                                                                                            FILED
                                                                                    COURT OF APPEALS
                                                                                         DIVISION II

                                                                                2015, AN 13       Phis 18
                                                                                    STATE OF WASHINGTON
                                                                                    BY

    IN THE COURT OF APPEALS OF THE STATE OF Wik                                                  RGTON

                                            DIVISION II

DARLENE FLETCHER,                                                              No. 45653 -2 -II


                                Appellant,


        v.

                                                                       UNPUBLISHED OPINION
 GRAYS           HARBOR            COMMUNITY
 HOSPITAL,


                                 Respondent.




       MAxA, J. —     Darlene Fletcher appeals the trial court' s order, based on the jury' s special

verdict, affirming the finding of the Board of Industrial Insurance Appeals ( Board) that Fletcher

was ineligible to reopen her 2003 industrial injury claim. In awarding her benefits in 2003, the

Department of Labor and Industries ( Department) found that Fletcher had a permanent

impairment. Several years later, Fletcher applied to reopen her claim. The Board found, and the


jury agreed, that Fletcher had no objective findings of permanent impairment in December 2011

and that her industrial injury condition had not objectively worsened between 2003 and

December 2011.


        Fletcher argues that the trial court erred by ( 1) denying her two motions for judgment as a

matter of law because under res judicata the Department' s finding of permanent impairment in

2003 precluded the Board' s and the jury' s finding that she had no objective findings of

permanent    impairment in 2011, ( 2)   failing to   give   her   proposed   jury   instruction stating that it had
45653 -2 -1I



been established that she had objective findings of permanent impairment in August 2011, and

 3) failing to give her proposed jury instruction stating that the jury should give special

consideration to the testimony of an attending physician).

        We hold that Fletcher waived her res judicata argument on appeal because she did not

include the argument in her petition for review to the Board and that the trial court did not err by

failing to give Fletcher' s proposed jury instructions. Accordingly, we affirm.
                                                 FACTS


Workplace Injury and Benefits Determination

        In May 2001, Fletcher sustained a neck injury while working at Grays Harbor

Community      Hospital ( Hospital).   In September, she underwent cervical fusion surgery on two

herniated discs in her neck.


        Fletcher filed a claim for workers' compensation benefits under the Industrial Insurance

Act, Title 51 RCW. In August 2003, the Department awarded benefits for Category 2 permanent

cervical and cervico- dorsal impairments and her claim before the Department was closed. There

was no appeal from this order.


        In October 2010, Fletcher applied to reopen her claim on the grounds that her industrial


injury had objectively worsened. The Department may reopen an industrial insurance claim if

the claimant establishes a worsening of her condition after the claim is closed. Eastwood v.

Dep 't ofLabor &     Indus., 152 Wn.    App. 652, 657,   219 P. 3d 711 ( 2009); see RCW




1 Fletcher also assigns error to the trial court' s denial of her motion for directed verdict and the
trial court' s order affirming the Board' s decision. However, she makes no separate arguments
regarding these assignments, which present the same issues as the motion for judgment as a
matter of law. Therefore, we need not address them.

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45653 -2 -II



51. 32. 160( 1)(   a);   WAC 296 -14 -400. However, on December 8, 2011, the Department denied

Fletcher' s application because the medical evidence showed that the condition caused by her

injury had not objectively worsened since her final claim closure.

Appeal to Board ofIndustrial Insurance Appeals

         Fletcher appealed the Department' s denial to the Board. The Industrial Appeals Judge


 IAJ) considered Fletcher' s testimony and the depositions of Dr. Clyde T. Carpenter, Dr. Karl

Goler, and Dr. R. David Bauer.


         Fletcher testified that her condition had worsened between August 2003 and December


2011.    She testified to numbness in her left and right arms, decreased neck mobility, and neck

numbness.      On cross -examination, Fletcher reported remembering being examined by both Dr.

Goler and Dr. Bauer, and that she had answered each doctor' s questions truthfully.

         Dr. Carpenter had been Fletcher' s attending physician through 2003 and had performed

her 2001 neck surgery. Dr. Carpenter stated he had not physically examined Fletcher since 2003,

and that he based his medical opinion on his physician assistant' s examination of Fletcher and on


Fletcher' s chart notes. Dr. Carpenter stated that his medical opinion was that Fletcher' s injury

had   worsened      because   she   had " spinal   stenosis at   C4 -5   adjacent   to her fusion."   Carpenter


Deposition at 13.


          Dr. Goler      performed a medical examination of              Fletcher   on   March 3, 2011.   He reported


that he had reviewed Fletcher' s medical records from 2001 to 2010, and conducted a physical


and neurosurgical examination of Fletcher. Dr. Goler concluded that Fletcher had no worsening

of her condition because she had no significant radiographic, clinical, or electrical change. He




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45653 -2 -II




also opined that Fletcher' s behavior during her physical examination " suggested symptom

magnification and pain         behavior." Goler Deposition at 30 -31.


         Dr. Bauer is a board -certified orthopedic surgeon who specializes in spinal injuries and

disease. He    examined    Fletcher    on   November 17, 2011.             Dr. Bauer stated that it was his medical


opinion that Fletcher " had cervical spondylosis, which [ are] degenerative changes which we felt

 were]   preexisting   and not related      to the   injury."    Bauer Deposition       at   28. Based on Dr. Bauer' s


examination of Fletcher' s medical records and her physical condition, he reported that he " did

not feel that there was any change in her condition, in any objective fashion, between the time of

closure and    the time   of   the Department'       s order."       Bauer Deposition   at   30. Like Dr. Goler, Dr.


Bauer testified that on multiple occasions Fletcher appeared to be magnifying the significance of

her symptoms.


         On November 29, 2012, the IAJ denied Fletcher' s appeal. The IAJ made the following

proposed relevant findings of fact: 2

         3. Darlene H. Fletcher' s industrial injury claim was closed August 28, 2003, and
         she was given a Category 2 permanent partial disability award for cervical and
         cervico- dorsal impairments.


         4. On December 8, 2011, Darlene H. Fletcher had no objective findings proximately
         caused by industrial injury.

         5. During the period between August 28, 2003, and December 8, 2011, Darlene H.
         Fletcher' s industrial injury condition did not objectively worsen.

Clerk' s Papers ( CP) at 34.



2 After consideration of all evidence presented at hearings before the IAJ, the IAJ makes a
proposed decision and order, which is adopted by the Board and becomes the Board' s decision
and order if no party files a petition for review of the proposed decision and order. See RCW
51. 52. 104. If the Board chooses to address a party' s petition for review, then the Board issues a
separate final decision and order. RCW 51. 52. 106.

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        In addition, the IAJ made the following conclusion of law:

        2. Between August 28, 2003,             and    December 8,         2011,   Darlene H. Fletcher' s

        condition, proximately caused by the industrial injury, did not objectively worsen
        within the meaning of RCW 51. 32. 160.

Certified Appeal Board Record at 27.


        In December 2012, Fletcher filed a petition for review of the IAJ' s decision to the Board.


Her petition objected to the IAJ' s findings of fact 4 and 5, arguing that the findings of fact were

not supported by evidence in the record. The petition for review did not argue that the IAJ erred

in making finding of fact 4 based on the doctrine of res judicata. The Board adopted the IAJ' s

proposed decision and order, including the IAJ' s findings of fact and conclusions of law.

Appeal to Superior Court


        Fletcher   appealed    the Board'   s order   to   the   superior court.   She requested a jury trial. The

certified appeal board record was read to the jury. See RCW 51. 52. 115.

        At the close of the presentation of evidence to the jury, Fletcher made a CR 50( a) motion

for judgment   as a matter of     law. She    argued   that the Board' s    finding     of   fact 4 —that in


December 2011      she   had   no objective   findings proximately        caused   by   industrial   injury —was

barred under res judicata because the Department had found in 2003 that she had a permanent

impairment. In reply, the Hospital argued that the issue was not properly before the trial court

because Fletcher had not raised the res judicata argument in her petition for review after the

IAJ' s proposed decision. The trial court denied Fletcher' s CR 50( a) motion reasoning that

finding of fact 4 was " bad draftsmanship" and that it had to be read in conjunction with the

Board' s other factual findings. Report of Proceedings ( RP) at 8.




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45653 -2 -II




         The trial court subsequently instructed the jury on the law. The trial court refused to give

Fletcher' s proposed jury instruction relating to her res judicata argument. The proposed

instruction stated that it had been established that she had objective findings of permanent

impairment     as of    August 8, 2011.        But that date had no relation to any event in the case. The

trial court also refused to give Fletcher' s proposed jury instruction stating that the jury should

give special consideration to the testimony of an attending physician.


         The jury returned a special verdict in which it stated that the Board correctly found that

 1) on December 8, 2011, Fletcher had no objective findings proximately caused by her

industrial injury, and ( 2) Fletcher' s condition had not objectively worsened between August

2003   and   December 8, 2011. After the verdict, Fletcher renewed her motion for judgment as a


matter of    law   under   CR 50( b). Once again, she argued that res judicata precluded the Board' s


and   jury' s findings    that   she   had   no objective   findings in December 2011.   In response, the


Hospital again argued that Fletcher had waived her res judicata argument by failing to assert the

argument in her petition for review, and reasserted its position that the evidence in the record —

the   testimony    of   Dr. Goler      and   Dr. Bauer —supported   the jury verdict. The trial court denied

Fletcher' s motion.


          The trial court entered a judgment and order affirming the Board' s decision based

on the jury' s verdict. Fletcher appeals.

                                                       ANALYSIS


A.        JUDGMENT AS A MATTER OF LAW /RES JUDICATA


          Fletcher emphasizes that the Department determined in 2003 that she had a permanent


impairment from her industrial injury. She argues that this determination as a matter of law

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precluded first the Board and later the jury from finding that in December 2011 she had no

objective findings proximately caused by her industrial injury. We disagree because Fletcher

waived the res judicata argument when she did not raise it in her petition for review to the Board.

Therefore we hold that the trial court did not err in denying Fletcher' s motions for judgment as a

matter of law.


         RCW 51. 52. 104 authorizes a party to file a petition for review with the Board of an IAJ' s

proposed decision regarding an industrial insurance claim. However, RCW 51. 52. 104 provides,

 Such petition for review shall set forth in detail the grounds therefor and the party or parties

filing the same shall be deemed to have waived all objections or irregularities not specifically set

forth therein."    Similarly, RCW 51. 52. 110 authorizes a party to appeal the Board' s decision to

the superior court, but RCW 51. 52. 115 provides that in the superior court " only such issues of

law or fact may be raised as were properly included in the notice of appeal to the board, or in the

complete record of the proceedings before the board."


          Washington courts have held on numerous occasions that under RCW 51. 52. 104, a

claimant waives legal arguments that are not presented to the Board in the claimant' s petition for

review.      See Hill   v.   Dep' t   of Labor & Indus., 90 Wn.2d 276, 280, 580 P. 2d 636 ( 1978) (    holding

party waived argument of IAJ' s potential disqualification by failing to present argument to

Board);. Leuluaialii         v.   Dep' t   of labor & Indus.,   169 Wn. App. 672, 684, 279 P. 3d 515 ( 2012),

review   denied, 176 Wn.2d 1018 ( 2013) (             holding claimant waived argument that closing order

was not final because she failed to raise it in her appeal to the Board or petition for review of the

Board'   s   decision);      Merlino Const. v. City ofSeattle, 167 Wn. App. 609, 616 n.3, 273 P. 3d 1049,

review    denied, 175 Wn.2d 1003 ( 2012) ( holding               claimant waived argument that a police officer


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was an independent contractor by failing to present argument to the Board or trial court); Allan v.

Dep' t of Labor &    Indus., 66 Wn.        App. 415,   422, 832 P. 2d 489 ( 1992) (     holding claimant waived

objection on grounds of insufficient notice because it was not set out in her petition for review to

the Board).


        In Fletcher' s petition for review she objected to the TAP s findings of fact 4 and 5, and


argued only that both were not supported by evidence in the record. The relevant analysis in

Fletcher' s petition for review focused only on the weight the Board should give to the

qualifications and opinions of doctors Carpenter, Goler, and Bauer. Nowhere in Fletcher' s


petition for review did she assert the legal argument that finding of fact 4 was erroneous based

on the doctrine of res judicata or any other related legal doctrine. As a result, we hold that

Fletcher waived her res judicata argument.


        Fletcher argues that we should allow her to make the res judicata argument based on our


equitable powers. But she points to no precedent where we have exercised our equitable powers


to allow a claimant to assert an argument that has been waived under a plain reading of RCW

51. 52. 104. Division One of this court in Belnap v. Boeing Company elected to address an

argument that could have been waived under RCW 51. 52. 104 " pursuant to the inherent power of

appellate courts to address issues which are crucial,to the case and necessary to a proper

decision." 64 Wn.        App.   212, 223   n. 6,   823 P. 2d 528 ( 1992). However, we have declined to


follow Division One' s example in Belnap and have strictly followed the plain language of RCW

                                                                   684; Allan, 66 Wn.               422. We decline
51. 52. 104. See,   e.   g., Leuluaialii, 169 Wn.      App.   at                        App.   at



Fletcher' s request to disregard her waiver of the res judicata argument.




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45653 -2 -I1



          We hold that Fletcher waived her objection to the Board' s finding of fact 4 based on res

judicata and cannot now assert this argument in this appeal. Because res judicata is the only

basis for Fletcher' s argument that the trial court erred in denying her CR 50( a) and CR 50( b)

motions, we affirm the trial court' s rulings.


B.        PROPOSED JURY INSTRUCTIONS


          Fletcher argues the trial court erred by failing to give her proposed jury instructions

stating that it had been established that she had objective findings of permanent impairment in

2011 ( proposed instruction 13) and stating that the jury should give special consideration to the

                of an               physician ( proposed       instruction 14).       We disagree.
testimony               attending


          1.      Legal Principles


          We review a trial court' s refusal to give a proposed jury instruction for abuse of

discretion. Chunyk &          Conley /Quad -C v. Bray,          156 Wn:       App.   246, 252, 232 P. 3d 564 ( 2010). A


trial court abuses its discretion in refusing to give an instruction if it adopts a position that no

reasonable person would             have   taken.    Hickok-Knight       v.   Wal -Mart Stores, Inc.,   170 Wn. App.

279, 322, 284 P. 3d 749 ( 2012), review denied, 176 Wn.2d 1014 ( 2013).


          Jury instructions are sufficient when they allow counsel to argue their theories of the

case, do not mislead the jury and, when taken as a whole, properly inform the jury of the law to

be   applied.     Thompson     v.   King Feed &       Nutrition Serv., Inc., 153 Wn.2d 447, 453, 105 P. 3d 378


 2005).        The trial court is under no obligation to give a misleading instruction. Jaeger v. Cleaver

 Constr., Inc., 148 Wn.        App.    698, 716, 201 P. 3d 1028 ( 2009). "            In determining whether an

instruction could have confused or misled the jury, the court examines the instructions in their

 entirety." Intalco Aluminum Co.              v.   Dep' t   of Labor &    Indus., 66 Wn. App. 644, 663, 833 P. 2d


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390 ( 1992).


         2.     Objective Findings Instruction


         Fletcher' s proposed jury instruction 13 stated:

         It has been established that on August 8, 2011, when her claim was closed, Ms[.]
         Fletcher had objective findings of permanent cervico- dorsal impairment.

CP at 25. This instruction makes no sense. The date August 8, 2011 has no significance

in this case. The Board found that Fletcher had a permanent impairment and closed her

claim   in   an order   dated August 28, 2003. The Board found that Fletcher had no


permanent      impairment    on   December 8, 2011. The date in instruction 13 seems to be an


erroneous combination of the two dates.


         Because the date is incorrect, the instruction is an incorrect statement of the facts

and law. Fletcher' s claim was not closed on August 8, 2011, and it had not been

established that Fletcher had objective findings of permanent impairment on that date.


As a result, this instruction would have misled the jury. Therefore, we hold that the trial

court did not abuse its discretion in failing to give instruction 13.

         3.     Attending Physician Instruction

         Fletcher' s proposed jury instruction 14 stated:

         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[.]

CP at 26. Relying on Hamilton v. Department ofLabor and Industries, 111 Wn.2d 569, 571,

761 P. 2d 618 ( 1988),      Fletcher argues that the trial court should have given the attending

physician instruction because it constituted a settled rule of law. We hold Fletcher' s reliance on


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Hamilton is misplaced, and the trial court did not abuse its discretion in failing to give proposed

instruction 14.


         In Hamilton, our Supreme Court upheld a trial court' s jury instruction advising the jury to

give " special consideration" to the opinion of a workers' compensation claimant' s attending


physician.      111 Wn.2d    at   571.   Because that jury instruction properly stated a long -standing rule

of   law, the   court reasoned    it   was an " appropriate"       jury   instruction. 111 Wn. 2d   at   572. Other


courts also have recognized the benefits of instructing the jury to give special consideration to an

attending   physician' s    testimony. Young         v.   Dep 't   of Labor &   Indus., 81 Wn. App. 123, 128 -29,

913 P. 2d 402 (     1996) ( recognizing that a physician who has attended a patient for a considerable


period of time may be better qualified to give an opinion as to the patient' s disability than a

doctor   who     has   seen and evaluated     the   patient   only   once);   Intalco, 66 Wn. App. at 654 -55

 noting that an attending physician is not an expert hired to give a particular opinion for one

ply)


          However, the issue here is not whether a jury would benefit from such an attending

physician instruction, but rather whether a trial court abuses its discretion in declining to give an

attending physician instruction. Division One of this court held that a trial court does not abuse

its discretion by failing to give an attending physician instruction. Boeing Co. v. Harker -Lott, 93

Wn.    App.     181, 186 -88, 968 P. 2d 14 ( 1998).         In Harker -Lott, the court noted the general. rule in .


workers' compensation cases is that special consideration should be given to the opinion of the


claimant' s attending physician. 93 Wn. App. at 186. However, the court emphasized that no

case holds that such an instruction must be given, even where the evidence supports it. Harker -


Lott, 93 Wn. App. at 186.


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            Here, there was at least one reason that an attending physician instruction may not have

been appropriate: Dr. Carpenter was not Fletcher' s current attending physician. Dr. Carpenter

admitted         that he    had   not seen   Fletcher   since   2003.        The trial court was justified in rejecting the

proposed instruction on this basis.


            Further, Fletcher' s proposed instruction was not necessary for the jury to understand her

                 the                does Fletcher   contend      that   it   was.   Fletcher merely   argues   that "[ t]his
theory     of           case, nor




instruction might have helped counter the character assassination of Ms. Fletcher by Drs. Goler

and   Bauer."          Br. of Appellant at 18. But the trial court instructed the jury:

            You        are ...    the sole judges of the value or weight to be given to the testimony of
            each             In considering a witness' s testimony, you may consider these
                       witness.

            things[:]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, 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   31.    This instruction allowed Fletcher to argue that the jury should give Dr.

Carpenter' s testimony greater weight than the other doctors because he was her treating

physician immediately after her industrial injury. Because this option was available to

Fletcher, it cannot be said that Fletcher was barred from arguing her theory of the case to

the jury.

            We hold that the trial court' s failure to give proposed instruction 14 was not an

abuse of discretion.




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C.      ATTORNEY FEES


        Fletcher requests reasonable attorney fees on appeal under RCW 51. 52. 130, which

provides in relevant part:


        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 ...   a reasonable fee for the services of the
        worker' s or beneficiary' s attorney shall be fixed by the court.

Because we do not reverse or modify the Board' s decision, we do not award Fletcher

appellate attorney fees under RCW 51. 52. 130.

        We affirm.


        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.




 We concur:




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