FILED COURT OF APPEALS DIVISION II
2015, AN 13 Phis 18 STATE OF WASHINGTON BY
IN THE COURT OF APPEALS OF THE STATE OF Wik RGTON
DIVISION II
DARLENE FLETCHER, No. 45653 -2 -II
Appellant,
v.
UNPUBLISHED OPINION GRAYS HARBOR COMMUNITY HOSPITAL,
Respondent.
MAxA, J. — Darlene Fletcher appeals the trial court' s order, based on the jury' s special
verdict, affirming the finding of the Board of Industrial Insurance Appeals ( Board) that Fletcher
was ineligible to reopen her 2003 industrial injury claim. In awarding her benefits in 2003, the
Department of Labor and Industries ( Department) found that Fletcher had a permanent
impairment. Several years later, Fletcher applied to reopen her claim. The Board found, and the
jury agreed, that Fletcher had no objective findings of permanent impairment in December 2011
and that her industrial injury condition had not objectively worsened between 2003 and
December 2011.
Fletcher argues that the trial court erred by ( 1) denying her two motions for judgment as a
matter of law because under res judicata the Department' s finding of permanent impairment in
2003 precluded the Board' s and the jury' s finding that she had no objective findings of
permanent impairment in 2011, ( 2) failing to give her proposed jury instruction stating that it had 45653 -2 -1I
been established that she had objective findings of permanent impairment in August 2011, and
3) failing to give her proposed jury instruction stating that the jury should give special
consideration to the testimony of an attending physician).
We hold that Fletcher waived her res judicata argument on appeal because she did not
include the argument in her petition for review to the Board and that the trial court did not err by
failing to give Fletcher' s proposed jury instructions. Accordingly, we affirm. FACTS
Workplace Injury and Benefits Determination
In May 2001, Fletcher sustained a neck injury while working at Grays Harbor
Community Hospital ( Hospital). In September, she underwent cervical fusion surgery on two
herniated discs in her neck.
Fletcher filed a claim for workers' compensation benefits under the Industrial Insurance
Act, Title 51 RCW. In August 2003, the Department awarded benefits for Category 2 permanent
cervical and cervico- dorsal impairments and her claim before the Department was closed. There
was no appeal from this order.
In October 2010, Fletcher applied to reopen her claim on the grounds that her industrial
injury had objectively worsened. The Department may reopen an industrial insurance claim if
the claimant establishes a worsening of her condition after the claim is closed. Eastwood v.
Dep 't ofLabor & Indus., 152 Wn. App. 652, 657, 219 P. 3d 711 ( 2009); see RCW
1 Fletcher also assigns error to the trial court' s denial of her motion for directed verdict and the trial court' s order affirming the Board' s decision. However, she makes no separate arguments regarding these assignments, which present the same issues as the motion for judgment as a matter of law. Therefore, we need not address them.
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51. 32. 160( 1)( a); WAC 296 -14 -400. However, on December 8, 2011, the Department denied
Fletcher' s application because the medical evidence showed that the condition caused by her
injury had not objectively worsened since her final claim closure.
Appeal to Board ofIndustrial Insurance Appeals
Fletcher appealed the Department' s denial to the Board. The Industrial Appeals Judge
IAJ) considered Fletcher' s testimony and the depositions of Dr. Clyde T. Carpenter, Dr. Karl
Goler, and Dr. R. David Bauer.
Fletcher testified that her condition had worsened between August 2003 and December
2011. She testified to numbness in her left and right arms, decreased neck mobility, and neck
numbness. On cross -examination, Fletcher reported remembering being examined by both Dr.
Goler and Dr. Bauer, and that she had answered each doctor' s questions truthfully.
Dr. Carpenter had been Fletcher' s attending physician through 2003 and had performed
her 2001 neck surgery. Dr. Carpenter stated he had not physically examined Fletcher since 2003,
and that he based his medical opinion on his physician assistant' s examination of Fletcher and on
Fletcher' s chart notes. Dr. Carpenter stated that his medical opinion was that Fletcher' s injury
had worsened because she had " spinal stenosis at C4 -5 adjacent to her fusion." Carpenter
Deposition at 13.
Dr. Goler performed a medical examination of Fletcher on March 3, 2011. He reported
that he had reviewed Fletcher' s medical records from 2001 to 2010, and conducted a physical
and neurosurgical examination of Fletcher. Dr. Goler concluded that Fletcher had no worsening
of her condition because she had no significant radiographic, clinical, or electrical change. He
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also opined that Fletcher' s behavior during her physical examination " suggested symptom
magnification and pain behavior." Goler Deposition at 30 -31.
Dr. Bauer is a board -certified orthopedic surgeon who specializes in spinal injuries and
disease. He examined Fletcher on November 17, 2011. Dr. Bauer stated that it was his medical
opinion that Fletcher " had cervical spondylosis, which [ are] degenerative changes which we felt
were] preexisting and not related to the injury." Bauer Deposition at 28. Based on Dr. Bauer' s
examination of Fletcher' s medical records and her physical condition, he reported that he " did
not feel that there was any change in her condition, in any objective fashion, between the time of
closure and the time of the Department' s order." Bauer Deposition at 30. Like Dr. Goler, Dr.
Bauer testified that on multiple occasions Fletcher appeared to be magnifying the significance of
her symptoms.
On November 29, 2012, the IAJ denied Fletcher' s appeal. The IAJ made the following
proposed relevant findings of fact: 2
3. Darlene H. Fletcher' s industrial injury claim was closed August 28, 2003, and she was given a Category 2 permanent partial disability award for cervical and cervico- dorsal impairments.
4. On December 8, 2011, Darlene H. Fletcher had no objective findings proximately caused by industrial injury.
5. During the period between August 28, 2003, and December 8, 2011, Darlene H. Fletcher' s industrial injury condition did not objectively worsen.
Clerk' s Papers ( CP) at 34.
2 After consideration of all evidence presented at hearings before the IAJ, the IAJ makes a proposed decision and order, which is adopted by the Board and becomes the Board' s decision and order if no party files a petition for review of the proposed decision and order. See RCW 51. 52. 104. If the Board chooses to address a party' s petition for review, then the Board issues a separate final decision and order. RCW 51. 52. 106.
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In addition, the IAJ made the following conclusion of law:
2. Between August 28, 2003, and December 8, 2011, Darlene H. Fletcher' s
condition, proximately caused by the industrial injury, did not objectively worsen within the meaning of RCW 51. 32. 160.
Certified Appeal Board Record at 27.
In December 2012, Fletcher filed a petition for review of the IAJ' s decision to the Board.
Her petition objected to the IAJ' s findings of fact 4 and 5, arguing that the findings of fact were
not supported by evidence in the record. The petition for review did not argue that the IAJ erred
in making finding of fact 4 based on the doctrine of res judicata. The Board adopted the IAJ' s
proposed decision and order, including the IAJ' s findings of fact and conclusions of law.
Appeal to Superior Court
Fletcher appealed the Board' s order to the superior court. She requested a jury trial. The
certified appeal board record was read to the jury. See RCW 51. 52. 115.
At the close of the presentation of evidence to the jury, Fletcher made a CR 50( a) motion
for judgment as a matter of law. She argued that the Board' s finding of fact 4 —that in
December 2011 she had no objective findings proximately caused by industrial injury —was
barred under res judicata because the Department had found in 2003 that she had a permanent
impairment. In reply, the Hospital argued that the issue was not properly before the trial court
because Fletcher had not raised the res judicata argument in her petition for review after the
IAJ' s proposed decision. The trial court denied Fletcher' s CR 50( a) motion reasoning that
finding of fact 4 was " bad draftsmanship" and that it had to be read in conjunction with the
Board' s other factual findings. Report of Proceedings ( RP) at 8.
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The trial court subsequently instructed the jury on the law. The trial court refused to give
Fletcher' s proposed jury instruction relating to her res judicata argument. The proposed
instruction stated that it had been established that she had objective findings of permanent
impairment as of August 8, 2011. But that date had no relation to any event in the case. The
trial court also refused to give Fletcher' s proposed jury instruction stating that the jury should
give special consideration to the testimony of an attending physician.
The jury returned a special verdict in which it stated that the Board correctly found that
1) on December 8, 2011, Fletcher had no objective findings proximately caused by her
industrial injury, and ( 2) Fletcher' s condition had not objectively worsened between August
2003 and December 8, 2011. After the verdict, Fletcher renewed her motion for judgment as a
matter of law under CR 50( b). Once again, she argued that res judicata precluded the Board' s
and jury' s findings that she had no objective findings in December 2011. In response, the
Hospital again argued that Fletcher had waived her res judicata argument by failing to assert the
argument in her petition for review, and reasserted its position that the evidence in the record —
the testimony of Dr. Goler and Dr. Bauer —supported the jury verdict. The trial court denied
Fletcher' s motion.
The trial court entered a judgment and order affirming the Board' s decision based
on the jury' s verdict. Fletcher appeals.
ANALYSIS
A. JUDGMENT AS A MATTER OF LAW /RES JUDICATA
Fletcher emphasizes that the Department determined in 2003 that she had a permanent
impairment from her industrial injury. She argues that this determination as a matter of law
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precluded first the Board and later the jury from finding that in December 2011 she had no
objective findings proximately caused by her industrial injury. We disagree because Fletcher
waived the res judicata argument when she did not raise it in her petition for review to the Board.
Therefore we hold that the trial court did not err in denying Fletcher' s motions for judgment as a
matter of law.
RCW 51. 52. 104 authorizes a party to file a petition for review with the Board of an IAJ' s
proposed decision regarding an industrial insurance claim. However, RCW 51. 52. 104 provides,
Such petition for review shall set forth in detail the grounds therefor and the party or parties
filing the same shall be deemed to have waived all objections or irregularities not specifically set
forth therein." Similarly, RCW 51. 52. 110 authorizes a party to appeal the Board' s decision to
the superior court, but RCW 51. 52. 115 provides that in the superior court " only such issues of
law or fact may be raised as were properly included in the notice of appeal to the board, or in the
complete record of the proceedings before the board."
Washington courts have held on numerous occasions that under RCW 51. 52. 104, a
claimant waives legal arguments that are not presented to the Board in the claimant' s petition for
review. See Hill v. Dep' t of Labor & Indus., 90 Wn.2d 276, 280, 580 P. 2d 636 ( 1978) ( holding
party waived argument of IAJ' s potential disqualification by failing to present argument to
Board);. Leuluaialii v. Dep' t of labor & Indus., 169 Wn. App. 672, 684, 279 P. 3d 515 ( 2012),
review denied, 176 Wn.2d 1018 ( 2013) ( holding claimant waived argument that closing order
was not final because she failed to raise it in her appeal to the Board or petition for review of the
Board' s decision); Merlino Const. v. City ofSeattle, 167 Wn. App. 609, 616 n.3, 273 P. 3d 1049,
review denied, 175 Wn.2d 1003 ( 2012) ( holding claimant waived argument that a police officer
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was an independent contractor by failing to present argument to the Board or trial court); Allan v.
Dep' t of Labor & Indus., 66 Wn. App. 415, 422, 832 P. 2d 489 ( 1992) ( holding claimant waived
objection on grounds of insufficient notice because it was not set out in her petition for review to
the Board).
In Fletcher' s petition for review she objected to the TAP s findings of fact 4 and 5, and
argued only that both were not supported by evidence in the record. The relevant analysis in
Fletcher' s petition for review focused only on the weight the Board should give to the
qualifications and opinions of doctors Carpenter, Goler, and Bauer. Nowhere in Fletcher' s
petition for review did she assert the legal argument that finding of fact 4 was erroneous based
on the doctrine of res judicata or any other related legal doctrine. As a result, we hold that
Fletcher waived her res judicata argument.
Fletcher argues that we should allow her to make the res judicata argument based on our
equitable powers. But she points to no precedent where we have exercised our equitable powers
to allow a claimant to assert an argument that has been waived under a plain reading of RCW
51. 52. 104. Division One of this court in Belnap v. Boeing Company elected to address an
argument that could have been waived under RCW 51. 52. 104 " pursuant to the inherent power of
appellate courts to address issues which are crucial,to the case and necessary to a proper
decision." 64 Wn. App. 212, 223 n. 6, 823 P. 2d 528 ( 1992). However, we have declined to
follow Division One' s example in Belnap and have strictly followed the plain language of RCW
684; Allan, 66 Wn. 422. We decline 51. 52. 104. See, e. g., Leuluaialii, 169 Wn. App. at App. at
Fletcher' s request to disregard her waiver of the res judicata argument.
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We hold that Fletcher waived her objection to the Board' s finding of fact 4 based on res
judicata and cannot now assert this argument in this appeal. Because res judicata is the only
basis for Fletcher' s argument that the trial court erred in denying her CR 50( a) and CR 50( b)
motions, we affirm the trial court' s rulings.
B. PROPOSED JURY INSTRUCTIONS
Fletcher argues the trial court erred by failing to give her proposed jury instructions
stating that it had been established that she had objective findings of permanent impairment in
2011 ( proposed instruction 13) and stating that the jury should give special consideration to the
of an physician ( proposed instruction 14). We disagree. testimony attending
1. Legal Principles
We review a trial court' s refusal to give a proposed jury instruction for abuse of
discretion. Chunyk & Conley /Quad -C v. Bray, 156 Wn: App. 246, 252, 232 P. 3d 564 ( 2010). A
trial court abuses its discretion in refusing to give an instruction if it adopts a position that no
reasonable person would have taken. Hickok-Knight v. Wal -Mart Stores, Inc., 170 Wn. App.
279, 322, 284 P. 3d 749 ( 2012), review denied, 176 Wn.2d 1014 ( 2013).
Jury instructions are sufficient when they allow counsel to argue their theories of the
case, do not mislead the jury and, when taken as a whole, properly inform the jury of the law to
be applied. Thompson v. King Feed & Nutrition Serv., Inc., 153 Wn.2d 447, 453, 105 P. 3d 378
2005). The trial court is under no obligation to give a misleading instruction. Jaeger v. Cleaver
Constr., Inc., 148 Wn. App. 698, 716, 201 P. 3d 1028 ( 2009). " In determining whether an
instruction could have confused or misled the jury, the court examines the instructions in their
entirety." Intalco Aluminum Co. v. Dep' t of Labor & Indus., 66 Wn. App. 644, 663, 833 P. 2d
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390 ( 1992).
2. Objective Findings Instruction
Fletcher' s proposed jury instruction 13 stated:
It has been established that on August 8, 2011, when her claim was closed, Ms[.] Fletcher had objective findings of permanent cervico- dorsal impairment.
CP at 25. This instruction makes no sense. The date August 8, 2011 has no significance
in this case. The Board found that Fletcher had a permanent impairment and closed her
claim in an order dated August 28, 2003. The Board found that Fletcher had no
permanent impairment on December 8, 2011. The date in instruction 13 seems to be an
erroneous combination of the two dates.
Because the date is incorrect, the instruction is an incorrect statement of the facts
and law. Fletcher' s claim was not closed on August 8, 2011, and it had not been
established that Fletcher had objective findings of permanent impairment on that date.
As a result, this instruction would have misled the jury. Therefore, we hold that the trial
court did not abuse its discretion in failing to give instruction 13.
3. Attending Physician Instruction
Fletcher' s proposed jury instruction 14 stated:
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[.]
CP at 26. Relying on Hamilton v. Department ofLabor and Industries, 111 Wn.2d 569, 571,
761 P. 2d 618 ( 1988), Fletcher argues that the trial court should have given the attending
physician instruction because it constituted a settled rule of law. We hold Fletcher' s reliance on
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Hamilton is misplaced, and the trial court did not abuse its discretion in failing to give proposed
instruction 14.
In Hamilton, our Supreme Court upheld a trial court' s jury instruction advising the jury to
give " special consideration" to the opinion of a workers' compensation claimant' s attending
physician. 111 Wn.2d at 571. Because that jury instruction properly stated a long -standing rule
of law, the court reasoned it was an " appropriate" jury instruction. 111 Wn. 2d at 572. Other
courts also have recognized the benefits of instructing the jury to give special consideration to an
attending physician' s testimony. Young v. Dep 't of Labor & Indus., 81 Wn. App. 123, 128 -29,
913 P. 2d 402 ( 1996) ( recognizing that a physician who has attended a patient for a considerable
period of time may be better qualified to give an opinion as to the patient' s disability than a
doctor who has seen and evaluated the patient only once); Intalco, 66 Wn. App. at 654 -55
noting that an attending physician is not an expert hired to give a particular opinion for one
ply)
However, the issue here is not whether a jury would benefit from such an attending
physician instruction, but rather whether a trial court abuses its discretion in declining to give an
attending physician instruction. Division One of this court held that a trial court does not abuse
its discretion by failing to give an attending physician instruction. Boeing Co. v. Harker -Lott, 93
Wn. App. 181, 186 -88, 968 P. 2d 14 ( 1998). In Harker -Lott, the court noted the general. rule in .
workers' compensation cases is that special consideration should be given to the opinion of the
claimant' s attending physician. 93 Wn. App. at 186. However, the court emphasized that no
case holds that such an instruction must be given, even where the evidence supports it. Harker -
Lott, 93 Wn. App. at 186.
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Here, there was at least one reason that an attending physician instruction may not have
been appropriate: Dr. Carpenter was not Fletcher' s current attending physician. Dr. Carpenter
admitted that he had not seen Fletcher since 2003. The trial court was justified in rejecting the
proposed instruction on this basis.
Further, Fletcher' s proposed instruction was not necessary for the jury to understand her
the does Fletcher contend that it was. Fletcher merely argues that "[ t]his theory of case, nor
instruction might have helped counter the character assassination of Ms. Fletcher by Drs. Goler
and Bauer." Br. of Appellant at 18. But the trial court instructed the jury:
You are ... the sole judges of the value or weight to be given to the testimony of each In considering a witness' s testimony, you may consider these witness.
things[:]the opportunity of the witness to observe or know the things they testify about, the ability of the witness to observe accurately, the quality of a witness' s memory while testifying, any personal interest that the witness might have in the outcome or the issues, any bias or prejudice that the witness may have shown, the reasonableness of the witness' s statements in the context of all of the other evidence, and any other factors that affect your evaluation or belief of a witness or your evaluation of his or her testimony.
CP at 31. This instruction allowed Fletcher to argue that the jury should give Dr.
Carpenter' s testimony greater weight than the other doctors because he was her treating
physician immediately after her industrial injury. Because this option was available to
Fletcher, it cannot be said that Fletcher was barred from arguing her theory of the case to
the jury.
We hold that the trial court' s failure to give proposed instruction 14 was not an
abuse of discretion.
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C. ATTORNEY FEES
Fletcher requests reasonable attorney fees on appeal under RCW 51. 52. 130, which
provides in relevant part:
If, on appeal to the superior or appellate 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 ... a reasonable fee for the services of the worker' s or beneficiary' s attorney shall be fixed by the court.
Because we do not reverse or modify the Board' s decision, we do not award Fletcher
appellate attorney fees under RCW 51. 52. 130.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record pursuant to RCW 2. 06. 040, it
is so ordered.
We concur: