Opinion
No. 64804-7-I.
March 28, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 08-2-22738-3, Steven C. Gonzalez, J., entered December 16, 2009.
Affirmed by unpublished opinion per Cox, J., concurred in by Appelwick and Lau, JJ.
At issue in this appeal of a workers' compensation case is whether the trial court properly instructed the jury in Instructions 9 and 10. Also at issue is whether the court properly refused to give Christiana Njoku's proposed Instruction 13 and another unnumbered instruction. Because the court did not abuse its discretion in any respect, we affirm.
Njoku filed an application for benefits with Seattle School District No. 1 (District), a self-insured employer, for multiple injuries that allegedly occurred during the course of her employment as a special education teacher at Garfield High School. The Department of Labor and Industries (Department) accepted her claim for a contusion to the left ear, contusion to the left eye, and cervical strain, sustained on November 29, 2001. The Department denied her claim as to alleged conditions of stress and psychosis. The exact nature of the claimed stress and psychosis is not contained in the record on appeal.
On March 9, 2004, the Department issued an order closing Njoku's claim with time-loss compensation benefits paid through December 4, 2002, but without an award of permanent partial disability. Njoku filed a protest and request for reconsideration and the Department affirmed its closing order.
On June 21, 2004, Njoku filed an aggravation application, which was denied. On April 28, 2005, she filed an application to reopen the claim, which was also denied. Njoku filed a protest and request for reconsideration and the Department forwarded the protest to the Board of Industrial Insurance Appeals (Board) as a direct appeal on June 21, 2005. Njoku amended her appeal to include a claim for Post-Traumatic Stress Disorder (PTSD) sometime after the appeal was accepted by the Board.
Njoku argued to the Board that she developed PTSD as a result of her employment with the District and that she was therefore entitled to receive additional proper and necessary medical treatment and additional time loss compensation benefits for a period of approximately three years following the closing of her initial claim. It is not entirely clear from the record whether her appeal to the Board was based on a theory of occupational disease or industrial injury.
An Industrial Appeals Judge (IAJ) issued a proposed decision and order denying Njoku's application to reopen her case. Njoku filed a petition for review of the IAJ's order to the Board. The Board issued a decision and order affirming the IAJ's proposed decision and order.
Njoku then filed a notice of appeal to the King County Superior Court. Following a trial based on the Certified Appeal Board Record (CABR), the jury found by a preponderance of the evidence that Njoku's PTSD was not the result of an industrial injury or occupational disease. The court then entered an agreed order affirming the Board's denial of Njoku's petition for review.
Njoku appeals.
JURY INSTRUCTIONS
Njoku challenges both the trial court's decision to give certain instructions and its refusal to give others. We conclude that Instruction 9 and Instruction 10 are legally correct and that the court did not abuse its discretion in refusing to give Njoku's proposed Instruction 13 and the other unnumbered instruction.
Jury instructions are sufficient if they permit each party to argue their theory of the case, do not mislead the jury, and when read as a whole, properly inform the jury of the applicable law. No more is required.
Cox v. Spangler, 141 Wn.2d 431, 442, 5 P.3d 1265 (2000).
Leeper v. Dep't of Labor Indus., 123 Wn.2d 803, 809, 872 P.2d 507 (1994).
"On appeal, jury instructions are reviewed de novo, and an instruction that contains an erroneous statement of the applicable law is reversible error where it prejudices a party." An error is prejudicial if it affects the outcome of the trial.
Cox, 141 Wn.2d at 442.
State v. Wanrow, 88 Wn.2d 221, 237, 559 P.2d 548 (1977).
In contrast, a trial court's decision whether to give a particular instruction to the jury is a matter that this court reviews for abuse of discretion. Refusal to give a particular instruction is an abuse of discretion only if the decision was "manifestly unreasonable, or [the court's] discretion was exercised on untenable grounds, or for untenable reasons." If a party's theory of the 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.
Stiley v. Block, 130 Wn.2d 486, 498, 925 P.2d 194 (1996).
Boeing Co. v. Harker-Lott, 93 Wn. App. 181, 186, 968 P.2d 14 (1998).
Van Cleve v. Betts, 16 Wn. App. 748, 756, 559 P.2d 1006 (1977).
Stress Related Claims
Disability benefits are available under the Industrial Insurance Act (IIA), Title 51 RCW, for workers who sustain industrial injuries or develop occupational diseases. An industrial injury is "a sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without, and such physical conditions as result therefrom." An occupational disease is "such disease or infection as arises naturally and proximately out of employment. . . ."
RCW 51.32.010, .180.
Mental conditions or disabilities caused by stress are, by express direction of the legislature, excluded from the definition of occupational disease. In accordance with this directive, the Department adopted Washington Administrative Code (WAC) 296-14-300(1), which provides:
RCW 51.08.142; WAC 296-14-300(1); Boeing Co. v. Key, 101 Wn. App. 629, 632, 5 P.3d 16 (2000).
Examples of mental conditions or mental disabilities caused by stress that do not fall within occupational disease shall include, but are not limited to, those conditions and disabilities resulting from:
(a) Change of employment duties;
(b) Conflicts with a supervisor;
(c) Actual or perceived threat of loss of a job, demotion, or disciplinary action;
(d) Relationships with supervisors, coworkers, or the public;
(e) Specific or general job dissatisfaction;
(f) Work load pressures;
(g) Subjective perceptions of employment conditions or environment ;
(h) Loss of job or demotion for whatever reason;
(i) Fear of exposure to chemicals, radiation biohazards, or other perceived hazards;
(j) Objective or subjective stresses of employment ;
(k) Personnel decisions;
(l) Actual, perceived, or anticipated financial reversals or difficulties occurring to the businesses of self-employed individuals or corporate officers.
WAC 296-14-300(1) (emphasis added).
Stress may, however, be compensable as an industrial injury if it results from exposure to a single traumatic event. To support a claim for benefits, therefore, work-related stress must be caused by a sudden, tangible, external traumatic event that produces an immediate result. The event, whether emotional or physical, must also be "'of some notoriety, fixed as to time and susceptible of investigation.'" The cases clearly hold that emotional distress resulting from events "that unfold over a period of time rather than from a sudden, tangible, traumatic incident that produced an immediate result" does not qualify as an industrial injury.
WAC 296-14-300(2) ("Stress resulting from exposure to a single traumatic event will be adjudicated with reference to RCW 51.08.100.").
Id.; RCW 51.08.100; Boeing, 101 Wn. App. at 633-34.
Rothwell v. Nine Mile Falls School Dist., 149 Wn. App. 771, 781, 206 P.3d 347 (2009) (quoting Lehtinen v. Weyerhaeuser Co., 63 Wn.2d 456, 458, 387 P.2d 760 (1963)), review denied, 169 Wn.2d 1017 (2010).
Boeing, 101 Wn. App. at 634 (upholding denial of benefits for PTSD because jury could have found employee's condition developed over time rather than suddenly due to contact with hostile co-worker); see also Snyder v. Med. Serv. Corp. of Eastern Wash., 98 Wn. App. 315, 988 P.2d 1023 (1999), aff'd, 145 Wn.2d 233, 35 P.3d 1158 (2001) (PTSD allegedly suffered by employee as a result of her supervisor's intimidating and harassing behavior over a 10 month period was neither an industrial injury nor an occupational disease); Wheeler v. Catholic Archdiocese of Seattle, 65 Wn. App. 552, 829 P.2d 196 (1992), rev'd on other grounds, 124 Wn.2d 634, 880 P.2d 29 (1994) (emotional distress and PTSD allegedly caused by harassment by co-worker over a period of more than a year not an industrial injury);Rothwell, 149 Wn. App. at 781 (PTSD developed over a period of weeks following duties including cleaning up the scene of a suicide, searching for bombs, handling a bag that could have contained an explosive device, and clearing cards and candles away from suicide scene, held not an industrial injury because condition did not result immediately, nor from a single traumatic event, but rather resulted from a series of incidents over a period of a few days).
Instructions 9 and 10
Njoku argues that Instructions 9 and 10 are misleading and legally incorrect. Because Njoku's arguments with respect to each instruction are virtually indistinguishable, we addressed them together. We conclude that the instructions correctly state the applicable law and are not misleading.
Instruction 9 states:
As a matter of law, claims based on mental conditions or mental disabilities caused by stress do not fall within the definition of occupational disease. A psychiatric condition caused by the objective conditions of work events can constitute a compensable claim. A psychiatric condition caused by a worker's subjective perception of work events cannot constitute a compensable claim.
Clerk's Papers at 61.
Instruction 10 states:
Job conditions which a worker contends proximately caused an occupational disease must be objective in character. An objective condition is one which can be observed and described by someone other than the worker. Perceptions of employment conditions which are peculiar to the worker are subjective and not sufficient.
Clerk's Papers at 62.
Njoku argues that Instructions 9 and 10 are legally incorrect. This argument is not persuasive as the instructions correctly state the law governing workers' compensation claims for an occupational disease. Further, because the Board analyzed Njoku's claim as both an industrial injury claim and as an occupational disease claim, the trial court properly instructed the jury on both legal theories.
The trial court, without objection by either party, summarized the parties' positions as follows:
It was analyzed by the Board in two ways. One, they found that it — that PTSD did not result from the incidents of November 29th, 2001. They found that at least by omission, and they found that under an occupational disease analysis that it wasn't caused by the general conditions of her employment. I believe they made both findings.
The plaintiff is arguing that they should have made the finding that it was caused by the incident [on November 29, 2001]; [the District is] arguing that they were correct in finding that it did not and neither did it arise as an occupational disease.
Report of Proceedings (Dec. 9, 2009) at 9.
As a preliminary matter, the first sentence of Instruction 9 is clearly consistent with WAC 296-14-300(1). That section provides that "claims based on mental conditions or mental disabilities caused by stress do not fall within the definition of an occupational disease." Njoku cannot seriously contend that the first sentence of Instruction 9 is legally incorrect given the language of this WAC.
With respect to the next two sentences of Instruction 9, Njoku argues that the language regarding objective and subjective perceptions of work events cannot be reconciled with Price v. Department of Labor and Industries. This argument conflates two separate legal principles.
101 Wn.2d 520, 682 P.2d 307 (1984).
In Price, the court addressed whether a claim for workers' compensation based on a psychological disability may be awarded on the basis of expert medical testimony regarding wholly subjective symptoms, or whether the medical testimony must include at least some objective findings. In this context, the court concluded that it was improper to instruct the jury on the distinction between objective and subjective evidence in a case involving a psychiatric disability. Specifically, the court noted that:
Id. at 521.
Id. at 529.
Medical opinions derived from psychiatric examination are primarily based on conversations with the patient. Symptoms of psychiatric injury are necessarily subjective in nature. Viewed in this context, an instruction on objective-subjective evidence is improper.
Id. at 528.
But, the law regarding claims for occupational disease arising from conditions of employment is distinct from the law regarding the medical testimony necessary to establish a compensable workers' compensation claim for a psychiatric disability. Claims for occupational disease based on a mental condition or disability must be based on an objective perception of the employment conditions. A worker's subjective perception of the work environment cannot be the basis for a compensable claim for a mental condition or disability. This distinction is addressed in WAC 296-14-300(1)(g), which excludes mental conditions and disabilities resulting from "subjective perceptions of employment conditions or environment" from the definition of occupational disease.
WAC 296-14-300 ; see also Favor v. Dep't of Labor Indus., 53 Wn.2d 698, 704-05, 336 P.2d 382 (1959).
Here, Njoku's claim for PTSD could be argued on either a theory of industrial injury or occupational disease. And it appears that both theories were argued to the Board. To establish her claim under either theory, Njoku was not required to provide objective medical testimony. However, to prevail based on a claim of occupational disease — that the PTSD arose out of the conditions of her employment — Njoku could not rest on her subjective perception of work events, but was required to provide objective evidence of those events. Therefore, Instructions 9 and 10 are correct.
Njoku argues that Favor v. Department of Labor and Industries supports her argument that Instructions 9 and 10 are erroneous. We disagree.
53 Wn.2d 698, 336 P.2d 382 (1959).
In Favor, the claimant sought compensation for a coronary occlusion allegedly resulting from strain and anxiety associated with his job as an agricultural inspector. The supreme court affirmed the Board's denial of the claim on the ground that the claimant's statements regarding the strain and anxiety connected with his job were the only evidence supporting the existence of a causal relationship between his disease and his employment. The court held that the occupational disease statute requires objective proof that a worker's disease arose naturally and proximately out of his employment, and that the claimant's statements as to purely subjective conditions, peculiar to himself, did not satisfy this standard. This arguably supports the trial court's decision to give the occupational disease instructions at issue here.
Id. at 699.
Id. at 704-05.
Id. at 705-06.
However, this court need not decide whether Favor is persuasive. Favor was decided in 1959 and the statutory question at issue has been addressed by subsequent legislative action. The IIA defines "occupational disease" as "such disease or infection as arises naturally and proximately out of employment under the mandatory or elective adoption provisions of this title." In 1988, the legislature directed the Department to adopt a rule stating that claims based on mental conditions or mental disabilities caused by stress do not fall within the statutory definition of occupational disease. As discussed above, the resulting rule, WAC 296-14-300 , provides that mental conditions or disabilities caused by "subjective perceptions of employment conditions or environment" are not compensable occupational diseases. Here, the facts and arguments of the parties are such that an instruction based on this rule was not erroneous.
Njoku also argues that Boeing Co. v. Key supports her argument that Instructions 9 and 10 are erroneous. We disagree. Rather, the analysis in Boeing supports the trial court's decision to give Instructions 9 and 10.
101 Wn. App. 629, 5 P.3d 16 (2000).
In Boeing, the trial court gave the following instruction:
A worker may not receive benefits for a mental disability caused by stress resulting from relationships with supervisors, co-workers, or the public, unless she has a mental disability caused by stress which is the result of exposure to a sudden and tangible happening of a traumatic nature producing an immediate and prompt result.
Id. at 632.
On appeal, Key argued that the instruction was incorrect and misleading because she was arguing that her PTSD condition was an industrial injury, not an occupational disease, and the stress-related exclusion only applies to occupational disease claims. This court concluded that the instruction was not erroneous because it did not misstate the law or preclude Key from arguing her theory of the case. In addition, the court noted that the instruction allowed Boeing to argue that Key's claim did not meet the definition of an industrial injury.
Id. at 633.
Id. at 633-34.
Id. at 634.
Here, Njoku argues that Instructions 9 and 10 were not proper because they did not also include the law applicable to industrial injury claims that was included in the instruction at issue in Boeing. But we do not read jury instructions in isolation. Rather jury instructions are sufficient if, when read as a whole, they properly inform the jury of the applicable law and permit each party to argue their theory of the case. Here, the jury instructions, when read as a whole, allowed Njoku to argue her theory of industrial injury. And Instructions 9 and 10 allowed the District to argue its theory, that Njoku's PTSD was not an occupational disease.
Cox, 141 Wn.2d at 442.
Njoku also argues that Instructions 9 and 10 are misleading because she was not arguing for additional benefits based on a stress related condition, but rather, was arguing for additional benefits based on PTSD caused by the allowed industrial injury. But, as discussed above, this argument is inconsistent with the record. It is clear that the Board denied her claim for PTSD as both an industrial injury and an occupational disease. It is equally clear that, on appeal to the superior court, the District argued that the appeal should be denied as to both an industrial injury and an occupational disease theory. For this reason the trial court appropriately instructed the jury on the law as it relates to occupational disease. Any instruction as to the occupational disease theory of the case was therefore not misleading.
Finally, Njoku claims that the instructions were misleading because the jury could have believed that an industrial injury of a psychological nature requires finding an objective condition. But Njoku does not argue that either Instruction 9 or Instruction 10 prevented her from arguing her theory of the case — that her PTSD was caused by her allowed industrial injury. Jury instructions are sufficient if they permit each party to argue their theory of the case, do not mislead the jury, and when read as a whole, properly inform the jury of the applicable law. Here, Instructions 9 and 10 correctly informed the jury as to the applicable law with respect to occupational disease, one of the legal theories applicable in this case. They did not mislead the jury. And they did not prevent Njoku from arguing her case based on the theory of industrial injury. Instruction 9 and Instruction 10 were proper.
Id.
Proposed Instructions
Njoku next argues that the trial court abused its discretion by refusing to give her proposed Instruction 13 and another unnumbered instruction. We disagree.
When an attending physician testifies in a workers' compensation case, a jury instruction stating that the jury should give the physician's testimony special consideration is generally required. "This is because an attending physician is not an expert hired to give a particular opinion consistent with one party's view of the case." Furthermore, a physician who has attended a patient for a considerable period of time is better qualified to give an opinion as to the patient's disability than a doctor who has seen and evaluated the patient only once.
WPI 155.13.01; Hamilton v. Dep't of Labor Indus., 111 Wn.2d 569, 571, 761 P.2d 618 (1988).
Intalco Aluminum v. Dep't of Labor Indus., 66 Wn. App. 644, 654, 833 P.2d 390 (1992).
Young v. Dep't of Labor Indus., 81 Wn. App. 123, 128, 913 P.2d 402 (1996) (quoting Spalding v. Dep't of Labor Indus., 29 Wn.2d 115, 128-29, 186 P.2d 76 (1947)).
Relying on this authority, Njoku proposed Instruction 13:
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. It does require that you give any such testimony careful thought in your deliberations.
Clerk's Papers at 100.
She contends that the trial court's refusal to give this instruction was prejudicial error. Specifically, Njoku argues that Dr. Mary Bartels was her attending physician with respect to her condition of PTSD, and that her testimony on that issue should have been given special consideration.
Proposed Instruction 13 correctly states the generally applicable law with respect to the attending physician doctrine. But the trial court did not abuse its discretion in declining to give the instruction under the facts of this case.
At trial, Njoku contended that both Dr. Richard Coder and Dr. Bartels were attending physicians, as defined by WAC 296-20-01002 , and that the trial court was required to give special consideration to their testimony. The District countered that a general instruction directing the jurors to evaluate the weight of each witness's testimony was more appropriate under the facts of this case. Specifically, the District pointed out that neither Dr. Coder nor Dr. Bartels evaluated Njoku until after her initial claim had been closed and her appeal accepted by the Board. This postdated the period for which Njoku claimed that she should be allowed additional treatment and time-loss compensation.
WAC 296-20-01002 (" Physician or attending physician (AP): For these rules, means any person licensed to perform one or more of the following professions: Medicine and surgery; or osteopathic medicine and surgery. An AP is a treating physician.").
Boeing Co. v. Harker-Lott controls the outcome in this case. There, this court concluded that the trial court's refusal to give HarkerLott's proposed special consideration jury instruction was not an abuse of discretion. In reaching this conclusion, the court noted the following. First, it is the general rule that in workers' compensation cases special consideration should be given to the opinion of the claimant's attending physician. But no case holds that such an instruction must be given, even where the evidence supports it.
93 Wn. App. 181, 968 P.2d 14 (1998).
Id. at 186 (citing Hamilton, 111 Wn.2d at 571).
Id.
Second, the court explained that the proposed special consideration instruction was not necessary for the jury to understand Harker-Lott's theory of the case because the court's general instructions sufficiently explained to the jury the applicable law with respect to expert witnesses. And the instructions allowed Harker-Lott to argue that the jury should give special consideration to her attending physicians because their primary goal was to treat her rather than to testify at trial.
Id. at 187
Id.
Third, the court noted that Harker-Lott's attending physicians disagreed whether her injury was the result of the on-the-job accident.
Id.
Based on these considerations, the court concluded that the trial court did not abuse its discretion in refusing to give the proposed instruction. The court also concluded that, even if refusing to give the instruction had been error, there was no reason to believe that such error was prejudicial.
Id. at 188.
Although the proposed instruction would have told the jury to give special consideration to the testimonies of attending physicians, it also would have advised the jury that it was not required to give greater weight or credibility to those testimonies, or to believe those testimonies. Rather, according to the instruction, giving special consideration to the attending physician's testimony meant only that the jury was to give it careful thought in its deliberations.
Id.
Here, Harker-Lott supports the trial court's refusal to give Njoku's proposed special consideration instruction. First, as in Harker-Lott, the court gave a general expert testimony instruction. And, like Harker-Lott, an additional special consideration instruction was not necessary for the jury to understand Njoku's theory of the case. Finally, like Harker-Lott, Njoku has not demonstrated that the lack of a special consideration instruction, even if improperly rejected, resulted in any prejudice.
Clerk's Papers at 54 ("A witness who has special training, education or experience may be allowed to express an opinion in addition to giving testimony as to facts. You are not, however, required to accept his or her opinion. To determine the credibility and weight to be given to this type of evidence, you may consider, among other things, the education, training, experience, knowledge and ability of the witness. You may also consider the reasons given for the opinion and the sources of his or her information, as well as considering the factors already given to you for evaluating the testimony of any other witness."); Report of Proceedings (Dec. 9, 2009) at 13.
Njoku argues that Harker-Lott is distinguishable from the facts of this case because there was no contradiction among the testimony of her attending physicians as to her diagnosis. But, for all of the reasons outlined above,Harker-Lott is persuasive. A trial court is not required to give a party's proposed instructions as long as the instructions given correctly state the law and permit each party to argue their theory of the case. Here, the instructions correctly defined industrial injury and occupational disease and allowed Njoku to argue her theory of the case. In addition, the general instruction on expert testimony allowed Njoku to argue that the jury should give special consideration to her attending physicians. The trial court did not abuse its discretion in refusing to give proposed Instruction 13.
Njoku additionally challenges the trial court's refusal to give the following proposed instruction:
A medical expert's opinion regarding a worker's claim for compensation based upon a psychological condition may be based solely on the worker's subjective complaints.
Brief of Appellant at 23; Report of Proceedings (Dec. 9, 2009) at 28.
Njoku's only argument in support of this instruction is a citation to similar language in Price. There, the court stated:
Medical opinions derived from psychiatric examination are primarily based on conversations with the patient. Symptoms of psychiatric injury are necessarily subjective in nature.
Price, 101 Wn.2d at 528.
As discussed above, the context of this statement was the court's discussion of whether an objective-subjective instruction for medical expert testimony was proper.
This quotation from Price is not sufficient to establish that the trial court abused its discretion in declining to give the proposed instruction. The fact that a proposed jury instruction includes language used by a court in the course of an opinion does not necessarily make it a proper jury instruction. Here, it was not an abuse of discretion for the trial court to decline to give Njoku's proposed instruction.
Swope v. Sundgren, 73 Wn.2d 747, 750, 440 P.2d 494 (1968); Hammond v. Braden, 16 Wn. App. 773, 776, 559 P.2d 1357 (1977).
The District argues that Njoku should be jurisdictionally barred from seeking acceptance of PTSD under this claim because she did not protest or appeal the Department's final order denying her claim as to stress and psychosis. Because of our resolution of Njoku's arguments on the bases discussed above, we need not address this claim.
ATTORNEY FEES
Njoku requests attorney fees and costs pursuant to RAP 18.1 and RCW 51.52.130.
We affirm the judgment and order and deny Njoku's request for an award of attorney fees.
WE CONCUR.