NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there.
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CLARK COUNTY, ) ) No. 91963-1 Respondent, ) ) v. ) EnBanc ) PATRICK J. McMANUS, ) ) Petitioner. ) _________ . ) APR 2 8 2016 Filed -----------------------
JOHNSON, J..·-In this workers' compensation appeal, the trial court denied
the worker's proposed instruction, which would inform the jury that it must give
special consideration to the (opinion) testimony of his attending physician. The
trial court ruled against the worker. The Court of Appeals reversed and ordered a
new trial on an unrelated basis---holding that the trial court reversibly erred when it
refused Patrick McManus's request to revise the Board of Industrial Insurance
Appeals' (Board) erroneous finding regarding the location ofMcManus's injury.
Clark County v. McManus, 188 Wn. App. 228,231,345 P.3d 868 (2015).
However, the Court of Appeals ruled that the trial court correctly rejected the
instruction. We granted review on the issue of whether it is error to refuse to give Clark County v. McManus, No. 91963-1
the special consideration instruction. Clark County v. McManus, 184 Wn.2d 1018,
361 P.3d 747 (2015). We hold the instruction must be given.
FACTS AND PROCEDURAL HISTORY
McManus prevailed at the Court of Appeals and is getting a new trial.
MciVIanus did not prevail on his claim that the trial court erred in refusing to give a
special consideration instruction regarding his attending physician to the jury.
Because the trial court on remand would be bound by the law of the case doctrine,
the prior decision of the trial court to not give the special consideration instruction
would be binding. See Coy v. Raabe, 77 Wn.2d 322, 325, 462 P.2d 214 (1969)
(acknowledging the binding effect .. of determinations made by the appellate court
on further proceedings in the trial court.on remand). We took review to determine
if such an instruction is required in worker's compensation cases. Order Granting
Review, Clark County v. McManus, No. 91963-1 (Wash. Dec. 2, 2015).
McManus worked for the county operating a street sweeper from 1999 until
2011. He eventually quit work because of a debilitating, degenerative spinal
diseas~ affecting his low back, which he attributed to the bumpy ride when
operating a street sweeper and poor ergonomic layout in the operator's cab.
McManus filed a claim for workers' compensation under Title 51 RCW.
2 Clark Coum); v. McManus, No. 91963-1
The Department of Labor & Industries (Department) allowed McManus's
claim and awarded him benefits. Clark County (County) appealed the
Department's order allowing the claim to the Board, which proceeded to an
evidentiary hearing before an industrial appeals judge (IAJ).
The IAJ considered offered deposition testimony from several witnesses.
McManus's attending physician-Dr. Won-provided testimony in support of
~ ;McManus's claim. 1 Dr. Won opined that McManus's low back disability was
employment-related. The County presented contrary opinions by two forensic
medical experts, one of whom had reviewed McManus's medical records and one
of whom had examined McManus on one occasion.
The IAJ issued a proposed decision and order upholding the decision of the
Department. The County petitioned to the three-member Board for review of the
proposed decision. The Board denied the County's petition and adopted the
proposed decision and order. The decision and order upheld the Department's
determination, concluding that McManus sustained an aggravation of his
preexisting low back condition that arose naturally and proximately out of the
distinctive conditions of his employment with the County.
---~··-~
1 Under the Industrial Insurance Act, Title 51 RCW, Dr. Won meets the definition of an "attending provider" or "treating physician" as a physician who "actively treats an injured or ill worker." WAC 296-20-01002 (providing "attending provider" includes a physician and is one who "actively treats an injured or ill worker").
3 Clark County v. McManus, No. 91963-1
The County appealed the Board's decision to the superior court, and the case
was tried on the record before a jury. The superior court instructed the jury on the
Board's findings, as well as the presumptive correctness of its decision, the legal
issue for determination, and the County's burden of proving the Board's decision
incorrect. See Clerk's Papers (CP) at 87-88 (Instr. 4, 5), 98 (special verdict form).
The superior court also instructed the jury regarding its role in determining the
,, :credibility of witnesses. See CP at 82-84, 90 (Instr. 1, 7). 2
The superior court rejected McManus's proposed instruction 10 regarding
the special consideration rule, which provided as follows: "You should give special
considerationto 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." CP at 57 (Instr. 10). 3
·---·-------- 2 These instructions appear to be drawn from 6 Washington Practice: Washington Pattern Jury Instructions: Civil1.02 (6th ed. 2012) (WPI) (conclusion of trial-introductory instruction) and 6 WPI 2.10 (expert testimony).
3 This proposed instruction is identical to the current 6A WPI 155.13.01 (testimony of attending physician): "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 di$believe, such testimony; It does require that you give any such testimony careful thought in your deliberations." 6A Washington Practice: Washington Pattern Jury Instructions: Civi/155.13.01 (6th ed. 2012).
4 Clark County v. McMcmus, No. 91963-1
The only question before the jury was whether the Board was correct in
determining that McManus's low back condition arose naturally and proximately
from the distinctive conditions of his employment as a street sweeper operator. The
jury determined that the Board was incorrect, and the trial court reversed.
McJ\1anus appealed to the Court of Appeals, Division One, which reversed
and remanded for a new trial due to evidentiary and instructional errors unrelated
t ,ito the proposed special consideration instruction. The Court of Appeals rejected
'MeManus 's cla:irrdhat the trial court erred in refusing to give proposed instruction
10, which sets forth the special consideration instruction. Holding that it was not an
abuse of discretion to refuse to give the instruction, the Court of Appeals
concluded . .. . ·; it was unnecessary ,· . in light of. the general instructions given addressing
·witness . . credibility. ..' ·. . See .McManus, 188 Wn. App. at 241-42 (concluding that '.
MciVIanus could argue that Dr. \Von was better qualified to render an opinion as
his treating physician and the jury was informed that it could accept this theory;
th~s, the trial court's general instruction was sufficient) .
.· McManus ~nd the c;:ounty petitioned this court for review. Only McManus's
petition for review wr:~s granted.
ANALYSIS
Generally, the trial court has the discretion whether to give a particular jury
instruction. Stiley v. Block,. 1~0 Wn.2d 486, 498, 925 P.2d 194 (1996). However, a . .. . . .. . .
5 Clark County v. McManus, No. 91963-1
trial court abuses its discretion if it based its ruling on an erroneous view of the
law. Wash. State Physicians Ins. Exch. & Ass 'n v. Fisons Corp., 122 Wn.2d 299,
339, 858 P.2d 1054 (1993). At issue here is whether our decision in Hamilton v.
Department of Labor & Industries, 111 Wn.2d 569, 761 P.2d 618 (1988),
establishes the requirement for juries in workers' compensation cases to be
instructed regarding the special consideration rule for testimony of attending
physicians.
In Hamilton, this court recognized a "long-standing rule of law in workers'
compensation cases that special consideration should be given to the opinion of a
claimant's attending physician." Hamilton, 111 Wn.2d at 571. Significantly in
Hamilton, this court reversed and reinstated the trial court's verdict, holding that
the instruction was an accurate statement of the law and the long-standing rule that
special consideration be given to attending physicians. That we reversed the Court
of Appeals on the instruction issue supports the argument that the special
consideration instruction in workers' compensation cases is mandatory. The
language in Hamilton also makes clear that such an instruction is required.
Hamilton involved a department challenge to a jury verdict overturning a
board decision denying disability benefits. The Department asserted that a court
instruction on the special consideration rule constituted an impermissible comment
on the evidence in violation of the Washington Constitution, article IV, section 16.
6 Clark County v. McManus, No. 91963-1
The Court of Appeals .held that the instruction was an impermissible comment on
th~ evidence. This court reversed, concluding the instruction set forth an accurate
statement of applicable law. This court explained-in reference to the special
ccmsideration jury instruction-that
.[i]t reflects binding precedent in this state and correctly states the law. Since this is a rule of law, it is appropriate that the jury be informed of this by the instructions of the court. To refU;se to do so would convert the rule of law into no more than the opinion of the claimant's attorney.
llamilton; 111 Wn.2d at 572 (emphasis added). "The instruction does not require
the jury to give more weight or credibility to the attending physician's testimony
but to give it careful thought." Harnilton, 111 Wn.2d at 572.
Here, while the County contends the special consideration instruction causes
confusion for the jurors, this court concluded that when the instruction is
considered in conjunction with the standard instruction regarding weighing
testimony and credibility ofwitnesses, it is a correct statement of the law in
workers' compensation cases. Contrary to what the County asserts, the special .. ;
instruction is not redundant and unnecessary when considering the instructions as a
whole. We find it neither confusing nor misleading. This court in Hamilton went
on to explain that the special consideration instruction supports the purpose of the
act, which is to promote benefits and to protect workers. ' ' . .
7 Clark County v. A1cManus, No. 91963-1
As amicus curiae Washington State Association for Justice Foundation
points out, while the Hamilton decision established that the instruction was an
accm·ate statement of the law, the rule was otherwise well settled before Hamilton.
See, e.g., Chalmers.;;. Dep.'t of Labor & Indus., 72 Wn.2d 595, 598-602,434 P.2d
720 .(1967) (reaffirming special consideration rule but concluding attending
physician's testimony was based on insuffieientfoundation resulting in a failure of
proofby claimant); Groffv. Dep't of Labor & Indus., 65 Wn.2d 35,44-46, 395
P.2d 633 (1964) (emphasizing "that special consideration should be given to the
opinion of the attending physician," and that in order to properly review a superior
court determination regarding an industrial claim, the superior court should provide
an explanation as to why the attending physician's testimony was not preferred
over that of other medical experts); Spalding v. Dep 't ofLabor & Indus., 29 Wn.2d I \ ' ' ' I
115,. 129, 12~? 186 P.2d 76 (1947) (recognizing "that special consideration should
be given to the opini?n of the attending physician," but declining to establish a
"'hard and fast rule," concluding the issue is for the jury).
Several Court of Appeals' cases, including this case, have called into
question the special consideration instruction. See Larson v. City ofBellevue, 188
Wn. App. 857, 883.-84, 355 P.3d 331 (2015); Boeing Co. v. Harker-Loft, 93 Wn.
App._l81, 186-89, 968 P.2d14 (1998); l11fcClelland v. ITT Rayonier, Inc., 65 Wn.
App. 38,6, 393-94 & n.l, 828 P.2d 1138 (1992). The County asserts that these cases
8 Clark County v..McManus, No. 91963-1
support their argument that a mandatory instruction would improperly remove the
general discretion given to the trial court to assess the appropriateness of jury
instructions. Ultimately, the Comity argues, the discretion whether to allow an
inst~l.iction to be submitted to a jury should rest with the trial judge. While perhaps
correct in other drcumstances, in workers' compensation cases we have
determined the instruction is required, and agreeing with the County's argument
,would require overruling Hamilton.
In turning to past Court of Appeals' decisions, the court in McClelland
affjrmed a summary judgment upholding denial of benefits where the attending
physician's opinion lacked the requisite objective proof required for the particular
occupational disease claim. The opinion did not implicate the special consideration
rule in resolving the appeal because of the failure of proof. However, in dicta, the
court remarked:
We are unsure what the Supreme Court means by "special consideration". Hamilton explained that this does not require a jury to "give more weight or credibility to the attending physician's testiinony, but to give it careful thought." [Hamilton,] 111 Wn.2d at 572. We assume that the jury gives careful thought to every witness's testimony. If the attending physician's testimony does not carry any more weight or credibility with the jury, how then does the jury give it special consideration?
McClelland, 65 Wn. App. at 394 n.1. That criticism is misplaced. The instruction
requires only that the jury be mindful of the special consideration an attending
9 Clark County v. McManus, No. 91963-1
physician's testimony deserves when weighing the credibility of all witnesses. The
requirement for the special consideration instruction in Hamilton is clear.
In _Harker~/.~ott, the Court of Appeals acknowledged that special
consideration should be given to an attending physician, but concluded in that case
"the 1Icimilton court did not hold that an instruction to that effect was mandatory.
Rather~ the court held only that such an instruction was not a comment on the
f;tevidence. No case has specifically held that such an instruction must be given
when the evidence. supports it." Harker-Lott, 93 Wn. App. at 186 (footnote
omitted). This statement disregards our observation in Hamilton that the instruction
is an accurate statement of the law in workers' compensation cases and the general
rule that t_he jury be instructed on the law.
Additionally, Harker-Lott is factually distinguishable from the present case . ·~ . '. ' '
because the claimant there had four attending physicians who did not agree the ·.· '·.
claimant was injured as a result of an on-the-job accident. Because the testimony
of t~e atteJ:tding physicians was in conflict, and because the general instructions
given allowed the claimant to argue that the supporting testimony of two of her
attending physicians should be given special consideration, refusal to give the • . . . • . . I". . . .
special consideration instruction was not an abuse of discretion by the trial court.
In Jiarker_-Lott, the situation was somewhat unique and the jury could not give
10 Clark County v. McJVfanus, No. 91963~1
special consideration to multiple, conflicting attending physicians' testimony.
Here, t.hqse circumstances do not exist.
. The analysis in Harker-Lott also overlooks a key aspect of Hamilton. While
this ·c.ourt may not have used the term "mandatory" when discussing the special
consideration instruction, we did describe the special consideration rule as a "rule
of law" <:Jnd stated .that refusing to give the instruction ''would convert the rule of
,· Jaw into no more than the opinion of the claimant's attorney." Hamilton, 111
Wn.2d at 572. ··Hamilton thus recognizes a requirement for providing the special
consideration instruction, except in those cases where there are articulable reasons
for not accepting the attending physician's or physicians' testimony.
Finally,_ the County cites to Larson in support of its argument that to give a
special consideration . . . ' . instruction is discretionary rather than mandatory. In Larson,
the_trial court expressed concern over the substance of testimony provided by the
attending physician in comparison to the other more elaborate testimony from
medical . . . . experts. . The trial court decided to not provide the special consideration
instn,1c;tion . . due . to concerns that it •,. ., would be misleading. The Court of Appeals ' '
found this action was proper and not an abuse of discretion, citing the Harker-Loft
decision. Larson, 188Wn. App. at 883-84.
It appears here that the Court of Appeals embraced an analysis in Larson,
whic_h conflicts with our decision in Hamilton. Our holding in Hamilton was
11 Clark County v. McManus, No. 91963-1
unambiguou~. The rule requires that where an attending physician testifies, the trial
court must give the attending physician .instruction. Hamilton dictates that a jury
conducting .de novo review of a board decision needs to be instructed on this rule.
To the extel)t Larson holds otherwise, we overrule it.
The County urges us-in the alternative to asserting that the trial court did
not abuse its discretion in rejecting the special consideration instruction-to
··overturn Hamilton and hold that the special consideration instruction never be
given. We reject this argument. We find Hamilton to be neither incorrect nor
harmful. As the court explained in Hamilton, a jury instruction regarding the
special consideration rule is necessary for the jury to meaningfully review board
decisions. 4
In the present case, the only attending physician who testified was Dr. Won.
The general witness instruction given in this case did not accurately convey the
requirement embraced in Hamilton that the jury give special consideration to the
testimony of McManus's treating physician, nor would giving the special
consideration instruction cause confusion where there is no conflicting testimony
4 The comment to 6A WPI 15 5.13. 01 indicates that the special consideration instruction need not always be given, citing Harker-Lott. 6A WPI 155.13.01 cmt. at 167. We disavow the WPI comment to the extent that it indicates that the special consideration instruction is not mandatory. The instruction is mandatory except in those instances where the instruction cannot be given, such as where there are multiple attending physicians offering conflicting testimony.
12 Clark County v. McManus, No. 91963-1
from multiple attending physicians. The trial court did not identify any compelling
reason why Dr. Won's opinion should not be accepted.
Importantly, the Board itself recognizes and applies the special consideration
rule. See, e.g., In re Free, No. 89 0199 (Wash. Bd. of Indus. Ins. Appeals June 20,
1990); In re Anderson, No. 87 3724 (Wash. Bd. of Indus. Ins. Appeals May 18,
1989). The Department applies the special consideration rule in adjudicating
claims. Because self-insured employers are bound to comply with department
claims handling processes, they also apply the special consideration rule. Special
consideration should be given to the opinion of an attending physician unless
specific reasons for not accepting the attending physician's opinion are articulated.
We hold that in cases such as this where one attending physician testifies,
the special consideration instruction must be given. Here, the trial court did not
identify why a special consideration instruction should not be given and we find no
reason. Our decision in Hamilton-which relied on long-standing policy
13
Clark County v. McManus, No. 91963-1
surrounding workers' compensation cases-controls. We reaffirm Hamilton. We
disavow the Court of Appeals' decision on the special consideration instruction
issue and hold that the instruction is mandatory in situations present here.
WE CONCUR: