      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 DEBORAH J. LAWRENCE,
                                                No. 77537-5-1
                             Appellant,
                                                DIVISION ONE
              V.
                                                UNPUBLISHED OPINION
DEPARTMENT OF LABOR AND
INDUSTRIES OF THE STATE OF
WASHINGTON,

                              Respondent.      FILED: March 25, 2019


      CHUN, J. — In 2005, Deborah Lawrence suffered an industrial injury for

which she began receiving workers' compensation benefits. In 2013, the

Department of Labor and Industries (the Department) ended Lawrence's time-

loss compensation benefits as it determined she could perform gainful

employment, and it subsequently closed her claim with category 2 awards for her

physical and mental health conditions.

       Lawrence appealed to the Board of Industrial Insurance Appeals (the

Board), which affirmed the Department's decision. Lawrence then appealed to

superior court and a jury returned a verdict in favor of the Department. On

appeal to this court, Lawrence claims the trial court erred by (1) denying her

request for an "odd lot" jury instruction; and (2) admitting evidence regarding her

criminal history and drug use. We affirm.
No. 77537-5-1/2



                                      BACKGROUND
        In September 2005, Lawrence suffered an industrial injury while working

at IN/ars Seafood, Inc. She attempted to return to her job two or three times after

her injury, but "it didn't work for [her]" because the job required a lot of walking.

Lawrence began receiving various treatments for her back injury.

       The Department accepted Lawrence's claim in October 2005 and began

making payments to her.

       Two years after the injury, Lawrence began receiving mental health

counseling. The Department accepted the conditions of major depressive

disorder and anxiety or adjustment disorder with anxiety and modified its

payments to Lawrence accordingly.

       Several years later, in his report dated December 29, 2011, Dr. Thomas

Seib, the attending physician on Lawrence's claim, recommended a category

twol impairment of the lumbar spine. Still, he believed Lawrence was capable of

full-time work. In Dr. Seib's opinion, Lawrence could perform light to medium

work. He believed her back injury had reached maximum medical improvement.

       On referral from the Department, Dr. Doug Robinson conducted a

psychiatric independent medical evaluation on September 7, 2012. Dr. Robinson

asked Lawrence about her personal, educational, marital, mental, and

employment histories. Dr. Robinson also inquired about her criminal history and

methamphetamine use while her claim was open. Ultimately, Dr. Robinson

        1 To rate injuries like Lawrence's (back and mental health), the Department uses a
category system that ranges from category one of no impairment to category eight of severe
impairment. WAC 296-20-280 (categories for back injury); WAC 296-20-330 (categories for
mental health impairments).


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concluded Lawrence's mental health impairments had reached maximum

medical improvement, she qualified for a category two permanent partial

disability award, and she could return to work in a cashier job.

      In 2012, the Department asked Robbie Hamilton, a vocational counselor,

to complete an ability to work assessment for Lawrence. Hamilton reviewed

Lawrence's work and medical histories. He determined Lawrence possessed

transferable skills from her previous jobs as a fast food worker and manager and

could work as a cashier. He noted, however, that Dr. Seib stated Lawrence may

require a sit/stand stool accommodation for use on an as-needed basis.

Hamilton conducted a survey of the local labor market and found cashiering

opportunities that would provide the stool accommodation at multiple stores,

including 7-Eleven, AM/PM, Vitamin World, Chevron, and Shell.

      The Department then sent the job analysis to Dr. Seib for review. Dr. Seib

approved Lawrence for a general cashier position with a sit/stand stool

accommodation.

      On April 18, 2013, the Department ended Lawrence's time-loss

compensation benefits as paid through April 8, 2013.

      On January 31, 2014, the Department closed Lawrence's claim with a

category 2 award for both her back and mental health conditions. Lawrence

appealed the Department's order ending her time-loss compensation benefits

and closing her claim to the Board.

       For her appeal, Lawrence hired Richard Cheesman to conduct a

vocational assessment. Cheesman reviewed Hamilton's assessment and


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Lawrence's medical records. Cheesman stated he contacted some of the

employers identified in Hamilton's assessment and he believed they could not

sufficently provide the sit/stand stool accommodation. While he agreed

Lawrence could likely sit on breaks, he did not believe she could do so on an as-

needed basis. In Cheesman's opinion, Lawrence would not be successful in

obtaining or maintaining a job as a cashier because of her physical and mental

conditions.

       Lawrence also retained Dr. Ronald Early, a licensed physician, to evaluate

her mental health. Dr. Early found Lawrence's "personality traits tended to be

passive aggressiveness, schizoid, or shyness, basically borderline, which is

some kind of emotional lability and self-defeating factors, which represents

basically doing things to create problems without intent, or problems for herself

without intent." He ultimately concluded her injury caused her to develop anxiety

and depression and believed her "prognosis for return to work was poor." He

specifically did not believe Lawrence could work as a cashier because of her

inability to tolerate interacting with others, confront stress, and maintain focus.

Dr. Early determined Lawrence met the criteria for a category three permanent

partial mental-health impairment.

       The Board issued a proposed decision and order affirming the

Department's decision on January 30, 2015.

       Lawrence then filed a petition for review to the superior court for a jury

trial. At trial, Lawrence argued that she had a permanent and total disability and




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that her permanent award for her mental health impairment should be category

three as opposed to category two.2

       Lawrence asked the court to give an odd lot jury instruction. Her proposed

instruction provided:
              If, as a result of an industrial injury, a worker is able to perform
       only odd jobs or special work, not generally available, then the work
       [sic] is totally disabled, unless the Department proves by a
       preponderance of evidence that odd jobs or special work that she
       can perform is available to the worker on a reasonably continuous
       basis.
Lawrence contended the sit/stand stool accommodation rendered the cashiering

job "not normal" and made the odd lot instruction applicable. The court declined

to give the instruction.

       Additionally, Lawrence objected to the introduction of evidence relating to

her drug use and criminal history as irrelevant and unduly prejudicial. The

Department argued the evidence related to her mental health condition. It further

argued Lawrence could object only on relevance grounds because she did not

object to the evidence as prejudicial before the Board. The court allowed the

evidence relating to the drug use and criminal history.

       On September 26, 2017, the jury returned a verdict affirming the Board's

decision. Lawrence appeals.

                                           ANALYSIS

   A. Odd Lot Jury Instruction

       Lawrence argues the trial court should have given an odd lot jury



       2 The   parties did not dispute the category two award for Lawrence's back injury.


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instruction because, after she proved a prima facie case of total disability, the

Department countered that she could perform special work. The Department

contends the instruction was not supported by substantial evidence and would

have misled the jury. We determine the trial court did not err by refusing to give

an odd lot instruction.

       We review a trial court's decision whether to give a jury instruction for an

abuse of discretion. Fergen v. Sestero, 182 Wn.2d 794, 802, 346 P.3d 708

(2015). An abuse of discretion occurs when no reasonable person would take

the position adopted by the trial court. Thomas v. Wilfac, Inc., 65 Wn. App. 255,

262, 828 P.2d 597(1992). Whether a court should give an instruction depends

on the facts of the case. Fergen, 182 Wn.2d at 803. A court should instruct a

jury on a party's theory of their case when substantial evidence supports it.

Fergen, 182 Wn.2d at 810. "Jury instructions are generally sufficient if they are

supported by the evidence, allow each party to argue its theory of the case, and

when read as a whole, properly inform the trier of fact of the applicable law."

Fergen, 182 Wn.2d at 803.

       RCW 51.08.160 defines "permanent total disability" as the "loss of both

legs, or arms, or one leg and one arm, total loss of eyesight, paralysis or other

condition permanently incapacitating the worker from performing any work at any

gainful occupation." The worker bears the burden of proving total disability.

Graham v. Weyerhaeuser Co., 71 Wn. App. 55, 62, 856 P.2d 717(1993),

overruled on other grounds by Leeper v. Dep't of Labor & Indus., 123 Wn.2d 803,

872 P.2d 507(1994). The worker meets this burden with proof of inability to


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perform general work. Graham, 71 Wn. App. at 62. "General work is work,

including light or sedentary work, . . . that is reasonably continuous, . . . within the

range of the worker's capabilities, training, education and experience, . . . and

generally available on the competitive labor market." Graham, 71 Wn. App. at 60

(citations omitted).

       A worker who cannot perform general work because of an industrial injury

is totally disabled unless the odd lot doctrine applies. Graham, 71 Wn. App. at

61. Under the odd lot doctrine, if the worker's disability leaves them able to

perform only odd jobs or special work, the worker is totally disabled unless the

Department can demonstrate that such special work is obtainable. Buell v. Aetna

Cas. & Sur. Co., 14 Wn. App. 742, 745, 544 P.2d 759 (1976). Special work

constitutes work, including light or sedentary work, not generally available on the

competitive labor market. Graham, 71 Wn. App. at 60. Thus, the doctrine shifts

the burden to the Department to show that special work exists and the worker

can obtain it. Kuhnle v. Dept. of Labor & Indus., 12 Wn.2d 191, 198-99, 120 P.2d

1003(1942). Because of this burden shifting, the "odd lot doctrine operates like

an affirmative defense." Graham, 71 Wn. App. at 62.

       Here, Lawrence argued her 2005 injury caused her to have a total

disability because she could not perform general work. Dr. Early testified

Lawrence's depression and anxiety rendered her prognosis for returning to work

"poor." The vocational counselor for Lawrence similarly testified she could not

maintain a job as a cashier due to her physical and mental conditions.




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       For the Department, Dr. Seib testified Lawrence could perform light to

medium full-time work. He approved her for a cashier job with a sit/stand stool

accommodation. The Department's vocational counselor testified that cashier

jobs providing such an accommodation were generally available in the

competitive labor market.

       Lawrence failed to present substantial evidence that the cashier job with a

sit/stand stool accommodation constituted special work. Accordingly, she was

not entitled to an odd lot instruction. The Department's vocational counselor

testified he found several employers on the labor market, including 7-Eleven,

AM/PM, Vitamin World, Chevron, and Shell, that could provide the sit/stand stool

accommodation for a cashier position. Lawrence's vocational counselor testified

he contacted some of the employers identified by the Department. He said they

indicated that, while Lawrence could sit on breaks, lunch, and in between

customers, she likely could not do so if the store was busy. The testimony of

both vocational counselors indicated employers could provide a stool for

Lawrence to use throughout the day. Lawrence did not demonstrate the

accommodation rendered the cashier position not generally available on the

competitive labor market. Thus, Lawrence did not provide substantial evidence

that the accommodation transformed the cashier position from general to special

work. The court did not abuse its discretion in refusing to give the instruction.

   B. Admission of Evidence Regarding Criminal History and Drug Use

       Lawrence next contends the trial court erred by admitting evidence from

the psychiatric experts' testimonies regarding her drug use and criminal history


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because it constituted irrelevant and unduly prejudicial evidence. The

Department claims Lawrence waived objections to much of the evidence and,

even so, all the evidence was admissible.3 We determine the trial court properly

admitted the evidence.

        This court reviews a trial court's decision to admit or exclude evidence for

an abuse of discretion. State v. Thomas, 150 Wn.2d 821, 856, 83 P.3d 970

(2004). Under this standard, an appellate court will reverse a trial court's

decision only if no reasonable person would have made the same decision.

Thomas, 150 Wn.2d at 856.

        ER 401 defines relevant evidence as "evidence having any tendency to

make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence."

Under ER 402, a court may not admit irrelevant evidence. Additionally, a court

may exclude relevant evidence "if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury,

or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence." ER 403.

        Here, Lawrence argued her physical and mental conditions caused her to

have a total disability. In support, Dr. Early testified that her depression and

anxiety made her prognosis for return to work poor. Lawrence further argued the


         3 The parties debate whether Lawrence preserved objections to several pieces of
evidence regarding drug use and criminal history. Additionally, where Lawrence objected, the
parties debate whether she preserved objections as to both relevance and prejudice grounds.
For purposes of this opinion, we assume, without deciding, that Lawrence did not waive her
objections and reach the merits.


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Board erred by awarding her a category two and not category three permanent

partial mental disability. These arguments placed Lawrence's mental health at

issue at trial.

       Indeed, to prove total disability, the worker must offer more individualized

evidence. Fochtman v. Dept. of Labor & Indus., 7 Wn. App. 286, 295, 499 P.2d

255 (1972). "The testimony necessarily requires a study of the whole man as an

individual—his weakness and strengths, his age, education, training and

experience, his reaction to his injury, his loss of function and other relevant

factors." Fochtman, 7 Wn. App. at 295. Here, the Department's psychiatric

expert, Dr. Robinson, testified that his evaluation of Lawrence required an

extensive psychosocial and medical history, which included questions relating to

her drug use and criminal history. Even Dr. Early testified to Lawrence's

problems with alcohol use and drug use. The testimony of both psychiatric

experts directly concerned Lawrence's mental health and whether she had a total

disability. The disputed evidence was relevant.

       The testimony was also not unduly prejudicial. The evidence carried

probative value, relating directly to (1) whether Lawrence's injury led to a mental

health condition that rendered her totally disabled; and (2) whether her mental

health award should therefore be raised to a category three award. Lawrence

appears to argue the evidence likely caused the jury to make its decision based

on emotion rather than reason. However, we do not conclude the testimony was

such that it was likely to trigger such an extreme emotional response in the jury.

See Lodis v. Corbis Holdings Inc., 192 Wn. App. 30, 48, 366 P.3d 1246 (2015)


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("Evidence may be unfairly prejudicial under ER 403 if it is. . . likely to trigger an

emotional response rather than a rational decision among the jurors.").

Lawrence does not explain why she believes evidence that she used

methamphetamine, for example, would trigger such an emotional response. It

was reasonable for the trial court to conclude the probative value of the evidence

was not substantially outweighed by the danger of unfair prejudice. Accordingly,

we conclude the court did not abuse its discretion by allowing the testimony.

       Affirmed.




WE CONCUR:




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