      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


REYMUNDO FELIPE,                                 NO. 75232-4-


                    Appellant,                   DIVISION ONE


      v.

                                                 PUBLISHED OPINION
DEPARTMENT OF LABOR AND
INDUSTRIES OF THE STATE OF
                                                                                       'S><
WASHINGTON,
                                                                                CO     (
                    Appellant.                   FILED: September 12, 2016 ^
                                                                                 r\3


       Leach, J. — Reymundo Felipe appeals an adverse trial court judgmfgt
                                                                                 3
that denied his request to reopen a worker's compensation claim for additional

medical treatment. Felipe challenges a trial court jury instruction requiring him to

support his aggravation claim with evidence of objective medical findings.

Because the nature of Felipe's injury excuses any requirement for objective

findings and the court's instruction prevented Felipe from arguing his theory of

the case, we reverse and remand for proceedings consistent with this opinion.

As neither party has yet prevailed, we deny Felipe's request for an award of

attorney fees under RCW 51.52.130(1) as premature.

                                      FACTS


       Felipe suffered a closed head injury when he fell off a ladder in April 2011

while working.   He does not know what caused the fall.         He first remembers
NO. 75232-4-1 / 2




waking up in a hospital with head pain.        His doctors read two CAT (computed

axial tomography) scans, performed on April 19 and April 25, as normal.         He

developed      headaches that his neurologist thought were consistent with

postconcussive syndrome.        He experienced depression in May 2011.       Felipe

applied to the Department of Labor and Industries (Department) for industrial

insurance benefits. The Department allowed the claim and provided benefits to

Felipe.

          Felipe treated with several providers.      He began seeing Dr. Jon

Sukachevin in November 2011.          Felipe's headaches had improved but then

became worse two months before this visit. Sukachevin diagnosed Felipe with

several conditions, including major depression, headache, and concussion.

Felipe's headaches improved at the end of 2011 with the help of medication.

The Department closed his claim on May 9, 2012.              As of that date, he

experienced some headaches that resolved with pain medication.

          Sukachevin continued to see Felipe for his ongoing conditions, including

other industrial injuries.   Sukachevin referred Felipe to a psychologist for his

depression, who, in turn, referred Felipe to a brain injury specialist because he

thought Felipe suffered from a traumatic brain injury.         Industrial insurance

covered only one visit to the psychologist. The Department denied the referral to

a brain injury specialist.

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NO. 75232-4-1 / 3




       On October 24, 2012, Sukachevin saw Felipe for newly developed

headaches. At the visit, Felipe reported that these headaches began a month

earlier and described them as similar to the headaches he experienced after his

April 2011 fall. He had at least four headaches per day with a pain level of nine

out of ten, up from four out of ten. Felipe also experienced associated vertigo

and light-headedness. Sukachevin diagnosed Felipe with "[tjraumatic brain injury

[secondary to his April 2011 injury], new problem, uncontrolled; and major

depression, uncontrolled." Sukachevin later described Felipe's diagnosis more

specifically as a "closed head injury."

       After seeing Felipe in October 2012 for headaches, Dr. Sukachevin

assisted Felipe in applying to the Department to reopen his claim based on his

worsening condition. On the November 6, 2012, application, Sukachevin listed

Felipe's symptoms:      headaches, dizziness, memory problems, fatigue, and

depression.     He described Felipe's headaches as "worse."      He proposed a

treatment plan: "refer him to the neurologist and—and a traumatic brain injury

specialist, refer for MRI [magnetic resonance imaging] of the brain and to follow

up with the psychologist." Felipe had an MRI on November 17. The radiologist's

report stated that the MRI revealed "'punctate blooming artifacts, subcortical

white matter, white frontal lobe, suspicious for an area of remote small

hemorrhage.'"
NO. 75232-4-1/4




      In January 2013, neurologist Dr. William Stump examined Felipe at the

Department's request. Stump performed a general physical examination and a

neurological exam. He also reviewed Felipe's medical records and MRI report.

Felipe reported to Dr. Stump painful headaches, dizziness, depression, anxiety,

and sleeping difficulties. Stump diagnosed Felipe with a closed head injury due

to his April 2011 fall, concluding that he most likely suffered from a concussive

syndrome as a result but that it had resolved. The State agrees that Dr. Stump

based his closed head injury diagnosis on subjective findings alone.1

      The Department denied Felipe's application to reopen his claim.          On

reconsideration, the Department affirmed its earlier order. Felipe appealed to the

Board of Industrial Insurance Appeals (Board).

      The Board received each party's medical testimony through deposition.

Sukachevin opined that Felipe experienced an aggravation of his April 2011

injury. He based this opinion on the fact that Felipe had passed out in March

2013 and that he reported that the intensity of his headaches had worsened. He

also opined that the MRI report "showed evidence that patient may have had a

hemorrhage in the brain" and that this was related to his accident because of a

lack of any other episodes of head trauma since Felipe's fall.          On cross-

examination, Sukachevin testified that the November 17 MRI findings were the


      1 The State acknowledged this at oral argument.
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NO. 75232-4-1 / 5




only objective medical evidence of Felipe's worsening condition. He testified that

he doesn't read MRI films, so he based his interpretation on the radiologist's

report.     He also testified about the possibility that the CAT scan missed this

abnormality in April 2011.

          Stump testified that Felipe's condition had not objectively worsened after

May 9, 2012. He disagreed that the MRI report showed that Felipe suffered from

a hemorrhage. He concluded that Felipe "had persistent pain in the top of his

head" but concluded that this was not a result of the April 2011 injury because

the changes that would have developed at the time of Felipe's injury would have

healed within three to six months—before the time the new headaches began.

          The Board affirmed the Department's order.         Felipe appealed to the

superior court.

          At the superior court trial, counsel read to the jury the testimony given to

the Board.       The trial court instructed the jury that proof of Felipe's claimed

aggravation must be supported by medical testimony based in part on one or

more objective findings.

                 Aggravation   of Reymundo       Felipe's industrially related
          condition and the extent of Reymundo Felipe's increased disability
          on the date of claimed aggravation must be supported by medical
          testimony based at least in part upon one or more objective
          findings.
                 Statements of complaints by the worker made to a physician
          are called subjective complaints. Findings of disability that can be

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NO. 75232-4-1 / 6



       seen, felt, or measured by an examining physician are called
       objective findings.
              In determining whether aggravation has occurred and the
       extent of any resulting increased disability, a physician cannot rely
       solely upon complaints, but must have some objective basis for his
       or her opinion. On the other hand, a physician need not rely solely
       upon objective findings. If there are objective findings, then the
       physician may also consider subjective complaints.

Felipe objected to the court's instruction. He argued that the nature of his injury

excused him from presenting objective evidence of aggravation.               The jury

returned a defense verdict. Felipe appeals.

                             STANDARD OF REVIEW


       An appellate court reviews jury instructions de novo and reverses the trial

court only when an instruction contains an error of law that prejudices a party.2

"'Jury instructions are sufficient if they allow the parties 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.'"3 We review de novo a party's entitlement to

statutory fees.4

                                     ANALYSIS


       Felipe claims that the trial court should not have required him to prove his

aggravation claim with expert testimony based at least in part on objective



       2 Joyce v. Dep'tofCorr., 155 Wn.2d 306, 323, 119 P.3d 825 (2005).
       3 Joyce, 155 Wn.2d at 323 (quoting Hue v. Farmbov Spray Co., 127
Wn.2d 67, 92, 896 P.2d 682 (1995)).
       4 Sacred Heart Med. Ctr. v. Knapp, 172 Wn. App. 26, 28, 288 P.3d 675
(2012).
                                          -6-
NO. 75232-4-1 / 7




findings.     He contends that expert testimony based on subjective findings is

sufficient.


       As the Industrial Insurance Act (MA)5 is remedial in nature, courts liberally

construe it in favor of the worker.6 The MA permits an injured worker to reopen a

claim upon showing that an aggravation of a disability occurred within seven

years after the Department closed that claim.7 The aggravation need not be the

result of the work injury but can be a worsening produced by daily life.8 Though

not required by statute, some case law requires the worker to support a request

to reopen with some objective medical evidence, verified by a physician, that the

injury has worsened since the closure of the claim.9

        Objective findings of disability are those that can be seen, felt, or

measured by a physician.10 Subjective findings are those based on the patient's

report to the physician about symptoms perceived only by the senses and

feelings of the patient.11



        5 Title 51 RCW.
       6 Wilber v. Dep't of Labor & Indus., 61 Wn.2d 439, 446, 378 P.2d 684
(1963).
      7 RCW 51.32.160(1)(a); Dep't of Labor & Indus, v. Slaugh, 177 Wn. App.
439, 446, 312 P.3d 676 (2013), review denied, 180 Wn.2d 1007 (2014).
       8 Tollvcraft Yachts Corp. v. McCoy, 122 Wn.2d 426, 432, 858 P.2d 503
(1993).
       9 Tollvcraft Yachts Corp., 122 Wn.2d at 432; Wilber, 61 Wn.2d at 446.
        10 Wilber, 61 Wn.2d at 445 (quoting Hinds v. Johnson, 55 Wn.2d 325, 327,
347 P.2d 828 (1959)).
      11 Wilber, 61 Wn.2d at 445 (quoting Hinds, 55 Wn.2d at 327).
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NO. 75232-4-1 / 8




       In Price v. Department of Labor & Industries,12 the Supreme Court

eliminated the objective finding requirement for psychiatric disabilities.   Felipe

argues that the rationale for this decision applies equally to his injury and

resulting symptoms. The Department disagrees, claiming Felipe's claim involves

only physical conditions.

       Price applied to reopen her worker's compensation claim based on

increased neck and low back pain.13 She presented expert testimony that the

pain she felt was real, though perhaps partly of psychological origin, and affected

her ability to work just as if she had objective symptoms that fully explained her

pain.14 The Department presented expert testimony that because Price's pain

was caused largely by psychological factors, she would be able to work if she

were denied benefits because this would make her feel the urgency of work.15

Price lost before the Department,16 the Board,17 and the superior court.18

       On appeal, Price challenged a jury instruction nearly the same as the one

Felipe challenges.      She argued that the instruction was inappropriate when a

worker claims a psychological or psychiatric disability.19 The instruction, taken

       2 101 Wn.2d 520, 529, 682 P.2d 307 (1984).
       3 Price, 101 Wn.2d at 522.
       4 Price,   101   Wn.2d at 523.
       5 Price.   101   Wn.2d at 523.
       6 Price,   101   Wn.2d at 522.
       7 Price,   101   Wn.2d at 523.
       8 Price,   101   Wn.2d at 524.
       9 Price,   101   Wn.2dat524.
NO. 75232-4-1 / 9




almost verbatim from former pattern jury instruction 155.09,20 told the jury that

Price had to prove her alleged increase in disability with medical testimony based

in part on objective medical findings:

               "The extent of any alleged increase in plaintiff's permanent
       disability . . . must be established by medical testimony based at
       least in part upon one or more objective findings. In evaluating
       such increased disability, if any, a physician cannot rely solely upon
       complaints but must have some objective basis for his opinion."[21]
       The Supreme Court agreed with Price. It quoted the note on use for the

challenged former pattern instruction: "This instruction may not be proper in

instances of mental, emotional, post concussion syndrome, loss of hearing and

loss of sight cases, because these conditions may not have objective findings

present.'"22

       The court provided two rationales for its decision. It first stated that it had

not departed from a line of decisions that began with Peterson v. Department of

Labor & Industries.23     In Peterson, the court reversed a trial court decision

denying the aggravation claim of a worker with a large number of subjective

symptoms with no organic explanation.24


       20 6 Washington Practice: Washington Pattern Jury Instructions:
Civil 155.09, at 464 (2d ed. 1980) (WPI).
       21 Price, 101 Wn.2d at 523 (alteration in original).
       22 Price, 101 Wn.2d at 525 (quoting WPI 155.09 note on use at 464
(1980)).
       23 178 Wash. 15, 33 P. 2d 650 (1934).
       24 Peterson, 178 Wash, at 21-22.
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NO. 75232-4-1/10




       The court then discussed two cases that followed Peterson:           Husa v.


Department of Labor & Industries25 and Anderson v. Department of Labor &

Industries.26     It noted that in Husa it affirmed a worker's compensation award

even though the physicians examining the worker could find no physical

condition explaining his symptoms.27 The court stated that the Department's

view requiring objective findings to compensate the worker for his mental

condition "'is merely to quarrel with the decision in Peterson.'"28

       The court described its holding in Anderson: "This court upheld the award

of compensation for the neurasthenic condition, rejecting the Department's

contention that there must be objective symptoms to support any compensation

award."29       It stated that the Anderson decision acknowledged the objective

finding rule but declined to apply it because that would exclude traumatic

neurasthenia from the category of compensable injuries and effectively overrule

Peterson and Husa.30

       The court then noted its decision in Gakovich v. Department of Labor &

Industries,31 which it described as "inexplicably" ignoring Peterson, Husa, and



       25 20 Wn.2d 114, 146 P.2d 191 (1944).
       26 23 Wn.2d 76, 159 P.2d 397 (1945).
       27 Price, 101 Wn.2dat525.
       28 Price, 101 Wn.2d at 525   (quoting Husa, 20 Wn.2d at 120-21).
       29 Price, 101 Wn.2d at 526   (citing Anderson, 23 Wn.2d at 78-79).
       30 Price. 101 Wn.2d at 527   (quoting Anderson, 23 Wn.2d at 79).
       3129Wn.2d1,4, 184 P.2d       830 (1947).
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NO. 75232-4-1/11




Anderson.32 The court overruled Gakovich insofar as it was inconsistent with the

court's opinion.33

       The court provided a second rationale for its decision.       The objective

finding rule existed to address two concerns:       (1) the distinction between a

treating and nontreating physician for purposes of the hearsay rule and (2) the

fear of fictitious and feigned claims.34 The court stated that both of these reasons

had been eliminated.35

       The court found the challenged instruction prejudicial in part because the

Department's counsel argued to the jury that Price's claim failed because her

experts based their opinions on her subjective complaints.36

       Felipe analogizes his headache pain, depression, and memory problems

stemming from his postconcussive syndrome to a psychological or psychiatric

disability because his symptoms cannot be measured, felt, or seen by a

physician. For this reason, he contends that Price controls and the objective

finding requirement should not apply to his claim. The Department responds that




       32 Price,   101   Wn.2d at 527.
       33 Price,   101   Wn.2d at 528.
       34 Price,   101   Wn.2dat527.
       35 Price,   101   Wn.2d at 527-28.
       36 Price,   101   Wn.2d at 529.
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NO. 75232-4-1 /12




Price applies only to claims involving psychological conditions and Felipe

suffered a physical injury.37

       Price teaches that if the symptoms of a condition are exclusively

subjective in nature,     an    instruction on objective-subjective evidence is

improper.38 The Department's attempt to distinguish Price by noting that Felipe's

injury began with physical trauma to the head fails. The court's approving quote

of its observation in Husa and Peterson defeats this argument:           ""The fact,

however, that physical manifestations of appellant's injury have disappeared,

makes his condition and suffering none the less real. 39

       A recent Board decision confirms our reading of Price:

       The requirement for objective medical findings in applications to
       reopen is excused for those conditions that are not subject to
       objective measurement. The rigid requirement that there must be
       objective medical findings to support allowance of a condition—as
       contended by the Department—comes from conflating the
       requirement for objective findings in reopening claims and the
       requirement for objective findings supporting entitlement to
       permanent partial disability.     Contrary to the Department's
       argument, there is no statutory or judicial requirement requiring
       objective medical findings to support allowance of a claim.[40]


        37 While Felipe claims depression to be one of his symptoms and bases
his claim for reopening in part on this, he presented no evidence to the trial court
to show that his depression worsened between May 9, 2012, and August 7,
2013, and thus we conclude that he may not make that claim to this court.
       38 Price, 101 Wn.2dat528.
       39 Price, 101 Wn.2d at 526 (quoting Husa, 20 Wn.2d at 121 (quoting
Peterson, 178 Wash, at 19)).
       40 In re Bover, No. 13 19364, 2014 WL 7649068, at *6 (Wash. Bd. of
Indus. Ins. Appeals Dec. 2, 2014) (footnotes omitted).
                                        -12-
NO. 75232-4-1/13




      We also observe that after the Price decision, the note on use for former

WPI 155.09, relied on by the court in its opinion, has been modified more

emphatically to limit its use:    "This instruction should be given in cases of

physical disability but should not be given in cases involving mental or emotional

disability, loss of hearing or sight, or postconcussion syndrome."41

       The symptoms of Felipe's claimed aggravation are subjective in nature.

Neither party has suggested that the frequency or severity of Felipe's headaches

can be seen, felt, or measured by a physician. The Department conceded at oral

argument that its expert forensic neurologist based his diagnosis of Felipe's

original condition and his recovery on subjective symptoms. Similarly, Felipe's

treating physician relied on subjective findings to support his diagnosis of

aggravated headaches.

       The trial court erred by instructing the jury that Felipe had to support his

claimed aggravation with expert medical testimony based in part on one or more

objective findings.   This error prejudiced Felipe.     The instruction forced his

counsel to claim futilely that an MRI artifact provided objective evidence of

aggravation. It permitted the Department's counsel to argue forcefully, as he did,

that Felipe's claim failed due to the absence of objective findings without the jury

needing to consider if Felipe's disability had worsened.

       41 6A Washington Practice: Washington Pattern Jury Instructions:
Civil 155.09 note on use at 157 (6th ed. 2012).
                                        -13-
NO. 75232-4-1 /14




       Felipe requests an attorney fee award if this court remands and he is

successful below, citing RCW 51.52.130.         That statute requires an award of

attorney fees to a worker where a "decision and order is reversed or modified

and additional relief is granted."42 In a worker's appeal from the decision of the

Board, the litigation must affect the accident fund or medical aid fund to support a

fee award.43    The accident fund pays benefits to injured workers, while the

medical aid fund provides medical treatment benefits to those workers.44 The

Department argues that this case does not affect the medical aid or accident

funds because "a direct and immediate impact on funds" is necessary. Thus, it

argues, Felipe is not entitled to attorney fees under the statute.

       When an appellate court remands a case for retrial, as we do here, that

court cannot properly award fees because the prevailing party has not yet been

determined.45 Thus, at this time a fee award is premature, but the trial court may

award appellate attorney fees after retrial, if appropriate.46




       42 RCW 51.52.130(1).
       43 RCW 51.52.130; Tobin v. Dep't of Labor & Indus., 169 Wn.2d 396, 406,
239 P.3d 544 (2010).
      44 WR Enters.. Inc. v. Dep't of Labor & Indus., 147 Wn.2d 213, 216-17, 53
P.3d 504 (2002).
      45 Clark County v. McManus, 188 Wn. App. 228, 245, 354 P.3d 868
(2015), rev'd on other grounds. 185 Wn.2d 466, 372 P.3d 764 (2016).
       46 See McManus, 188 Wn. App. at 245.
                                         -14-
NO. 75232-4-1/15




                                  CONCLUSION


       Felipe based his aggravation claim on worsened headaches produced by

a closed head injury, which do not require objective evidence for diagnosis. The

trial court erred when it instructed the jury that Felipe had to prove his claim with

expert medical testimony based at least in part on objective findings. This error

prevented Felipe from arguing his theory of the case. We reverse and remand

the case for a new trial.      We decline to award attorney fees under RCW

51.52.130(1) because neither party has yet prevailed.




WE CONCUR:




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