                                                                       FILED
                                                                   DECEMBER 20, 2018
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

CONNIE KENNELLY,                              )
                                              )        No. 35625-6-III
                     Appellant,               )
                                              )
       v.                                     )
                                              )
KENNEWICK GENERAL HOSPITAL,                   )        UNPUBLISHED OPINION
                                              )
                     Respondent.              )

       FEARING, J. —Connie Kennelly appeals an adverse jury verdict denying her

worker compensation benefits for claimed total disability. She challenges jury

instructions that informed the jury of findings of fact entered by the Department of Labor

& Industries (DLI) Board of Industrial Insurance Appeals (BIIA). Because the jury

instructions properly informed the jury of material and ultimate findings of the BIIA, we

conclude that the trial court did not abuse its discretion when promulgating the jury

instructions.

                                         FACTS

       Kennewick General Hospital (KGH) employed Connie Kennelly as its pathology

office coordinator. Kennelly suffers from glaucoma and diabetic retinopathy. In 2010,

Kennelly stopped driving and required a magnification device to perform her job as
No. 35625-6-III
Connie Kennelly v. Kennewick General Hospital


office coordinator. KGH provided the magnifier.

       On May 21, 2011, Connie Kennelly tripped and fell while working alone in the

basement of KGH. Kennelly immediately felt pain in her upper thigh, and an x-ray

revealed a fractured left femur. After surgery and further treatment, the fracture solidly

healed. Prior to the industrial injury, Kennelly had no mobility impediments. On May

25, 2011, Kennelly filed a workers’ compensation claim for her fractured left femur.

       On discharge from rehabilitation, Connie Kennelly took a prescribed blood thinner

to prevent clots. Approximately four months later, Kennelly awoke unable to see. Her

eye physician stopped the blood thinner. Kennelly’s eyesight returned.

       Kennelly’s healed left leg is now 1.9 centimeters shorter than the right leg.

Kennelly cannot walk long distances and cannot squat and return to standing. At some

unknown date after the cessation of the blood thinner and return of eyesight, Connie

Kennelly became totally blind in her left eye and legally blind in the right eye. Due to

vision limitations, Kennelly concluded she cannot safely return to work at KGH.

       On May 16, 2014, DLI closed Connie Kennelly’s worker compensation claim.

Kennelly received time-loss benefits through February 18, 2014. On closure of her

claim, DLI awarded Kennelly a permanent partial disability award of ten percent of the

amputation value of the left leg above the knee joint.

       Connie Kennelly filed an appeal, of DLI’s decision, with the BIIA. On May 22,

2014. An Industrial Appeals Judge (IAJ) affirmed DLI’s decision. The IAJ declined any

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award for Kennelly’s eye condition, denied total disability benefits, and rejected payment

for further treatment. When issuing a proposed decision, the IAJ entered the following

findings of fact that hold relevance to this appeal: (4) other than the accommodation of a

heel lift, Kennelly has no claim-related restrictions as of February 19, 2014, (5) as of

February 19, 2014, Kennelly could perform sedentary work when considering only the

limitations proximately caused by the industrial injury; and (7) on May 16, 2014,

Kennelly had a permanent partial disability, proximately caused by the industrial injury,

equal to ten percent of the amputation value of the left leg above knee joint with short

thigh stump.

       Connie Kennelly filed a petition for review to the BIIA of the IAJ’s proposed

decision and order. In response, the BIIA adopted the IAJ’s proposed decision and order.

                                       PROCEDURE

       Connie Kennelly appealed the BIIA decision to the Benton County Superior

Court. On appeal to the superior court, Kennelly narrowed her claim to time loss

compensation and a pension.

       This appeal surrounds the trial court’s jury instruction 5, to which Connie

Kennelly objected. She requested that the trial court remove subsections numbered 4, 5,

and 7 in the instruction. The entirety of jury instruction 5 read:

              This is an appeal from the findings and decision of the Board of
       Industrial Insurance Appeals. The Board made the following material
       findings of fact:

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                     1. Connie R. Kennelly sustained an industrial injury on
             May 21, 2011, when she tripped over a chair while working
             in the basement of Kennewick General Hospital, severely
             fracturing her left femur. A blood thinner prescribed to
             prevent clots while she was unable to walk due to the left leg
             fracture causes hemorrhaging in her eyes, which had no
             lasting effect;
                     2. As of May 16, 2014, Ms. Kennelly’s left lower
             extremity condition proximately caused by the industrial
             injury was fixed and stable and did not need further proper
             and necessary treatment;
                     3. Ms. Kennelly is approximately 65 years old with an
             executive secretary and legal secretary degree. She has work
             experience in medical transcription, medical billing, medical
             reception, and as a medical secretary and manager. She has
             advanced diabetic retinopathy in both eyes, advanced
             glaucoma, vitreous hemorrhages, and exposure keratopathy
             related to thyroid disease;
                     4. Other than the accommodation of a heel lift, Ms.
             Kennelly has no claim-related restrictions as of February 19,
             2014;
                     5. Ms. Kennelly is able to perform sedentary work
             when considering only the limitations proximately caused by
             the industrial injury as of February 19, 2014;
                     6. Ms. Kennelly was able to perform and obtain
             gainful employment on a reasonably continuous basis as of
             February 19, 2014.
                     7. On May 16, 2014, Ms. Kennelly had a permanent
             partial disability proximately caused by the industrial injury
             equal to 10 percent of the amputation value of the left leg
             above knee joint with short thigh stump.

                    By informing you of these findings the court does not intend
      to express any opinion on the correctness or incorrectness of the Board’s
      findings.

Clerk’s Papers (CP) at 81-82.


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      Before the trial court, Connie Kennelly argued that, although RCW 51.52.115

required the court to instruct the jury on BIIA’s material findings, numbered paragraphs

4, 5 and 6 lacked materiality. Kennelly’s proposed jury instruction 5 omitted the three

paragraphs.

      The trial court also delivered jury instruction 11, which read:

            Total disability requires consideration of the residuals of the
      worker’s industrial injury, age, training, education, prior work experience,
      and any pre-existing physical or mental restrictions.

CP at 88.

      During closing argument to the jury, KGH’s counsel commented:

             Proximately caused. What proximately caused her inability to
      work? Blindness or leg fracture? Counsel wants you to bundle them
      together and put her on a pension for the rest of her life. . . .

Report of Proceedings (RP) at 59-60. Kennelly objected to the argument by stating:

“[y]our Honor, objection. I’m sorry.” RP at 60. Kennelly identified no basis for the

objection.

      The jury returned a verdict that affirmed BIIA’s finding that Connie Kennelly

could perform and obtain gainful employment on a reasonably continuous basis as of

February 19, 2014.

                                LAW AND ANALYSIS

                                     Jury Instruction

      On appeal, Connie Kennelly repeats her argument that the trial court should have

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omitted some paragraphs from jury instruction 5. We review errors of law in jury

instructions de novo. Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682

(1995). Jury instructions are sufficient if they: (1) allow each party to argue their theories

of the case, (2) do not mislead the jury, and (3) when read as a whole, properly inform the

trier of fact of the law to be applied. Adcox v. Children’s Orthopedic Hospital and

Medical Center, 123 Wn.2d 15, 36, 864 P.2d 921 (1993). If any of these elements are

missing, the instruction is erroneous. Anfinson v. FedEx Ground Package System, Inc.,

174 Wn.2d 851, 860, 281 P.3d 289 (2012). An erroneous instruction is reversible error

only if it prejudices a party. Anfinson v. FedEx Ground Package System, Inc., 174 Wn.2d

at 860.

          RCW 51.52.115 controls this appeal. The statute provides, in relevant part:

                 In all court proceedings under or pursuant to this title the findings
          and decision of the board shall be prima facie correct and the burden of
          proof shall be upon the party attacking the same. . . . In appeals to the
          superior court hereunder, either party shall be entitled to a trial by jury upon
          demand, and the jury’s verdict shall have the same force and effect as in
          actions at law. Where the court submits a case to the jury, the court shall
          by instruction advise the jury of the exact findings of the board [BIIA] on
          each material issue before the court.

(Emphasis added.)

          Unless the board finding is on a “material issue” before the court, the superior

court need not advise the jury of a BIIA finding. Stratton v. Department of Labor &

Industries, 1 Wn. App. 77, 459 P.2d 651 (1969). In addition to the statutory limitation to


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material findings of fact, the trial court should also place in the jury instruction only those

findings containing ultimate facts and not those containing evidentiary or subordinate

facts. Gaines v. Department of Labor & Industries, 1 Wn. App. 547, 551-52, 463 P.2d

269 (1969). Admittedly, the dividing line between evidentiary and ultimate findings of

fact cannot be readily stated. Gaines v. Department of Labor & Industries, 1 Wn. App. at

552. Nevertheless, the Gaines court offered examples of “findings of ultimate fact” to

include: (1) a finding on the identity of the claimant and her employer, (2) the claimant’s

status as an employee or dependent under the worker compensation act, (3) the nature of

the accident, (4) the nature of the injury or occupational disease, (5) the nature and extent

of disability, (6) the causal relationship between the injury or the disease and the

disability, and (7) other ultimate facts, the existence or nonexistence of which the

outcome of the litigation depends. Gaines v. Department of Labor & Industries, 1 Wn.

App. at 552.

       Gaines v. Department of Labor & Industries also added another qualifier to the

nature of jury instructions to be rendered in a worker compensation trial. The trial court

included a board finding that read:

              In testifying as a witness and in presenting himself as a subject for
       examination to the several doctors who examined him to determine the
       nature and extent of his conditions attributable to his injury of December
       23, 1959, claimant purposely misrepresented his physical condition, his
       physical limitations, and the extent of his pain, to such an extent as to
       discredit his subjective complaints, except as the same where born[e] out by
       objective findings of the doctors.

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Gaines v. Department of Labor & Industries, 1 Wn. App. at 548. This court ruled that

the finding is not the kind of finding required to be read to the jury because it could have

had the effect of “utterly destroying the plaintiff’s credibility, making recovery

improbable.” Gaines v. Department of Labor & Industries, 1 Wn. App. at 551.

       A second example of an improper argumentative finding harming the credibility of

the claimant comes from Stratton v. Department of Labor & Industries, 7 Wn. App. 652,

501 P.2d 1072 (1972). The finding read in part:

               Associated with this psychiatric disorder is a demonstrated lack of
       motivation in the claimant to seek out and maintain gainful employment,
       coupled with a strong tendency and desire to realize a monetary gain from
       his injury.

Stratton v. Department of Labor & Industries, 7 Wn. App. at 654. The finding was not

based on any medical or other evidence in the record and only the opinion of the board.

This court considered the instruction to prejudicially describe Stratton’s attitude,

comment on his character, and argue as to why he should not be awarded a pension.

       Connie Kennelly contends that the trial court erred when inserting paragraphs 4, 5,

and 6 in jury instruction 5, which paragraphs constituted three BIIA findings. She asserts

the three findings lacked materiality to her appeal to the superior court. We separately

address each jury instruction paragraph.

       Paragraph 4 of the jury instruction provides, “[o]ther than the accommodation of a

heel lift, Ms. Kennelly has no claim-related restrictions as of February 19, 2014.” CP at


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81. Unlike the findings in Stratton and Gaines, paragraph 4 did not attack Kennelly’s

credibility or consist of opinions of the board. Rather, the paragraph arises from medical

evidence presented to the board. The paragraph holds relevance to the ultimate issue of

whether Kennelly was a totally disabled worker as of February 19, 2014. The sole issue

for jury determination was whether Connie Kennelly was a totally disabled worker as of

February 19, 2014. The mention of a heel lift may be more subordinate than ultimate

facts, but the instruction as a whole relates to the conclusion that Kennelly had no

restrictions resulting from her work injury.

       Paragraph 5 of jury instruction 5 read: “Ms. Kennelly is able to perform sedentary

work when considering only the limitations proximately caused by the industrial injury as

of February 19, 2014.” CP at 81. Again, unlike the findings in Stratton and Gaines, this

finding does not attack the credibility of a witness. Medical testimony supported the

finding. Connie Kennelly’s treating physician, orthopedist Arthur Thiel, concluded that,

if not for the vision problems, the femur fracture would not prevent Kennelly from

returning to sedentary work. Mark Miller, an orthopedic surgeon, agreed with Dr. Thiel.

Dr. David Bauer concluded that Kennelly had no claim-related restrictions and could

perform her job.

       The material finding equates to an ultimate fact. Connie Kennelly alleged

“permanent total disability” in accordance with RCW 51.08.160. Permanent total

disability constitutes a “condition permanently incapacitating the worker from

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performing any work at any gainful occupation.” RCW 51.08.160. Paragraph 5

addressed the issue of Kennelly’s ability to perform any work at “any gainful

occupation.”

          Connie Kennelly contends that paragraph 5 is incomplete, misleading, and

confusing for the jury, and she thereby asserts that the paragraph equates to a comment

on the evidence because the finding displays bias of the BIIA. She complains that the

trial court placed only one set of facts into the findings and disregarded the other set of

facts. A comment on the evidence is one that conveys to the jury a judge’s personal

attitude about the merits of the case. Hamilton v. Department of Labor & Industries, 111

Wn.2d 569, 571, 761 P.2d 618 (1988).

          In support of her contention that the BIIA biasedly chose facts that only suited its

purpose, Connie Kennelly cites to a letter written by Arthur Thiel, wherein Dr. Thiel

states:

                  [a]s a result of the eye injuries plus the damage to the leg, the patient
          is no longer able to safely ambulate . . . to and from work and does not have
          the vision to . . . do her work.

CP at 210. Kennelly contends that BIIA disregarded Dr. Thiel’s opinion and formed its

own opinion, rendering any jury instruction on the opinion a comment on the evidence.

We disagree.

          The IAJ, on behalf of BIIA, heard testimony contrary to the testimony of Dr.

Arthur Thiel. BIIA had authority to adopt evidence contrary to evidence posited by

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Connie Kennelly as the truth without impermissibly commenting on the evidence or

displaying bias. Dr. Thiel, in his deposition, even readily admitted that his specialty is

not ophthalmology, and he stated that a person with normal vision could return to work

safely after a leg fracture. Dr. Thiel’s testimony thereby differed from his September 10,

2014 letter. The BIIA also heard testimony from Mark Miller and David Bauer that

Kennelly could perform sedentary work based on limitation from her work injury.

       Connie Kennelly implies that the jury likely concluded that the trial court tacitly

agreed with KGH’s witnesses’ testimony as the truth since jury instruction 5 did not

mention any evidence contrary to the findings of fact. This argument fails to recognize

the language at the end of jury instruction 5. The language informed the jury that the

enumerated findings were those of the BIIA, not the court, and the jury could disregard

the findings.

       Paragraph 7 of jury instruction 5 read: “On May 16, 2014, Ms. Kennelly had a

permanent partial disability proximately caused by the industrial injury equal to 10

percent of the amputation value of the left leg above knee joint with short thigh stump.”

CP at 81. We read this instruction along with jury instruction 11 that declared “[t]otal

disability requires consideration of the residuals of the worker’s industrial injury, age,

training, education, prior work experience, and any pre-existing physical or mental

restrictions.” CP at 88. Based on the law to apply in jury instruction 11, the finding

found in paragraph 7 of the jury instruction constituted a material, ultimate fact. Connie

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Kennelly’s permanent partial disability equaling ten percent of the amputation value of

the left leg above knee joint with short thigh stump related to the “residuals of the

worker’s injury.” Medical evidence supported the finding, and the underlying facts

contained in the finding loomed important to the issue before the jury. Like the other

three challenged paragraphs, paragraph 7 constituted a conclusory statement supported by

subordinate medical evidentiary facts.

       Although Connie Kennelly agrees paragraph 7 is a true statement, she argues its

inclusion served only to confuse the jury. While that assertion may be true because a jury

of lay persons might have trouble distinguishing between permanent total disability and

permanent partial disability, when read in context with the other instructions, the

paragraph is less confusing.

                                     Closing Argument

       Connie Kennelly assigns error to the trial court’s failure to advise the jury that

KGH’s counsel misstated the law during closing arguments. She argues that counsel for

KGH misrepresented the law when it argued to the jury: “Proximately caused her

inability to work? Blindness or leg fracture? Counsel wants you to bundle them together

and put her on a pension for the rest of her life.” RP at 60. Immediately after the

statement, Kennelly objected stating: “[y]our Honor, objection. I’m sorry.” RP at 60.

       On appeal, Connie Kennelly contends opposing counsel’s argument misstated the

law. Nevertheless, at trial, Kennelly never asserted this basis for her objection, which

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seemingly was withdrawn. One must specify the basis for an objection to a question in

order to preserve the objection for appellate review. State v. Guloy, 104 Wn.2d 412, 422,

705 P.2d 1182 (1985). Thus, we do not address the substance ofKennelly's second

assignment of error.

                                    CONCLUSION

      We affirm the trial court's judgment in favor of employer KGH.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




Pennell, A.CJ.




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