F11ELF - COURT OF APPEALS
2013 JUN 19 AM 8. 33 IN THE COURT OF APPEALS OF THE STATE OF WASH Out
DIVISIONDIVISION II .. BY DE Y ELIU E. SANTOS, I No. 42357 0 II - -
Appellant, I UNPUBLISHED OPINION
V.
UNITED PARCEL SERVICES INC.,
BJORGEN J. —Eliu Santos appeals from a superior court judgment and jury verdict
confirming the order of the Board of Industrial Insurance Appeals (Board)denying his
application to reopen his worker's compensation claim relating to a 2003 injury. He argues: (1)
the Board lacked subject matter jurisdiction to enter a 2005 agreed order between the parties
closing his claim; 2) trial court abused its discretion in admitting testimony on medical ( the
causation by an unqualified, untimely- disclosed expert; and (3) trial court abused its the
discretion in giving an attending physician jury instruction and an instruction defining "ndustrial i
injury."We affirm the trial court's judgment and jury verdict, and we deny Santos's request for
attorney fees on appeal.
FACTS
On November 17, 2003, Santos suffered a herniated disc in his lower back while working
for United Parcel Services Inc. UPS), self - ( a insured employer. Santos claimed time loss
compensation as a result of the injury, and on April 8,2005, the Department of Labor and
Industries (Department) ordered time loss compensation for a period beginning January 8. UPS
appealed the April order to the Board. No.42357 0 II - -
On November 22, 2005, the Department, Santos, and UPS appeared before a board
industrial appeals judge ( AJ). were represented by counsel. The parties agreed to settle I All
Santos's claim and requested the IAJ to enter an " rder on Agreement of Parties"reflecting the O
settlement. The order remanded to the Department to close Santos's claim,terminate his time
loss compensation benefits, and grant him a category 3 permanent partial disability award for his
herniated disc. On December 8,2005, the Department entered a ministerial order closing
Santos's claim with a permanent partial disability award according to the IAJ's order. Santos did
not appeal from either the agreed order or the Department's ministerial order closing his claim.
After his injury, Santos had surgery to repair his herniated disc, but was unable to return
to his position at UPS. He began working elsewhere as a truck driver, which required him to
attach his truck to cargo trailers. As part of this process, Santos had to raise and lower the
trailer's landing gear," legs attached to the trailer that adjusted the trailer's height to match " two
that of his truck. Certified Appeals Board Record (CABR)July 10, 2008) at 13. Santos raised (
or lowered the landing gear through a crank mechanism.
On February 2, - 2007, Santos had tooperate the crank to lower a trailer;but the crank was
stuck. Santos pulled on it;and when it gave way, he immediately felt pain in his lower back and
right leg. Santos was subsequently diagnosed with a herniation of the same disc he had
previously injured while working for UPS.
Santos then applied to the Department to reopen his claim based on the 2003 injury at
UPS. The Department denied the request to reopen, finding that his 2003 injury did not worsen
or become aggravated since closure of his claim. On appeal to the Board, Santos moved to
remand to the Department,- arguing the Board had no subject matter jurisdiction to enter the _ _ -
01 No. 42357 0 II - -
November 22, 2005 agreed order between the parties that closed his claim from the 2003 injury.
Thus, according to Santos, the 2005 agreed order was void, his claim was never properly closed,
and the Board accordingly had no jurisdiction to hear his current claim as an aggravation claim.
If the 2005 order were void, there would be no need to reopen the 2003 2005 proceeding on the -
basis of subsequent aggravation of that injury.
A Board IAJ issued an order that the Board had jurisdiction over the appeal and denying
Santos's motion. Santos then filed an interlocutory appeal with the Board, which ruled that it
had exceeded its authority in entering the November 22, 2005 order, but concluded that the error
went to scope of review, not jurisdiction.
At this point, the matter returned to an IAJ for a hearing on the merits of Santos's appeal.
The IAJ issued a proposed decision and order, concluding that the Board had jurisdiction and
that Santos's 2007 injury was not an aggravation of his 2003 injury suffered while working for
UPS. The full Board denied Santos's petition for review, adopting the IAJ's proposed decision
and order as its final order.
Santos appealed to superior court, where a jury returned a verdict in UP S's favor,
confirming that the Board's decision was correct. Santos appeals.
ANALYSIS
1. NATURE AND STANDARD OF REVIEW
Judicial review of the decisions of this Board follows its own drummer. Unlike the
record review familiar in most administrative appeals, the superior court hears appeals from the
Board de novo. RCW 51. 2. Accordingly, a party attacking the Board's decision must 115. 5
support its challenge by a preponderance of the evidence. Ruse v. Dep't of Labor & Indus., 138
3 No. 42357 0 II - -
Wn. d 1, 5,977 P. d 570 (1999). 2 2 Unlike typical de novo proceedings, though, the superior court
may not consider evidence beyond that included in the record filed by the Board, with limited
exceptions. RCW 51. 2. When, as here, a jury trial is demanded, the testimony from the 115. 5
IAJ proceeding is read aloud to the jury. If the jury determines "that the board has acted within
its power and has correctly construed the law and found the facts,the decision of the board shall
be confirmed; otherwise, it shall be reversed or modified."RCW 51. 2. 115. 5
On appeal to this court, review is limited to examination of the record to see whether. "
substantial evidence supports the findings made after the superior court's de novo review, and
whether the court's conclusions of law flow from the findings."Rogers v. Dep't ofLabor &
Indus.,151 Wn. App. 174, 180, 210 P. d 355 (2009)citing Ruse, 138 Wn. d at 5). 3 ( 2
As discussed below,this appeal raises legal and evidentiary challenges. It does not
challenge whether any findings of fact presented for review are supported by substantial
evidence. Thus, we need not decide precisely what findings are before us on appeal or whether
those findings are adequate for review. Cf. Groff v. Dep't ofLabor & Indus., Wn. d 35, 40, 65 2
47;395 P. d 633 (1964). 2 The standards we apply inreviewing this appeal's specific legal and - - - -
evidentiary challenges are set out below
II. SUBJECT MATTER JURISDICTION
Santos argues that the 2005 Board decision closing his claim and awarding him disability
benefits was outside the Board's jurisdiction, because neither closure of the claim nor a disability
award was an issue then before the Board on appeal. Thus, he argues, the 2005 agreed order was
void when entered, the 2003 2005 proceeding was never closed, and the Board erred in -
concluding that it had subject matter jurisdiction to hear his present appeal seeking to reopen his
11 No.42357 0 II - -
2003 claim. The Department argues that the Board's error was one of exceeding its scope of
review, a type of error that did not deprive it of subject matter jurisdiction to enter the 2005
agreed order. Thus, the Department argues, the 2005 order was not void and became final and
binding on the parties when Santos did not appeal it. We agree.
Santos does not appear to have challenged the Board's subject matter jurisdiction in*his
de novo appeal to the superior court. RAP 2. ( a), Raised for First Time on Review," 5 Errors "
provides in pertinent part:
The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: (1)lack of trial court jurisdiction.... A party or the court may raise at any time the question of appellate court jurisdiction.
Emphasis added.)This rule addresses only the lack of court" " jurisdiction; it makes no
provision allowing a party to raise for the first time on appeal the lack of an agency's subject
matter jurisdiction.
Santos has made two procedural mistakes here that preclude our consideration of his
challenge g to the Boards subj ect matter jurisdiction: First he J to appeal the Board's 2005 pp
decision closing his 2003 claim,which order became final and binding. Second, even assuming,
without deciding, that he could have challenged the Board's subject matter jurisdiction in his
trial de novo appeal to the superior court, he failed to do so. We hold,therefore, that he cannot
challenge the Board's subject matter jurisdiction for the first time in the instant appeal.
If Santos were able to raise that challenge, however, it would fail. In Singletary v. Manor
Healthcare Corp.,166 Wn. App. 774, 782, 271 P. d 356, review denied, 175 Wn. d 1008 3 2
2012), court held that the
5 No. 42357 0 II - -
t] type of controversy over which an agency or tribunal has subject matter he jurisdiction refers to the general category of controversies it has authority to decide and is distinct from the facts of any specific case.
More specifically, neither the Department nor a tribunal lack subject matter jurisdiction solely "`
because it may lack authority to enter a given order. "' Singletary, 166 Wn. App. at 782 83 -
quoting Marley v. Dep't of Labor & Indus.,125 Wn. d 533, 539, 886 P. d 189 (1994)). 2 2 The
power to decide a type of controversy "ncludes the power to decide wrong, and an erroneous i
decision is as binding as one that is correct."Singletary, 166 Wn. App. at 783 (quoting Marley,
125 Wn. d at 543)internal quotation marks omitted). 2 (
In assessing subject matter jurisdiction, our inquiry focuses on the `type of controversy' "
because if it is within the tribunal's given subject matter jurisdiction, all other errors `go to
something other than subject matter jurisdiction. "' Singletary, 166 Wn. App. at 783 (quoting
Dougherty v. Dep't of Labor & Indus., 150 Wn. d 310, 316, 76 P. d 1183 (2003)). " 2 3 The
Department enjoys broad subject matter jurisdiction to adjudicate all claims for workers'
compensation benefits," the "Board has broad subject matter jurisdiction to review and
artmentactions." department 166 Wn.App. at 783. " A A determination to close a claim. -. -
falls squarely within the Department's authority to decide claims for workers' compensation and
the [Board's] authority to review Department actions."Shafer v. Dep't of Labor & Indus.,140
Wn. App. 1,7, 159 P. d 473 (2007)footnote omitted). 3 (
Here, Santos's time loss compensation claim, its closure, and his partial permanent
disability award were all matters falling within the Board's subject matter jurisdiction over
workers' compensation benefit claims. Because the Board had subject matter jurisdiction to
G No. 42357 0 II - -
enter the 2005 orders closing his claim with a disability award, those orders were not void and
became final and binding when Santos did not appeal them.
III. MOTION TO EXCLUDE EvIDENCE
In his appeal to superior court, Santos moved to exclude the testimony of Dr.Theodore
Becker and an ergonomic report on which Becker relied, each of which the IAJ had admitted at
the hearing on the merits in 2008. Santos argued that this evidence should be excluded because
1)Becker was not a medical doctor and could not testify about medical causation, 2) s ( Becker'
testimony was irrelevant because he never examined Santos or the landing gear mechanism he
used, and ( ) 3 UPS failed to timely disclose the substance of his testimony. The superior court
struck a portion of Becker's testimony that discussed force specifically in terms of causing
Santos's injury,but otherwise denied the motion.
On appeal to us, Santos contends that the trial court abused its discretion in admitting
Becker's testimony because (1) was not a medical doctor and improperly testified about he
medical causation, 2) ( UPS failed to demonstrate that the ergonomic report was generally
accepted within the relevant scientific community, and3) untimely disclosed the report. - - - - - ( UPS
This argument fails.
The examination of these issues requires a return to the chronology. On February 11,
2008, Santos served interrogatories on UPS requesting disclosure of witnesses, the subject matter
and substance of their expected testimony, and all materials or data on which the witnesses
would rely. On April 29, UPS responded by objecting that witness confirmation was not yet due
and stating that it would supplement its answer to the interrogatories.
7 No.42357 0 II - -
On May 30, UPS confirmed Becker as a witness in anticipation of Christine Casady, a
physical therapist,testifying for Santos. On July 7,three days before beginning his case in- - chief,
Santos provided notice that he was not calling Casady as a witness. During his case in- - chief,
Santos called Dr.Richard Johnson, an orthopedic surgeon, who had diagnosed him with a
recurrent herniated disc. Johnson opined that without Santos's 2003 injury, his jerking and
pulling of the stuck landing gear crank would not have injured his back, because the activity
was not of sufficient force to disc herniation. ".CABR ( uly 10, 2008)at 99. He cause a. . ., J
concluded that Santos's injury while operating the crank was an aggravation of his 2003 injury
sustained while working for UPS.
After Santos concluded his case in- - chief, UPS, in order to determine whether it would
still call Becker in light of Casady not testifying, consulted with Becker about what relevant i testimony,he might provide. Becker informed UPS that he was aware of articles and reports on
biomechanical forces involved in raising and lowering landing gears and could testify about such
forces. On July 24,UPS received the articles and reports from Becker and provided them to
Santos that same day: - - -- - - - -
Six days later, on July 31,Becker testified by deposition. Becker was a certified
disability analyst and held a Ph. .in human performance, which involved " tudies of D s
biomechanics, anatomical and neurological sciences, growth and motor development and ...
work and exercise physiology."CABR ( uly 31, 2008) at 7. Although Becker never examined J
Santos, he had previously assessed the physiological impact of raising and lowering trailer
landing gears. Becker testified that with his biomechanics background, he had sufficient
to reach conclusion about the force involved in Santos's activities while operating the expertise a No. 42357 0 II - -
crank. Becker disagreed with Johnson's opinion and opined that jerking on the crank involved
sufficient force to cause a herniated disc even without a previous injury.
One of the articles and reports supplied by Becker, which had been disclosed to Santos on
July 24,was an ergonomic study on raising and lowering trailer landing gear. Becker testified
that the study' was a reliable authority relied on by others in his field. Becker stated that the
descriptions of the landing gear Santos operated were consistent with those described in the
study, and that both were consistent with landing gear Becker had observed during the course of
his work. The study concluded that operating landing gear could cause back injuries. Santos did
riot request a continuance to respond to Becker's testimony or the ergonometric report.
Turning now to Santos's first argument, that Becker was not a medical doctor and
improperly testified about medical causation, we begin with the standard of review: we review
the trial court's admission or exclusion of expert testimony for abuse of discretion. Philippides
v. Bernard, 151 Wn. d 376, 393, 88 P. d 939 (2004).In general, a] expert's opinion is 2 3 "[ n
admissible if the witness is properly qualified, relies on generally accepted theories, and the
expert's testimony is - helpful to the trier of fact." Phillipides 151 Wn. d at 393. In response to - 2
Santos's motion, the trial court struck the one portion of Becker's testimony that appeared to
reach' an opinion on medical causation of Santos's injury. The remainder of his testimony
concerned the general biomechanics and force involved in operating a landing gear crank and his
opinion that, in general, such force was sufficient to cause a herniated disc even without some
The record does not reflect that the study was offered or admitted into evidence.
9 No.42357 0 II - -
previous injury. These were not opinions on medical causation; they were opinions within
Becker's biomechanical expertise. See Ma' le v. Arrington, 111 Wn.App. 557, 564, 45 P. d e 3
557 (2002)biomechnical engineer's testimony about insufficient force in an accident was not (
medical testimony outside his expertise).The trial court's ruling admitting Becker's testimony
involved no abuse of discretion.
Santos's second argument is that UPS failed to demonstrate that the ergonomic report
was generally accepted within the relevant scientific community under ER 702. Santos,
however, did not raise this challenge before the trial court; instead, he objected to the report only
on grounds that UPS failed to lay a sufficient foundation to " he hearsay rule." t Report of
Proceedings (RP)at 6 7. The alleged lack of scientific acceptance of the ergonomic report does -
not create manifest constitutional error permitting the issue to be raised for the first time on
appeal under RAP 2. ( a)( Therefore, we do not further address this claim. 3). 5
Santos's third argument, that UPS untimely disclosed the ergonomic report, raises closer
questions. We review the trial court's decision to deny or grant discovery violation sanctions for Exch. & Ass' Wash. State Physicians Ins. - abuse of discretion. - n v. Fisons - Corp.122 Wn. d 299, - 2
338, 858 P. d 1054 (1993).This includes decisions to admit or exclude evidence. Viereck v. 2
Fibreboard Corp., Wn. App. 579, 587, 915 P. d 581 (1996).The exclusion or limitation of a 81 2
witness's testimony may be an appropriate sanction for the late disclosure of the witness or for
other discovery violations. See, e. ., re Marriage of Gillespie, 89 Wn. App. 390, 404, 948 g In
P. d 1338 (1997); 2 Miller v. Peterson, 42 Wn. App. 822, 825 26,714 P. d 695 (1986). - 2
In determining whether trial courts have abused their discretion in allowing or excluding
the testimony of an undisclosed witness, Washington appellate courts have focused primarily on
10 No. 42357 0 II - -
two factors: ( ) 1 whether there was a willful violation of a court discovery order and (2)whether
the other party would be prejudiced by the testimony or by a continuance to allow for preparation
and rebuttal. See, e. ., g Dempere v. Nelson, 76 Wn. App. 403, 406, 886 P. d 219 (1994)willful 2 (
violation was adequate grounds for exclusion of evidence); also Hampson v. Ramer, 47 Wn. see
App. 806, 815, 737 P. d 298 (1987)exclusion of evidence proper where noncompliance caused 2 (
irremediable prejudice to opponent). It is an abuse of discretion to exclude testimony as a
sanction for a discovery violation " bsent any showing of intentional nondisclosure, willful a
violation of a court order or other unconscionable conduct."Smith v. Sturm, Ruger & Co.,
Inc., Wn. App. 740, 750, 695 P. d 600 ( 985). 39 2 1
As recounted above, Santos served interrogatories on UPS requesting disclosure of
witnesses, the subject matter of their testimony, and all materials on which they would rely, as
early as February 11, 2008. UPS responded only on April 29, 2008, refusing to disclose at that
time because witness confirmation was not yet due. On May 30, UPS confirmed Becker as a
witness, but only disclosed the ergonomic report on which Becker relied on July 24, one week
before he testified. However UPS -listed Becker as a witness on May 30 only in reliance
Casady testifying for Santos. After Santos withdrew Casady as a witness, UPS offered the
ergonomic report only after Santos had called Johnson to testify. UPS had previously supplied
the ergonomic report to Santos on July 24, the same day it had received it from Becker.
Although UPS's actions do not present a model of how discovery should work,the evidence falls
well short of showing it willfully delayed disclosure of the ergonomic report beyond any
applicable deadline.
11 No. 42357 0 II - -
On the question of prejudice, Santos never asked the IAJ for a continuance after being
notified of the ergonomic report and never sought to depose Becker. Furthermore, Santos
extensively cross -examined Becker concerning the dissimilarities between the frequency with
which the study's subjects operated trailer landing gears and Santos's own particular
circumstances. Accordingly, the record does not demonstrate that the timing of the report's
disclosure prejudiced Santos. Under the standards above, the trial court did not abuse its
discretion in denying Santos's motion to exclude the ergonomic report.
III. JURY INSTRUCTIONS
Santos argues that the trial court erred in giving jury instructions 8 and 11. This argument also fails.
We review a trial court's decision to give a jury instruction " e novo if based upon a d
matter of law, or for abuse of discretion if based upon a matter of fact." Kappelman v. Lutz, 167
Wn. d 1, 6,217 P. d 286 (2009).Jury instructions are sufficient when they allow counsel to 2 3 "
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. d 447, 453, 105 P. d 378 (2005). 2 3
A. Instruction 8
Instruction 8 provided:
An "industrial injury" means a sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without, and
2 Santos argues that the attending physician instruction was improper, but refers to it as instruction 12; the correct number is 11. 12 No. 42357 0 II - -
such physical conditions as result therefrom.
Clerk's Papers (CP)at 224.
Santos argues that this instruction " reated a heightened potential for juror confusion, c
because much of the testimony allowed'the jury to speculate about whether the 2007 incident
was a new injury versus an aggravation."Br. of Appellant at 31. This raises a factual issue, and
we review the trial court's decision for abuse of discretion.
The central issue before the jury was whether Santos's 2007 injury was a new industrial
injury or an aggravation of his 2003 injury. It was not improper for the jury to deliberate on that
issue, and the definition of industrial injury"in instruction 8 did not confuse that deliberation. "
The trial court did not abuse its discretion in giving instruction 8.
B. Instruction 11
Instruction 11 provided in part:
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 227.
Santos argues that this instruction should not have been given, because it is not clear
whether Dr.Robert Sarno, who testified for UPS that he had treated Santos in an emergency
room shortly after Santos injured his back while operating the crank, or Dr.Johnson had the
status of Santos's attending physician. In denying Santos's objection to instruction 11, the trial
court stated, I don't think it' confusing. " s I think that. obviously the fact that Dr. Sarno is the
one who saw him relatively close in time to the incident ... anyone would assume he's the
13 No. 42357 0 II - -
attending physician."RP at 50. Here, too,the trial court's decision was based on a factual
matter, and we review it for abuse of discretion.
When an attending physician testifies in a worker's compensation case, an
instruction stating that the jury should give the physician's testimony special consideration is
generally required. Hamilton v. Dep't of Labor & Indus.,111 Wn. d 569, 571, 761 P. d 618 2 2
1988).This is so, because an attending physician is not an expert hired to give a particular "
opinion consistent with one party's view of the case."Intalco Aluminum v. Dep't ofLabor &
Indus., Wn. App. 644, 654, 833 P. d 390 (1992).Furthermore, a physician who has attended 66 2
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. Young v. Dep't of
Labor & Indus.,81 Wn. App. 123, 128, 913 P. d 402 (1996). 2
In support of his argument, Santos cites Boeing Co. v. Harker Lott,93 Wn. App. 181, -
186 88,968 P. d 14 (1998).Harker Lott,though, held that the trial court did not abuse its - 2 -
discretion in declining to give an attending physician instruction. Harker Lott is inapposite -
where,as here the question is whether the trial court properlyexercised its discretion in giving - -
the instruction. Although both Sarno and Johnson examined Santos only once, Sarno evaluated
and treated Santos in the role of an emergency room doctor, not as an expert hired by either
party. Moreover, Sarno treated Santos around the time of his 2007 injury. It was not
unreasonable for the trial court to conclude that Sarno's testimony supported giving the
instruction and that the instruction would not mislead the jury. The trial court did not abuse its
discretion in giving instruction 11.
14 No. 42357 0 II - -
IV.. ATTORNEY FEES
Santos requests reasonable attorney fees and costs on appeal under 18.1 and RCW
130. 51. 2. RAP 18.1 allows an award of attorney fees and costs on appeal if applicable law 5
authorizes them. RCW 51. 2. 130 requires a self insured employer, such as UPS, to pay a 5 -
worker's attorney fees and certain costs if the Board's decision is "reversed or modified"and
additional relief is granted to the worker."We affirm the Board's decision and the verdict and
judgment in superior court confirming that decision. Therefore, Santos is not entitled to attorney
fees or costs under this authority.
We affirm and we also deny Santos's request for attorney fees on appeal.
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 in accordance with RCW
040, 2.6.it is so ordered. 0
1,7 1 concur:
HUNT,J.
J. A. . C
CYANSON,