            IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



CLARK COUNTY,
                                                 No. 72437-1-1
                      Respondent,

       v.                                        ORDER WITHDRAWING
                                                 OPINION
PATRICK J. McMANUS,

                      Appellant.

       The court is withdrawing the opinion filed on May 18, 2015 in the above matter

and replace it with a revised opinion.

       It is hereby

       ORDERED that the opinion filed on May 11, 2015 is withdrawn and replaced with

a revised opinion to be filed on June 8, 2015.

       SO ORDERED


       Dated this 3 day of Cpihft/                   , 2015.
                                         FOR THE COURT:

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     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



CLARK COUNTY,                            ;
                                                No. 72437-1-1
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PATRICK J. McMANUS,                             PUBLISHED OPINION            CD     s:r~
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                    Appellant.           )      FILED: June 8, 2015          «"     §^


      Spearman, C.J. — Patrick McManus appeals the trial court's judgment

and order reversing an award of benefits under the Industrial Insurance Act, Title

51 RCW, by the Department of Labor and Industries (Department). He claims the

trial court improperly admitted hearsay evidence through the testimony of his

treating physician. He also contends that the jury was improperly instructed. We

agree with McManus, reverse the judgment, and remand for a new trial.

                                     FACTS


       Patrick McManus is a former Clark County (County) employee. Between

1999 and 2011, he worked fulltime for the County operating a street sweeper. He

stopped working in April 2011 because of debilitating, degenerative spinal

disease, which he attributes to his work as a street sweeper operator. Shortly
No. 72437-1-1/2


after leaving work, McManus filed a claim for workers' compensation under Title

51 RCW, the Industrial Insurance Act (Act).

       In reviewing the claim, the Board of Industrial Insurance Appeals (Board)

considered deposition testimony from several witnesses. McManus testified that

he began experiencing pain that radiated across his low back and down his left

leg in early 2010. He attributed this pain to the cramped confines and bumpy

rides of the street sweepers he operated for the County. In particular, he claimed

that while the first two street sweepers he operated had adjustable air ride seats

and relatively ergonomic cab designs, the third and final machine he operated, to

which he was assigned in either 2008 or 2009, had an uncomfortable cab layout

and a negative air ride seat that, according to McManus, felt like a block of

concrete whenever he hit a bump.

       McManus also testified regarding a preexisting back condition and other

possible causes for his pain. He testified that his weight had hovered around the

330 pound mark for the past 30 years and that he had used tobacco products

regularly until 2011. He acknowledged sustaining a low back injury at age 19,

which resulted in flare-ups of pain in his low back and legs. McManus also

conceded having been on prescription medication for pain in his lower back,

buttocks, and left leg since 2001, approximately 9 years before the onset of the

symptoms he alleged were work related.

      The sole medical expert to testify on behalf of McManus was Dr. Paul

Won, who is board certified in preventive and family medicine. In his deposition,

Dr. Won testified that he began treating McManus in January 2005 following a
No. 72437-1-1/3


low back injury unrelated to the condition alleged in his workers' compensation

claim. After this initial treatment, McManus had continued to work his regular job

as a street sweeper operator. According to Dr. Won, McManus had a gradual

increase in low back pain during this time. On June 25, 2010, Dr. Won obtained a

magnetic resonance imaging (MRI) scan of McManus' back. The scan showed

various spinal changes as compared to a prior study, including a central disc

protrusion at the L2-3 vertebra. Based on this scan, Dr. Won diagnosed

McManus with displacement of a lumbar intervertebral disc at L2-3. Dr. Won next

treated McManus on April 11, 2011, at which time McManus complained about

low back pain due to a poor quality seat cushion in his street sweeper.

        On direct examination, Dr. Won acknowledged a November 14, 2011

letter to McManus' claims representative, in which Dr. Won had opined that the

cause of McManus' lower back condition was his work as a street sweeper

operator. Dr. Won testified that his opinion had not changed since writing the

November 14 letter. He opined that "driving trucks with jarring and bouncing has

made a major material contribution to [McManus'] lumbar condition." CABR

(Won) at 30-31.1 According to Dr. Won, this opinion was based on his

understanding of McManus' medical history and the physical forces McManus'

spine endured during his street sweeping work.

        On cross examination, Dr. Won testified over McManus' hearsay objection

that he was aware a consulting neurosurgeon, Dr. Wrobel, had opined that it was



      1 "CABR" refers to the certified appeal board record. Deposition transcripts within the
CABR are cited by parenthetical reference to the deponent's last name.
No. 72437-1-1/4


unknowable whether or not the disc protrusion at L2-3 was related to McManus'

employment. Dr. Won also stated he was aware of Dr. Wrobel's opinion that "no

one could relate the protrusion at 23 [sic] and the stenosis to the work activities

with Clark County." CABR (Won) at 39. While Dr. Won conceded that a

neurosurgeon would likely have greater expertise than he in determining the

etiology of degenerative disc disease such as McManus', he ultimately did not

agree with Dr. Wrobel's opinion and testified that his own initial opinion that

McManus' low back condition arose from the conditions of his work as a street


sweeper operator was still valid based on his knowledge of McManus' medical

history.

       The County offered the deposition testimony of two experts, Dr. Thomas

Dietrich and Dr. James Harris. Dr. Wrobel did not testify. Dr. Dietrich, a board

certified neurosurgeon, stated that he had rendered an opinion based on a July

14, 2011 examination of McManus. Dr. Dietrich concluded that McManus' low

back condition did not arise naturally and proximately from the distinctive

conditions of his employment; however, he acknowledged that the repetitive

bouncing up and down McManus endured over a period of years as a street

sweeper operator likely played a role in the rate of degenerative change in his

condition.


       Dr. Harris, a board certified orthopedic surgeon, testified that he

conducted a review of McManus' records at the request of the County. Dr. Harris

compared a December 14, 2005 CT (computed tomography) scan of McManus'

lumbar spine with the June 25, 2010 MRI ordered by Dr. Won and concluded that
No. 72437-1-1/5


the 2010 imaging showed a new central disc protrusion at the L2-3 level. Dr.

Harris' initial report indicated that McManus' employment could be a possible

cause of the abnormalities visible in the imaging scans. However, Dr. Harris

testified that his initial conclusion was speculative, rendered with insufficient

information on his part. He testified that after additional research, his ultimate

conclusion was that McManus' low back condition was not the result of an

industrial injury. Dr. Harris attributed the injury to the normal aging process. He

noted that by age 50, about half the population would experience similar

degenerative changes. He also recognized the role of obesity and heredity in

such degenerative changes. While acknowledging that the conditions of

McManus' work may have contributed to symptoms of this underlying condition,

Dr. Harris maintained that McManus' work did not cause the condition.

           At the close of evidence, an industrial appeals judge determined that

McManus' injury was work related, awarded him compensation under the Act,

and issued a proposed decision and order, which included the following findings

of fact:

    1. On April 10, 2012, an industrial appeals judge certified that the
       parties agreed to include the Jurisdictional History, as amended, in
           the Board record solely for jurisdictional purposes.

    2. Patrick J. McManus worked as a street sweeper operator for Clark
       County from 1998 or 1999 to April of 2011. As a street sweeper
           operator, Mr. McManus worked 40 hours per week, and sometimes
           worked overtime. While operating the street sweeper, Mr. McManus
           repetitively hit holes and dips along the curb line, which can be the
           roughest part of the road. Bumpy conditions jarred his back,
           causing pain. In 2008 or 2009, Clark County purchased a new
           street sweeper. Mr. McManus experienced more bumping and
           jarring while operating the new street sweeper. In April of 2011, Mr.
No. 72437-1-1/6


      McManus ceased working as a street sweeper operator due to pain
      in his low back.


   3. As early as 1976, prior to his employment with Clark County, Mr.
      McManus was seen and treated for intermittent, chronic low back
      pain and degenerative disc changes. An MRI dated February 24,
      2006 showed moderately severe degenerative changes in the
      entire lumbar spine. An MRI dated June 25, 2010, showed
      moderately severe degenerative changes in the entire lumbar
      spine, and also a new central disc protrusion at the L2-3 level.

   4. Repetitive jarring and bumping constitute distinctive conditions of
      employment.

   5. Mr. McManus sustained an aggravation of his pre-existing cervical
       degenerative disc changes arising naturally and proximately out of
      the distinctive conditions of his employment with Clark County.

CABR at 70-71.

       The County petitioned for review by the Board. On McManus' motion, the

Board excluded Dr. Won's testimony regarding his knowledge of Dr. Wrobel's

opinions. The Board affirmed the industrial appeals judge's decision and adopted

its proposed decision and order.

       The County petitioned for review in the Clark County Superior Court. At

trial, the jury was instructed that the sole question before it was whether "the

Board of Industrial Insurance Appeals [was] correct in deciding that Patrick

McManus' low back condition, diagnosed as aggravation of degenerative disc

changes and a new central disc protrusion at L2-3 level[,] arose naturally and

proximately from the distinctive conditions of his employment with Clark County

operating a street sweeper." Clerk's Papers (CP) at 98. The jury concluded that

the Board was incorrect in concluding that McManus' back condition arose from
No. 72437-1-1/7


his employment operating the street sweeper. The trial court entered an order

reversing the Board's decision. McManus appeals.

                                   DISCUSSION

                                Evidentiary Rulings

       Before trial, the County requested that the trial court reverse the Board's

ruling excluding that part of Dr. Won's testimony relating to Dr. Wrobel's opinion.

The County argued that this testimony was admissible under ER 703 because,

although hearsay, Dr. Won relied on Dr. Wrobel's opinion in forming his own

conclusions as to the cause of McManus' condition. The trial court agreed with

the County, reversed the ruling of the Board, and overruled McManus' objection.

McManus argues that the trial court's ruling was error. We agree.

       A superior court on review of a Board's decision has discretion to review

the Board's evidentiary rulings. We review for abuse of discretion. Gorre v. City

of Tacoma, 180 Wn. App. 729, 769-70, 324 P.3d 716 (2014), review granted, 181

Wn.2d 1033 (2015). A trial court abuses its discretion if its decision is manifestly

unreasonable or its discretion is exercised on untenable grounds or for untenable

reasons. Boeing Co. v. Harker-Lott, 93 Wn. App. 181, 186, 968 P.2d 14(1998).

       Generally, the out of court statements of a nontestifying declarant are

inadmissible to prove the truth of the matter asserted. ER 802. The County

contends that Dr. Wrobel's statements are admissible for impeachment purposes

under ER 613 or as a statement of a party-opponent under ER 801(d)(2). Both

arguments lack merit. Dr. Wrobel's opinion was not a prior statement by Dr. Won

and, thus, could not be used for impeachment of Dr. Won under ER 613. And
No. 72437-1-1/8


because Dr. Wrobel was not a party to the case, one authorized by a party to

make a statement, or an agent or employee of a party, the ER 801(d)(2)

exemption for admissions of party-opponents does not apply.

      The County also contends that Dr. Wrobel's statements were admissible,

even if hearsay, under the statement for medical diagnosis or treatment (ER

803(a)(4)) or learned treatise (ER 803(a)(18)) hearsay exceptions. Neither

exception applies.

      ER 803(a)(4) provides a hearsay exception for

      [statements made for purposes of medical diagnosis or treatment
      and describing medical history, or past or present symptoms, pain,
      or sensations, or the inception or general character of the cause or
      external source thereof insofar as reasonably pertinent to diagnosis
      or treatment.


Here, the trial court admitted the following line of questioning over McManus'

hearsay objection:

      Q. Are you aware that Dr. Wrobel himself testified in a discovery
      deposition in this case that it is unknowable as to whether or not the
      protrusion at L2-3 was, in fact, related to his employment?

      Q. Are you aware of that, Doctor?
      A. Yes.
       Q. You are aware of that?
      A. Yes.

       Q. And his answer was that no one could relate the protrusion at 23
      [sic] and the stenosis to the work activities with Clark County;
       correct?
      A. Yes, that is correct.

CABR (Won) at 38-39. Because it is evident from counsel's first question that Dr.

Wrobel's statements were made in a discovery deposition and not in the course

of medical diagnosis or treatment, ER 803(a)(4) does not apply.



                                         8
No. 72437-1-1/9


       ER 803(a)(18) is likewise inapplicable. The rule establishes a hearsay

exception for "statements contained in published treatises, periodicals, or

pamphlets on a subject of history, medicine, or other science or art, established

as a reliable authority by the testimony or admission of the witness or by other

expert testimony or by judicial notice." Because Dr. Wrobel's statements plainly

were not contained in a published work, they were not admissible pursuant to this

exception.

       Next, the County argues that, even if hearsay, Dr. Wrobel's statements

were admissible under ER 703 as the basis for Dr. Won's expert opinion and,

pursuant to ER 705, were subject to disclosure on cross examination. But the

argument fails because the County misconstrues Dr. Won's testimony.

       It is well established that under ER 703, an expert opinion based on the

opinion of a nontestifying expert is admissible, so long as the testifying expert

reasonably relied on the opinion. On cross-examination, the testifying expert may

be compelled to reveal the underlying sources of his or her opinion, including

otherwise inadmissible hearsay evidence. ER 705; see also Deep Water

Brewing, LLC v. Fairwav Res. Ltd., 152 Wn. App. 229, 275, 215 P.3d 990 (2009)

("[ER 703] permits experts to base their opinions on facts or data that might not

otherwise be admissible into evidence...[and] the trial court may allow the

admission of hearsay evidence and otherwise inadmissible facts for the limited

purpose of showing the basis of the expert's opinion."); Bryan v. John Bean Div.

ofFMCCorp., 566 F.2d 541, 545 (5th Cir. 1978) (construing Fed. R. Evid. 703
No. 72437-1-1/10


and 705); 5B Karl B. Tegland, Washington Practice: Evidence Law and

Practice § 703.6 (5th ed. 2007). But neither rule applies in this case.

       Dr. Won offered an expert opinion on the cause of McManus' low back

condition, which he testified was based solely on his understanding of McManus'

medical history and the physical realities of McManus' work as a street sweeper

operator. On cross-examination, the County elicited testimony regarding Dr.

Wrobel's conflicting opinion as to causation. But, there is no evidence that Dr.

Won relied on Dr. Wrobel's statements in forming his own opinion as to causation

as contemplated by ER 703 and 705. Thus, Dr. Won's hearsay statements were

not subject to admission under either rule.

       Because Dr. Wrobel's statements are hearsay not within any exception,

the trial court's decision to admit the statements was an abuse of discretion.

                                  Jury Instructions

       McManus also contends that the jury instructions in this case were

insufficient for several reasons. The standard of review for jury instructions is

whether the instructions are correct as a matter of law. State v. Edwards, 92 Wn.

App. 156, 164, 961 P.2d 969 (1998). Instructions are sufficient if they permit 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. Boeing, 93 Wn. App. at

186. We review the trial court's decision not to give a particular jury instruction for

abuse of discretion. Id.




                                          10
No. 72437-1-1/11


       McManus first contends the trial court erred in refusing to give an

introductory instruction to the jury, advising it that the Board's decision affirmed

the industrial appeals judge's earlier, favorable decision. We disagree.

        In superior court review of a Board decision, the function of a jury is to

determine whether the Board is correct in rendering that decision. Stratton v.

Dep't of Labor & Indus.. 1 Wn. App. 77, 80, 459 P.2d 651 (1969). Prior to

deliberations, the trial court is charged with instructing the jury of the exact

findings of the board on each material issue before the court. RCW 51.52.115. In

this case, the trial court's instruction 4 reproduced verbatim each of the Board's

findings of fact on the nature and cause of McManus' injury.2

        McManus contends that the prior history of the case, i.e., that the Board

reached its decision in affirmance of the industrial appeals judge's decision, was

also a "material issue" within the meaning of RCW 51.52.115. We rejected a

similar argument in Stratton. In that case, we considered whether an

administrative law judge's preliminary determination in a proposed decision and

order, which was subsequently rejected by the Board, constituted a finding of the

Board on a material issue. 1 Wn. App. at 77. We concluded that it did not. We

expressly held that the preliminary determination by the administrative law judge

was immaterial to the only question to be decided by the trier of fact: whether the

Board's ultimate determination was correct. Id at 80. We also recognized the

improper tactical advantage to be gained by a party advising the trier of fact of


          2The only other finding of fact entered by the Board acknowledges the Board's
jurisdictional basis, not a material issue before the trial court.


                                               11
No. 72437-1-1/12


prior favorable determinations made by individuals or entities other than the

Board in rendering its ultimate findings. We noted that "[t]he practice only serves

to confuse the jury and divert its attention from the duty to determine whether, on

material issues presented to them, the evidence preponderates in favor of or

against the Board's findings and decision." Id. at 81 (emphasis omitted).

       Notwithstanding our holding in Stratton, McManus appears to argue,

without citation to authority, that jurors must have an understanding of the exact

procedural history that brought the case before them. See Br. of Appellant at 15-

16. But neither the industrial appeals judge's decision nor the fact that the Board

affirmed that decision was material to the only issue to be determined by the jury

in this case. Accordingly, the trial court had no statutory obligation to instruct the

jury on the procedural history of the case and its refusal to give McManus'

proposed introductory instruction was not error.

       Next, McManus assigns error to the trial court's refusal to give his

proposed jury instruction 10, which reproduced 6A Washington Pattern Jury

Instructions: Civil 155.13.01 (6th ed. 2012) in relevant part as follows:

       You should give special consideration to testimony given by an
       attending physician. Such special consideration does not require
       you to give greater weight or credibility to, or to believe or
       disbelieve, such testimony. It does require that you give any such
       testimony careful thought in your deliberations.

The trial court concluded that the instruction was unnecessary. Although we may

have concluded otherwise, we cannot say on this record that the trial court's




                                          12
No. 72437-1-1/13


refusal to give the proposed instruction was an abuse of discretion.3 The trial

court's general instructions informed the jury that it could consider

       the opportunity of the witness to observe or know the things they testify
       about; the ability of the witness to observe accurately; the quality of a
       witness' s memory while testifying; the manner of the witness while
       testifying; any personal interest that the witness might have in the
       outcome or the issues; any bias or prejudice that the witness may have
       shown; the reasonableness of the witness's statements in the context of
       all of the other evidence; and any other factors that affect your evaluation
       or belief of a witness or your evaluation of his or her testimony.

CP at 82. Based on this instruction, McManus was able to argue that Dr. Won, as

his treating physician, was better qualified to render an opinion on the etiology of

his injury than the Department's witnesses. And the jury was informed that it

could accept this theory. Thus, under the circumstances, the trial court's general

instruction was sufficient. See Boeing, 93 Wn. App. at 186.

       Finally, McManus assigns error to the trial court's jury instruction 4, which

included a verbatim recitation of the Board's findings of fact. In particular, the

instruction included the Board's findings of fact 5, which provides:

       Mr. McManus sustained an aggravation of his pre-existing cervical
       degenerative disc changes arising naturally and proximately out of
       the distinctive conditions of his employment with Clark County.

CABR at 70; CP at 81 (emphasis added). McManus argues that the Board's

reference to disease of the cervical spine, i.e., the neck and upper back, was a

scrivener's error, given that his claimed injury affected only his lumbar spine, i.e.,

the lower back. He further contends that the trial court's refusal to revise the



       3Generally, trial courts would be well advised to give careful consideration to whether the
proposed instruction should be given in a particular case. See Hamilton v. Dep't of Labor &
Indus.. 111 Wn.2d569, 761 P.2d 618 (1988).



                                               13
No. 72437-1-1/14


Board's finding so that it reflected only injury to his lumbar spine was error. We

agree.

         Citing RCW 51.52.104 and Homemakers Upjohn v. Russell, 33 Wn. App.

777, 780-81, 658 P.2d 27 (1983), the Department contends that McManus has

waived this error because he did not appeal the Board's finding. In Homemakers,

we interpreted RCW 51.52.104 to mean that a party aggrieved by a hearing

examiner's proposed decision and order and who failed to file a petition for

review waived its objections to the record. Id. at 780. But we also noted "that a

nonaggrieved party waived absolutely nothing by not filing a petition." Id. at 782.

Because McManus prevailed in the proceedings before the Board, we conclude

that he was not an aggrieved party and therefore was not precluded from raising

the error before the superior court. Moreover, it is undisputed that the finding at

issue was in error. The County conceded as much in its petition for review of the

Board's decision. See CABR at 48 n.1 ("the administrative law judge incorrectly

stated in finding of fact number 5 that Mr. McManus had aggravated his

CERVICAL degenerative disc changes"). We are satisfied that the error was

properly preserved for our review.

         We next consider whether the trial court erred in refusing to revise the

Board's finding. We conclude that it did.

         RCW 51.52.115 requires that on review of a Board's decision by the

superior court, if a case is submitted to a jury "the court shall by instruction

advise the jury of the exact findings of the board on each material issue. . . ." The
findings and decision of the Board are presumed to be correct, and the burden of


                                            14
No. 72437-1-1/15


proof is on the party challenging them. RCW 51.52.115; Gorre, 180 Wn. App. at

754. A trial court may substitute its own findings for those of the Board only if it

finds from a fair preponderance of credible evidence that the Board's findings

and decision are incorrect. Gorre, 180 Wn. App. at 754-55. Stratton v.

Department of Labor & Industries, 7 Wn. App. 652, 501 P.2d 1072 (1972)

(Stratton II) is instructive on whether the trial court erred in failing to do so in this

case.


        In Stratton II, we affirmed a trial court's revision of a board finding that

contained obvious error that was prejudicial to the challenging party, jd. at 654-

56. In that case, we considered the following jury instruction, which reproduced a

board finding on Stratton's condition:

        3. On or about April 29, 1964, the claimant suffered from a
           psychiatric disorder which was causally related to his industrial
           injury and was diagnosed as anxiety neurosis with conversion
           symptoms. Associated with this psychiatric disorder is a
           demonstrated lack of motivation in the claimant to seek out and
           maintain gainful employment, coupled with a strong tendency
           and desire to realize a monetary gain from his injury.

\± at 654. Stratton contended that the emphasized sentence was not a medical

finding based on evidence, but rather an argumentative assertion that he was

unmotivated and eager to realize a monetary gain from his injury. We agreed and

concluded that the emphasized sentence was "not based upon any medical or

other evidence in the record" and merely expressed the "opinion of the board that

Stratton won't look for work and has a strong desire to make money from his

injury." ]d_. Because the Board's error was obvious and resulted in prejudice to

Stratton, we reversed the judgment and remanded for a new trial, jd. at 656.


                                            15
No. 72437-1-1/16


        Similarly in this case, the Board's finding that McManus "sustained an

aggravation of his pre-existing cervical degenerative disc" is unsupported by any

evidence in the record. Both McManus and the County offered medical testimony

related to the degenerative condition in McManus' lumbar spinal region. The only

mention of his cervical spinal region came from Dr. Won, who testified briefly that

McManus suffered from "arno chiari[4]... a malformation of the base of the skull

that tends to press on the nerve." CABR (Won) at 22. Based on this record, we

conclude that the Board's finding of fact 5 contained an obvious scrivener's error.

        Moreover, the trial court's refusal to revise the finding was not harmless.

The jury was instructed to answer only one question:

        Was the Board of Industrial Insurance Appeals correct in deciding
        that Patrick McManus' low back condition, diagnosed as
        aggravation of degenerative disc changes and a new central disc
        protrusion at the L2-3 level, arose naturally and proximately from
        the distinctive conditions of his employment with Clark County
        operating a street sweeper?

CP at 60. Thus, the issue before the jury was whether the Board's determination

that a causal link existed between McManus' claimed industrial injury and the

conditions of his work for the County. Because the Board's finding of fact 5 as

represented to the jury referenced the wrong injury, it effectively precluded

McManus from establishing this link. Thus, the trial court's refusal to correct the

Board's scrivener's error materially affected the outcome of trial.



         4This appears to be a reference to an Arnold-Chiari malformation, which, according to the
National Institute of Neurological Disorders and Stroke, is a congenital structural defect in which the
cerebellum and parts of the brain stem sit in an indented space at the lower rear of the skull, where
it attaches to the spinal column. See Chiari Malformation Fact Sheeet, Nat'l Inst, of Neurological
Disorders & Stroke, http://www.ninds.nih.gov/disorders/chiari/detail chiari.htm (last updated April
29,2015).


                                                 16
No. 72437-1-1/17


                                        Attorney Fees

       McManus requests an award of reasonable attorney fees on appeal

pursuant to RCW 51.52.130.5 The statute provides for an award of attorney fees

to a worker who prevails on appeal from an order granting relief to the worker.

Because this matter is remanded for retrial, the prevailing party is not yet

determined. Accordingly, an award of attorney fees at this time would be

premature and we decline to make such an award. We note that the trial court

may award appellate attorney fees, as appropriate, after retrial. Washington Fed.

v. Gentry, 179 Wn. App. 470, 496, 319 P.3d 823, 836 review granted sub nom.

Washington Fed, v. Gentry, 180 Wn.2d 1021, 328 P.3d 902 (2014) and affd sub

nom. Washington Fed, v. Harvey, 182 Wn.2d 335, 340 P.3d 846 (2015).

       Reversed and remanded for a new trial.




                                                           ^^/t/\ c^^s,        Cx\
WE CONCUR:




                                                            Cj&lt^
       5 The statute provides:

       (1) If, on appeal to the superior or appellate court from the decision and order of
       the board, said decision and order is reversed or modified and additional relief is
       granted to a worker or beneficiary, or in cases where a party other than the
       worker or beneficiary is the appealing party and the worker's or beneficiary's right
       to relief is sustained, a reasonable fee for the services of the worker's or
       beneficiary's attorney shall be fixed by the court.




                                                17
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                Clark County v. Patrick J. McManus, No. 72437-1-1                     co    &<s>
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       Dwyer, J. (concurring and dissenting). I concur with the majority's

resolution of the issues presented herein—save one. I believe that the trial court

erred by refusing to instruct the jury that special consideration should be given to

the opinion of a treating physician. This decision both contravened our Supreme

Court's precedent and created a disparity between the law applied by the Board
of Industrial Insurance Appeals (BIIA) and the law applied by the superior court

fact finder. Additionally, such decisions may ultimately lead to additional financial

burdens on the funds from which claimants are compensated. Accordingly, from

that limited section of the majority opinion, I dissent.

                                            I


       Because our Supreme Court has made clear that, in a workers'

compensation case, the state of the law is that the opinion of a treating physician

is entitled to special consideration by the trier of fact, the trial court erred by

refusing to so instruct the jury.

       "Instructions are sufficient ifthey permit a party to argue his or her theory

of the case, are not misleading, and, when read as a whole, properly inform the

jury on the applicable law." Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662,
935 P.2d 555 (1997) (emphasis added). I agree with the majority that the

instructions given permitted McManus to argue his theory "that Dr. Won, as his
treating physician, was better qualified to render an opinion on the etiology of his
No. 72437-1-1/2



injury than the Department's witnesses." Slip Op. at 13. However, the jury was

not informed of the "long-standing rule of law in workers' compensation cases

that special consideration should be given to the opinion of a claimant's attending

physician." Hamilton v. Dep't of Labor & Indus.. 111 Wn.2d 569, 571, 761 P.2d

618(1988).

       Hamilton concerned an instruction, similar to the one herein proposed,

that provided: "'In cases under the Industrial Insurance Act of the State of

Washington, special consideration should be given to the opinion of the plaintiff's

attending physician.'" 111 Wn.2d at 570. Reviewing prior case law, our

Supreme Court concluded that the instruction "reflected] binding precedent in

this state and correctly stated the law." Hamilton, 111 Wn.2d at 572; accord

Chalmers v. Dep't of Labor & Indus., 72 Wn.2d 595, 599, 434 P.2d 720 (1967)

("It is settled in this state that, in this type ofcases, special consideration should
be given to the opinion ofthe attending physician."); Groff v. Dep't of Labor &
Indus., 65 Wn.2d 35, 45, 395 P.2d 633 (1964) ("[W]e have, in several cases,

emphasized the fact that special consideration should be given to the opinion of

the attending physician.").

       Because the instruction stated a clear "rule of law," the Hamilton court

held, "it [was] appropriate that the jury be informed of this by the instructions of
the court." 111 Wn.2d at 572. "To refuse to do so," the court explained, "would

convert the rule of law into no more than the opinion of the claimant's attorney."

Hamilton, 111 Wn.2d at 572 (emphasis added). The difference between the law,

as explained by the court, and the argument of counsel is key.
No. 72437-1-1/3



       As juries are instructed, instructions from the court carry a far greater legal

and practical significance than do the arguments of counsel. Juries may choose

whether to accept or reject an argument of counsel.1 By contrast, juries may not

choose whether to follow the law—they are required to do so.2

       The majority's conclusion that the proposed instruction was not necessary

relies, in part, on Boeing Co. v. Harker-Lott, 93 Wn. App. 181, 968 P.2d 14

(1998). In Boeing, this court held that an instruction comparable to the one at

issue in Hamilton was not required because, it opined, "the Hamilton court did not

hold that an instruction to that effect was mandatory." 93 Wn. App. at 186

(emphasis added). But this is a matter of semantics. Regardless of whether the

Hamilton court's prohibition against converting the applicable rule of law"into no

more than the opinion of the claimant's attorney," is denominated a holding or

something else, it binds all lower courts:

        [F]ew opinions address the ground that later opinions deem
        sufficient to reach a different result. If a court of appeals could
        disregard a decision of the Supreme Court by identifying, and
        accepting, one or another contention not expressly addressed by
        the Justices, the Court's decisions could be circumvented with
        ease. They would bind only judges too dim-witted to come up with a
        novel argument.

Nat'l Rifle Ass'n of Am. v. City of Chicago, 567 F.3d 856, 857-58 (7th Cir. 2009),

rev'd on other grounds sub nom. McDonald v. City of Chicago. 561 U.S. 742,130

S. Ct. 3020, 177 L. Ed. 2d 894 (2010).

        1Thus, the jury herein was instructed: "[l]t is important for you to remember that the
lawyers' remarks, statements, and arguments are not evidence. You should disregard any
remark, statement, or argument that is not supported by the evidence or the law as Ihave
explainedit to you." Jury Instruction 1 (emphasis added).
         2Again, as the jury herein was instructed: "It... is your duty to acceptthe law as [the
court] explains] it to you, regardless ofwhat you personally believe the law is or what you
personally think it should be. You must apply the law that[the court] give[s] you." Jury Instruction
1.
No. 72437-1-1/4



      Moreover, the Boeing court reasoned that the proposed instruction was

unnecessary because the claimant's counsel could argue the claimant's theory of

the case—that the opinions of the attending physician were entitled to special

consideration—under the instructions given. See 93 Wn. App. at 186-87. But

this reasoning directly contravened the Hamilton court's assertion that such a

view "would convert the rule of law into no more than the opinion of the

claimant's attorney." 111 Wn.2d at 572. Because these two contrasting views

cannot be reconciled, the view of our Supreme Court must prevail.

      "Once [our Supreme Court] has decided an issue of state law, that

interpretation is binding until [it] overrule^] it." Hamilton, 111 Wn.2d at 571. Both

the majority and the trial court stray from proper adherence to applicable

Supreme Court precedent by determining that the instructions given in this case

were sufficient because the claimant's attorney was permitted to argue a rule of

law to the jury, in the absence of an instruction on that law by the trial judge.
                                           II


       In addition, the trial court's decision not to instruct the jury regarding the

rule that special consideration should be given to the opinion of a treating

physician created a disparity between the law applied by the BIIA and that

applied by the jury.

       The Industrial Insurance Act (Title 51 RCW) appeals process is structured

such that, between the decision of the BIIA and the superior court decision, the

only thing intended to change is the identity of the fact finder. The jury's charge

in a workers' compensation case is "to determine whether [the presumption that

the findings and decision ofthe BIIA are correct] is rebuttable by the evidence."

                                           4
No. 72437-1-1/5



Jury Instruction 5. This determination must be made only on the record before

the BIIA. Thus, as the jury herein was instructed, "The law requires that this case

be tried solely on the evidence and testimony that was offered before the [BIIA]."

Jury Instruction 2.

       Barring an intervening departure from precedent, the law applied to the

record must also remain the same. However, unlike the members of the BIIA,

the layjurors must be instructed by the trial judge on the applicable law, with

which the jurors are, in all likelihood, entirely unfamiliar. Thus, if the superior

court's instructions do not, as herein requested, include the "long-standing" rule

of law that special consideration should be given to the opinion of a treating
physician, there is no assurance that the law applied by the two decision-makers
(the BIIA and the jury) was the same. This is contrary to the careful design of the
legislature.

                                           Ill

       Finally, if trial court decisions ofthis type become widespread, claimants
will be incentivized to seek additional (and, at this time, unnecessary) medical

opinions, which may lead to increased financial strain on the funds from which

claimants are compensated.

       The rule that special consideration should be given to the opinion of a

treating physician works, in part, to correct a potential imbalance between the
expert witnesses whose testimony is offered by claimants, often primary care
physicians and other general practitioners, and the expert witnesses offered by
self-insured employers, often specialistswith noted and impressive certifications.
Without the rule here at issue, claimants may be incentivized to seek additional
No. 72437-1-1/6



medical advice or treatment as a litigation strategy, thus burdening the funds. By

obtaining a second opinion—from a physician with a "fancier" curriculum vitae—a

claimant may hope to strike a balance between the number and credentials of

the expert witnesses offered by each side. This is a potential "real world" impact

of decisions such as that we make today. We can avoid such unintended

consequences by the simple expedient of requiring that the law—as declared by

our Supreme Court—be adhered to.



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