   IN THE SUPREME COURT OF THE STATE OF WASHINGTON




CLARK COUNTY,                          )
                                       )      No. 91963-1
                   Respondent,         )
                                       )
      v.                               )      EnBanc
                                       )
PATRICK J. McMANUS,                    )
                                       )
                   Petitioner.         )
              _________
              .                        )                 APR 2 8 2016
                                              Filed -----------------------

      JOHNSON, J..·-In this workers' compensation appeal, the trial court denied

the worker's proposed instruction, which would inform the jury that it must give

special consideration to the (opinion) testimony of his attending physician. The

trial court ruled against the worker. The Court of Appeals reversed and ordered a

new trial on an unrelated basis---holding that the trial court reversibly erred when it

refused Patrick McManus's request to revise the Board of Industrial Insurance

Appeals' (Board) erroneous finding regarding the location ofMcManus's injury.

Clark County v. McManus, 188 Wn. App. 228,231,345 P.3d 868 (2015).

However, the Court of Appeals ruled that the trial court correctly rejected the

instruction. We granted review on the issue of whether it is error to refuse to give
Clark County v. McManus, No. 91963-1


the special consideration instruction. Clark County v. McManus, 184 Wn.2d 1018,

361 P.3d 747 (2015). We hold the instruction must be given.

                         FACTS AND PROCEDURAL HISTORY


      McManus prevailed at the Court of Appeals and is getting a new trial.

MciVIanus did not prevail on his claim that the trial court erred in refusing to give a

special consideration instruction regarding his attending physician to the jury.

Because the trial court on remand would be bound by the law of the case doctrine,

the prior decision of the trial court to not give the special consideration instruction

would be binding. See Coy v. Raabe, 77 Wn.2d 322, 325, 462 P.2d 214 (1969)

(acknowledging the binding effect
                           ..     of determinations made by the appellate court

on further proceedings in the trial court.on remand). We took review to determine

if such an instruction is required in worker's compensation cases. Order Granting

Review, Clark County v. McManus, No. 91963-1 (Wash. Dec. 2, 2015).

       McManus worked for the county operating a street sweeper from 1999 until

2011. He eventually quit work because of a debilitating, degenerative spinal

diseas~   affecting his low back, which he attributed to the bumpy ride when

operating a street sweeper and poor ergonomic layout in the operator's cab.

McManus filed a claim for workers' compensation under Title 51 RCW.




                                            2
 Clark Coum); v. McManus, No. 91963-1


        The Department of Labor & Industries (Department) allowed McManus's

 claim and awarded him benefits. Clark County (County) appealed the

 Department's order allowing the claim to the Board, which proceeded to an

 evidentiary hearing before an industrial appeals judge (IAJ).

         The IAJ considered offered deposition testimony from several witnesses.

 McManus's attending physician-Dr. Won-provided testimony in support of

~ ;McManus's claim. 1 Dr. Won opined that McManus's low back disability was

 employment-related. The County presented contrary opinions by two forensic

 medical experts, one of whom had reviewed McManus's medical records and one

  of whom had examined McManus on one occasion.

         The IAJ issued a proposed decision and order upholding the decision of the

  Department. The County petitioned to the three-member Board for review of the

  proposed decision. The Board denied the County's petition and adopted the

  proposed decision and order. The decision and order upheld the Department's

  determination, concluding that McManus sustained an aggravation of his

  preexisting low back condition that arose naturally and proximately out of the

  distinctive conditions of his employment with the County.


              ---~··-~

         1
           Under the Industrial Insurance Act, Title 51 RCW, Dr. Won meets the definition of an
  "attending provider" or "treating physician" as a physician who "actively treats an injured or ill
  worker." WAC 296-20-01002 (providing "attending provider" includes a physician and is one
  who "actively treats an injured or ill worker").


                                                   3
  Clark County v. McManus, No. 91963-1


         The County appealed the Board's decision to the superior court, and the case

  was tried on the record before a jury. The superior court instructed the jury on the

  Board's findings, as well as the presumptive correctness of its decision, the legal

  issue for determination, and the County's burden of proving the Board's decision

  incorrect. See Clerk's Papers (CP) at 87-88 (Instr. 4, 5), 98 (special verdict form).

  The superior court also instructed the jury regarding its role in determining the

,, :credibility of witnesses. See CP at 82-84, 90 (Instr. 1, 7). 2

          The superior court rejected McManus's proposed instruction 10 regarding

  the special consideration rule, which provided as follows: "You should give special

   considerationto 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 57 (Instr. 10). 3




   ·---·--------
          2
            These instructions appear to be drawn from 6 Washington Practice: Washington Pattern
   Jury Instructions: Civil1.02 (6th ed. 2012) (WPI) (conclusion of trial-introductory instruction)
   and 6 WPI 2.10 (expert testimony).

          3
             This proposed instruction is identical to the current 6A WPI 155.13.01 (testimony of
   attending physician): "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 di$believe, such testimony; It does require that you give any such testimony
   careful thought in your deliberations." 6A Washington Practice: Washington Pattern Jury
   Instructions: Civi/155.13.01 (6th ed. 2012).


                                                   4
 Clark County v. McMcmus, No. 91963-1


          The only question before the jury was whether the Board was correct in

 determining that McManus's low back condition arose naturally and proximately

  from the distinctive conditions of his employment as a street sweeper operator. The

 jury determined that the Board was incorrect, and the trial court reversed.

          McJ\1anus appealed to the Court of Appeals, Division One, which reversed

  and remanded for a new trial due to evidentiary and instructional errors unrelated

t ,ito the proposed special consideration instruction. The Court of Appeals rejected

  'MeManus 's cla:irrdhat the trial court erred in refusing to give proposed instruction

  10, which sets forth the special consideration instruction. Holding that it was not an

  abuse of discretion to refuse to give the instruction, the Court of Appeals

  concluded
   . .. .  ·;
              it was unnecessary
                               ,·
                               .
                                  in light of. the general instructions given addressing

  ·witness
        . .
            credibility.
               ..' ·. .
                         See .McManus, 188 Wn. App. at 241-42 (concluding that
                                         '.




  MciVIanus could argue that Dr. \Von was better qualified to render an opinion as

  his treating physician and the jury was informed that it could accept this theory;

  th~s,   the trial court's general instruction was sufficient) .

      .· McManus      ~nd   the c;:ounty petitioned this court for review. Only McManus's

  petition for review wr:~s granted.

                                              ANALYSIS

           Generally, the trial court has the discretion whether to give a particular jury

  instruction. Stiley v. Block,.   1~0   Wn.2d 486, 498, 925 P.2d 194 (1996). However, a
   . ..  .   .  ..                           .                         .



                                                 5
Clark County v. McManus, No. 91963-1


trial court abuses its discretion if it based its ruling on an erroneous view of the

law. Wash. State Physicians Ins. Exch. & Ass 'n v. Fisons Corp., 122 Wn.2d 299,

339, 858 P.2d 1054 (1993). At issue here is whether our decision in Hamilton v.

Department of Labor & Industries, 111 Wn.2d 569, 761 P.2d 618 (1988),

establishes the requirement for juries in workers' compensation cases to be

instructed regarding the special consideration rule for testimony of attending

physicians.

       In Hamilton, this court recognized a "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, 111 Wn.2d at 571. Significantly in

Hamilton, this court reversed and reinstated the trial court's verdict, holding that

the instruction was an accurate statement of the law and the long-standing rule that

special consideration be given to attending physicians. That we reversed the Court

of Appeals on the instruction issue supports the argument that the special

consideration instruction in workers' compensation cases is mandatory. The

language in Hamilton also makes clear that such an instruction is required.

       Hamilton involved a department challenge to a jury verdict overturning a

board decision denying disability benefits. The Department asserted that a court

instruction on the special consideration rule constituted an impermissible comment

on the evidence in violation of the Washington Constitution, article IV, section 16.

                                            6
Clark County v. McManus, No. 91963-1


The Court of Appeals .held that the instruction was an impermissible comment on

th~   evidence. This court reversed, concluding the instruction set forth an accurate

statement of applicable law. This court explained-in reference to the special

ccmsideration jury instruction-that

        .[i]t reflects binding precedent in this state and correctly states the law.
         Since this is a rule of law, it is appropriate that the jury be informed of
         this by the instructions of the court. To refU;se to do so would convert
         the rule of law into no more than the opinion of the claimant's
         attorney.

llamilton; 111 Wn.2d at 572 (emphasis added). "The instruction does not require

the jury to give more weight or credibility to the attending physician's testimony

but to give it careful thought." Harnilton, 111 Wn.2d at 572.

         Here, while the County contends the special consideration instruction causes

confusion for the jurors, this court concluded that when the instruction is

considered in conjunction with the standard instruction regarding weighing

testimony and credibility ofwitnesses, it is a correct statement of the law in

workers' compensation cases. Contrary to what the County asserts, the special
         ..      ;




instruction is not redundant and unnecessary when considering the instructions as a

whole. We find it neither confusing nor misleading. This court in Hamilton went

on to explain that the special consideration instruction supports the purpose of the

act, which is to promote benefits and to protect workers.
             '       '   .                        .




                                              7
Clark County v. A1cManus, No. 91963-1


      As amicus curiae Washington State Association for Justice Foundation

points out, while the Hamilton decision established that the instruction was an

accm·ate statement of the law, the rule was otherwise well settled before Hamilton.

See, e.g., Chalmers.;;. Dep.'t of Labor & Indus., 72 Wn.2d 595, 598-602,434 P.2d

720 .(1967) (reaffirming special consideration rule but concluding attending

physician's testimony was based on insuffieientfoundation resulting in a failure of

proofby claimant); Groffv. Dep't of Labor & Indus., 65 Wn.2d 35,44-46, 395

P.2d 633 (1964) (emphasizing "that special consideration should be given to the

opinion of the attending physician," and that in order to properly review a superior

court determination regarding an industrial claim, the superior court should provide

an explanation as to why the attending physician's testimony was not preferred

over that of other medical experts); Spalding v. Dep 't ofLabor & Indus., 29 Wn.2d
                      I   \   '   '   '      I




115,. 129,   12~?   186 P.2d 76 (1947) (recognizing "that special consideration should

be given to the opini?n of the attending physician," but declining to establish a

"'hard and fast rule," concluding the issue is for the jury).

       Several Court of Appeals' cases, including this case, have called into

question the special consideration instruction. See Larson v. City ofBellevue, 188

Wn. App. 857, 883.-84, 355 P.3d 331 (2015); Boeing Co. v. Harker-Loft, 93 Wn.

App._l81, 186-89, 968 P.2d14 (1998); l11fcClelland v. ITT Rayonier, Inc., 65 Wn.

App. 38,6, 393-94 & n.l, 828 P.2d 1138 (1992). The County asserts that these cases

                                                 8
Clark County v..McManus, No. 91963-1


support their argument that a mandatory instruction would improperly remove the

general discretion given to the trial court to assess the appropriateness of jury

instructions. Ultimately, the Comity argues, the discretion whether to allow an

inst~l.iction to be submitted to a jury should rest with the trial judge. While perhaps

correct in other drcumstances, in workers' compensation cases we have

determined the instruction is required, and agreeing with the County's argument

,would require overruling Hamilton.

       In turning to past Court of Appeals' decisions, the court in McClelland

affjrmed a summary judgment upholding denial of benefits where the attending

physician's opinion lacked the requisite objective proof required for the particular

occupational disease claim. The opinion did not implicate the special consideration

rule in resolving the appeal because of the failure of proof. However, in dicta, the

 court remarked:

              We are unsure what the Supreme Court means by "special
       consideration". Hamilton explained that this does not require a jury to
       "give more weight or credibility to the attending physician's
       testiinony, but to give it careful thought." [Hamilton,] 111 Wn.2d at
       572. We assume that the jury gives careful thought to every witness's
       testimony. If the attending physician's testimony does not carry any
       more weight or credibility with the jury, how then does the jury give it
       special consideration?

 McClelland, 65 Wn. App. at 394 n.1. That criticism is misplaced. The instruction

 requires only that the jury be mindful of the special consideration an attending


                                            9
 Clark County v. McManus, No. 91963-1


 physician's testimony deserves when weighing the credibility of all witnesses. The

 requirement for the special consideration instruction in Hamilton is clear.

                    In _Harker~/.~ott, the Court of Appeals acknowledged that special

 consideration should be given to an attending physician, but concluded in that case

 "the 1Icimilton court did not hold that an instruction to that effect was mandatory.

 Rather~                 the court held only that such an instruction was not a comment on the

f;tevidence. No case has specifically held that such an instruction must be given

 when the evidence. supports it." Harker-Lott, 93 Wn. App. at 186 (footnote

 omitted). This statement disregards our observation in Hamilton that the instruction

 is an accurate statement of the law in workers' compensation cases and the general

 rule that t_he jury be instructed on the law.

                    Additionally, Harker-Lott is factually distinguishable from the present case
             . ·~ . '.   '       '



 because the claimant there had four attending physicians who did not agree the
       ·.·       '·.

 claimant was injured as a result of an on-the-job accident. Because the testimony

 of t~e atteJ:tding physicians was in conflict, and because the general instructions

 given allowed the claimant to argue that the supporting testimony of two of her

 attending physicians should be given special consideration, refusal to give the
 • .   .        .            •       .   .   I".   . .   .




 special consideration instruction was not an abuse of discretion by the trial court.

 In Jiarker_-Lott, the situation was somewhat unique and the jury could not give




                                                             10
     Clark County v. McJVfanus, No.   91963~1




     special consideration to multiple, conflicting attending physicians' testimony.

     Here, t.hqse circumstances do not exist.

         . The analysis in Harker-Lott also overlooks a key aspect of Hamilton. While

     this ·c.ourt may not have used the term "mandatory" when discussing the special

     consideration instruction, we did describe the special consideration rule as a "rule

     of law" <:Jnd stated .that refusing to give the instruction ''would convert the rule of

,·   Jaw into no more than the opinion of the claimant's attorney." Hamilton, 111

     Wn.2d at 572. ··Hamilton thus recognizes a requirement for providing the special

     consideration instruction, except in those cases where there are articulable reasons

     for not accepting the attending physician's or physicians' testimony.

            Finally,_ the County cites to Larson in support of its argument that to give a

     special consideration
              . . .
                  '     .
                           instruction is discretionary rather than mandatory. In Larson,

     the_trial court expressed concern over the substance of testimony provided by the

     attending physician in comparison to the other more elaborate testimony from

     medical
      . . . .
              experts.
              .
                       The trial court decided to not provide the special consideration

     instn,1c;tion
       .       .
                   due
                   .
                       to concerns that it
                            •,.         .,
                                           would be misleading. The Court of Appeals
                                                '   '




     found this action was proper and not an abuse of discretion, citing the Harker-Loft

     decision. Larson, 188Wn. App. at 883-84.

            It appears here that the Court of Appeals embraced an analysis in Larson,

     whic_h conflicts with our decision in Hamilton. Our holding in Hamilton was

                                                        11
Clark County v. McManus, No. 91963-1


unambiguou~. The      rule requires that where an attending physician testifies, the trial

 court must give the attending physician .instruction. Hamilton dictates that a jury

 conducting .de novo review of a board decision needs to be instructed on this rule.

 To the extel)t Larson holds otherwise, we overrule it.

       The County urges us-in the alternative to asserting that the trial court did

 not abuse its discretion in rejecting the special consideration instruction-to

··overturn Hamilton and hold that the special consideration instruction never be

 given. We reject this argument. We find Hamilton to be neither incorrect nor

 harmful. As the court explained in Hamilton, a jury instruction regarding the

 special consideration rule is necessary for the jury to meaningfully review board

 decisions. 4

        In the present case, the only attending physician who testified was Dr. Won.

 The general witness instruction given in this case did not accurately convey the

 requirement embraced in Hamilton that the jury give special consideration to the

 testimony of McManus's treating physician, nor would giving the special

 consideration instruction cause confusion where there is no conflicting testimony




        4
          The comment to 6A WPI 15 5.13. 01 indicates that the special consideration instruction
 need not always be given, citing Harker-Lott. 6A WPI 155.13.01 cmt. at 167. We disavow the
 WPI comment to the extent that it indicates that the special consideration instruction is not
 mandatory. The instruction is mandatory except in those instances where the instruction cannot
 be given, such as where there are multiple attending physicians offering conflicting testimony.


                                                12
Clark County v. McManus, No. 91963-1


from multiple attending physicians. The trial court did not identify any compelling

reason why Dr. Won's opinion should not be accepted.

      Importantly, the Board itself recognizes and applies the special consideration

rule. See, e.g., In re Free, No. 89 0199 (Wash. Bd. of Indus. Ins. Appeals June 20,

1990); In re Anderson, No. 87 3724 (Wash. Bd. of Indus. Ins. Appeals May 18,

1989). The Department applies the special consideration rule in adjudicating

claims. Because self-insured employers are bound to comply with department

claims handling processes, they also apply the special consideration rule. Special

consideration should be given to the opinion of an attending physician unless

specific reasons for not accepting the attending physician's opinion are articulated.

       We hold that in cases such as this where one attending physician testifies,

the special consideration instruction must be given. Here, the trial court did not

identify why a special consideration instruction should not be given and we find no

reason. Our decision in Hamilton-which relied on long-standing policy




                                          13
Clark County v. McManus, No. 91963-1


surrounding workers' compensation cases-controls. We reaffirm Hamilton. We

disavow the Court of Appeals' decision on the special consideration instruction

issue and hold that the instruction is mandatory in situations present here.




WE CONCUR:




                                          14
