     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

SANDRA K. OLSEN,
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                                                No. 69269-1-1
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DEPARTMENT OF LABOR                             UNPUBLISHED OPINION
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                    Respondent.                 FILED: April 28, 2014


      Leach, J. — Sandra Olsen appeals a superior court judgment denying her

workers' compensation benefits for thoracic outlet syndrome. She claims that the

court abused its discretion when it permitted testimony from Dr. Gary Franklin

about the Department of Labor and Industries' 2010 guidelines, Work-Related

Neurogenic Thoracic Outlet Syndrome: Diagnosis and Treatment.            Because

Olsen opened the door to this testimony, we affirm.

                                   Background

       In 2007, Olsen filed an application with the Department of Labor and

Industries (Department) for workers' compensation benefits for right carpal tunnel

syndrome, right hand tenosynovitis, and left wrist tendonitis that arose on

October 4, 2007, as a result of the conditions of her employment.             The

Department allowed these claims.
No. 69269-1-1/2




       In 2010, Dr. George Thomas and Dr. Kaj Johansen evaluated Olsen for

thoracic outlet syndrome.    Both Thomas and Johansen diagnosed Olsen with

nonspecific neurogenic thoracic outlet syndrome and opined that it was more

probable than not an occupational^ related condition. Dr. Daniel Neuzil and Dr.

Robert Price also examined Olsen.       Both Neuzil and Price concluded that Olsen


did not suffer from neurogenic thoracic outlet syndrome. The Department issued

an order denying Olsen's claim for neurogenic and/or vascular thoracic outlet

syndrome, concluding that it was "unrelated to the industrial injury for which this

claim was filed."   Olsen appealed the Department's order to the Board of

Industrial Insurance Appeals (Board).

       During her case in chief, Olsen called Thomas and Johansen as expert

witnesses. She asked Thomas if he was "familiar with the 2010 Department of

Labor and Industries guidelines for the diagnosis and treatment of neurogenic

thoracic outlet syndrome that were developed by the Washington State Industrial

Insurance Medical Advisory Committee."          Olsen also asked Thomas if the

guidelines "recognize nonspecific neurogenic thoracic outlet syndrome," if they

"make any errors," if Thomas had an "overall opinion regarding the guidelines," if

the guidelines represent the standard for diagnosing and treating neurogenic

thoracic outlet syndrome nationally or in Washington, and if they provide any

guidance for diagnosing and treating neurogenic thoracic outlet syndrome.

Olsen asked Johansen about his opinion of the guidelines, if Johansen relied on

them in his medical practice to diagnose and treat thoracic outlet syndrome, and
No. 69269-1-1/3




if the guidelines would apply where a patient has been diagnosed with

nonspecific thoracic outlet syndrome.

         The Department called as expert witnesses Neuzil, Price, and Department

Medical Director Dr. Gary Franklin. Franklin testified about the development and

use of the guidelines. He also discussed how the 2010 guidelines compared to

the previous version of the guidelines. Olsen objected to and moved to strike

portions of Franklin's testimony based upon relevance, prejudice, hearsay, and

lack of foundation.    After the Department completed its direct examination of

Franklin, Olsen moved to strike his entire testimony based upon relevance and

prejudice. The Board overruled Olsen's objections and denied her motions to

strike. The Board affirmed the Department. Olsen next appealed to the superior

court.


         Before jury selection, Olsen renewed her objection to Franklin's testimony

based upon relevance, arguing that the guidelines "were not effective until

October 2010 when the issue in this case is whether or not this lady, Sandra

Olsen, developed a condition in October 2007. So almost the entirety of his

conversation is focusing on these guidelines which came out three years later."

The court ruled, "I'm not going to permit him to testify about standards that came

into existence at a later time, or about how those standards were developed. I

don't see that that's relevant to this particular case."

         After opening statements, the trial court reiterated that Franklin could not

testify about the 2010 guidelines. The Department asked the court to reconsider
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this ruling on the basis that Olsen "opened the door to a discussion of the

guidelines" because she specifically asked both Johansen and Thomas about the

guidelines.    The Department argued, "For the Department not [to] be able to

respond to the discussion of the guidelines with subsequent witnesses, I think is

incredibly unfair and prejudicial, in fact, to the Department."     The trial court

explained that at the time of her ruling, she was unaware that Olsen called her

witnesses to testify before the Department called Franklin:

       [Y]ou did open the door then. Urn, if you had called them in reply,
       uh, subject to your objection to strike Dr. Franklin's testimony, that
       might be a different issue.

               I—I really don't think that I have a choice but to permit the—
       the State from—from providing a response. Otherwise, what we're
       doing is we're dissecting what the Board considered and then
       asking the jury to—to match up their decision with something that's
       different from what they heard. So, urn, I—I am gonna reverse my
       ruling on that and let it all in.

       A jury found that the Board was "correct in deciding that Sandra Olsen

does not suffer from      neurogenic thoracic outlet syndrome naturally and

proximately caused by the distinctive conditions of her employment at San Mar

Corporation." The trial court affirmed the Board's decision.

       Olsen appeals.

                                     Analysis

       A trial court reviews de novo the Board's decision based upon the Board

record.1      The trial court may resolve independently questions about the


       1 Sepich v. Dep't of Labor & Indus., 75 Wn.2d 312, 316, 450 P.2d 940
(1969) (citing Mercer v. Dep't of Labor & Indus., 74 Wn.2d 96, 99, 442 P.2d 1000
(1968); Shufeldt v. Dep't of Labor & Indus., 57 Wn.2d 758, 760, 359 P.2d 495

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admissibility of evidence.2   We will not overturn a trial court's ruling on an

evidentiary matter absent a manifest abuse of discretion.3 A trial court abuses its

discretion if its decision is manifestly unreasonable or is based on untenable

grounds.4

       Olsen challenges the relevancy of Franklin's testimony.5          Relevant

evidence has "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."6

      A party may open the door to otherwise inadmissible testimony.7 "'It would

be a curious rule of evidence which allowed one party to bring up a subject, drop

it at a point where it might appear advantageous to him, and then bar the other




(1961); Floyd v. Dep't of Labor & Indus., 44 Wn.2d 560, 578, 269 P.2d 563
(1954)).
       2 Sepich, 75 Wn.2d at 316 (citing Mercer, 74 Wn.2d at 99).
       3 City of Bellevue v. Raum, 171 Wn. App. 124, 149, 286 P.3d 695 (2012)
(quoting Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662-63, 935 P.2d 555
(1997)), review denied, 176 Wn.2d 1024 (2013).
       4 State v. Emery, 161 Wn. App. 172, 190, 253 P.3d 413 (2011) (quoting
State v. Allen. 159Wn.2d 1, 10, 147 P.3d 581 (2006)), affd, 174 Wn.2d 741, 278
P.3d 653 (2012).
       5 Olsen did not renew her objections in the trial court based upon
prejudice, hearsay, or lack of foundation. Therefore, she may not raise these
objections on appeal. See Sepich, 75 Wn.2d at 319 ("The statement of facts
reveals that the objections made at the Board level were not renewed at trial. It
is well settled that objections to evidence cannot be raised for the first time on
appeal." (citing Omeitt v. Dep't of Labor & Indus., 21 Wn.2d 684, 152 P.2d 973
(1944))).
       6ER401.
      7 Ang v. Martin, 118 Wn. App. 553, 561-62, 76 P.3d 787 (2003) (citing
State v. Avendano-Lopez, 79 Wn. App. 706, 714, 904 P.2d 324 (1995)), affd,
154 Wn.2d 477, 114 P.3d 637 (2005).
No. 69269-1-1/6




party from all further inquiries about it.'"8      "The trial court has considerable

discretion in administering this open-door rule."9

       Even if Franklin's testimony about the guidelines was not relevant, Olsen

opened the door to this testimony. Before Franklin testified, Olsen questioned

both of her expert witnesses during her case in chief about the guidelines.

During his testimony, Franklin rebutted specific assertions from these witnesses.

       When Olsen sought to exclude Franklin's testimony, she did not inform the

trial court that her expert witnesses testified about the guidelines before the

Department called Franklin to testify. After learning this information, the court

appropriately determined that Olsen opened the door to Franklin's challenged

testimony and acted well within its discretion by reversing its earlier ruling.

Excluding Franklin's testimony after receiving part of the evidence about the

guidelines from prior witnesses "'not only leaves the matter suspended in air at a

point markedly advantageous to the party who opened the door, but might well

limit the proof to half-truths.'"10   Therefore, the trial court did not abuse its

discretion when it permitted Franklin's entire testimony.

                                      Conclusion


       Because Olsen opened the door to rebuttal testimony about the

Department's 2010 guidelines, Work-Related Neurogenic Thoracic Outlet


       8Ang, 118 Wn. App. at 562 (quoting State v. Gefeller, 76 Wn.2d 449, 455,
458P.2d 17(1969)).
       9 Ang, 118 Wn. App. at 562 (citing 5 Karl B. Tegland, Washington
Practice: Evidence Law and Practice § 103.14 (4th ed. 1999)).
       10 Ang, 118 Wn. App. at 562 (quoting Gefeller, 76 Wn.2d at 455).
No. 69269-1-1/7




Syndrome: Diagnosis and Treatment, the trial court did not abuse its discretion

when it permitted Franklin's testimony. We affirm.



                                                     f/^dUL^ry
WE CONCUR:




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