FILED 


DEC 5, 2013 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


THEODORE ERB, Sr., ) 

) No. 30796-4-111 

Appellant, ) 

) 

v. ) 

) 

DEPARTMENT OF LABOR & ) UNPUBLISHED OPINION 

INDUSTRIES, ) 

) 

Respondent. ) 

KORSMO, C.J. - Theodore Erb suffered the latest in a series ofindustrial injuries 

when a SOO-pound lift gate fell on his toes, leading to partial amputation ofone ofthem. 

A jury determined that he was not permanently disabled. Finding no reversible error, we 

affIrm. 

FACTS 

Mr. Erb went on Social Security Disability in 2004 after suffering for decades 

from a list ofwork-related injuries. At that time, some ofhis preexisting conditions 

included bilateral carpal tunnel syndrome with releases, low back degenerative disc 

disease, hypertension, right sacroiliac joint pain, thumb fractures, foot injuries, and post­
No. 30796-4-111 


Erb v. Dep 'f ofLabor & Indus. 


traumatic stress disorder. In 2006, Mr. Erb sought to rejoin the workforce through social 

security's return to work program. 

In November of 2006, Postal Express hired Mr. Erb for a full-time light delivery 

position. Mr. Erb had trained as a commercial truck driver in the 1990s after he was no 

longer physically capable of continuing his first career as an aircraft assembly line 

worker. Mr. Erb could only do light delivery driving because of injuries sustained in a 

2002 trucking accident. Although Mr. Erb was qualified for the light delivery position, it 

was questionable whether he was physically capable ofthe full-time hours that Postal 

Express needed from him. 

Two weeks into his new position, Mr. Erb, 54, was injured when a 500-pound lift 

gate fell onto his first two left toes. Treatment required partial amputation ofMr. Erb's 

left great toe up to the first joint. Although Mr. Erb's toes healed well physically he 

continued to experience hypersensitivity in his toes and pain in the partially amputated 

toe while walking. The condition often prevented him from sleeping. 

Following a few months of recovery, Mr. Erb's treating physician, Dr. Burgdorff, 

released him from care without any work restrictions. It appears that Mr. Erb asked the 

doctor to not give him any work restrictions. Mr. Erb then returned to work part-time in 

early March 2007. Shortly after returning to work, Mr. Erb found the job to be too taxing 

and thereafter he worked as a relief driver until he was unable to renew his commercial 

driver's license due to his weight and blood pressure. Afterwards, Mr. Erb worked one 

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No.30796-4-III 


Erb v. Dep 't ofLabor & Indus. 


and a half to two hours a day, four days a week, loading trucks for a Postal Express 

subcontractor. This lasted until the subcontractor laid him off in October 2007. 

Mr. Erb was unsuccessful in finding new employment. He sought employment on 

his own and through programs offered by the Washington State Department of 

Vocational Rehabilitation. 

The Department ofLabor and Industries (DLI) closed Mr. Erb's claim in January 

of2008 with a permanent partial disability (PPD) rating offive percent ofthe left lower 

extremity due to the partial loss of his toe. Mr. Erb challenged the PPD award and sought 

temporary total disability benefits from the date he was laid offthrough the date of claim 

closure and permanent total disability (PTD) benefits from that date forward. 

A physical capacities evaluation (peE) determined that Mr. Erb could stand a 

maximum of2-3 hours per day in 30 to 45 minute increments, and could walk one hour 

per day iflimited to 10-15 minute increments. Overall he could alternate between sitting, 

standing, and walking 6-8 hours at a time in an 8 hour work day. 

Dr. Thomas Gritzka testified for Mr. Erb that the walking and standing restrictions 

were proximately caused by the pain and hypersensitivity from the injury and partial 

amputation. Dr. Gritzka also observed an abnormal gait that he believed aggravated Mr. 

Erb's preexisting back condition and was proximately caused by the partial amputation. 

Dr. George Sims performed a limited records review and orthopedic examination 

ofMr. Erb for DLI. Dr. Sims opined that Mr. Erb's numbness in his left foot up to his 

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No.30796-4-II1 

Erb v. Dep 'f ofLabor & Indus. 

ankle was unrelated to the amputation and that Mr. Erb's standing and walking 

restrictions were unrelated to the toe injury. Dr. Sims believed that Mr. Erb could return 

to his job ofinjury. 

DLI also presented testimony from Scott Whitmer, a certified vocational 

rehabilitation counselor. He thought that the PCE restrictions did not prevent Mr. Erb 

from returning to his job of injury. He also opined that Mr. Erb had the training and 

physical capacity to perform the jobs of counter clerk, room service clerk, toll collector, 

and routing clerk. Mr. Whitmer, however, did not perform a labor market analysis to 

determine whether any such positions were available locally. 

Maurilio Garza, a certified vocational rehabilitation counselor, testified for Mr. 

Erb. Mr. Garza believed that Mr. Erb could not return to his job of injury or the light 

i 

f 

duty relief driver position based on the PCE and Dr. Gritzka's medical opinion. He 

found that Mr. Erb had no transferrable job skills that qualified him for any position 

within his physical capacity restrictions. He disputed Mr. Whitmer's opinion that Mr. 

Erb had the training and physical capacity to perform any sort of clerk duties. Mr. Garza 

also performed a labor market survey showing that none of the positions for which Mr. 

Erb was allegedly qualified were available in his locality. 

Mr. Erb appealed the PPD determination to the Bureau of Industrial Insurance 

Appeals (BIIA). An industrial appeals judge (IAJ) issued a proposed decision and order 

affirming the claim closure order. Mr. Erb then sought review by the BIIA's appointed 

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No. 30796-4-111 


Erb v. Dep 't ofLabor & Indus. 


members. They denied review and adopted the IArs proposed decision and order as the 

final decision of the BIIA. 

Mr. Erb then appealed to the Benton County Superior Court; the case went to jury 

trial in February 2012. The jury was asked to decide whether the BIIA was correct in 

finding that Mr. Erb was not totally and permanently disabled. In order to decide the 

question, the court gave the jury instructions informing the jurors of the findings of fact 

entered by the BIIA. Mr. Erb challenged some of those instructions on the grounds that 

they prejudicially informed the jury of nonmaterial findings of fact. Mr. Erb also 

requested an instruction explaining the odd lot doctrine to the jury. The court denied both 

challenges and submitted the case to the jury. After the jury returned a verdict affirming 

the BIIA, Mr. Erb timely appealed to this court. 

ANALYSIS 

This appeal challenges the failure to give the odd lot instruction, alleges the court 

should not have given three noted factual instructions, and contends that the verdict was 

not supported by the evidence. We address those arguments in that order. 

Odd Lot Instruction 

Mr. Erb argues that the court erred in not giving his odd lot instruction. We 

conclude that the trial court did not abuse its discretion in denying his request. 

The instruction at issue is 6A WASHINGTON PRACTICE: WASHINGTON PATTERN 

JURY INSTRUCTIONS: CIVIL 155.07.01 (2012) (WPI): 

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No. 30796-4-111 

Erb v. Dep't ofLabor & Indus. 

If, as a result of an [industrial injury] [occupational disease], a worker is 

able to perform only odd jobs or special work not generally available, then 

the worker is totally disabled, unless the [Department] [employer] proves 

by apreponderance of the evidence that odd jobs or special work that he or 

she can perform is available to the worker on a reasonably continuous 

basis. 

Well settled standards govern our review of this issue. "Refusal to give a 

particular instruction is an abuse ofdiscretion only ifthe decision was manifestly 

unreasonable, or [the court's] discretion was exercised on untenable grounds, or for 

untenable reasons." Anfinson v. FedEx Ground Package Sys., Inc., 159 Wn. App. 35,44­

45,244 P.3d 32 (2010) (quotation omitted) ajJ'd, 174 Wn.2d 851,281 P.3d 289 (2012). 

"If a party's theory of the case can be argued under the instructions given as a whole, 

then a trial court's refusal to give a requested instruction is not reversible error." Id. at 

45. "When the record discloses an error in an instruction given on behalf of the party in 

whose favor the verdict was returned, the error is presumed to have been prejudicial, and 

to furnish ground for reversal, unless it affirmatively appears that it was harmless." Id. at 

44. 

An employee has suffered a permanent total disability when a disability or 

condition results in "permanently incapacitating the worker from performing any work at 

any gainful occupation." RCW 51.08.160. The "odd lot" doctrine has its beginnings in 

Washington in Kuhnle v. Dep'tofLabor & Indus., 12 Wn.2d 191,120 P.2d 1003 (1942). 

There it was noted that "courts have found great difficulty in defining what is meant by 

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No.30796-4-II1 


Erb v. Dep 't ofLabor & Indus. 


incapacity to perform any work at any gainful occupation." Id. at 197. Canvassing 

authorities applying similar language used in the laws of other states, our court noted: 

A great many courts have adopted the rule that, if an accident leaves the 

workman in such a condition that he can no longer follow his previous 

occupation or any other similar occupation, and is fitted only to perform 

"odd jobs" or special work, not generally available, the burden is on the 

department to show that there is special work that he can in fact obtain. 

Id. at 198-99. 1 The court then reversed a summary judgment ruling in favor ofDLI and 

remanded the case for trial where the evidence showed that the disabled worker could not 

return to his former occupation, but the parties disputed whether the supervision of his 

own farm amounted to the ability to perform other work. Id. at 193,200. 

A subsequent case interpreted the Kuhnle language to mean that "the injured 

worker need not show that he cannot perform any light or sedentary work, but must prove 

only that he is incapable of performing light or sedentary work of a general nature." 

Spring v. Dep't ofLabor & Indus., 96 Wn.2d 914,919,640 P.2d 1 (1982). The Kuhnle 

I This still appears to be the standard approach to the issue. A person's labor is 

said to become an odd lot when they "are so handicapped that they will not be employed 

regularly in any well-known branch of the labor market." 4 ARTHUR LARSON & LEX K. 

LARSON, LARSON'S WORKERS' COMPENSATION LAW § 83.02 (2012). "The essence of 

the test is the probable dependability with which claimant can sell his or her services in a 

competitive labor market." Id. The doctrine places an emphasis on irregular and 

unpredictable employment as opposed to steady and continuous employment, when 

taking into account the claimant's education, mental capacity, and the probable income 

from any future employment. Id. at §§ 83.03-83.05. 

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No. 30796-4-111 


Erb v. Dep 't ofLabor & Indus. 


observation and the interpretation from Spring appear to be the original basis for the "odd 

lot" WPI instruction. 2 

Although the doctrine has long been stated3 in fairly uniform terms, application to 

a particular case in the form of a jury instruction has been less uniform or clear. No 

Washington case mandates use of the instruction upon request. Thus, we must fall back 

to our general principles. As noted previously, the trial court's discretionary decision to 

give or to not give a requested instruction constitutes an abuse of discretion only when 

prejudice is established. In other words: did the court's refusal to give the instruction 

likely mislead the jury or prevent Mr. Erb from arguing his theory of the case? Anfinson, 

159 Wn. App. at 45. We think the answer is "no" under the facts of this case. 

The State argues that no prejudice can ever befall a claimant when a court refuses 

an odd lot instruction because the odd lot doctrine is just "an additional way for a worker 

to lose." Graham v. Weyerhaeuser Co., 71 Wn. App. 55,68,856 P.2d 717 (1993), 

overruled on other grounds by Leeper v. Dep 't ofLabor & Indus., 123 Wn.2d 803, 872 

P.2d 507. We disagree. This quotation from Graham presents an incorrect 

characterization because the odd lot doctrine creates a presumption of permanent total 

2 But see Allen v. Dep 't ofLabor & Indus., 16 Wn. App. 692, 559 P .2d 572 (1977). 

3 One nice summary of the practical effect ofthe doctrine comes from Wyoming: 

"Under the odd lot doctrine, a claimant who is not actually permanently totally disabled 

is able to receive permanent total disability benefits because the claimant's disability and 

other factors make the claimant de facto unemployable." Moss v. Workers' Safety and 

Compo Div., 232 P.3d 1,5 (Wyo. 2010). 

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No. 30796-4-III 

Erb v. Dep't ofLabor & Indus. 

disability where the defendant would not otherwise be considered disabled. It recognizes 

that a worker who is not de facto permanently and totally disabled can be considered such 

by operation ofthe law, but like any true presumption it also gives the employer the 

opportunity to rebut it with contrary evidence. Graham also ignores the fact that our 

courts, including the Washington State Supreme Court, have twice found reversible error 

from a trial court's refusal to instruct the jury on the odd lot when requested by the 

worker. Spring, 96 Wn.2d at 919-20; Wendt v. Dep't ofLabor & Indus., 18 Wn. App. 

674,680-81, 571 P.2d 229 (1977). 

Although Graham is inapposite, we still affirm because Mr. Erb has failed to carry 

his burden of proving likely prejudice. The court's instructions still allowed Mr. Erb to 

argue that he was not able to return to his job of injury and that he was not qualified 

physically or intellectually for any of the other jobs that the Department believed him 

qualified to perform. 

The only way in which Mr. Erb could have been prejudiced is if any of the 

alternative jobs presented by Mr. Whitmer were odd lot jobs. See Wendt, 18 Wn. App. at 

680-81. If any of those had been odd lot jobs then the instruction would have been 

necessary to prevent the jury from believing that Mr. Erb had the burden ofproving that 

he could not perform or obtain those jobs with a reasonable degree of success and 

continuity. However, that was not the testimony. The record reflects that the alternative 

jobs proposed by Mr. Whitmer were all full-time jobs of a general nature, not special 

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No. 30796-4-II1 


Erb v. Dep 't ofLabor & Indus. 


work. None ofthe experts presented testimony, nor did counsel argue, that Mr. Erb could 

perform only work of a special limited nature. None ofthe proposed jobs were odd lot 

jobs and, thus, there was no need to instruct the jury on that doctrine. 

Accordingly, Mr. Erb did have the burden as a matter oflaw of proving that he 

could not perform or obtain light sedentary work with a reasonable degree ofsuccess and 

continuity. An odd lot instruction is not required where none ofthe jobs at issue are 

alleged to be odd lot jobs. The trial court did not abuse its discretion by declining the 

proposed instruction. 

Factual Finding Instructions 

Mr. Erb challenges three findings offact that were submitted to the jury. While 

two of his claims have merit, the error in giving those instructions was not prejudicial. 

In appeals ofworkers' compensation cases, the trial court is required to instruct 

the jury "ofthe exact findings ofthe [BIIA] on each material issue before the court." 

RCW 51.52.l15. "Only findings of ultimate facts should be permitted, not evidentiary or 

argumentative findings." Jenkins v. Dep 't ofLabor & Indus., 85 Wn. App. 7, 11, 931 

P.2d 907 (1996). Examples of findings of ultimate facts include: 

a finding on the identity ofthe claimant and his employer, the claimant's 

status as an employee or dependent under the act, the nature ofthe accident, 

the nature ofthe injury or occupational disease, the nature and extent of 

disability, the causal relationship between the injury or the disease and the 

disability, and other ultimate facts upon the existence or nonexistence of 

which the outcome ofthe litigation depends. The dividing line between 

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No.30796-4-III 


Erb v. Dep '( ofLabor & Indus. 


evidentiary or argumentative (subordinate) and ultimate findings of fact 

cannot be readily stated. 

Gaines v. Dep 'f ofLabor & Indus., 1 Wn. App. 547, 552,463 P.2d 269 (1969). Here, 

Mr. Erb argues that he was prejudiced by instructions that informed the jury on 

nonmaterial findings entered by the BIIA. We disagree. 

Mr. Erb's first instructional challenge involves instructing the jury on the hours 

that Mr. Erb had expected to work when he started at Postal Express. We agree that this 

fact was wholly irrelevant and thus unnecessary. How much a person expects to work 

has no bearing on deciding the worker's benefits rate or whether they are physically 

capable ofperforming the job. However, the only way that it could have prejudiced Mr. 

Erb is if it somehow negatively impacted his credibility. We do not see how this fact 

impacts his credibility in any way. 

Mr. Erb next argues that the court erred by instructing the jury ofthe BIIA's 

finding that his rate ofpay was not provided. This finding is demonstrably false. See 

Certified Appeal Board Record at 31. It is also a finding that should not have been given 

because it too was wholly irrelevant to any ofthe issues before the jury. Again, an 

irrelevant finding can only have been prejudicial ifit negatively impacted Mr. Erb's case. 

Mr. Erb argues that the finding reflects negatively on him because it suggests that he 

stalled or failed to cooperate with the Department during his claim process. The finding, 

however, was written in neutral language and says nothing about any wrongdoing by any 

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No. 30796-4-111 

Erb v. Dep 't ofLabor & Indus. 

party. Accordingly, we do not see how the jury could have drawn a negative inference 

from this fact. 

Finally, Mr. Erb argues that the court should not have instructed the jury on the 

BIIA's findings with regards to certain collateral reasons why Mr. Erb did not return to 

his job of injury and why he stopped working as a reHef driver. He argues that those 

facts, although true, were immaterial. We disagree because having a comprehensive 

understanding of all the reasons why Mr. Erb did not return to his job of injury or the 

relief driver position are important to determining "the nature and extent of disability" 

under Gaines. Although the finding was not favorable to Mr. Erb, its favorability for one 

side or the other does not make it any less relevant to the proper determination ofthe 

extent of Mr. Erb's disability. Because the unfavorable finding was material to the case, 

the court did not err by informing the jury ofthis particular finding. 

The two erroneously submitted instructions did not prejudice Mr. Erb. Thus, this 

challenge is without merit. 

Sufficiency ofthe Evidence 

Mr. Erb also argues that the evidence did not support the jury's decision. Properly 

viewed, the evidence was sufficient. 

RCW 51.52.115 provides that a workers' compensation claim in superior court is 

heard de novo, the court is limited to the evidence presented to the BIIA, the findings and 

decision ofthe BIIA are prima facie correct, and the party attacking them bears the 

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No. 30796-4-111 


Erb v. Dep't ofLabor & Indus. 


burden of proof. RCW 51.52.115. When appealed to this court, the appeal "shall lie 

from the judgment of the superior court as in other civil cases." RCW 51.52.140. As 

with any other civil appeal, our review is limited to determining whether the "evidence is 

sufficient to persuade a fair-minded, rational person of the truth of the declared premise." 

Price v. Kitsap Transit, 125 Wn.2d 456, 464, 886 P.2d 556 (1994). 

Based on the evidence presented to the BIIA, this court cannot say that the jury 

lacked sufficient evidence to persuade a fair-minded person that Mr. Erb was not left 

permanently and totally disabled by his job of injury. 

The thrust of Mr. Erb's argument is that a rational person could not find the DLI 

witnesses persuasive because they did not perform as thorough examinations as Dr. 

Gritzka and Mr. Garza. While Mr. Erb's witnesses unquestionably performed more 

thorough and comprehensive analyses of Mr. Erb's qualifications and physical abilities 

than DLI's witnesses, those facts pertain to what weight and credibility to assign the 

evidence. Even though this court may be persuaded by that evidence, it is not our 

function here to substitute our judgment for that of the trier of fact. Davis v. Dep 't of 

Labor & Indus., 94 Wn.2d 119, 124,615 P.2d 1279 (1980). 

Here, the jury was given evidence from competent medical and vocational 

professionals stating that Mr. Erb could return to his job of injury. The jury apparently 

believed this evidence. Alternatively, the jury could have believed Mr. Erb to be 

permanently and totally disabled, but disagreed as to the question ofproximate causation. 

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No. 30796-4-II1 


Erb v. Dep '( ofLabor & Indus. 


The DLI witnesses supported either conclusion. Accordingly, the jury had sufficient 

evidence from which to affirm the BIIA's decision. 

F or the noted reasons, we affirm. 

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. 

Korsmo, C. J. 

WE CONCUR: 

~.' ,

t 

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