### NOTICE: SLIP OPINION (not the court’s final written decision) The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports
. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there.

### IN THE SUPREME COURT OF THE STATE OF WASHINGTON

CLARK COUNTY, Respondent,
v. PATRICK J. McMANUS, Petitioner. ) ) ) ) ) ) ) ) )

. 

# _________ ) No. 91963-1
EnBanc

Filed 

### APR 28 2016



### ----------------------- JOHNSON, J..·-Inthis workers' compensation appeal, the trial court denied the worker's proposed instruction, which would inform thejurythat it must give special consideration to the (opinion) testimony ofhis attending physician. The trial court ruled against the worker. The Court ofAppeals reversed and ordered a
new trial on an unrelated basis---holding that the trial court reversibly erred when it refused Patrick McManus's request to revise the Board ofIndustrial Insurance Appeals' (Board) erroneous finding regarding the location ofMcManus's injury. Clark County v. McManus, 188 Wn. App. 228,231,345 P.3d 868 (2015). However, the Court ofAppeals ruled that the trial court correctly rejected the instruction. We granted review on the issue ofwhether it is error to refuse to giveClark County v. McManus, No. 91963-1 the special consideration instruction. Clark County v. McManus, 184 Wn.2d 1018, 361 P.3d 747 (2015). We hold the instruction mustbe given. FACTS AND PROCEDURAL HISTORY McManus prevailed at the Court ofAppeals and is getting a new trial. MciVIanus did not prevail on his claim thatthe trial court erred in refusing to give a special consideration instruction regarding his attending physician to thejury. Because the trial court on remand wouldbe boundby the law ofthe case doctrine, the prior decision ofthe trial court to not give the special consideration instruction would be binding. See Coy v. Raabe, 77 Wn.2d 322, 325, 462 P.2d 214 (1969) (acknowledging the binding effect ofdeterminations made by the appellate court


## .. on further proceedings in the trial court.on remand). We took review to determine ifsuch an instruction is required in worker's compensation cases. Order Granting Review, Clark County v. McManus, No. 91963-1 (Wash. Dec. 2, 2015). McManusworked for the county operating a street sweeper from 1999 until 2011. He eventually quit work because ofa debilitating, degenerative spinal**diseas~** affecting his low back, which he attributed to the bumpy ride when operating a street sweeper and poor ergonomic layout in the operator's cab. McManus filed a claim for workers' compensation under Title 51 RCW.

2Clark Coum); v. McManus, No. 91963-1 The Department ofLabor & Industries (Department) allowed McManus's claim and awarded him benefits. Clark County (County) appealed the Department's order allowing the claim to the Board, whichproceeded to an evidentiary hearing before an industrial appealsjudge (IAJ). The IAJ considered offered deposition testimony from several witnesses. McManus's attending physician-Dr. Won-providedtestimony in support of**~** ;McManus's claim. 1Dr. Won opined that McManus's low back disability was employment-related. The County presented contrary opinions by two forensic medical experts, one ofwhom had reviewed McManus's medical records and one ofwhom had examined McManus on one occasion. The IAJissued a proposed decision and order upholding the decision ofthe Department. The County petitioned to the three-member Board for review ofthe proposed decision. The Board denied the County's petition and adopted the proposed decision and order. The decision and order upheld the Department's determination, concluding that McManus sustained an aggravation ofhis preexisting low back condition that arose naturally and proximately out ofthe distinctive conditions ofhis employment with the County.**---~··-~** 1Under the Industrial Insurance Act, Title 51 RCW, Dr. Won meets the definition ofan "attending provider" or "treatingphysician" as a physician who "activelytreats an injured or ill worker." WAC 296-20-01002 (providing "attending provider" includes a physician and is one who "actively treats an injured or ill worker").
3Clark County v. McManus, No. 91963-1 The County appealed the Board's decision to the superior court, and the case
was tried on the record before ajury. The superior court instructed thejury on the Board's findings, as well as the presumptive correctness ofits decision, the legal issue for determination, and the County's burden ofproving the Board's decision incorrect. See Clerk's Papers (CP) at 87-88 (Instr. 4, 5), 98 (special verdict form). The superior court also instructed thejuryregarding its role in determining the

,, :credibility ofwitnesses. See CP at 82-84, 90 (Instr. 1, 7). 2 The superior court rejected McManus's proposed instruction 10 regarding the special consideration rule, which provided as follows: "You should give special considerationto testimony given by an attending physician. Such special consideration does not require you to give greater weight or credibility to, orto believe or disbelieve, such testimony. Itdoes require that you give any such testimony careful thought in your deliberations." CP at 57 (Instr. 1 0). 3

·---·-------- 2 These instructions appear to be drawn from 6 Washington Practice: Washington Pattern Jury Instructions: Civil1.02 (6th ed. 2012) (WPI) (conclusion oftrial-introductory instruction) and 6 WPI 2.10 (expert testimony). 3 This proposed instruction is identical to the current 6A WPI 155.13.01 (testimony of attending physician): "You should give special consideration to testimony given by an attending physician. Such special consideration does not require you to give greater weight or credibility to, or to believe or di$believe, such testimony; It does require that you give any such testimony careful thought in your deliberations." 6A Washington Practice: Washington Pattern Jury Instructions: Civi/155.13.01 (6th ed. 2012). 4Clark County v. McMcmus, No. 91963-1 The only question before thejury was whether the Board was correct in determining that McManus's low back condition arose naturally and proximately from the distinctive conditions ofhis employment as a street sweeper operator. The jury determined that the Board was incorrect, and the trial court reversed. McJ\1anus appealed to the Court ofAppeals, Division One, which reversed and remanded for a new trialdue to evidentiary and instructional errors unrelated 

### t ,ito the proposed special consideration instruction. The Court ofAppeals rejected 'MeManus's cla:irrdhatthe trial court erred in refusing to give proposed instruction 10, which sets forth the special consideration instruction. Holding that it was not an abuse ofdiscretion to refuse to give the instruction, the Court ofAppeals concluded it was unnecessary in light ofthe general instructions given addressing

. 

### .. . ·;
. ,· . ·witness credibility. See .McManus, 188 Wn. App. at 241-42 (concluding that

. . . .' ·. . '. MciVIanus could argue that Dr. \Von was better qualified to render an opinion as histreatingphysician and thejury was informed that it could acceptthis theory;**th~s,** the trial court's general instruction was sufficient)
.

.· McManus**~nd** the c;:ounty petitioned this court for review. Only McManus's petition for review**wr:~s** granted. ANALYSIS Generally, the trial courthas the discretion whetherto give a particularjury instruction. Stiley v. Block,**1~0** Wn.2d 486, 498, 925 P.2d 194 (1996). However, a

. .. . . . . . . . 5Clark County v. McManus, No. 91963-1 trial court abuses its discretion ifitbased its ruling on an erroneous view ofthe law. Wash. State PhysiciansIns. Exch. &Ass 'n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993). At issue here is whether our decision inHamilton v. Department of Labor & Industries, 111 Wn.2d 569, 761 P.2d 618 (1988), establishes the requirement forjuries in workers' compensation cases to be instructed regarding the special consideration rule for testimony ofattending physicians. InHamilton, this courtrecognized a "long-standing rule oflaw in workers' compensation cases that special consideration shouldbe given to the opinion ofa claimant's attending physician."Hamilton, 111 Wn.2d at 571. Significantlyin Hamilton, this court reversed and reinstated the trial court's verdict, holding that the instruction was an accurate statement ofthe law and the long-standing rule that special considerationbe given to attending physicians. That we reversed the Court ofAppeals onthe instruction issue supports the argument that the special consideration instruction inworkers' compensation cases is mandatory. The language inHamilton also makes clearthat such an instruction is required. Hamilton involved a department challenge to ajuryverdict overturning a board decision denying disabilitybenefits. The Department asserted that a court instruction onthe special consideration rule constituted an impermissible comment
onthe evidence in violation ofthe Washington Constitution, article IV, section 16.
6Clark County v. McManus, No. 91963-1 The Court ofAppeals.heldthat the instruction was an impermissible comment on**th~** evidence. This court reversed, concluding the instruction set forth an accurate statement ofapplicable law. This court explained-inreference to the special ccmsiderationjury instruction-that

.[i]t reflects binding precedent in this state and correctly states the law. Since this is a rule oflaw, it is appropriate thatthejurybe informed of this bythe instructions ofthe court. To refU;se to do so wouldconvert the rule of law into no more than the opinion of the claimant's attorney. llamilton; 111 Wn.2d at 572 (emphasis added). "The instruction does not require thejury to give more weight or credibility to the attending physician's testimony but to give it careful thought." Harnilton, 111 Wn.2d at 572. Here, while the County contends the special consideration instruction causes confusion for thejurors, this court concluded that when the instruction is considered in conjunction with the standard instruction regarding weighing testimony and credibility ofwitnesses, it is a correct statement ofthe law in workers' compensation cases. Contrary to whatthe County asserts, the special

.. ; instruction is not redundant and unnecessary when considering the instructions as a whole. We find itneither confusing nor misleading. This court in Hamilton went
on to explain that the special consideration instruction supports the purpose ofthe act, which is to promote benefits and to protect workers. ' '
. .

7Clark County v. A1cManus, No. 91963-1 As amicus curiae Washington State Association for Justice Foundation points out, while theHamilton decision established that the instruction was an accm·ate statement ofthe law, the rule was otherwise well settled before Hamilton. See, e.g., Chalmers.;;. Dep.'t of Labor 

### &Indus., 72 Wn.2d 595, 598-602,434 P.2d 720.(1967) (reaffirming special considerationrule but concluding attending physician'stestimony was based on insuffieientfoundation resulting in a failure of proofby claimant); Groffv. Dep'tof Labor &Indus., 65 Wn.2d 35,44-46, 395 P.2d 633 (1964) (emphasizing "that special consideration should be given to the opinion ofthe attending physician," and that in order to properly review a superior court determination regarding an industrial claim, the superior court should provide
an explanation asto why the attending physician's testimony was notpreferred
over that 

### ofother medical experts); Spalding v. Dep 't of Labor & Indus., 29 Wn.2d

I \ ' ' ' I 115,. 129,**12~?** 186 P.2d 76 (1947)(recognizing "that special consideration should be given to the opini?n ofthe attending physician," but declining to establish a "'hard and fast rule," concluding the issue is for thejury). Several Court ofAppeals' cases, including this case, have called into question the special consideration instruction. See Larson v. City of Bellevue, 188 Wn. App. 857, 883.-84, 355 P.3d 331 (2015); BoeingCo. v. Harker-Loft, 93 Wn. App._l81, 186-89, 968 P.2d14 (1998); l11fcClellandv. ITTRayonier, Inc., 65 Wn. App. 38,6, 393-94 & n.l, 828 P.2d 1138 (1992). The County asserts thatthese cases 8Clark County v.. McManus, No. 91963-1 support their argument that a mandatory instruction would improperly remove the general discretion given to the trial courtto assess the appropriateness of jury instructions. Ultimately, the Comity argues, the discretion whether to allow an**inst~l.iction** to be submittedto ajury should rest with the trialjudge. While perhaps correct in other drcumstances, in workers' compensation cases we have determined the instruction is required, and agreeing with the County's argument ,would require overruling Hamilton. In turning to past Court ofAppeals' decisions, the court inMcClelland affjrmed a summaryjudgmentupholding denial ofbenefits where the attending physician's opinion lacked the requisite objective proofrequired for the particular occupational disease claim. The opinion did not implicate the special consideration rule in resolving the appeal because ofthe failure ofproof. However, in dicta, the court remarked: We are unsure whatthe Supreme Court means by "special consideration". Hamilton explained that this does not require ajuryto "give more weight or credibility to the attending physician's testiinony, butto give it careful thought." [Hamilton,] 111 Wn.2d at 572. We assume that thejurygives careful thoughtto every witness's testimony. Ifthe attending physician's testimonydoes not carry any more weight or credibility with thejury, how then does thejury give it special consideration? McClelland, 65 Wn. App. at 394 n.1. That criticism is misplaced. The instruction requires only that thejury be mindful ofthe special consideration an attending

9Clark County v. McManus, No. 91963-1 physician's testimony deserves when weighing the credibility ofall witnesses. The requirement for the special consideration instruction inHamilton is clear. In**_Harker~/.~ott,** the Court ofAppeals acknowledged that special consideration shouldbe given to an attending physician, but concluded in that case "the 1Icimilton court did nothold that an instruction to that effect was mandatory.**Rather~** the court held only that such aninstruction was not a comment onthe f;tevidence. No case has specifically held that such an instruction must be given

when the evidence. supports it." Harker-Lott, 93 Wn. App. at 186 (footnote omitted). This statement disregards our observation inHamilton thatthe instruction is an accurate statement ofthe law in workers' compensation cases and the general rule 

### that t_hejury be instructedon the law. Additionally, Harker-Lott is factually distinguishable from the present case

.**·~** .'. ' ' because the claimant there had four attending physicians who did not agree the ·.· '·. claimant was injured as a result ofan on-the-job accident. Because the testimony of**t~e** atteJ:tding physicians was in conflict, and because the general instructions given allowed the claimant to argue that the supporting testimony oftwo ofher attending physicians should be given special consideration, refusal to give the
• . . . • . . I".
. . . special consideration instruction was not an abuse ofdiscretion by the trial court. In Jiarker_-Lott, the situation was somewhatunique and thejury could not give

10Clark County v. McJVfanus, No.**91963~1** special consideration to multiple, conflicting attending physicians' testimony. Here, t.hqse circumstances do not exist.

. The analysis in Harker-Lott also overlooks a key aspect ofHamilton. While this·c.ourt may nothave usedthe term "mandatory" when discussing the special considerationinstruction, we did describe the special considerationrule as a "rule of

### law" <:Jnd stated.that refusing to give the instruction ''would convertthe rule of

,· Jaw into no more than the opinion ofthe claimant's attorney." Hamilton, 111 Wn.2d at 572. ··Hamilton thus recognizes a requirement for providing the special consideration instruction, except inthose cases where there are articulable reasons for not accepting the attending physician's or physicians' testimony. Finally,_ the County cites to Larson in support ofits argument that to give a special consideration instruction is discretionary rather than mandatory. InLarson,

. . ' . . the_trial court expressed concern over the substance oftestimony provided by the attendingphysician in comparison to the other more elaborate testimony from medical experts. The trial court decided to not provide the special consideration

. . . . . instn,1c;tion due to concerns that 

### itwouldbe misleading. The Court ofAppeals

. . . •,. ., ' ' found this action was proper and not an abuse ofdiscretion, citing the Harker-Loft decision. Larson, 188Wn. App. at 883-84. 

### It appears here that the Court ofAppeals embraced an analysis inLarson, whic_h conflicts with our decision in Hamilton. Our holding inHamilton was 11Clark County v. McManus, No. 91963-1**unambiguou~.**The rule requires thatwhere an attending physician testifies, the trial court must give the attendingphysician.instruction. Hamilton dictates that ajury conducting.de novo review ofa board decisionneeds to be instructed on this rule. To the extel)tLarson holds otherwise, we overrule it. The Countyurges us-inthe alternative to asserting that the trial court did not abuseits discretion in rejecting the special consideration instruction-to ··overturnHamilton and hold that the special consideration instruction never be

given. We reject this argument. We find Hamilton to be neither incorrectnor harmful. As the court explained inHamilton, ajury instruction regarding the special consideration rule is necessary for thejury to meaningfully review board decisions. 4 In the present case, the only attending physician who testified was Dr. Won. The general witness instruction given in this case did not accurately convey the requirement embraced in Hamilton that thejury give special consideration to the testimony ofMcManus's treating physician, nor would giving the special consideration instruction cause confusion where there is no conflicting testimony

4 The commentto 6A WPI 155.13.01 indicates that the special consideration instruction need not always be given, citing Harker-Lott. 6A WPI 155.13.01 cmt. at 167. We disavowthe WPI commentto the extent that it indicates that the special consideration instruction is not mandatory. The instruction is mandatory except inthose instances where the instruction cannot be given, such as where there are multiple attending physicians offering conflicting testimony. 12Clark County v. McManus, No. 91963-1 from multiple attending physicians. The trial court did not identify any compelling
reason why Dr. Won's opinion should not be accepted. Importantly, the Board itselfrecognizes and applies the special consideration rule. See, e.g., In re Free, No. 89 0199 (Wash. Bd. ofIndus. Ins. Appeals June 20, 1990); 

### In re Anderson, No. 87 3724 (Wash. Bd. ofIndus. Ins. Appeals May 18, 1989). The Department applies the special consideration rule in adjudicating claims. Because self-insured employers are bound to comply with department claims handling processes, they also apply the special consideration rule. Special consideration should be given to the opinion ofan attending physician unless specific reasons for not accepting the attending physician's opinion are articulated. We hold that in cases such as this where one attending physician testifies, the special consideration instruction must be given. Here, the trial court did not identify why a special consideration instruction should not be given and we find no
reason. Our decision in

### Hamilton-whichrelied on long-standing policy

13Clark County v. McManus, No. 91963-1 surrounding workers' compensation cases-controls. We reaffirm

### Hamilton. We disavow the Court ofAppeals' decision on the special consideration instruction issue and hold that the instruction is mandatory in situations present here.

WE CONCUR:

14