IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
CLARK COUNTY, Respondent,

v. PATRICK J. McMANUS, Appellant. The court is withdrawing the opinion filed on May 18, 2015 inthe above matter and replace it with a revised opinion. It is hereby ORDERED that the opinion filed on May 11, 2015 is withdrawn and replaced with

a revised opinion to be filed on June 8, 2015. SO ORDERED 

## Datedthis 3 dayof Cpihft/ ,2015. No. 72437-1-1

ORDER WITHDRAWING OPINION

FOR THE COURT: 

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2:<: enIN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
CLARK COUNTY, ; Respondent, No. 72437-1-1

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PATRICK J. McMANUS, DIVISION ONE

PUBLISHED OPINION 1 -n '*•- CD -c>~. at =c>o CD s:r~ « CJCO 5" oS Appellant. ) FILED: June 8, 2015 

### «" §^ Spearman, C.J.

— Patrick McManus appeals the trial court'sjudgment 

### and order reversing an award ofbenefits under the Industrial Insurance Act, Title 

### 51 RCW, by the Department of Labor and Industries (Department). He claims the trial court improperly admitted hearsay evidence through the testimony of his treating physician. He also contends that the jurywas improperly instructed. We agree with McManus, reverse thejudgment, and remand for a new trial.
FACTS Patrick McManus is a former Clark County (County) employee. Between 1999 and 2011, he worked fulltime for the County operating a street sweeper. He 

### stopped working inApril 2011 because of debilitating, degenerative spinal disease, which he attributes to his work as a street sweeper operator. ShortlyNo. 72437-1-1/2 after leaving work, McManus filed a claim for workers' compensation under Title 51 RCW, the Industrial Insurance Act (Act). In reviewing the claim, the Board of Industrial Insurance Appeals (Board) 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, to which he was assigned in either 2008 or 2009, had an uncomfortable cab layout and a negative air ride seat that, according to McManus, felt like a block of concrete 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 in flare-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 9 years before the onset ofthe symptoms he alleged were work related. The sole medical expert to testify on behalfof McManus was Dr. Paul Won, who is board certified in preventive and family medicine. In his deposition, Dr. Won testified that he began treating McManus in January 2005 following aNo. 72437-1-1/3 low back injury unrelated to the condition alleged in his workers' compensation claim. After this initialtreatment, 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 letter to McManus' claims representative, in which 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 with jarring and bouncing has made a major material contribution to [McManus'] lumbar condition." CABR 

### (Won) at 30-31.1 According to Dr. Won, this opinion was based on his understanding of McManus' 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

1 "CABR" refers to the certified appeal board record. Deposition transcripts within the CABR are cited by parenthetical reference to the deponent's last name.No. 72437-1-1/4 unknowable whether or not the disc protrusion at L2-3 was related to McManus' 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." CABR (Won) at 39. While Dr. Won conceded that a neurosurgeon would likely have greater expertise than he in determining the etiology of degenerative 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 sweeper operator was still valid based on his knowledge of McManus' medical history. The County offered the deposition testimony oftwo 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 the County. Dr. Harris compared a December 14, 2005 CT (computed tomography) scan of McManus' lumbar spine with the June 25, 2010 MRI ordered by Dr. Won and concluded thatNo. 72437-1-1/5 

### the 2010 imaging showed a new central disc protrusion at the L2-3 level. Dr. Harris' initial report indicated that McManus' employment could be a possible
cause ofthe abnormalities visible inthe imaging scans. However, Dr. Harris testified that his initialconclusion 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 ofan 

### industrial injury. Dr. Harris attributed the injury to the normal aging process. He noted that by age 50, about halfthe population would experience similar degenerative changes. He also recognized the role ofobesity 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, awarded himcompensation underthe Act, and issued a proposed decision and order, which included the following findings
offact: 

### 1. On April 10, 2012, an industrial appealsjudge certified that the parties agreed to include 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. While operating the street sweeper, Mr. McManus repetitively hitholes and dips along the curb line, which can be the roughest part ofthe road. Bumpy conditionsjarred his back, 

### causing pain. In2008 or 2009, Clark County purchased a new street sweeper. Mr. McManus experienced more bumping and 

### jarring while operating the new street sweeper. InApril 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 employment with 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. On McManus' motion, the Board excluded Dr. Won's testimony regarding his knowledge ofDr. Wrobel's 

### opinions. The Boardaffirmed the industrial appealsjudge's decision and adopted its proposed decision and order. 

### The County petitioned forreview in the Clark County Superior Court.At trial, the jury was instructed that the sole question before itwas whether "the Board of Industrial Insurance Appeals [was] correct indeciding that Patrick 

### McManus' lowback condition, diagnosed as aggravation ofdegenerative disc 

### changes and a new central disc protrusion at L2-3 level[,] arose naturally and proximatelyfrom the distinctive conditions of his employmentwith Clark County operating a street sweeper." Clerk's Papers (CP) at 98. The jury concluded that the Board was incorrect inconcluding that McManus' back condition arose fromNo. 72437-1-1/7 his 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), review granted, 181 Wn.2d 1033 (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, 968 P.2d 14(1998). Generally, the out ofcourt statements of a nontestifying 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 prior statement by Dr. Won and, thus, could not be used for impeachment of Dr. Won under ER 613. AndNo. 72437-1-1/8 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 or treatment (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 pertinentto diagnosis or treatment. 

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

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

### deposition in this case that it is unknowable as to whether or not the protrusion at L2-3was, in fact, related to his employment? Q. Are you aware ofthat, Doctor? A. Yes. Q. You are aware ofthat? A. Yes. 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. 

### CABR (Won) at 38-39. Because it is evidentfromcounsel's firstquestion that Dr. Wrobel's statements were made in a discovery deposition and not inthe course ofmedical diagnosis or treatment, ER 803(a)(4) does not apply.

8No. 72437-1-1/9 

### ER 803(a)(18) is likewise inapplicable. The rule establishes a hearsay exception for "statements contained inpublished treatises, periodicals, or 

### pamphlets on a subjectof history, medicine, orother science or art, established
as a reliable authority bythe testimony or admission of the witness or by other 

### expert testimony or by judicial notice." Because Dr. Wrobel's statements plainly
were not contained in a published work, they were not admissible pursuant to 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, 

### pursuantto ER 705, were subjectto disclosure on cross examination. But the 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 nontestifying 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. Fairwav Res. Ltd., 152 Wn. App. 229, 275, 215 P.3d 990 (2009) 

### ("[ER 703] permits experts to base their opinions on facts ordata that might not otherwise be admissible into evidence...[and] the trial court may allow the 

### admission ofhearsay evidence and otherwise inadmissible facts for the limited 

### purpose of showing the basis of the expert's opinion."); Bryan v. John Bean Div. ofFMCCorp., 566 F.2d 541, 545 (5th Cir. 1978) (construing Fed. R. Evid. 703No. 72437-1-1/10 and 705); 5B Karl B.Tegland, Washington Practice: Evidence Law and 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 of McManus' 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 of review 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 

### party to argue his or hertheory ofthe case, are not misleading, and, when read
as a whole, properly inform thejury ofthe applicable law. Boeing, 93 Wn. App. at 186. We review the trial court's decision not to give a particularjury instruction for abuse ofdiscretion. Id.

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

### introductory instruction to thejury, advising it that the 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" within the meaning of RCW 51.52.115. We rejected a 

### similarargument inStratton. In that case, we considered whether an administrative lawjudge's preliminarydetermination 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 thatthe preliminarydetermination by the administrative lawjudge
was immaterial to the onlyquestion to be decided by the trier of fact: whetherthe Board's ultimate determination was correct. Id at 80. We also recognized the 

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

2The only other finding 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 (emphasis omitted). 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 Br. ofAppellant 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 bythejury 

### 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 

### proposedjury instruction 10, whichreproduced 6AWashington PatternJury Instructions: Civil 155.13.01 (6th ed. 2012) inrelevant part as follows: 

### 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 disbelieve, such testimony. Itdoes require that you give any such testimony careful thought inyour deliberations. The trial court concluded that the instruction was unnecessary. Although we may 

### have concluded otherwise, we cannot say on this record thatthe 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 ofthe witness's statements inthe context of 

### all ofthe other evidence; and any otherfactors that affect your evaluation or beliefof a witness or your evaluation of his or hertestimony. CP at 82. Based on this instruction, McManus was able to argue that Dr. Won, as 

### his treatingphysician, was betterqualified to render an opinion on the etiology of his injury than the Department's witnesses. And the jury was informed that it couldacceptthis theory. Thus, under the circumstances, the trial court's general instruction was sufficient. See Boeing, 93 Wn. App. at 186. 

### Finally, McManus assigns error to the trial court's juryinstruction 4, which included a verbatim recitation ofthe Board's findings of fact. Inparticular, the instruction included the Board's findings of fact 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). McManusargues 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 injury affected only his lumbar spine, i.e., the lower back. He further contends that the trial court's refusal to revise the

3Generally, trial courtswould bewell advised to givecareful consideration to whetherthe proposed instruction should begiven in a particularcase. See Hamilton v. Dep'tofLabor & Indus.. 111 Wn.2d569, 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 RCW51.52.104 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. Id. at 780. But we also noted "that a 

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

### that he was not an aggrieved party and therefore was not precluded from raising the error before the superiorcourt. 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 in finding of fact number 5 that Mr. McManus had aggravated his CERVICAL degenerative disc changes"). We are satisfied that the error was properly preserved for our review. We next considerwhetherthe 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 of the exactfindings ofthe board on each material issue. . . ." The 

### findings anddecision ofthe Board are presumed to becorrect, and 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. Gorre, 180 Wn. App. at 754-55. Stratton v. Department of Labor &Industries, 7 Wn. App. 652, 501 P.2d 1072 (1972) 

### (Stratton II) is instructive on whetherthe 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, jd. at 654- 56. Inthat case, we considered the following jury instruction, which reproduced a board finding on Stratton's condition: 

### 3. On or aboutApril 29, 1964, the claimant suffered from a 

### psychiatric disorderwhich was causally related to his industrial injury and was diagnosed as anxiety neurosis with conversion symptoms. Associated with this psychiatricdisorder is a demonstrated lack ofmotivation 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. 

### \± at 654. Stratton contended thatthe emphasized sentence was not a medical 

### finding based on evidence, but rather an argumentative assertion that he was unmotivated and eagerto realize a monetary gainfrom his injury. We agreed and concluded that the emphasized sentence was "notbased 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." ]d_. Because the Board's error was obvious and resulted in prejudice to Stratton, we reversed the judgment and remanded for a newtrial, jd. 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 chiari[4]... a malformation ofthe base ofthe skull that tends to press on the nerve." CABR (Won) at 22. Based on this record, we conclude that the Board's finding offact 5 contained an obvious scrivener's error. Moreover, the trial court's refusal to revise the finding was not harmless. Thejury was instructed to answer only one question: Was the Board of Industrial Insurance Appeals correct indeciding 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 employment with Clark County operating a street sweeper? 

### CP at 60. Thus, the issue before thejury was whether the 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 5 as 

### represented to the juryreferenced the wrong injury, it effectivelyprecluded McManus from establishing this link. Thus, the trialcourt's refusal to correctthe Board's scrivener's error materially affected the outcome of trial.

4Thisappears to be a reference to an Arnold-Chiari malformation, which, according to the National Institute ofNeurological Disordersand Stroke, is a congenitalstructural defectin which the cerebellum and parts of the brain stem sit in an indented space at the lower rear of the skull, where itattaches to the spinal column. See ChiariMalformation Fact Sheeet, Nat'l Inst, ofNeurological Disorders &Stroke, http://www.ninds.nih.gov/disorders/chiari/detail chiari.htm (last updated April 29,2015).

16No. 72437-1-1/17 Attorney Fees McManus requests an award of reasonable attorney fees on appeal 

### pursuantto RCW 51.52.130.5 The statute provides for an award ofattorney fees to a worker who prevails on appeal from an order granting relief to the worker. Because this matter is remanded for retrial, the prevailing party is not yet determined. Accordingly, an award ofattorney fees at this time would be premature and we decline to make such an award. We note that the trial court 

### may award appellate attorney fees, as appropriate, after retrial. Washington Fed.
v. Gentry, 179 Wn. App. 470, 496, 319 P.3d 823, 836 review granted sub nom. Washington Fed, v. Gentry, 180 Wn.2d 1021, 328 P.3d 902 (2014) and affd sub

nom. Washington Fed, v. Harvey, 182 Wn.2d 335, 340 P.3d 846 (2015). Reversed and remanded for a new trial.


### ^^/t/\ c^^s,

WE CONCUR: 

# Cx\ 

# Cj<^

5The statute provides: (1) If, on appeal to the superior orappellate court from the decision and order of the board, said decision and order is reversed or modified and additional relief is granted to a worker or beneficiary, or incases where a party otherthan the worker or beneficiary is the appealing party and the worker's or beneficiary's right to reliefis sustained, a reasonable fee for the services ofthe worker's or beneficiary's attorney shall be fixed by the court.

17— -jcr.

^—TM CO

oo :£-o r~ 2— CApiU Clark County v. Patrick J. McManus, No. 72437-1-1 co &
 en 3S en 2:<: 

### Dwyer, J. (concurring and dissenting). Iconcurwiththe majority's 

### resolution ofthe issues presented herein—save one. Ibelieve thatthe trial court 

### erred by refusing to instruct the jurythat special consideration should be given to 

### the opinion of a treating physician. This decision both contravened our Supreme 

### Court's precedentand created adisparity between thelaw appliedbytheBoard ofIndustrial Insurance Appeals (BIIA) and the law applied by the superior court 

### factfinder. Additionally, such decisions mayultimately lead toadditional 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 treatingphysician isentitled 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, properlyinform 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 with the majority that the 

### instructions given permitted McManus to argue his theory "thatDr. Won, as his treating physician, was betterqualified to render an opinion on theetiology of hisNo. 72437-1-1/2 

### injurythan 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't of 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 

### Supreme Court concluded that the instruction "reflected] binding precedent in this state and correctly stated 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, inseveral 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] appropriatethat thejury beinformed ofthis bythe instructions of the court." 111 Wn.2d at 572. "To refuse to do so," the court explained, "would 

### convert therule 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 iskey.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 By contrast, juries may not 

### choose whether tofollow the law—they are required to do so.2 The majority's conclusion thatthe proposed instruction was not necessary 

### relies, in part, on Boeing Co. v. Harker-Lott, 93 Wn. App. 181, 968 P.2d 14 

### (1998). In Boeing, this court held that an instruction comparable to the one at issue in Hamiltonwas not required because, it opined, "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 ofwhetherthe Hamilton court's prohibition against converting the applicable rule of law"into no more than the opinion of the claimant's attorney," is denominated a holding or something else, itbinds all lower courts: 

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

### disregard a decision ofthe SupremeCourtby identifying, and accepting, one or anothercontention not expressly addressed by the Justices, the Court's decisions could be circumvented with 

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

### rev'donothergrounds subnom. McDonald v. City ofChicago. 561 U.S. 742,130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010). 1Thus, thejury herein was instructed: "[l]t isimportantforyou to remember that the 

### lawyers' remarks, statements, andarguments arenotevidence. You should disregard any remark, statement, or argument that is not supported bythe evidence or the law as Ihave explainedit toyou." Jury Instruction 1 (emphasis added). 

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

### personallythinkitshould be. You mustapplythelawthat[thecourt] 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 directlycontravened the Hamiltoncourt's assertion that such a view "would convert the 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 [ourSupreme Court] has decided an issue ofstate law, that 

### interpretation isbinding until [it] overrule^] it." Hamilton, 111 Wn.2d at 571. Both the majority and the trial court strayfrom properadherence to applicable 

### Supreme Courtprecedent bydetermining that the instructions given in this case were sufficientbecause the claimant's attorney was permitted to argue a rule of 

### lawto thejury, in the absence of an instruction on thatlaw bythetrialjudge.
II 

### In addition, the trialcourt's decision not to instruct thejury regarding the 

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

### physician created a disparity between the law applied bythe BIIAand that applied by thejury. 

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

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

### thefindings anddecision oftheBIIA are correct] isrebuttable bytheevidence."

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 thatthis 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 layjurors must be instructed by the trialjudge on the applicablelaw, with 

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

### oflawthat specialconsideration should begiven to theopinion of atreating 

### physician, there isno assurance that thelaw applied bythetwo decision-makers 

### (the BIIAand thejury) was the same. This is contraryto thecareful design ofthe legislature. Ill 

### Finally, iftrial courtdecisions ofthistype becomewidespread, claimants will be incentivized to seek additional (and, at this time, unnecessary) medical 

### opinions, which may lead toincreased financial strain on thefunds from which claimants are compensated. 

### Therule that specialconsideration should be given to the opinion of a 

### treating physician works, in part, tocorrecta potential imbalance between the expert witnesses whosetestimony isoffered by claimants, often primary care 

### physicians and othergeneral practitioners, and theexpertwitnesses offered by self-insured employers, often specialistswith noted and impressive certifications. Without the rulehere at issue, claimants may be incentivized to seek additionalNo. 72437-1-1/6 

### medical advice ortreatment as a litigation strategy, thus burdening the funds. By 

### obtaining a second opinion—froma physician with a "fancier" curriculumvitae—a claimant may hope to strike a balance between the number and credentials of the expertwitnesses offered byeach side. This is a potential "realworld" impact ofdecisions such as that we make today. We can avoid such unintended 

### consequences by the simple expedient ofrequiring that the law—as declared by

our Supreme Court—be adhered to.



### A ) ^La-*j*