### COURT OFAPPEALS, DIVISION III, STATE OFWASHINGTON THEODORE ERB, ) ) 

### No. 30796-4-III Appellant, ) ) 

### v. ) ) DEPARTMENT OF LABOR & ) ORDERAMENDING OPINION INDUSTRIES, ) ) Respondent. ) IT IS ORDERED the opinion filed December 5,2013 is amended as follows: In the first sentence ofthe last paragraph on page four the word "Bureau" is changed to "Board".

DATED: December 6, 2013 PANEL: Judges Korsmo, Brown, Fearing FOR THE COURT:

KEVIN MfKORSMO, ChieJUdge

### FILED DEC 5, 2013 In the Office ofthe ClerkofCourt W A State Court ofAppeals, 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### v. ) ) DEPARTMENT OF LABOR & ) UNPUBLISHED OPINION INDUSTRIES, ) ) Respondent.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 onhis toes, leading topartial amputation ofone ofthem. Ajurydetermined thathe was notpermanently 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. Atthattime, some ofhis preexisting conditions included bilateral carpal tunnel syndrome with releases, low back degenerative disc disease, hypertension, right sacroiliacjointpain, thumb fractures, foot injuries, andpost­No. 30796-4-111 Erb v. Dep 'fof Labor 

### &Indus.

traumatic stress disorder. In 2006, Mr. Erb soughttorejoin the workforce through social security's return to workprogram. InNovember of2006, Postal Express hired Mr. Erb for a full-time light delivery position. Mr. Erb hadtrained as a commercial truck driver in the 1990s afterhe was no longer physically capable ofcontinuing his first career as an aircraft assembly line worker. Mr. Erb could only do light delivery driving because ofinjuries sustained in a 2002 trucking accident. Although Mr. Erb was qualified for the light delivery position, it was questionable whetherhe 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 firstjoint. 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 preventedhim from sleeping. Following a few months ofrecovery, Mr. Erb's treatingphysician, Dr. Burgdorff, released him from care without any work restrictions. 

### It appears thatMr. Erb asked the doctor to not give him any work restrictions. Mr. Erb then returned to workpart-time in early March 2007. Shortly after returning to work, Mr. Erb found thejobto betoo taxing and thereafterhe worked as a reliefdriver until he was unable to renew his commercial driver's license due to his weight and blood pressure. Afterwards, Mr. Erb worked one 2No.30796-4-III Erb v. Dep 'tof Labor & Indus.

and a halfto two hours a day, four days a week, loading trucks for a Postal Express subcontractor. This lasted until the subcontractor laid him offin October 2007. Mr. Erb was unsuccessful in finding new employment. He sought employment on his own andthrough 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 permanentpartial disability (PPD) rating offive percent ofthe left lower extremity due to thepartial loss ofhis toe. Mr. Erb challenged the PPD award and sought temporary total disability benefits from the date he was laid offthrough the date ofclaim closure and permanenttotal 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 Gritzkatestified for Mr. Erb thatthe walking and standingrestrictions

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 

### 3No.30796-4-II1 Erb v. Dep 'fof Labor 

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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 couldreturn to hisjob ofinjury. DLI also presented testimony from Scott Whitmer, a certified vocational rehabilitation counselor. He thought that the PCE restrictions did not preventMr. Erb from returning to hisjob ofinjury. He also opined that Mr. Erb had the training and physical capacity to perform thejobsofcounter clerk, room service clerk, toll collector, and routing clerk. Mr. Whitmer, however, did notperform a labor market analysis to determine whether any such positions were available locally. Maurilio Garza, a certifiedvocational rehabilitation counselor, testified for Mr. 

# I Erb. Mr. Garza believed that Mr. Erb could notreturn to hisjob ofinjury orthe light 

# I i f duty reliefdriver position based on the PCE and Dr. Gritzka's medical opinion. He found thatMr. Erb had no transferrablejob 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 ofclerk duties. Mr. Garza also performed a labor market survey showing that none ofthe positions for which Mr. Erb was allegedly qualified were available in his locality. Mr. Erb appealed the PPD determination to the Bureau ofIndustrial Insurance Appeals (BIIA). An industrial appealsjudge (IAJ) issued a proposed decision and order affirming the claim closure order. Mr. Erb then sought review by the BIIA's appointed 4No. 30796-4-111 Erb 

### v. Dep 't of Labor & Indus.

members. They denied review and adopted the IArs proposed decision and order as the final decision ofthe BIIA. Mr. Erb then appealed to the Benton County Superior Court; the case went tojury trial in February 2012. Thejury 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 thejury instructions informing thejurors ofthe findings offact entered by the BIIA. Mr. Erb challenged some ofthose instructions on the grounds that they prejudicially informed thejury ofnonmaterial findings offact. Mr. Erb also requested an instruction explaining the odd lot doctrine to thejury. The court denied both challenges and submitted the case to thejury. After thejuryreturned 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 bythe evidence. We address those arguments in that order. OddLotInstruction 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): 

### 5

### No. 30796-4-111 Erb v. Dep'tof Labor & 

### Indus. If, as a result ofan [industrial injury] [occupational disease], a worker is able to perform only oddjobs or special work not generally available, then the worker is totally disabled, unless the [Department] [employer] proves by 

## apreponderance ofthe evidence that oddjobs or special work that he or she can perform is available to the worker on a reasonably continuous basis. Well settled standards govern ourreview ofthis 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. 

### Fed Ex GroundPackage Sys., Inc., 159 Wn. App. 35,44­ 45,244P.3d 32 (2010) (quotation omitted) ajJ'd, 174 Wn.2d 851,281 P.3d 289 (2012). "Ifa party's theory ofthe 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. "Whenthe record discloses an error in an instruction given on behalfofthe 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 apermanent 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 191,120P.2d 1003 (1942). There itwas noted that "courts have found great difficulty in defining what is meant by

6No.30796-4-II1 Erb 

### v. Dep 't of Labor & Indus. incapacity to perform any work at any gainful occupation." Id. at 197. Canvassing authorities applying similar language used in the laws ofother states, ourcourt noted: A great many courts have adopted the rule that, ifan accident leaves the workman in such a condition that he can no longer follow his previous occupation orany other similar occupation, and is fitted only to perform "oddjobs" or special work, not generally available, the burden is onthe department to showthat there is special work that he can in fact obtain. Id. at 198-99. 1 The court then reversed a summaryjudgmentruling 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 ofhis

own farm amountedto the ability to perform otherwork. Id. at 193,200. A subsequent case interpreted the Kuhnle language to mean that "the injured worker need not show that he cannotperform anylight or sedentary work, but mustprove only that he is incapable ofperforming light or sedentary work ofa generalnature." Spring 

### v. Dep'tof Labor & Indus., 96 Wn.2d 914,919,640P.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 ofthe 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 orher services in a competitive labor market." Id. The doctrine places an emphasis on irregular and unpredictable employment as opposedto 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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### &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 ofajury instruction has been less uniform or clear. No Washington case mandates use ofthe 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 ofdiscretion only when prejudice is established. In other words: did the court's refusal to give the instruction likely mislead thejury or prevent 

### Mr. Erb from arguing his theory ofthe case? Anfinson, 159 Wn. App. at 45. We think the answer is "no" under the facts ofthis 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 isjust "an additional way for a worker to lose." Graham v. Weyerhaeuser Co., 71 Wn. App. 55,68,856 P.2d 717 (1993), overruledon othergrounds by Leeper v. Dep 't of Labor 

### &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 ofpermanent total

2ButseeAllen v. Dep 't of Labor 

### &Indus., 16 Wn. App. 692, 559 P.2d 572 (1977). 3 One nice summary ofthe practical effect ofthe doctrine comes from Wyoming: "Underthe 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). 8No. 30796-4-III 

### Erb 

### v. Dep'tof Labor & 

### Indus. disability where the defendant wouldnot otherwise be considered disabled. It recognizes that a worker who is not 

### defacto permanently and totally disabled can be considered such by operation ofthe law, but like any true presumption it also gives the employerthe 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 thejury on the odd lot when requested by the worker. 

### Spring, 96 Wn.2d at 919-20; 

### Wendt v. 

### Dep't of Labor & 

### 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 ofproving likely prejudice. The court's instructions still allowedMr. Erb to argue that he was not able to return to hisjob ofinjury and that he was not qualified physically or intellectually for any ofthe otherjobsthat the Department believed him qualified to perform. The only way in which Mr. Erb could have been prejudiced is ifany ofthe alternativejobspresented by Mr. Whitmer were odd lotjobs. 

### See Wendt, 18 Wn. App. at 680-81. Ifany ofthose had been odd lotjobsthen the instruction would have been necessary to preventthejury from believingthat Mr. Erb had the burden ofproving that he could notperform or obtain thosejobswith a reasonable degree ofsuccess and continuity. However, that was not the testimony. The record reflects that the alternative jobsproposed by Mr. Whitmer were all full-timejobs ofa general nature, not special 9No. 30796-4-II1 Erb 

### v. Dep 't of Labor 

### &Indus.

work. None ofthe experts presentedtestimony, nor did counsel argue, that Mr. Erb could perform only work ofa special limited nature. None oftheproposedjobs were odd lot jobs and, thus, there was no needto instruct thejury onthat doctrine. Accordingly, Mr. Erb did have the burden as a matter oflaw ofprovingthat he could not perform or obtain light sedentary workwith a reasonable degree ofsuccess and continuity. An odd lot instruction is not required where none ofthejobs at issue are alleged to be odd lotjobs. The trial court did not abuse its discretion by declining the proposed instruction. FactualFindingInstructions Mr. Erb challenges three findings offact that were submitted to thejury. While two ofhis claims have merit, the error in givingthose instructions was not prejudicial. In appeals ofworkers' compensation cases, the trial court is required to instruct thejury "ofthe exact findings ofthe [BIIA] on each material issue before the court." RCW 51.52.l15. "Only findings ofultimate facts should bepermitted, not evidentiary or argumentative findings." Jenkins v. Dep 't of Labor 

### &Indus., 85 Wn. App. 7, 11, 931 P.2d 907 (1996). Examples offindings ofultimate 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 orthe disease and the disability, and other ultimate facts upon the existence or nonexistence of which the outcome ofthe litigation depends. The dividing line between

10No.30796-4-III Erb 

### v. Dep'( of Labor & Indus. evidentiary or argumentative (subordinate) and ultimate findings offact cannotbe readily stated. Gaines v. Dep 'fof Labor & Indus., 1 Wn. App. 547, 552,463 P.2d 269 (1969). Here, 

### Mr. Erb argues that he was prejudiced by instructions that informed thejury on nonmaterial findings entered by the BIIA. We disagree. Mr. Erb's first instructional challenge involves instructing thejury on the hours that Mr. Erb had expectedto 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 whetherthey are physically capable ofperformingthejob. However, the only way that it could have prejudiced

### Mr. Erb is ifit 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 thejury ofthe BIIA's finding that his rate ofpay was notprovided. 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 thejury. Again, an irrelevant finding can only have been prejudicial ifitnegatively impacted Mr. Erb's case. Mr. Erb argues that the finding reflects negatively onhim because it suggests thathe stalled or failed to cooperate with the Department during his claimprocess. 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 'tof Labor 

### &Indus. party. Accordingly, we do not see howthejury could have drawn a negative inference from this fact. Finally, Mr. Erb argues thatthe court should not have instructed thejury on the BIIA's findings with regards to certain collateral reasons why Mr. Erb did notreturn to hisjob ofinjury and why he stopped working as a reHefdriver. He argues thatthose facts, although true, were immaterial. We disagree because having a comprehensive understanding ofall the reasons why Mr. Erb did not return to hisjob ofinjury orthe reliefdriverposition are importantto determining "the nature and extent ofdisability" under Gaines. Although the finding was not favorable to Mr. Erb, its favorability for one side orthe other does not make it any less relevantto the proper determination ofthe extent ofMr. Erb's disability. Because the unfavorable finding was material to the case, the court did not errby informing thejury ofthis particular finding. The two erroneously submitted instructions did notprejudice Mr. Erb. Thus, this challenge is without merit. Sufficiency of the Evidence Mr. Erb also argues thatthe evidence did not support thejury'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 evidencepresented to the BIIA, the findings and decision ofthe BIIA are prima facie correct, and the party attacking thembears the 12

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### burden ofproof. RCW 51.52.115. When appealed to this court, the appeal "shall lie from thejudgment ofthe 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 ofthe truth ofthe 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 thejury lacked sufficient evidence to persuade a fair-minded person that Mr. Erb was not left permanently and totally disabled by hisjob ofinjury. The thrust ofMr. 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 ofMr. Erb's qualifications andphysical 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 ourjudgment for that ofthe trier offact. Davis v. Dep 't of Labor & Indus., 

### 94 Wn.2d 119, 124,615 P.2d 1279 (1980). Here, thejurywas given evidence from competent medical and vocational professionals stating that 

### Mr. Erb could return to hisjob ofinjury. Thejury apparently believed this evidence. Alternatively, thejury could have believed Mr. Erb to be permanently and totally disabled, but disagreed as to the question ofproximate causation. 13No. 30796-4-II1 Erb 

### v. Dep'( of Labor 

### &Indus.

The DLI witnesses supported either conclusion. Accordingly, thejury had sufficient evidence from which to affirm the BIIA's decision. Forthe noted reasons, we affirm. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

Korsmo, C. 

### J. WE CONCUR:

## ~.' , 

## t !

14