    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                   *—




 KATHY A. STEVENS,
                                                          No. 70754-0-1            F    £;
                      Appellant,
                                                          DIVISION ONE
               v.

                                                          UNPUBLISHED OPINION*
 DEPARTMENT OF LABOR AND                                                           en

 INDUSTRIES OF THE STATE OF
 WASHINGTON,

                      Respondent.                         FILED: July 14, 2014


      Appelwick, J. — Kathy Stevens appeals the Department's finding that her medical

condition is not workplace related. At trial, the jury upheld the Department's finding.

Stevens argues that this was due to an erroneous jury instruction. She further asserts

that the jury's verdict was not supported by substantial evidence.        As a result, she

contends that she should have been granted a new trial. We affirm.

                                          FACTS


       Kathy Stevens began working for JAMCO America in September 2006. JAMCO

is an aerospace company. When Stevens started at JAMCO, she worked in building 2

assembling wire harnesses. In December 2008, she moved to building 3, where she did

inventory control. Prior to moving to building 3, she did not have any respiratory problems.

       In building 3, Stevens worked in the mezzanine, which was an open area. Directly

below the mezzanine deck, other workers sanded panels for aircraft doors. The sanding

created dust that traveled up to the mezzanine. The panels contained fiberglass, phenol,

and formaldehyde. When Stevens was handling them, her skin would break out in hives

and rashes.
No. 70754-0-1/2




       In April 2009, Stevens began to experience nausea, headaches, and tightness in

her chest. She also smelled a gas smell and her breathing was different. The symptoms

would start roughly an hour after she got to work and last all day until she got home. They

would subside once she showered and changed her clothing, but would worsen again

when she returned to work.

       Stevens went to see her family doctor, Dr. Susana Escobar.             Dr. Escobar

diagnosed Stevens as having occupational asthma and referred her to an allergy and

environmental medicine doctor, Dr. Philip Ranheim. Dr. Ranheim also concluded that

Stevens had occupational asthma.

       On March 25, 2010, the Department sent an industrial hygienist to test the air

quality at JAMCO. The hygienist monitored the air in building 3. He did not find

contaminant levels above permissible exposure limits, and he observed that there was

not a lot of dust in the air. Stevens was present on the day of the testing. She reported

that there was no one sanding the door panels that day and that the dust level in the air

was lower than normal.

       Stevens initially received time-loss compensation from the Department of Labor

and Industries (Department) for her medical leave. On November 29, 2010, Stevens was

examined by the Department's medical expert, Dr. Robert Cox. Dr. Cox also reviewed
the industrial hygienist's report. Dr. Cox attributed Stevens's asthma notto herworkplace
conditions but to her smoking habit. Stevens had been a smoker since 1991. When she

started working at JAMCO, she was smoking three-quarters of a pack a day. By the end
of February 2011, Stevens was smoking only two to four cigarettes a day.
No. 70754-0-1/3



        The Department ordered Stevens to repay the compensation she received.

Stevens appealed to the Board of Industrial Insurance Appeals (Board). The Board

affirmed the Department's order, finding that Stevens' asthma was not an occupational

disease. Stevens then appealed to Snohomish County Superior Court. Her trial began

on January 28, 2012. The jury ultimately concluded that the Board was correct in deciding

that Stevens's asthma was not an occupational disease. Stevens moved for a new trial,

which the court denied.


        Stevens appeals, arguing that the court improperly instructed the jury on proximate

cause and that substantial evidence did not support the jury's verdict.

                                       DISCUSSION


   I.   Proximate Cause Instruction


        Stevens challenges the jury instruction on proximate cause and medical testimony

(Instruction 15). She asserts that it misstated the burden of proof and confused the jury.1

        This court reviews jury instructions de novo. Anfinson v. FedEx Ground Package

Svs., Inc.. 174 Wn.2d 851, 860, 281 P.3d 289 (2012). Jury instructions are sufficient if

they (1) allow both parties to argue their theory of the case; (2) are not misleading; and

(3) when read as a whole, properly inform the trier of fact of the applicable law. Id. An

erroneous instruction is grounds for reversal only if it prejudices a party.    ]g\   If the

instruction contains a clear misstatement of law, prejudice is presumed.        Id. If the

instruction is merely misleading, prejudice must be demonstrated. kL




       1 The Department argues that Stevens did not properly preserve her objection to
Instruction 15. We need not address this argument, because we find that Stevens's
challenge fails.
No. 70754-0-1/4




              A. Misstatement of Law

       Stevens contends that Instruction 15 was an improper statement of the law. This

is so, she maintains, because it imposed a burden upon her to demonstrate that work

conditions were ttie proximate cause of her medical condition, rather than simply a

proximate cause.

       "Proximate cause" is a "cause that directly produces an event and without which

the event would not have occurred." Black's Law Dictionary 250 (9th ed. 2009). Where

the parties assert that different elements were the cause of the plaintiff's injury, the court

must instruct the jury that there can be more than one proximate cause. See Jonson v.

Chicago. M.. St. P.. and P.R. Co., 24 Wn. App. 377, 379, 601 P.2d 951 (1979). Each jury

instruction must be considered in light of all the instructions given. State v. Alvis, 70

Wn.2d 969, 975, 425 P.2d 924 (1967).

       In Alvis, the appellant challenged the jury instruction defining "assault," because it

failed to include the element of intent. jU The court noted that the next instruction clearly

and adequately covered the criminal intent necessary to convict, jd. Thus, viewing the

instructions together, they correctly informed the jury of the relevant law. See id.

       Stevens contests the language in Instruction 15 that read, "Ms. Stevens'[s]

condition and the proximate cause of that condition must be established by medical

testimony." (Emphasis added.) However, Instruction 12 further informed the jury:

              There may be one or more proximate causes of a condition. For a worker
       to be entitled to benefits under the Industrial Insurance Act, [Title 51 RCW,] the
       work conditions must be a proximate cause of the alleged condition for which
       benefits is [sic] being sought. The law does not require that the work conditions
       be the sole proximate cause of such condition.
No. 70754-0-1/5



Instruction 12 plainly stated that there can be more than one proximate cause and that

Stevens was not required to show that her work conditions were the sole proximate cause

of her injury. Thus, read together, the instructions correctly informed the jury. They did

not misstate the law.


              B. Jury Confusion

       Stevens further contends that Instruction 15 confused the jurors about the

appropriate burden of proof for proximate cause. As support, she points to the jury's

correspondence with the court about the meaning of proximate cause. Stevens also

references the presiding juror's declaration, which states that the jury was unclear about

the standard of proof.

       Instruction 15 read in full:
              Ms. Stevens'[s] condition and the proximate cause of that condition must be
       established by medical testimony.

              Medical testimony of this causal relationship must be in terms of medical
       probability, not medical possibility.

             Testimony as to possibility means testimony confined to words of
       speculation and conjecture. Medical testimony that an incident could cause, can
       cause, or probably could cause such a condition is not sufficient.

Instruction 12 defined a proximate cause as one that is "related to the condition in two

ways: (1) the cause produced the condition in a direct sequence unbroken by any new,

independent cause, and (2) the condition would not have happened in the absence of the

cause."


       During deliberations, the jury sent two questions to the court. First, itasked, "What

is the layman's definition of 'proximate cause.' Struggling with understanding definition

in Instruction 12. Can we look up the definition of proximate cause?" The court replied
No. 70754-0-1/6




that the jury could not look up the definition and must instead refer to its instructions. The

jury next asked, "Does the workplace conditions [sic] need to be the 51% or majority

cause of her asthma?"        The court again replied that the jury needed to refer to its

instructions.


       After the trial, Stevens's counsel spoke with the presiding juror, who communicated

the jury's confusion. The juror provided a declaration, which states:

       The Jury had a great deal of difficulty understanding the Jury Instruction on
       proximate cause as it related to medical cause.. ..



       . . . Specifically, we could not determine from a review of the Jury Instructions if
       Ms. Steven's [sic] work exposure had to be the main cause, the predominant
       cause, or just a cause of her asthma. . . .

       . . .Based on the votes and the discussions, if the Jury had been advised by the
       Court that Ms. Steven's [sic] work exposure only had to be one cause of her
       asthma, and not the predominant cause, the verdict would not have been rendered
       in favor of the state [sic].

       As discussed above, Instructions 12 and 15 do not conflict. Nor does Instruction

15 modify Instruction 12's definition of proximate cause. It merely explains the type of

proof required to establish proximate cause.

       Stevens asks this court to rely on the jury's questions and the presiding juror's

declaration to conclude that Instruction 15 was nonetheless confusing.            But, jurors'

individual or collective thought processes leading to a verdict cannot be used to attack

that verdict. State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988). We cannot consider

the jury's questions as support for the idea that the jurors were confused in arriving at
their verdict. \_± at 43-44. Nor can we consider jurors' postverdict statements about

matters that "inhere in the verdict." IcL at 44.
No. 70754-0-1/7




       The trial court properly presented Instruction 15 to the jury.

   II. Sufficient Evidence

       Stevens asserts that the jury's verdict was not supported by substantial evidence.

When we review the superior court's decision on an appeal from a Board order, our review

is limited to examining the record to determine whether substantial evidence supports the

decision. City of Bellevue v. Raum. 171 Wn. App. 124, 151, 286 P.3d 695 (2012), review

denied 176 Wn.2d 1024, 301 P.3d 1047 (2013). Substantial evidence is evidence that is

sufficient to persuade a fair-minded person of the truth of the declared premise. Cowiche

Canyon Conservancy v. Boslev. 118 Wn.2d 801, 819, 828 P.2d 549 (1992). Even if we

are convinced that the verdict was wrong, we should not substitute our judgment for the

jury's, so long as there was evidence which, if believed, would support the verdict. Raum,

171 Wn. App. at 151.

       [The court's] function is to review for sufficient or substantial evidence, taking the
       record in the light most favorable to the party who prevailed in superior court. We
       are not to reweigh or rebalance the competing testimony and inferences, or to
       apply anew the burden of persuasion, for doing that would abridge the right to trial
       by jury.

Harrison Mem'l Hosp. v. Gagnon. 110 Wn. App. 475,485,40 P.3d 1221 (2002) (footnotes

omitted).

       Stevens acknowledges that the Department presented medical evidence through

Dr. Cox's testimony. But, she attacks the basis of Dr. Cox's conclusions. She notes that

Dr. Cox was unaware of the following facts: that the sanding ventilation system was not

tested; that the industrial hygienist's report upon which Dr. Cox partially relied did not

represent a typical work day's dust exposure; that her coworker had also complained of

trouble breathing; and that Stevens worked in a particularly dusty area. As a result,
No. 70754-0-1/8




Stevens asserts that Dr. Cox's conclusion was unfounded and that he merely offered an

opinion consistent with the Department's theory of the case.

       Even if Stevens' observations of the flaws in Dr. Cox's testimony are accurate, they

reflect concern over the weight the testimony should be given. It is the jury's job to weigh

competing testimony, and here the jury found in favor of the Department. We do not

accept Stevens' invitation to evaluate Dr. Cox's credibility anew. So long as there was

sufficient evidence to support the jury's verdict, we are bound to affirm.

       Dr. Cox concluded that Stevens had asthma, but believed that it was not work

related. This conclusion was based on Stevens' smoking history, Dr. Cox's years of

pulmonary experience, and the industrial hygienist's report. Stevens' smoking habit was

firmly established at trial. Although Stevens worked to reduce her cigarette intake once

her symptoms began, she had smoked heavily for 20 years. Dr. Cox explained how

smoking damages the lungs and can lead to symptoms like Stevens described. Dr. Cox

further drew doubts about Stevens's report of her symptoms: he found it inconsistent that

she could smoke heavily but be very sensitive to that workplace and that her symptoms

had not abated since she ceased working in building 3. Dr. Cox also noted that the

industrial hygienist's report showed that contaminant levels were below permissible

exposure limits. This testimony, if believed, could support a finding that Stevens' asthma

was not workplace related. While the record contained conflicting opinions from other

doctors, it was the jury's job to decide which medical testimony to believe.

       We find that substantial evidence supports the jury's verdict.




                                                 8
No. 70754-0-1/9




   III. Motion For New Trial


       Stevens contends that the trial court improperly denied her motion for a new trial,

because she was denied substantial justice. The trial court may grant a new trial in

enumerated circumstances, including where substantial justice has not been done. CR

59(a)(9). Granting a new trial for lack of substantial justice should be rare in light of the

other broad grounds that CR 59 provides. Lian v. Stalick. 106 Wn. App. 811, 825, 25

P.3d 467 (2001).

       Stevens alleges that a new trial was warranted here due to the jury's confusion

and the inadequate evidence to support the verdict.        But, we find that the trial court

properly instructed the jury and that there was sufficient evidence to support the verdict.

The trial court did not err in denying Steven's motion for a new trial.

       We affirm.




WE CONCUR:
