IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

CLARK COUNTY, Respondent,

PATRICK J. McMANUS, Appellant. No. 72437-1-1 DIVISION ONE

PUBLISHED OPINION FILED: May 11. 2015 2C Spearman, C.J.

— Patrick McManus appeals the trial court'sjudgmei !=o
m



### and orderreversing anaward ofbenefits undertheIndustrial InsuranceAcLJ^y ^s 

## the DepartmentofLaborand Industries (Department). Heclaimsthetrial court **" improperly admitted hearsay evidence through the testimony of his treating 

### physician. He also contends that the jury was improperly instructed. We agree with McManus, reverse thejudgment, and remand for a new trial. FACTS 

### Patrick McManus is a former Clark County employee. Between 1999 and 

### 2011, he worked full-time for the County operating a street sweeper. He stopped 

### working in April 2011 because ofdebilitating, degenerative spinal disease, which he attributes to his work as a street sweeper operator. Shortly after leaving work,No. 72437-1-1/2 McManus filed a claim for workers' compensation under Title 51 RCW, the Industrial Insurance Act (Act). In reviewing the claim, the Department considered deposition testimony from several witnesses. McManus testified that he began experiencing pain that radiated across his low back and down his left leg in early 2010. He attributed this pain to the cramped confines and bumpy rides ofthe street sweepers he operated for the County. In particular, he claimed that, while the first two street sweepers he operated had adjustable air ride seats and relatively ergonomic cab-designs, the third and final machine he operated, which he was assigned in either 2008 or 2009, had an uncomfortable cab layout and a negative air ride 

### seatthat, according to McManus, felt like a block ofconcrete whenever he hit a bump. 

### McManus also testified regarding a preexisting back condition and other 

### possible causes for his pain. He testified that his weight had hovered around the 330 pound mark for the past 30 years and that he had used tobacco products 

### regularly until 2011. He acknowledged sustaining a low back injury at age 19, which resulted inflare-ups of pain in his low back and legs. McManus also 

### conceded having been on prescription medication for pain in his lower back, buttocks, and left leg since 2001, approximately nine years before the onset of the symptoms he alleged were work-related. 

### The sole medical expertto testify on behalfofMcManus was Dr. Paul Won, who is board certified in preventative and family medicine. In his 

### deposition, Dr. Won testified that he began treating McManus inJanuary 2005No. 72437-1-1/3 following a low back injury unrelated to the condition alleged in his workers' compensation claim. After this initial treatment, McManus had continued to work his regularjob as a street sweeper operator. According to Dr. Won, McManus had a gradual increase in low back pain during this time. On June 25, 2010, Dr. Won obtained a magnetic resonance imaging (MRI) scan of McManus' back. The

scan showed various spinal changes as compared to a prior study, including a central disc protrusion at the L2-3 vertebra. Based on this scan, Dr. Won diagnosed McManus with displacement of a lumbar intervertebral disc at L2-3. Dr. Won next treated McManus on April 11, 2011, at which time McManus complained about low back pain due to a poor quality seat cushion in his street
sweeper. On direct examination, Dr. Won acknowledged a November 14, 2011 letterto McManus' claims representative, inwhich Dr. Won had opined that the

cause of McManus' lower back condition was his work as a street sweeper operator. Dr. Won testified that his opinion had not changed since writing the November 14 letter. He opined, that "driving trucks withjarring and bouncing has 

### made a major material contribution to [McManus'] lumbar condition." CABR (Won) at 30-31. According to Dr. Won, this opinion was based on his understanding ofMcManus' medical history and the physical forces McManus' spine endured during his street sweeping work. On cross examination, Dr. Won testified over McManus' hearsay objection that he was aware a consulting neurosurgeon, Dr. Wrobel, had opined that itwas unknowable whether or not the disc protrusion at L2-3 was related to McManus'No. 72437-1-1/4 employment. Dr. Won also stated he was aware of Dr. Wrobel's opinion that "no

one could relate the protrusion at 23 [sic] and the stenosis to the work activities 

### with Clark County." CABR1 (Won) at 39. While Dr. Won conceded that a neurosurgeon would likely have greater expertise than him in determining the etiology ofdegenerative disc disease such as McManus', he ultimately did not agree with Dr. Wrobel's opinion and testified that his own initial opinion that McManus' low back condition arose from the conditions of his work as a street sweeperwas still valid based on his knowledge of McManus' medical history. The County offered the deposition testimony of two experts, Dr. Thomas Dietrich and Dr. James Harris. Dr. Wrobel did not testify. Dr. Dietrich, a board certified neurosurgeon, stated that he had rendered an opinion based on a July 14, 2011 examination of McManus. Dr. Dietrich concluded that McManus' low back condition did not arise naturally and proximately from the distinctive 

### conditions of his employment, however he acknowledged that the repetitive bouncing up and down McManus endured over a period ofyears as a street 

### sweeper operator likely played a role inthe rate ofdegenerative change in his
condition. Dr. Harris, a board certified orthopedic surgeon, testified that he conducted a review of McManus' records at the request of Clark County. Dr. 

### Harris compared a December 14, 2005 computed tomography (CT) scan of McManus' lumbar spine withthe June 25, 2010 MRI ordered by Dr. Won and

1 "CABR"refers to the Certified Appeal Board Record. Deposition transcripts within the CABRare cited by parenthetical reference to the deponent's last name.No. 72437-1-1/5 concluded thatthe 2010 imaging showed a new central disc protrusion at the L2- 3 level. Dr. Harris' initialreport indicated that McManus' employment could be a 

### possible cause of the abnormalities visible in the imaging scans. However, Dr. Harris testified that his initial conclusion was speculative, rendered with 

### insufficient information on his part. He testified that, after additional research, his ultimate conclusion was that McManus' low back condition was not the result of


### an industrial injury. Dr. Harris attributed the injury to the normal aging process. He noted that, byage 50, about half the population wouldexperience similar 

### degenerative changes. He also recognized the role of obesity and heredity in such degenerative changes. While acknowledging that the conditions of McManus' work may have contributed to symptoms of this underlying condition, Dr. Harris maintained that McManus' work did not cause the condition. 

### Atthe close ofevidence, an industrial appealsjudge determined that 

### McManus' injury was work-related, awardedhim compensation under theAct, and issued a proposed decision and order,which included the following findings
offact: 

### 1. OnApril 10,2012, an industrial appeals judgecertified that the parties agreed toinclude the Jurisdictional History, as amended, in the Board record solely forjurisdictional purposes. 2. Patrick J. McManus worked as a street sweeper operatorfor Clark 

### County from 1998 or 1999 to April of2011. As a street sweeper 

### operator,Mr. McManus worked 40 hours per week, and sometimes worked overtime. Whileoperating the street sweeper, Mr. McManus 

### repetitively hitholes and dips along the curbline, which can be the roughest part of the road. Bumpy conditionsjarred his back, causing pain. In 2008 or 2009, Clark Countypurchased a new 

### street sweeper. Mr. McManus experienced morebumping and 

### jarring while operating thenew streetsweeper. In April of2011, Mr.No. 72437-1-1/6 McManus ceased working as a street sweeper operator due to pain in his low back. 

### 3. As early as 1976, prior to his employmentwith Clark County, Mr. McManus was seen and treated for intermittent, chronic low back 

### pain and degenerative disc changes. An MRI dated February 24, 2006 showed moderately severe degenerative changes inthe entire lumbar spine. An MRI dated June 25, 2010, showed 

### moderately severe degenerative changes inthe entire lumbar 

### spine, and also a new central disc protrusion at the L2-3 level. 

### 4. Repetitive jarring and bumping constitute distinctive conditions of employment. 

### 5. Mr. McManus sustained an aggravation of his pre-existing cervical 

### degenerative disc changes arising naturally and proximately out of the distinctive conditions of his employmentwith Clark County. CABR at 70-71. 

### The County petitioned for review by the Board of Industrial Appeals 

### (Board). OnMcManus' motion, the Board excluded Dr. Won'stestimony regarding hisknowledge ofDr. Wrobel's opinions. The Board affirmed the industrial appealsjudge's decision and adopted its proposed decision and order. The Countypetitioned forreview in the Clark County SuperiorCourt. At 

### trial, thejurywas instructed that the sole question beforeitwas whether "the Board ofIndustrial Insurance Appeals [was] correct in deciding that Patrick McManus' low back condition,diagnosed as aggravation ofdegenerative disc 

### changes and a newcentral discprotrusion at L2-3 level[,] arose naturally and proximatelyfrom thedistinctive conditions of hisemploymentwith Clark County operating a street sweeper?" Clerk's Papers at 98. Thejuryconcluded that the Board was incorrect in concluding that McManus' back conditionarose from his

6No. 72437-1-1/7 employment operating the street sweeper. The trial court entered an order reversing the Board's decision. McManus appeals. DISCUSSION Evidentiary Rulings Before trial, the County requested that the trial court reverse the Board's ruling excluding that part of Dr. Won's testimony relating to Dr. Wrobel's opinion. The County argued that this testimony was admissible under ER 703 because, although hearsay, Dr. Won relied on Dr. Wrobel's opinion informing his own conclusions as to the cause of McManus' condition. The trial court agreed with the County, reversed the ruling ofthe Board and overruled McManus' objection. McManus argues that the trial court's ruling was error. We agree. A superior court on review of a Board's decision has discretion to review the Board's evidentiary rulings. We review for abuse ofdiscretion. Gorre v. City ofTacoma, 180 Wn. App. 729, 769-70, 324 P.3d 716 (2014), petition for review granted, No. 90620-3, (Jan. 8, 2015). A trial court abuses its discretion if its 

### decision is manifestly unreasonable or its discretion is exercised on untenable grounds or for untenable reasons. Boeing Co. v. Harker-Lott, 93 Wn. App. 181, 186, 968P.2d 14(1998). 

### Generally, the out ofcourt statements of a non-testifying declarant are inadmissible to prove the truth ofthe matter asserted. ER 802. The County contends that Dr. Wrobel's statements are admissible for impeachment purposes under ER 613 or as a statement of a party-opponent under ER 801 (d)(2). Both 

### arguments lack merit. Dr. Wrobel's opinion was not a priorstatement by Dr. Won,No. 72437-1-1/8 and thus, could not be used for impeachment of Dr.Won under ER 613. And because Dr. Wrobel was not a party to the case, one authorized by a party to 

### make a statement, or an agent or employee of a party, the ER 801(d)(2) exemption for admissions ofparty-opponents does not apply. 

### The County also contends that Dr. Wrobel's statements were admissible,


### even ifhearsay, underthe statementfor medical diagnosis ortreatment (ER 

### 803(a)(4)) or learned treatise (ER 803(a)(18)) hearsay exceptions. Neither exception applies. 

### ER 803(a)(4) provides a hearsay exception for: Statements made for purposes ofmedical diagnosis or treatment 

### and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character ofthe cause or external source thereofinsofar as reasonably pertinent to diagnosis or treatment. 

### Here, the trial court admitted the following line of questioning over McManus' hearsay objection: 

### Q. Are you aware that Dr. Wrobel himself testified in a discovery 

### depositionin thiscase that it isunknowable as to whether or not the protrusion at L2-3 was, in fact, related to his employment? Q. Are you aware of that, Doctor? A. Yes. Q. You are aware ofthat? A. Yes. 

### Q. And how is itthat you became aware ofthat? A. I read the IME. Q. And his answer was that no one could relate the protrusion at 23 

### [sic] and the stenosis to the work activities with Clark County; correct? A. Yes, that is correct.

8No. 72437-1-1/9 CABR (Won) at 38-39. Because it is evidentfrom counsel's first question that Dr. Wrobel's statements were made in a discovery deposition and not inthe course of medical diagnosis or treatment, ER 803(a)(4) does not apply. ER 803(a)(18) is likewise inapplicable. The rule establishes a hearsay 

### exception for "statements contained inpublished treatises, periodicals, or 

### pamphlets on a subject of history, medicine, orother science or art, established
as a reliable authority bythe testimony or admission ofthe witness or by other experttestimony or by judicial notice." Because Dr. Wrobel's statements plainly
were not contained in a published work, they were not admissible pursuantto this exception. 

### Next, the County argues that, even ifhearsay, Dr. Wrobel's statements

were admissible under ER 703 as the basis for Dr. Won's expert opinion and, 

### pursuant to ER 705, were subject to disclosure on cross examination. Butthe argumentfails because the County misconstrues Dr. Won's testimony. Itis well-established that, under ER 703, an expert opinion based on the 

### opinion of a non-testifying expert is admissible, so long as the testifying expert reasonably relied on the opinion. On cross examination, the testifying expert may be compelled to reveal the underlying sources of his or her opinion, including otherwise inadmissible hearsay evidence. ER 705; see also, Deep Water Brewing, LLC v. Fairway Resources Ltd., 152 Wn. App. 229, 275, 215 P.3d 990 

### (2009) ("[ER 703] permits experts to base their opinions on facts or data that 

### might nototherwise be admissibleinto evidence...[and] thetrial court mayallow the admission ofhearsay evidence and otherwise inadmissible facts for theNo. 72437-1-1/10 limited purpose of showing the basis ofthe expert's opinion."); Bryan v. John Bean Division of FMC Corp., 566 F.2d 541, 545 (5th Cir.1978) (construing Fed. R. Evid. 703 and 705); 5B Karl B. Tegland, Wash. Prac: Evidence Lawand Practice § 703.6 (5th ed. 2007). But neither rule applies inthis case. Dr. Won offered an expert opinion on the cause of McManus' low back condition, which he testified was based solely on his understanding of McManus' medical history and the physical realities ofMcManus' work as a street sweeper 

### operator. On cross examination, the County elicited testimony regarding Dr. Wrobel's conflicting opinion as to causation. But, there is no evidence that Dr. Won relied on Dr. Wrobel's statements in forming his own opinion as to causation

as contemplated by ER 703 and 705. Thus, Dr. Won's hearsay statements were 

### not subjectto admission under either rule. Because Dr. Wrobel's statements are hearsay not within any exception, the trial court's decision to admit the statements was an abuse ofdiscretion. Jury Instructions McManus also contends that thejury instructions in this case were insufficient for several reasons. The standard ofreview for jury instructions is whether the instructions are correct as a matter of law. State v. Edwards, 92 Wn. 

### App. 156, 164, 961 P.2d 969 (1998). Instructions are sufficient ifthey permit a partyto argue his or her theory of the case, are notmisleading, and, when read
as a whole, properlyinform the jury of the applicable law. Boeing, 93 Wn. App. at 186. We review the trial court's decision not to give a particularjury instruction for abuse of discretion. Id.

10No. 72437-1-1/11 McManus first contends the trial court erred in refusing to give an 

### introductory instruction to thejury, advising itthatthe Board's decision affirmed the industrial appealsjudge's earlier, favorable decision. We disagree. In superior court review of a Board decision, the function of a jury is to determine whetherthe Board is correct in rendering that decision. Stratton v. Dep't of Labor &Indus., 1 Wn. App. 77, 80, 459 P.2d 651 (1969). Prior to 

### deliberations, the trial court is charged with instructing thejury ofthe exact 

### findings of the board on each material issue before the court. RCW51.52.115. In this case, the trial court's Instruction 4 reproduced verbatim each ofthe Board's 

### findings of fact on the nature and cause ofMcManus' injury.2 McManus contends that the prior history ofthe case, i.e., that the Board reached its decision in affirmance ofthe industrial appealsjudge's decision, was 

### also a "material issue" withinthe meaning of RCW 51.52.115. We rejected a 

### similarargument inStratton. In that case, we considered whether an 

### administrative lawjudge's preliminary determination in a proposed decision and order, whichwas subsequently rejected by the Board, constituted a finding of the Board on a material issue. 1 Wn. App. at 77. We concluded that it did not. We 

### expressly held that the preliminary determination by the administrative lawjudge was immaterial to the only question to be decided by the trier of fact: whetherthe Board's ultimate determination was correct. ]g\ at 80. We also recognized the 

### improper tacticaladvantage to be gained by a party advising the trier of fact of

2Theonly otherfinding of fact entered by the Board acknowledges the Board's jurisdictional basis, not a material issue before the trial court.

11No. 72437-1-1/12 prior favorable determinations made by individuals or entities otherthan the Board in rendering its ultimate findings. We noted that "[t]he practice only serves to confuse thejury and divert its attention from the duty to determine whether, on material issues presented to them, the evidence preponderates infavor of or against the Board's findings and decision." Id. at 81. Notwithstanding our holding in Stratton, McManus appears to argue, 

### without citation to authority, thatjurors must have an understanding ofthe exact 

### procedural history that broughtthe case before them. See. Brief of Appellant at 15-16. But neither the industrial appealsjudge's decision nor the fact that the Board affirmed that decision was material to the only issue to be determined by 

### the jury in this case. Accordingly, the trial court had no statutory obligation to instruct the jury on the procedural history of the case and its refusal to give McManus' proposed introductory instruction was not error. 

### Next, McManus assigns errorto the trialcourt's refusal to give his 

### proposed juryinstruction 10, which reproduced 6AKarl B. Tegland, Wash. PatternJury Instr.. Civ. WPI155,13.01 (6th ed) 155.13.01 in relevant part as follows: 

### You should give special consideration to testimony given by an 

### attending physician. Such special consideration does not require 

### you to givegreaterweight orcredibility to, or to believe or disbelieve, such testimony. Itdoes require that you give any such testimony careful thought inyour deliberations. The trial court concluded thatthe instruction was unnecessary. Although, we may 

### have concluded otherwise, we cannot say on this record that the trial court's

12No. 72437-1-1/13 refusal to give the proposed instruction was an abuse ofdiscretion.3 The trial court's general instructions informed thejury that itcould consider: the opportunity ofthe witness to observe or know the things they testify about; the ability ofthe witness to observe accurately; the quality of a witness' s memory while testifying; the manner ofthe witness while testifying; any personal interestthat the witness might have in the outcome or the issues; any bias or prejudice that the witness may have shown; the reasonableness of the witness's statements in the context of all ofthe other evidence; and any otherfactors that affect your evaluation or beliefof a witness or your evaluation of his or her testimony. CP at 82. Based on this instruction, McManus was able to argue that Dr. Won, as his treating physician, was better qualified to render an opinion on the etiology of his injurythan the Department's witnesses. And thejury was informed that it could accept this theory. Thus, underthe circumstances, the trial court's general instruction was sufficient. See. Boeing. 93 Wn. App. at 186. 

### Finally, McManus assigns errorto the trialcourt'sjury instruction No. 4, which included a verbatim recitation ofthe Board's findings of fact. In particular, the instruction included the Board's finding offact no. 5, which provides: Mr. McManus sustained an aggravation of his pre-existing cervical 

### degenerative disc changes arising naturally and proximately out of the distinctive conditions of his employmentwith Clark County. 

### CABR at 70; CP at 81 (emphasis added). McManus argues that the Board's reference to disease ofthe cervical spine, i.e., the neck and upper back, was a 

### scrivener's error, given that his claimed injuryaffected only his lumbar spine, i.e., the lower back. He further contends that the trial court's refusal to revise the

3Generally, trial courts would be well advised to give careful consideration to whether the proposed instruction should be givenin a particularcase. See, Hamilton v. Department of Labor & Indus.. 111 Wn.2d 569, 761 P.2d 618 (1988).

13No. 72437-1-1/14 Board's finding so that itreflected only injury to his lumbar spine was error. We
agree. Citing RCW 51.52.104 and Homemakers Upjohn v. Russell. 33 Wn. App. 777, 780-81, 658 P.2d 27 (1983), the Department contends that McManus has waived this error because he did not appeal the Board's finding. In Homemakers,


### we interpreted RCW 51.52.104 to mean that a party aggrieved by a hearing examiner's proposed decision and order and who failed to file a petition for review waived its objections to the record. ]d. at 780. But we also noted "that a 

### nonaggrieved party waived absolutely nothing by notfiling a petition." Id. at 782. Because McManus prevailed inthe proceedings before the Board, we conclude 

### that he was not an aggrieved party and therefore was not precluded from raising the error before the superior court. Moreover, it is undisputed that the finding at issue was in error. The County conceded as much in its petition for review of the Board's decision. See CABR at 48, n.1 ("the administrative lawjudge incorrectly 

### stated infinding of fact number 5 that Mr. McManus had aggravated his CERVICAL degenerative disc changes.") We are satisfied thatthe error was properly preserved for our review. We next considerwhether the trial court erred in refusing to revise the Board's finding. We conclude that it did. 

### RCW51.52.115 requires that, on review of a Board's decision by the 

### superior court, ifa case is submitted to ajury "the court shall byinstruction 

### advise thejury ofthe exactfindings oftheboard on each material issue. . . ." The 

### findings anddecision ofthe Board are presumed to becorrectand theburden of

14No. 72437-1-1/15 proofis on the party challenging them. RCW 51.52.115; Gorre. 180 Wn. App. at 754. A trial court may substitute its own findings for those ofthe Board only if it finds from a fair preponderance ofcredible evidence that the Board's findings and decision are incorrect. Id. at 754-55. Stratton v. Dep't of Labor & Indus., 7 Wn. App. 652, 501 P.2d 1072 (1972). (Stratton II) is instructive on whether the trial court erred in failing to do so in this case. In Stratton II, we affirmed a trial court's revision of a Board finding that contained obvious errorthat was prejudicial to the challenging party. 7 Wn. App. at 654-56. Inthat case, we considered the following jury instruction, which reproduced a Board finding on Stratton's condition: 3. On or about April 29, 1964, the claimant suffered from a 

### psychiatric disorderwhich was causally related to his industrial injuryand was diagnosed as anxiety neurosis with conversion symptoms. 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. 

### ]d. at 654. Stratton contended that the emphasized sentence was not a medical finding based upon evidence, but rather an argumentative assertion that he was unmotivated and eagerto realize a monetary gain from his injury. We agreed and concluded that the emphasized sentence was "not based upon any medical or other evidence inthe record" and merely expressed the "opinion ofthe board that Stratton won't look for work and has a strong desire to make money from his 

### injury." Id. at 654. Because the Board's error was obvious and resulted in prejudice to Stratton, we reversed thejudgment and remanded for a new trial. Id.

at 656.

15No. 72437-1-1/16 Similarly in this case, the Board's finding that McManus "sustained an aggravation of his pre-existing cervical degenerative disc" is unsupported by any evidence in the record. Both McManus and the County offered medical testimony related to the degenerative condition in McManus' lumbar spinal region. The only mention of his cervical spinal region came from Dr. Won, who testified brieflythat McManus suffered from "arno chiari4... a malformation ofthe base ofthe skull 

### thattends to press on the nerve." CABR (Won) at 22. Based on this record, we conclude thatthe Board's finding of fact 5 contained an obvious scrivener's error. Moreover, the trial court's refusal to revise the finding was not harmless. 

### The jurywas instructed to answer only one question: Was the Board of Industrial Insurance Appeals correct in deciding that Patrick McManus' low back condition, diagnosed as 

### aggravation ofdegenerative disc changes and a new central disc protrusion at the L2-3 level, arose naturally and proximatelyfrom the distinctive conditions of his employmentwith Clark County 

### operating a street sweeper? 

### CP at 60. Thus, the issue before the jurywas whetherthe Board's determination that a causal linkexisted between McManus' claimed industrial injury and the 

### conditions of his work forthe County. Because the Board's finding of fact no. 5 as 

### represented to the jury referenced the wronginjury, it effectively precluded McManus from establishing this link. Thus, the trial court's refusal to correct the Board's scrivener's error materially affected the outcome of trial.

4Thisappears to be a reference to an Amold-Chiari malformation, which, according to the National Institute ofNeurological Disordersand Stroke, is a congenitalstructural defectin which the cerebellum and parts of the brain stem sitin an indentedspace at the lowerrear of the skull, where itattaches to the spinalcolumn. See http://www.ninds.nih.gov/disorders/chiari/detail_chiari.htm.

16No. 72437-1-1/17

Reversed and remanded for a new trial.

WE CONCUR: 

## Q-(Wo^n \^ KJ 

# J.

17Clark County v. Patrick J. McManus, No. 72437-1-1
Dwyer, J. (concurring and dissenting). Iconcurwith the majority's resolution ofthe issues presented herein—save one. Ibelieve that the trial court 

### erred by refusing to instructthejury that special consideration should be given to the opinion of a treating physician. This decision both contravened our Supreme 

### Court's precedentandcreated adisparity between thelaw appliedbytheBoard of Industrial Insurance Appeals (BIIA) and the law applied by the superior court 

### fact finder. Additionally, such decisions may ultimately lead to additional financial burdens on the funds from which claimants are compensated. Accordingly, from that limited section ofthe majority opinion, Idissent.
I 

### Because our Supreme Court has made clearthat, in a workers' 

### compensation case, the state of the law is that the opinion of a treating physician is entitled to special consideration by the trier of fact, the trial court erred by refusing to so instructthejury. 

### "Instructions are sufficient ifthey permit a party to argue his or her theory 

### of the case, are not misleading, and,when read as a whole, properly inform the 

### jury on the applicable law." Sintra. Inc. v. City of Seattle. 131 Wn.2d 640, 662, 935 P.2d 555 (1997) (emphasis added). Iagree withthe majority that the 

### instructions given permittedMcManus to argue his theory "thatDr. Won, as his 

### treatingphysician, was betterqualified to render an opinion on the etiology of hisNo. 72437-1-1/2 

### injury than the Department's witnesses." Slip Op. at 13. However, thejurywas not informed ofthe "long-standing rule of law inworkers' compensation cases 

### that special consideration should be given to the opinion of a claimant's attending physician." Hamilton v. Dep'tof Labor &Indus.. 111 Wn.2d 569, 571, 761 P.2d 618(1988). Hamilton concerned an instruction, similarto the one herein proposed, 

### that provided: "'In cases under the Industrial Insurance Act of the State of 

### Washington, specialconsideration should begiven to the opinion ofthe plaintiff's attending physician.'" 111 Wn.2d at 570. Reviewing priorcase law, our 

### SupremeCourtconcluded that the instruction "reflect[ed] binding precedentin this state and correctlystated the law." Hamilton. 111 Wn.2d at 572; accord Chalmers v. Dep't of Labor &Indus.. 72 Wn.2d 595, 599, 434 P.2d 720 (1967) 

### ("It is settled in this statethat, in this type ofcases, special consideration should begiven to theopinion oftheattending physician."); Groffv. Dep'tofLabor & Indus.. 65 Wn.2d 35, 45, 395 P.2d 633 (1964) ("[W]e have, in several cases, 

### emphasized thefactthatspecial consideration should begiven to theopinion of the attending physician."). Because the instruction stated a clear "rule of law," the Hamilton court 

### held, "it [was] appropriate that thejurybeinformed ofthis bytheinstructions of the court." 111 Wn.2d at 572. "To refuse to do so," the court explained, "would 

### convert the rule of lawinto no morethan theopinion of theclaimant's attorney." 

### Hamilton, 111 Wn.2d at 572 (emphasis added). The difference between the law, as explained by the court, and the argument of counsel is key.No. 72437-1-1/3
As juries are instructed, instructions from the court carry a far greater legal and practical significance than do the arguments ofcounsel. Juries may choose 

### whetherto accept or reject an argument of counsel.1 Bycontrast, juries may not choose whetherto follow the law—they are required to do so.2 The majority's conclusion that the proposed instruction was not necessary relies, in part, on Boeing Co. v. Harker-Lott. 93 Wn. App. 181, 968 P.2d 14 

### (1998). InBoeing, this court held that an instruction comparable to the one at issue in Hamilton was not required because, itopined, "the Hamilton court did not hold that an instruction to thateffectwas mandatory." 93 Wn. App. at 186 

### (emphasis added). Butthis is a matter of semantics. Regardless of whether the Hamilton court's prohibition against converting the applicable rule of law"into no more than the opinion of the claimant's attorney," isdenominated a holding or something else, itbinds all lower courts: 

### [F]ew opinions address the ground that later opinions deem sufficient to reach a different result. If a court of appeals could 

### disregard a decision of the Supreme Court byidentifying, and accepting, one or another contention not expressly addressed by the Justices, the Court's decisions could be circumvented with 

### ease. Theywould bind onlyjudges too dim-witted to come upwith a novel argument. Nat'l RifleAss'n of Am. v. City of Chicago, 567 F.3d 856, 857-58 (7th Cir. 2009), 

### rev'd on othergrounds subnom. McDonald v. City of Chicago. 561 U.S. 742,130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010). 1Thus, the juryherein was instructed: "[l]t isimportantforyou to remember that the lawyers' remarks, statements, and argumentsare notevidence. You should disregard any remark, statement, or argument that is not supported by the evidence or the lawas Ihave explainedittoyou." Jury Instruction 1 (emphasis added). 

### 2Again, as thejury herein wasinstructed: "It... isyourdutyto acceptthelaw as [the court] explains] ittoyou, regardless ofwhatyou personally believe thelaw is or whatyou 

### personallythink it should be. You mustapplythelawthat[the court] give[s] you." Jury Instruction 1.No. 72437-1-1/4 Moreover, the Boeing court reasoned that the proposed instruction was unnecessary because the claimant's counsel could argue the claimant's theory of the case—thatthe opinions ofthe attending physician were entitled to special consideration—underthe instructions given. See 93 Wn. App. at 186-87. But 

### this reasoning directly contravened the Hamilton court's assertion that such a view "would convertthe rule of law into no more than the opinion ofthe 

### claimant's attorney." 111 Wn.2d at 572. Because these two contrasting views cannot be reconciled, the view of our Supreme Court must prevail. 

### "Once [our Supreme Court] has decided an issue ofstate law, that 

### interpretation is bindinguntil [it] overrule[s] it." Hamilton. 111 Wn.2d at 571. Both the majority and the trial court stray from proper adherence to applicable 

### Supreme Courtprecedent by determining that the instructions givenin this case
were sufficient because the claimant's attorney was permitted to argue a rule of 

### law to thejury, in the absence of an instruction on that law by the trialjudge.
II 

### In addition, the trial court's decision not to instructthejury regarding the 

### rule that special consideration should be given to the opinion of a treating 

### physician created a disparity between the law applied by the BIIA and that applied by thejury. 

### The Industrial Insurance Act (Title 51 RCW) appeals process is structured such that, between the decision ofthe BIIA and the superiorcourt decision, the 

### onlything intended to change is the identity of the factfinder. The jury's charge in a workers' compensation case is "todetermine whether [the presumption that 

### thefindings and decision ofthe BIIA are correct] isrebuttable by the evidence."

4No. 72437-1-1/5 

### Jury Instruction 5. This determination must be made only on the record before the BIIA. Thus, as thejury herein was instructed, "The law requires that this case 

### be tried solely on the evidence and testimony that was offered before the [BIIA]." Jury Instruction 2. 

### Barring an intervening departure from precedent, the law applied to the record must also remain the same. However, unlike the members ofthe BIIA, 

### the lay jurors must be instructed by the trialjudge on the applicable law, with 

### which the jurors are, in alllikelihood, entirelyunfamiliar. Thus, ifthe superior court's instructions do not, as herein requested, include the "long-standing" rule 

### of law that special consideration should be given to the opinion of a treating 

### physician, there is noassurance that the law applied by thetwo decision-makers 

### (theBIIA and thejury) was the same. This iscontraryto the careful design ofthe legislature. Ill 

### Finally, iftrial court decisions of this type become widespread, claimants will be incentivized to seek additional (and, at this time, unnecessary) medical 

### opinions, which may lead to increasedfinancial strain on thefunds from which claimants are compensated. 

### The rule that special consideration should be given to the opinion of a 

### treating physician works, in part, to correct a potential imbalance between the expertwitnesses whose testimony isoffered by claimants, oftenprimary care 

### physicians and othergeneralpractitioners, and the expertwitnessesoffered by self-insured employers, often specialists with noted and impressivecertifications. Withoutthe rule here at issue, claimants may be incentivized to seek additionalNo. 72437-1-1/6
medical advice or treatment as a litigation strategy, thus burdening the funds. By obtaining a second opinion—from a physician with a "fancier" curriculum vitae—a claimant may hope to strike a balance between the number and credentials of the expert witnesses offered by each side. This is a potential "real world" impact ofdecisions such as that we make today. We can avoid such unintended 

### consequences by the simple expedient of requiring that the law—as declared by

our Supreme Court—be adhered to.



## .\ J^A-*-vf*