IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION TWO
THERESA CONRADI ,

Appellant ,

v. O’REILLY AUTOMOTIVE, INC. and STATE OF WASHINGTON DEPARTMENT OF LABOR AND INDUSTRIES , Respondents

. ) ) ) ) ) ) ) ) ) ) ) ) No. 52859

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UNPUBLISHED OPINION

S IDDOWAY , J. 1

— Theresa Conradi unsuccessfully appealed a decision of the
Board of Industrial Insurance Appeals (Board) to superior court. She succes sfully defended against a cross appeal by O’Reilly Automotive, Inc. (O’Reilly), her former employer, however, and was awarded her attorney fees and costs . She had argued that O’Reilly had no right t o appeal, having failed to file a petition for review of the Board’s decision, but the superior court allowed O’Reilly ’s evidence and argument to be presented at the jury trial.

1 The Honorable Laurel Siddoway is a Court of Appeals, Division Three, judge sitting in Division Two under CAR 21(a). Filed Washington State Court of Appeals Division Two August 18, 2020No. 52859

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2 Ms. Conradi appeals, arguing that O’Reilly’s cross appeal should have been
dis missed and that she is entitled to a new trial at which she does not have to contend
with its evidence and claims. We grant O’Reilly’s motion to dismiss the appeal as moot.

FACTS AND PROCEDURAL BACKGROUND Theresa Conradi filed a claim for an industrial injury with the Department of Labor and Industries (Department) in 2012. The claim was allowed and she was paid
ben efits on and off through 2015. Dissatisfied with the Department’s ultimate disposition, she appealed its final orders to the Board. She sought additional time loss benefits, a pension due to permanent total disability, or, if not a pension, then an increased impairment award. The Industrial Appeals Judge’s (IAJ ) proposed decision and o rder granted her the
additional time

- loss compensation benefits and increased her award for permanent partial disability (PPD) from a Category 2 to a Category 3

. It denied the request for a pension.
M s. Conradi filed a timely petition for r eview by the Board

. Her employer, O’Reilly , did not. When her petition was granted by the Board, however, O’Reilly filed a response in which it raised objections to some of the IAJ’s findings of fact and conclusions of law, arguing that Ms. Conradi’s claim “should have re mained closed without any additional time loss compensation [and]

. . . with a Category 2 PPD award.”
C lerk’s P apers at 48.No. 52859

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3 The Board affirmed the IAJ ’s findings and conclusions , adding a further explanation why Ms. Conradi was not entitled to a pension

. Ms. Conradi appealed the Board’s order to superior court. O’Reilly cross appealed. Ms. Conradi moved for an order dismiss ing O’Reilly’s cross appeal, arguing
that it had waived objections to the IAJ’ s proposed decision and o rder by failing to file it s own petition for review. The superior court denied the motion to dismiss. The appeal proceeded to a jury trial, at which Ms. Conradi renewed her motion to dismiss O’Reilly’s cross appeal. The motion was again denied. The trial judge allowed
her to h ave a standing objection to the e vidence presented by O’Reilly.
The jury re turned a verdict affirming the decision and o rder of the Board. The
trial court awarded Ms. Conradi her attorney fees and costs. Ms. Conradi appeals. O’Reilly moved to dismiss the appeal as moot.
ANALYSIS RAP 18.9(c)(2) permits this court to dismiss an appeal if the appeal i s frivolous or

moot. To decide O’Reilly’s motion, we will assume, although we do not decide, that the
trial court should have dismissed O’Reilly’s cross a pp eal

. “A case is moot when it involves only abstract propositions or questions, the substantial questions in the trial court no longer exist, or a court can no longer provide effective relief.” Spokane Research & Def. Fund v. City of Spokane , 155 Wn.2d 89 , 99, 117 P.3d 1117 (2005). A court may decide a technically moot case if it involves “mattersNo. 52859

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4 of continuing and substantial public interest.” Sorenson v. City of Bellingham , 80 Wn.2d 547, 558, 496 P.2d 512 (1972). Ms. Conradi does not argue that this i s such a case;
inst ead, she argues that her case is not moot. “Logically,” she argues, “if this court holds that the employer’s cross

- appeal should have been dismissed, and was improperly before the jury, Ms. Conradi is entitled to a new trial on the sole issue of permanent and total disability.” Reply Br. at 1. In fact, it is not l ogically the case that if an error is made, then a party is entitled to a new trial. We often say that parties are not entitled to a perfect trial. “ [ T ] he perfect
case has no t been and never will be tried.” Kappelman v. Lutz , 141 Wn. App. 580, 591, 170 P.3d 1189 (2007) , aff’d , 167 Wn.2d 1, 217 P.3d 286 (2009)

. Under the non

constitutional harmless error analysis, the focus is whether a reasonable probability exists
that the error affected the outcome. State v. Romero , 113 Wn. App. 779, 791

- 92, 54 P.3d 1255 (2002). Had O’Reilly’s cross appeal been dismissed, it would still have been entitled to present its evidence that Ms. Conradi’s injury fell short of the permanent total disability she was claiming. The jury would have been given the same instructions about her claim, and “Washington courts have, for years, firmly presum ed that jurors follow the court’ s instructions.” Diaz v. State , 175 Wn.2d 457, 474, 285 P.3d 873 (2012). Ms. Conradi’s only , wholly speculative suggestion of how she might have been prejudiced by theNo. 52859

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5 superior court’ s presumed error is that the cross appeal created an option for the jury to

“ essentially ‘ split the baby. ’” Br. of Appellant at 16. Ms. Conradi does not challenge the sufficiency of the evidence to support the jury’ s verdict rejecting her appeal. She makes no meaningful effort to demonstrate that the cross appeal a ffected the outcome of her appeal . Under these c ircumstances , there is no effective relief we can provide. O’Reilly makes a passing request for an award of its reasonable attorney fees and costs on appeal under RAP 18.1 and 18.9, but it fails to devote a section of its brief to explaining the request as required by RAP 18.1(b). The request is denied. The appeal is dismissed as moot. 2 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
2.06.04 0.

_____________________________ Siddoway, J. WE CONCUR:

_____________________________ _____________________________ Lee, C.J. Maxa, J.

2 Dismissal could also have been requested on the basis that Ms. Conradi is not an a ggrieved party under RAP 3.1. We dispose of the a ppeal on the basis raised by O’Reilly

. See RAP 12.1.