IN THE COURT OFAPPEALS FOR THE STATE OF WASHINGTON LISA K. JOHNSON, Respondent,

v. LIBERTY MUTUAL INSURANCE COMPANY, Appellant, DEPARTMENT OF LABOR AND INDUSTRIES, Respondent. No. 76026-2-1 DIVISION ONE UNPUBLISHED OPINION

FILED: January 17, 2017

Leach, J. — Liberty Mutual Insurance Company appeals the superior court's judgment reversing the Board of Industrial Insurance Appeals (Board). The Board had affirmed a Department of Labor and Industries (Department) decision to deny benefits to Lisa Johnson for neurogenic thoracic outlet syndrome (TOS). Liberty Mutual challenges the sufficiency of the evidence to support the judgment, the exclusion of one of its expert witnesses, the special verdict form, the trial court's conclusions of law, and several jury instructions. The Departmentjoins Liberty Mutual in asking this court to reverse, contending that the trial court improperly instructed thejury to interpret the law and to give Johnson the benefit of the doubt in finding facts. Because we agree with the Department, we reverse and remand for a newtrial.No. 76026-2-1 / 2 Background Johnson has performed clerical work for Liberty Mutual and its predecessorcompany since 1988. Johnson filed an occupational disease claim under the Industrial 

### InsuranceAct1 in2009, complaining ofnumbness and tingling in her right pinkie and ring finger and pain inherelbow, upperarm, and shoulder. Dr.Carlton Keck diagnosed Johnson with lateral epicondylitis. She received surgery for that condition twice, in 2010 and 2011. The Department allowed the claim in June 2010, eventually allowing Johnson time-loss compensation for the diagnosed condition through July 2012. Johnson continued to suffer right arm and hand pain and numbness. 

### Eventually, Dr. Kaj Johansen diagnosed herwith TOS.2 Johnson saw numerous specialists and underwent further tests, but no other doctors diagnosed TOS. Johansen nonetheless performed two surgeries for TOS, in April 2012 and November 2013. Neither relieved Johnson's symptoms beyond short-term improvements. The Departmentdid not acceptJohnson's claim that she had TOS related to her occupation. It closed the claim after it received confirmation that Johnson's elbow conditions had reached maximum medical improvement.

1 Title 51 RCW. 2This is a rare condition caused by irritation ofthe nerves inthe thoracic

area. -2-No. 76026-2-1 / 3

Johnson appealed the Department's decision to the Board. In a 

### deposition, Johansen testified that he diagnosed Johnson with TOS based on five criteria he had developed.3 Johansen performed the two surgeries based on his diagnosis. Liberty Mutual presented testimony from four other specialists who examined Johnson between August2009 and July 2012. All four disagreed 

### withJohansen's TOS diagnosis.4 An industrial appealsjudge found thatJohnson "did not suffer neurogenic thoracic outlet syndrome proximately caused or aggravated by her occupational disease." She found the four dissenting specialists' testimony more persuasive than Dr. Johansen's. She issued a proposed order concluding that conditions proximately caused by Johnson's occupational disease were fixed and stable and did not entitle Johnson to further proper and necessary treatment. She proposed affirming the Department's order. The Board then adopted thejudge's proposed decision. Johnson appealed to the superior court. The parties tried the case to a jury. The jury found that the Board erred "when it found that plaintiffs work activities with defendant did not proximately cause or aggravate thoracic outlet syndrome." Accordingly, the trial court reversed the Board's order. The court 3Those criteria are: a credible explanation for how the problem occurred (a traumatic event or an occupation involving out-front or overhead arm posture); a characteristic history, including symptoms, physical findings, and responses to provocative tests; the condition failing to improve; satisfactory exclusion of alternative diagnoses; and responseto a scaleneblock. 4These included neurologist Lewis Almaraz, MD (August 2009), vascular surgeon Daniel Neuzil, MD (July 2012), orthopedic surgeon James Harris, MD (September2010), and vascularsurgeon Richard Kremer, MD (April2012). -3-No. 76026-2-1 / 4


### remanded this case to the Department to issue an order to Liberty Mutual to 

### allow Johnson's claim.5 Liberty Mutual appeals. Both Johnson and the Departmentappearas respondents. Standard of Review 

### We apply the ordinary civil standard of review to trial court decisions on 

### appeal from the Board.6 We review "whether substantial evidence supports the trial court's factual findings and then review, de novo, whether the trial court's conclusions of law flow fromthefindings."7 Analysis 

### We agree with the Departmentthat the trial court made a prejudicial error ininstructing thejury. 

### Wereview de novo alleged errors oflaw injury instructions.8 We reverse the trial court where iterroneously instructed the jury about the applicable law 

### and that error was prejudicial.9 Jury instructions are sufficientwhere they allow the parties to argue their theories, do not mislead the jury, and, when taken as a 

### whole, properlyinform the jury of the law to apply.10 We presume that a clear misstatementofthe law isprejudicial.11

5 The court also awarded Johnson $42,233.33 in costs and fees for the appeal. 6 RCW 51.52.140. 7Watson v. Dep'tofLabor&Indus., 133 Wn. App. 903, 909, 138 P.3d 177 (2006)). 8Hue v. Farmbov Spray Co.. 127Wn.2d 67, 92, 896 P.2d 682 (1995). 9 Hue. 127Wn.2dat92. 10Hue. 127Wn.2dat92. 11 Kellerv. City of Spokane. 146Wn.2d 237, 249-50, 44 P.3d 845 (2002).No. 76026-2-1 / 5



### Injury instruction 14, thetrial court informedthejury, It is your duty to applythe law you have been provided to the facts of this case. You should keep in mind that the Industrial Insurance Act is remedial in nature and its beneficial purpose 

### should be liberally construed in order to achieve its goal of providing compensation to all covered employees injured in their employment, withdoubts resolved in favor oftheworker. This does not require you to view the facts in a light more favorable to the 

### injured worker in this case, butwhere reasonable minds may differ as to the meaning of the law you have been provided, thebenefit of the doubtbelongs to the injured worker. 

### Relying on this instruction, Johnson's counsel argued repeatedly in closing that "the benefitofthe doubtbelongs to the injured worker." Jury instruction 14 misstated the law and misledthejury. 

### Whilecourts liberallyinterpretambiguities inthe Industrial InsuranceAct in 

### favor of its beneficiaries, they do not apply liberal construction to determine facts.12 In Hastings v. Department of Labor & Industries.13 the Supreme Court found that the trial court erred in offering an instruction similar to the one here. 

### The trial court had instructed thejury "that the Workmen's Compensation Act of the State ofWashington should be liberallyapplied in favor of its beneficiaries, 

### the injured workmen" and "its beneficent provisions should not be limited or curtailed by narrow construction."14 The Supreme Court observed that while a trial court must "give a liberal interpretation ofthe workmen's compensation act" in its instructions, "the jury is confined to a determination ofthe facts ofthe case 12 Cooper v. Dep't of Labor & Indus.. 188 Wn. App. 641, 648, 352 P.3d 

### 189 (2015); Ehman v. Dep't of Labor & Indus.. 33 Wn.2d 584, 595, 206 P.2d 787 (1949).1324Wn.2d1, 13, 163 P.2d 142 (1945). 14 Hastings. 24 Wn.2d at 12.No. 76026-2-1 / 6

from the evidence presented, in accordancewith the court's instructions as to the 

### law."15 In the case before it, though, "the jury was directed to apply the act 'liberally' and was cautioned against a narrow construction thereof. In other words," the court held, "the jury was invested with a power that only the court should exercise."16 Jury instruction 14 has the same problems. The instruction is both misleading and facially incorrect. Itincorrectly states thejury's role, misinforming the jury that "where reasonable minds may differ as to the meaning of the law . . . , the benefit ofthe doubt belongs to the injured worker." A jury does not interpret "the meaning ofthe law." A jury determines "the facts ofthe case from the evidence presented, in accordance with the court's instructions as to the 

### law."17 By instructing the jury about how it should interpret the Industrial Insurance Act, instruction 14 misstated the law. Also, this instruction risked misleading the jury by conflating the functions of fact finding, statutory interpretation, and applying the law to facts. The authority Johnson cites does not support instruction 14; itshows only that courts are to liberally construe the 

### IndustrialInsuranceAct—something no party contests.18 Because instruction 14 clearly misstated the law, we presume that it 

### prejudiced Liberty Mutual.19 Johnson offers no persuasive argument that the 15Hastings. 24 Wn.2d at 13. 16 Hastings. 24Wn.2d at 13. 17 Hastings. 24 Wn.2d at 13. 18 See RCW 51.12.010; Dennis v. Dep't of Labor & Indus.. 109 Wn.2d 467, 470, 745 P.2d 1295 (1987). 19 Keller, 146Wn.2d at249-50.No. 76026-2-1 / 7

instruction did not prejudice Liberty Mutual and thus fails to rebut the presumption. Even ifinstruction 14 did not clearly misstate the law and merely misled thejury, Liberty Mutual has shown prejudice because the misleading statement 

### "was actively urged upon thejury."20 Johnson expressly relied on instruction 14's concept that the "benefit ofthe doubt" belongs to the worker in advocating that the jury should find certain facts, urging thejury to "[ajpply thejury instructions givingthe benefitofthe doubtto the plaintiff in this case and signthe verdictform 'No.'" Indeed, this conceptmade up mostofcounsel's closing rebuttal argument. "'A new trial is the appropriate remedy for prejudicial errors in jury instructions.'"21 We thus remand for a new trial. Because we remand for a new trial, we need not decide whether the evidence presented in the first trial was sufficientto supportthejury verdict. Nor do we examine the trial court's discretionary decision to exclude as cumulative thetestimony ofan orthopedic surgeon, Dr. Harris.

20 Anfinson v. FedEx Ground Package Svs.. Inc.. 174 Wn.2d 851, 876-77, 281 P.3d 289 (2012) ("Anfinson has demonstrated thatthis misleading statement was prejudicial by showing that the incorrect statement was actively urged upon the jury during closing argument. No greater showing of prejudice from a misleading jury instruction is possible without impermissibly impeaching a jury's verdict."). We need not considerthe State's othercontention, that instruction 14 improperly shifted the burden of proof to Liberty Mutual to show thatthe Board's decision was correct. 21 Furfaro v. City of Seattle. 144 Wn.2d 363, 382, 27 P.3d 1160 (2001) (quoting Aero Int'l. Inc. v. United States Fire Ins. Co.. 713 F.2d 1106, 1113 (5th Cir. 1983)).No. 76026-2-1 / 8

But becausethe otherissues in this appeal are likely to come up again on remand, we address them here.22 On each issue, Liberty Mutual's arguments on appeal lackmerit. First, thetrial courtused a sufficient special verdictform. The Board found that (1) Johnson did not suffer from TOS proximately 

### caused or aggravated by her occupational disease and (2) the conditions that Johnson's occupational disease proximately caused or aggravated were fixed and stable and did not need properand necessarytreatmentas of July 17, 2013. 

### Liberty Mutual points outthatwhilethefirstissue received the mostattention, the Board made two distinct findings and Johnson sought review of both. The trial court selected a verdictform that considered only the first issue. Liberty Mutual 

### contends that the special verdict form's exclusion ofthe second issue confused and misled thejury aboutthe issues on appeal. A special verdict form is sufficient if it allows the parties to argue their 

### theories ofthe case, does not mislead thejury, and properly informs thejury of 

### the law toapply.23 Here, the special verdictform was sufficient and did not prejudice Liberty Mutual. The Board determined that TOS was not related to Johnson's work. Thus, its second finding pertained only to the accepted condition, epicondylitis, 

### the only claim-related condition thatthe Board had found to be fixed and stable

22 See Joyce v. Dep'tofCorr.. 155 Wn.2d 306, 325, 119 P.3d 825 (2005). 23 Hue, 127Wn.2dat92. -8-No. 76026-2-1 / 9



### as ofthe date of its order. Because the parties did not contestthat condition in 

### the superior court, the court had no reason to include itin the special verdict
form. Second, the trial court's remand order would not usurp the Department's 

### authorityto determine benefitsforaccepted conditions. Thetrial courtjudgmentstates, 

### [T]he July 7, 2014 order of the Board of Industrial Insurance 

### Appeals, is hereby reversed, and the claim is remanded to the Department of Labor and Industries with instructions to issue an order that directs the Self-Insured Employer, Liberty Mutual, to allow the claim of Thoracic Outlet Syndrome and pay medical expenses, time loss, and all other benefits associated with that condition, ifany. (Emphasis added.) 

### Liberty Mutual calls this "a blanket statement authorizing benefits" and asserts that it is inappropriate where the Department, which has original 

### jurisdiction, has not addressed payment of medical benefits, time loss, or other benefits here. Liberty Mutualasserts that the trial court orderthus did not "flow from" the jury's sole finding—that the Board was incorrect that Johnson's work activities did not proximatelycause or aggravateTOS. 

### A trialcourt's conclusions of law must flow from itsfindings.24 Neither the Board nor the trial court may consider matters that the Department has not yet considered.25

24Watson. 133 Wn. App. at909. 25 Lenk v. Dep't of Labor & Indus.. 3 Wn. App. 977, 982, 478 P.2d 761 (1970).No. 76026-2-1/10

The trial court's order here was not "a blanket statement authorizing 

### benefits." Instead, it did exactly what Liberty Mutual asks: itrequired that the 

### Department decide what treatment is reasonable and necessary and what time loss or other benefits are appropriate. Nothing in the judgment required the 

### Department to order medical expenses, time loss, or other benefits until the Departmentdetermined those costs resultedfrom TOS. Third, LibertyMutual's challenges to the trialcourt'sjury instructions other than instruction 14 lack merit. 

### Liberty Mutual contends that instruction 4, defining an occupational disease, misstatesthe law and misled thejury. We disagree. As a preliminary matter, Liberty Mutual appears to base its argument on 

### the instruction Johnson proposed. Thetrialcourtoffered a different instructionto thejury. Thetrialcourt's instruction read, An occupational disease is defined by statute as: 

### Any disease that arises naturally and proximately out ofthe employment. A disease "arises naturally out of employment" if it came about as a matterofcourse as a natural consequence or incidentof distinctive conditions of his or herparticularemployment. Thework conditions need not be peculiar to, nor unique to, his worker's 

### particular employment. The disease need not be common to the claimant's particular employment. The claimant need not demonstrate a logical relationship between the disease and the work. 

### This instruction properly stated the law. Contrary to Liberty Mutual's 

### assertion, itexpressly stated thatthe occupational disease must arise out of the

-10-No. 76026-2-1 /11 employment. And jury instruction 5 further explained that for a condition to be compensable under the Industrial Insurance Act, it must be proximately caused by work conditions. Instruction 5 also defined the proximate cause requirement. These instructions are consistent with the statute as the Supreme Court 

### interpreted it in Dennis v. Departmentof Labor &Industries.26 AsJohnson points out, these instructions allowed Liberty Mutual to argue that TOS did not "arise[ ] naturally out ofemployment." To that end, for example, Dr. Kremertestified that the type ofclerical work Johnson did is not the type of activity that activates the scalene muscle and causes TOS. Liberty Mutual's proposed instruction would note that the conditions must be more likely to develop as a result of work activities as opposed to any other 

### work or nonwork activity. While this is an accurate statement,27 thetrial court did not abuse its discretion indeclining to give it. As noted above, instructions 4 and 5 correctly described the legal standard. Instruction 6 further informed thejury thatJohnson had the burden ofshowing by a preponderanceoftheevidencethat the Board's application ofthat standard was incorrect. Liberty Mutual also claims that instruction 4 misled thejury by stating that the "claimant need not demonstrate a logical relationship between the disease



### 26 RCW 51.08.140 ('"Occupational disease' means such disease or infection as arises naturally and proximately out of employment under the mandatory orelective adoption provisions ofthis title."); Dennis v. Dep't of Labor &Indus.. 109Wn.2d 467, 481, 745 P.2d 1295 (1987). 27 Dennis. 109Wn.2d at481. -11-No. 76026-2-1/12


### and work." This statement is consistent with the holding in Dennis.28 And although it is potentially confusing standing alone, instructions 4 and 5, read together, adequatelyexplainedthe proximate cause requirementto thejury. Next, Liberty Mutual contends that instruction 13 improperly shifted the burden ofprooffrom Johnson to Liberty Mutual. We disagree. Instruction 13 did not, as Liberty Mutual states, instructthejury to give "the benefit of the doubt" to Johnson and "disregard preexisting frailties and infirmities." Instead, the instruction accurately stated that a claimant "is to be 

### taken as he or she is, with all his preexisting frailties and bodilyinfirmities."29 It reminded the jury that the occupational disease must proximately cause the claimant's disability. Instruction 13 did not misstatethe law. 

### Liberty Mutual further contends the trial court abused its discretion in 

### giving instruction 13 because Johnson offered no evidence ofaggravation of a preexisting condition. The instruction thus confused the issues and placed an 

### unsupported theory before the jury. Liberty Mutual is incorrect: it presented 

### expert testimony that Johnson complained of pain and tingling as early as 2003 and that ifJohnson did have TOS, itwas caused by a congenital condition and 

### not employment. This evidence supports the theory underlying instruction 13 andjustifiesthetrial court's decision to give it.
28 Dennis. 109 Wn.2d at 479 (holding that a worker does not need to 

### "demonstrate a 'logical relationship between the disease-based disability and the 

### work'") (quoting Dennis v. Dep't of Labor &Indus.. 44 Wn. App. 423, 436, 722 P.2d 1317 (1986)). 29See Dennis. 109Wn.2d at471. -12-No. 76026-2-1/13 

### Liberty Mutual further contends thatthe trial court abused its discretion in declining to give two of Liberty Mutual's proposed instructions. Defendant's instruction 13 would have told the jury, "You are to determine the whether [sic] plaintiffwas medically fixed and stable regarding any claim-related condition on
or about the date that the Department of Labor and Industries closed the claim, which was July 17, 2013." Defendant's instruction 14 would have informed the jury that "[p]roper and necessary medical treatment is provided for an accepted condition under the Industrial Insurance Act until the worker reaches a state of 'maximum medical improvement.'" Italsowould have defined "maximum medical improvement." As discussed above, the trial court did not err in omitting from the special verdict form the issue ofwhether "conditions proximately caused by [Johnson's] 

### occupational disease were fixed and stable
... as of July 17, 2013." For the

same reasons, defendant's instructions 13 and 14 were unnecessary and would have caused needless confusion. The trial court did not abuse its discretion in declining to givethem. 

### Finally,Johnson requests thefees and costs she incurred inresponding to Liberty Mutual's appeal at the trial court level and in this court. Because we do 

### notsustain Johnson's right to relief, we denyherrequest.30

30 RCW 51.52.130; RAP 18.1. -13-No. 76026-2-1 /14

Conclusion Because the trial court committed prejudicial error in instructing thejury to liberally construe the Industrial Insurance Act when finding facts, we reverse the judgmentofthe trial courtand remand for a newtrial.

WE CONCUR: 

# /^Lf^\ty SOf/Jt^C^yJ, i^^^r.

-14-