chair. As she began to stand up, the chair moved unexpectedly, causing her
to fall and injure her right shoulder, elbow, wrist, and hand.
On June 15, 2012, the Department of Labor and Industries (Department) allowed
Abdi’s claim for benefits, and she received treatment for these physical conditions. The
Department closed Abdi’s claim effective September 26, 2013. Abdi’s last day working
for Neighborhood House was September 27, 2013. She has remained unemployed
employed ever since.
After Abdi lost her job, she manifested mental health conditions which were
diagnosed as a depressive disorder and a pain disorder. On September 5 and September
8, 2014, the Department entered orders denying responsibility for these disorders based
on its determination that they were not proximately caused or aggravated by her allowed
industrial injury claim. On September 9, 2014, the Department closed Abdi’s claim with
no award for permanent partial disability. On April 28, 2016, an industrial appeals judge
(IAJ) dismissed Abdi’s appeals related to her depressive and pain disorders and affirmed
the order closing her claim. On September 6, 2016, the Board upheld that decision.
Abdi did not appeal the Board’s dismissal of those appeals to superior court.
Instead, she applied to reopen her claim. On November 14, 2016, the Department notified
Abdi that her application was denied because “[t]he medical record shows the conditions
caused by the injury have not worsened since the final claim closure.” On January 13,
2017, Abdi appealed the Department’s order to the Board.

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On June 20, 2018, an IAJ conducted a hearing on the issue of whether Abdi’s
conditions proximately caused by her industrial injury worsened between September 9,
2014 and November 14, 2016. Abdi appeared at the hearing pro se and called four
doctors as witnesses.
Abdi testified that she continues to have difficulty performing basic functions such
as writing, cooking, cleaning, or caring for herself and her children. She stated that she
believes her pain got worse because she did not receive appropriate medical treatment
and because her employer failed to put her on light duty after her fall. She further testified
that she suffers from “lack of hope,” has trouble concentrating, and wastes a lot of time
on Facebook.
Dr. Holly Holbrooks-Kuratek, a psychiatrist, began treating Abdi in August 2016.
She opined that Abdi exhibited a “consistent pattern of depression directly related to the
injury” based on Abdi’s “strong focus on this issue . . . with few other factors coming into
play in our conversation.” Upon reviewing Abdi’s treatment notes, she further opined that
Abdi’s depression worsened beginning in April 2015.
Dr. Benjamin Balderson, a clinical psychologist, began treating Abdi in May 2017.
He stated that Abdi’s current diagnoses are “major depressive disorder, single episode,
and chronic pain syndrome.” He opined that Abdi’s mental health conditions are more
probably than not related to her work injury. However, Dr. Balderson did not express an
opinion as to whether Abdi’s mental health condition worsened between 2014 and 2016.
Dr. Chalib Husseini, an orthopedic surgeon, first saw Abdi in April 2016 when she
came to him seeking a second opinion regarding her physical pain. Dr. Husseini opined

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on a more probable than not basis that Abdi’s shoulder and thumb conditions worsened
between September 2014 and November 2016. However, he could not say on a more
probable than not basis that her condition worsened as a result of her industrial injury
“because it’s possible they could get worse just with the passage of time.” And, Dr. Gary
Kegel, an orthopedic surgeon, similarly testified that although “there were signs of
worsening of some of these conditions” between December 2013 and September 2016,
he could not “conclusively say that the industrial injury caused the worsening.”
On September 13, 2018, the IAJ issued a proposed decision and order dismissing
Abdi’s claim. The judge found that the record contained no evidence that the physical
conditions proximately caused by her industrial injury objectively worsened between
September 2014 and November 2016. The judge further found that the record contained
no evidence that the depression or pain disorder worsened as a result of her industrial
injury during this period.
On September 28, 2018, Abdi petitioned the Board for review of the IAJ’s proposed
decision and order. Her petition included new medical evidence. On October 19, 2018,
the Board rejected the new evidence, denied Abdi’s petition for review, and adopted the
proposed decision and order as the final order of the Board.
On November 6, 2018, Abdi appealed the Board’s decision in superior court. On
June 12, 2019, the superior court entered findings of fact, conclusions of law, and
judgment affirming the Board’s decision. Abdi appealed.

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ANALYSIS
Abdi argues the superior court erred in affirming the Board’s decision to dismiss
her application to reopen her industrial injury claim because she presented prima facie
evidence of her worsening conditions and their relationship to her industrial injury. She
challenges the following relevant findings of fact:
1.2.9 On September 9, 2014, Ms. Abdi had no objective findings
proximately caused by the industrial injury.
1.2.10 On November 16, 2016, Ms. Abdi had no objective findings
proximately caused by the industrial injury.
1.2.11 The record does not include evidence that the physical conditions
proximately caused by industrial injury worsened between September 9,
2014 and November 16, 2016.
1.2.12 Ms. Abdi did not present evidence that her right thumb condition
was proximately caused by, or objectively worsened, as a result of the
industrial injury between September 9, 2014 and November 16, 2016.
1.2.13 The record does not contain evidence that Ms. Abdi’s depression
worsened as a result of the industrial injury between September 9, 2014
and November 16, 2016.
1.2.14 The record does not include evidence that Ms. Abdi’s pain disorder
worsened as a result of her industrial injury between September 9, 2014
and November 16, 2016.
A worker may apply to the Department to reopen an earlier workers’ compensation
claim due to aggravation or worsening of her industrial injury. RCW 51.32.160(1)(a). The
Department’s decision to deny reopening of a claim may be appealed to the Board, and
the Board’s decision may in turn be appealed in superior court. RCW 51.52. 060, RCW
51.52.110.
The superior court’s review of a Board order is de novo and based solely on the
evidence and testimony presented to the Board. Butson v. Dep’t of Labor & Indus., 189

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Wn. App. 288, 295, 354 P.3d 924 (2015); RCW 51.52.115. “In granting a motion to
dismiss under CR 41(b)(3), the court may weigh the evidence and make a factual
determination that the plaintiff has failed to come forth with credible evidence of a prima
facie case, or the court may view the evidence in the light most favorable to the plaintiff
and rule as a matter of law that the plaintiff has failed to establish a prima facie case.”
Hendrickson v. Dep’t of Labor & Indus., 2 Wn. App. 2d 343, 352, 409 P.3d 1162, review
denied, 190 Wn.2d 1030, 421 P.3d 450 (2018). The superior court may substitute its own
findings and decision for the Board’s only if it finds from a “‘fair preponderance of credible
evidence’” that the Board's findings and decision were incorrect. Ruse v. Dep’t of Labor
& Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999) (quoting McClelland v. ITT Rayonier, Inc.,
65 Wn. App. 386, 390, 828 P.2d 1138 (1992). The Board’s decision is considered prima
facie correct and the opposing party must support its challenge by a preponderance of
the evidence. RCW 51.52.115; Eastwood v. Dep’t of Labor & Indus., 152 Wn. App. 652,
657, 219 P.3d 711 (2009).
Our review is governed by RCW 51.52.140, which provides that an “[a]ppeal shall
lie from the judgment of the superior court as in other civil cases.” In reviewing the
superior court’s decision, we determine “‘whether substantial evidence supports the trial
court's factual findings and then review, de novo, whether the trial court’s conclusions of
law flow from the findings.’” Rogers v. Dep’t of Labor & Indus., 151 Wn. App. 174, 180,
210 P.3d 355 (2009) (quoting Watson v. Dep’t of Labor & Indus., 133 Wn. App. 903, 292,
138 P.3d 177 (2006)). Substantial evidence is evidence “sufficient to persuade a rational,

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fair-minded person that the finding is true.” Cantu v. Dep’t of Labor & Indus., 168 Wn.
App. 14, 21, 277 P.3d 685 (2012).
Under Washington’s Industrial Insurance Act, Title 51 RCW, a claimant must
establish the following four elements by medical testimony and objective symptoms to
reopen an industrial injury claim on the basis of aggravation: (1) a “causal relationship
between the injury and the subsequent disability”; (2) aggravation of the injury resulting
in increased disability; (3) an increased aggravation between “the terminal dates of the
aggravation period”; and, (4) a showing that the “disability on the date of closing the order
was greater than the supervisor found it to be.” Eastwood, 152 Wn. App. at 657-58
(footnote omitted) (quoting Phillips v. Dep’t of Labor & Indus., 49 Wn.2d 195, 197, 298
P.2d 1117 (1956)); RCW 51.32.160(1)(a). “Objective symptoms” are “‘those within the
independent knowledge of the doctor, because they are perceptible to persons other than
a patient.’” Hendrickson, 2 Wn. App. 2d at 354 (quoting Hinds v. Johnson, 55 Wn.2d 325,
327, 347 P.2d 828 (1959)).
Abdi first asserts that she established a prima facie case for reopening based on
her worsening shoulder and thumb conditions. She points to evidence that multiple
doctors noted signs of deterioration of these conditions and referred her for further
treatment after her claim closed. However, Dr. Husseini and Dr. Kegel both expressly
testified that although Abdi’s conditions worsened during the relevant time period, they
could not state on a more probable than not basis that they worsened as a result of her
injury. “For a claimant to prove causation, the testimony of medical experts ‘must
establish that it is more probable than not that the industrial injury caused the subsequent

No. 80149-0-I/8
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disability.’” Grimes v. Lakeside Indus., 78 Wn. App. 554, 561, 897 P.2d 431 (1995)
(quoting Zipp v. Seattle Sch. Dist., 36 Wn. App. 598, 601, 676 P.2d 538 (1984)). Although
the industrial injury need not be the sole proximate cause of disability, opinions expressed
in terms of possibility rather than probability are insufficient to establish causation. Id.
Because Abdi did not establish causation on a more probable than not basis, she did not
establish a prima facie case for reopening on this basis.
Abdi further asserts that she established a prima facie case for reopening based
on her depression disorder and pain disorder because Dr. Holbrooks-Kuratek and Dr.
Balderson both opined that her mental health disorders were more probably than not
related to her work injury. The Department contends that Abdi cannot reopen her claim
based on either of these conditions because she failed to appeal the Board’s final decision
in her previous claim determining that her depression and pain disorders were not
proximately caused by her industrial injury. We agree.
“When an issue of fact or law is actually litigated and determined by a valid and
final judgment, and the determination is essential to the judgment, the determination is
conclusive in a subsequent action between the parties, whether on the same or a different
claim.” RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1982). “Failure to appeal an adverse
ruling at any level transforms the ruling into a final order.” Kingery v. Dep’t of Labor &
Indus., 80 Wn. App. 704, 708, 910 P.2d 1325 (1996), aff’d Kingery v. Dep’t of Labor &
Indus., 132 Wn.2d 162, 937 P.2d 565 (1997). “An unappealed Department order is res
judicata as to the issues encompassed within the terms of the order, absent fraud in the
entry of the order.” Kingery, 132 Wn.2dat 169 (citing Abraham v. Dep’t of Labor & Indus.,

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178 Wn. 160, 34 P.2d 457 (1934)). “An unappealed final order from the Department
precludes the parties from rearguing the same claim.” Marley v. Dep’t of Labor & Indus.,
125 Wn.2d 533, 538, 886 P.2d 189 (1994). Because Abdi did not appeal the Board’s final
orders denying responsibility for her mental health disorders based on its determination
that these disorders were not proximately caused or aggravated by her allowed industrial
injury claim, she cannot seek to reopen her claim on the same basis.
In her motion for reconsideration at the superior court below, Abdi asserted that
she was not responsible for failing to appeal the Board’s final order because (1) she never
received a copy of the ruling, (2) the Department “interfered with” her claim, (3) the
Department offered to reopen her claim, and (4) she is not an attorney. The record
contains no support for these assertions. And, pro se litigants are held to the same
standard as attorneys. In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527
(1993).
Abdi raises several other issues for our consideration, none of which provide a
basis for reversal.
First, Abdi assigns error to Finding of Fact 1.2.1:
On September 26, 2017, an industrial appeals judge certified that the
parties agreed to include the Jurisdictional History in the Board record solely
for jurisdictional purposes.
Abdi asserts that she agreed to include the jurisdictional history in the Board record, but
for use as evidence, not solely for jurisdictional purposes. She claims that she “did not
agree with these findings and facts” because she “misunderstood due to lack of court
terminology, no interpreter, limited court language and procedures.” But, Abdi points to
no evidence indicating that she asked for an interpreter or that she misunderstood the

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agreement. Nor does she specify which part of the jurisdictional history she disagrees
with or explain how she was prejudiced thereby. Abdi shows no error.
Abdi next assigns error to Finding of Fact 1.2.2:
Hinda C. Abdi sustained an industrial injury on February 8, 2012 when her
chair slipped while she was reaching for a form, causing her to fall onto her
upper right side. Her workers’ compensation claim No. AR-47693 was
allowed.
Abdi contends that this finding should have further specified that she “carried heavy bags
site to site for seven years prior [to the] on the job injury on February 8, 2012.” She
nevertheless agrees that the finding is factually accurate. Abdi has not shown error.
Abdi next assigns error to Finding of Fact 1.2.6:
On April 28, 2016, an industrial appeals judge issued an order dismissing
the appeals related to Ms. Abdi’s mental health conditions for failure to
present evidence to make a prima facie case and affirming the order closing
Ms. Abdi’s claim.
Abdi appears to contend that this finding is erroneous, because the superior court failed
to properly review and reconsider the medical evidence in support of this claim, or to take
into account “procedural irregularities due to department’s interference for evidence.”
But, she does not dispute that the superior court properly found that the Board issued a
decision in 2016 regarding the Department’s decision to deny her claim for mental health
conditions, and therefore has not shown that the finding is erroneous. This unappealed
final order precluded further review of the matters resolved therein.
Abdi further appears to contend that she is entitled to time-loss compensation
pursuant to RCW 51.32.090(4), occupational benefits pursuant to RCW 51.32.180, and
vocational rehabilitation benefits pursuant to RCW 51.32.095(2). But, the sole issue
decided by the Department was whether to grant Abdi’s application to reopen her claim.

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“[I]f a question is not passed upon by the department, it cannot be reviewed either by the
board or the superior court.” Lenk v. Dep’t. of Labor & Indus., 3 Wn. App. 977, 982, 478
P.2d 761 (1970).
Abdi next contends that the IAJ committed prejudicial error by failing to call Dr.
James Keyes, a psychologist who treated Abdi, to testify at her reopening hearing. The
record does not support this assertion. Abdi asked the IAJ to subpoena five medical
experts, including Dr. Keyes. The IAJ responded that “subpoenas will be issued after you
confirm that each of the doctors named below has agreed to testify on June 20 at the
times you have indicated.” After Abdi confirmed that they did, the IAJ informed Abdi that
she would arrange for the subpoenas to be prepared and mailed to Abdi. It is unclear
why Dr. Keyes did not testify at the hearing. In any case, Abdi did not raise the matter at
the hearing or ask the IAJ to call Dr. Keyes while the hearing was underway. Abdi has
not shown that Dr. Keyes’s absence resulted from any act or omission of the IAJ.
Moreover, Dr. Balderson extensively referenced Dr. Keyes’s treatment notes throughout
his testimony. Abdi has not shown error.
Finally, Abdi contends that the Board and superior court erred in refusing to
consider new documents and medical records that she filed after the hearing, including
the results of medical tests conducted in February and June 2018. She contends that
these records prove that her conditions worsened during the relevant time period and that
her claim should be reopened.
In rejecting Abdi’s new evidence, the Board stated, “We will not consider new
evidence attached to a Petition for Review absent proof that the new evidence could not

No. 80149-0-I/12
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have been discovered with reasonable diligence prior to the hearing.” Although the
Board’s review of the IAJ’s proposed decision and order is de novo, it is not required to
accept new evidence that could have been offered before the IAJ. See Boyd v. Dep’t of
Labor & Indus., 1 Wn. App. 2d 17, 34, 403 P.3d 956 (2017). The Board’s opportunity to
consider new evidence is “roughly analogous to the opportunity to present new evidence
on reconsideration under CR 59(a).” Id. A party is entitled to reconsideration of rulings
where there is “[n]ewly discovered evidence, material for the party making the application,
which the party could not with reasonable diligence have discovered and produced at the
trial.” CR 59(a)(4). We agree that none of Abdi’s posthearing documents and records
meet this standard.
Abdi also appears to assert that the superior court erred in failing to require the
Department to file her entire workers’ compensation claim file with the court. But, the
superior court cannot receive evidence or testimony not offered to the Board absent an
alleged irregularity in the Board’s procedure not shown in the Board’s record. RCW
51.52.115. Although Abdi suggests that the Department’s “interference with evidence”
constitutes a procedural irregularity that meets this standard, the record does not support
her assertion.
We affirm.
WE CONCUR: