Durham, A.C.J.—The
Department of Labor and Industries denied a claim by llene Price for aggravation of a 1969 industrial injury. The Board of Industrial Insurance Appeals (Board) affirmed the denial and Price appealed to King County Superior Court. The jury upheld the Board's action, and Price appeals the court's judgment.
On August 11, 1969, llene Price suffered an industrial injury which resulted in severe neck and back pain, and eventual surgery. The Department of Labor and Industries (Department) closed Price's claim for industrial insurance benefits in 1974. Price received a permanent partial disability award of 40 percent of the maximum allowable for unspecified disabilities due to her lower back condition, 10 percent of the maximum for unspecified disabilities due to her cervical condition, and 10 percent of the maximum for unspecified disabilities for psychiatric residuals. The claim [141]*141was later reopened and closed again on March 17,1976 with no further award for permanent disability.
In November 1977, Price once more applied for a reopening of her claim for aggravation. The Department denied this claim on June 20, 1978, and Price appealed to the Board of Industrial Insurance Appeals. Following hearings, the examiner found that there was neither organic nor psychiatric aggravation of Price's condition between March 17, 1976 and June 20,1978, and sustained the Department's denial of Price's application to reopen. Price then filed a petition for review with the Board. This was also denied and the Board adopted the findings of the hearing examiner. Price appealed the Board's decision to King County Superior Court pursuant to RCW 51.52.110. The case was tried to a jury which returned a special verdict sustaining the Board. The court entered judgment in accordance with the verdict and Price appeals.
Price first assigns error to the trial court's denial of her motions to compel the Department to give her a copy of an investigative report prepared in connection with this case. Price sought sanctions against the Department, pursuant to CR 37, for its failure to produce the report. Alternatively, she asked the court to remand the case to the Board, so that it could reconsider its decision in light of the report.
CR 26 controls the scope of discovery in an action before the Board of Industrial Insurance Appeals. RCW 51.52.140; WAC 263-12-125. CR 26(b)(1) generally provides for a wide range of discovery of relevant materials. This rule is subject to the limitations of CR 26(b)(3), which states, in relevant part, that:
[A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain [142]*142the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
(Italics ours.)
The Department's report quite possibly contained information of interest to Price. Pursuant to CR 26, however, she must fulfill two requirements in order to compel its production. First, she must demonstrate a substantial need for the report. Second, she must show that the pertinent information is unavailable from alternative sources. Price did not meet these criteria. At most, she alleged in nonspecific terms that the report contained "witness statements pertinent to the case at issue." Moreover, counsel for the Department made available to Price the name of the investigator who prepared its report, and conceded during the hearing that Price was entitled to the "names of people who might have information or knowledge of discoverable things". Given the absence of both need and unavailability, the actual contents of the investigative report were not subject to discovery under CR 26(b)(3). Thus, the trial court did not err in denying Price's motions.
Price next contends that the trial court erred in giving instruction 14, particularly that portion italicized:
The extent of any alleged increase in plaintiff's permanent disability between March 17, 1976 and June 20, 1978 proximately caused by the August 11, 1969 industrial injury must be established by medical testimony based at least in part upon one or more objective findings. In evaluating such increased disability, if any, a physician cannot rely solely upon complaints but must have some objective basis for his opinion.
Statements of complaints by the worker made to a physician are called subjective complaints. Findings of disability which can be seen, felt, or measured by psychological observation by an examining organic or psychiatric physician are called objective findings.
[143]*143Price argues that the sentence " [statements of complaints by the worker made to a physician are called subjective complaints" effectively barred the jury from fully considering the psychiatric testimony on her behalf. She asserts that because the psychiatric findings were based solely on her subjective complaints, the jury was forced to conclude that they did not constitute an objective basis, as required by the preceding sentence in instruction 14. The result, according to Price, was that the jury must have felt compelled to reject the relevant psychiatric testimony.
Instruction 14 was derived from WPI 155.09. The essence of this instruction has justifiably been criticized by both the Supreme Court and this court. See Parks v. Department of Labor & Indus., 46 Wn.2d 895, 898, 286 P.2d 104 (1955); Wendt v. Department of Labor & Indus., 18 Wn. App. 674, 684-85, 571 P.2d 229 (1977). Nonetheless, we cannot say that the giving of instruction 14 constituted reversible error, or that Price was deprived of the chance to fully argue her case.
The instruction complained of also stated that "[findings of disability which can be seen, felt, or measured by psychological observation by an examining organic or psychiatric physician are called objective findings." We believe that the inclusion of this sentence permitted the jury to fully consider the relevant psychiatric testimony. For example, Dr. Dennis Elrod, Jr., testifying on Price's behalf, explained that he found Price to be well oriented, pleasant, and cooperative. Elrod further reported that Price's mental status proved normal, that she showed no signs of thought or memory disorders, and that Price had no difficulty in terms of formal thinking or mood. Elrod's findings were not the mere parroting of Price's subjective complaints.
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Durham, A.C.J.—The
Department of Labor and Industries denied a claim by llene Price for aggravation of a 1969 industrial injury. The Board of Industrial Insurance Appeals (Board) affirmed the denial and Price appealed to King County Superior Court. The jury upheld the Board's action, and Price appeals the court's judgment.
On August 11, 1969, llene Price suffered an industrial injury which resulted in severe neck and back pain, and eventual surgery. The Department of Labor and Industries (Department) closed Price's claim for industrial insurance benefits in 1974. Price received a permanent partial disability award of 40 percent of the maximum allowable for unspecified disabilities due to her lower back condition, 10 percent of the maximum for unspecified disabilities due to her cervical condition, and 10 percent of the maximum for unspecified disabilities for psychiatric residuals. The claim [141]*141was later reopened and closed again on March 17,1976 with no further award for permanent disability.
In November 1977, Price once more applied for a reopening of her claim for aggravation. The Department denied this claim on June 20, 1978, and Price appealed to the Board of Industrial Insurance Appeals. Following hearings, the examiner found that there was neither organic nor psychiatric aggravation of Price's condition between March 17, 1976 and June 20,1978, and sustained the Department's denial of Price's application to reopen. Price then filed a petition for review with the Board. This was also denied and the Board adopted the findings of the hearing examiner. Price appealed the Board's decision to King County Superior Court pursuant to RCW 51.52.110. The case was tried to a jury which returned a special verdict sustaining the Board. The court entered judgment in accordance with the verdict and Price appeals.
Price first assigns error to the trial court's denial of her motions to compel the Department to give her a copy of an investigative report prepared in connection with this case. Price sought sanctions against the Department, pursuant to CR 37, for its failure to produce the report. Alternatively, she asked the court to remand the case to the Board, so that it could reconsider its decision in light of the report.
CR 26 controls the scope of discovery in an action before the Board of Industrial Insurance Appeals. RCW 51.52.140; WAC 263-12-125. CR 26(b)(1) generally provides for a wide range of discovery of relevant materials. This rule is subject to the limitations of CR 26(b)(3), which states, in relevant part, that:
[A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain [142]*142the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
(Italics ours.)
The Department's report quite possibly contained information of interest to Price. Pursuant to CR 26, however, she must fulfill two requirements in order to compel its production. First, she must demonstrate a substantial need for the report. Second, she must show that the pertinent information is unavailable from alternative sources. Price did not meet these criteria. At most, she alleged in nonspecific terms that the report contained "witness statements pertinent to the case at issue." Moreover, counsel for the Department made available to Price the name of the investigator who prepared its report, and conceded during the hearing that Price was entitled to the "names of people who might have information or knowledge of discoverable things". Given the absence of both need and unavailability, the actual contents of the investigative report were not subject to discovery under CR 26(b)(3). Thus, the trial court did not err in denying Price's motions.
Price next contends that the trial court erred in giving instruction 14, particularly that portion italicized:
The extent of any alleged increase in plaintiff's permanent disability between March 17, 1976 and June 20, 1978 proximately caused by the August 11, 1969 industrial injury must be established by medical testimony based at least in part upon one or more objective findings. In evaluating such increased disability, if any, a physician cannot rely solely upon complaints but must have some objective basis for his opinion.
Statements of complaints by the worker made to a physician are called subjective complaints. Findings of disability which can be seen, felt, or measured by psychological observation by an examining organic or psychiatric physician are called objective findings.
[143]*143Price argues that the sentence " [statements of complaints by the worker made to a physician are called subjective complaints" effectively barred the jury from fully considering the psychiatric testimony on her behalf. She asserts that because the psychiatric findings were based solely on her subjective complaints, the jury was forced to conclude that they did not constitute an objective basis, as required by the preceding sentence in instruction 14. The result, according to Price, was that the jury must have felt compelled to reject the relevant psychiatric testimony.
Instruction 14 was derived from WPI 155.09. The essence of this instruction has justifiably been criticized by both the Supreme Court and this court. See Parks v. Department of Labor & Indus., 46 Wn.2d 895, 898, 286 P.2d 104 (1955); Wendt v. Department of Labor & Indus., 18 Wn. App. 674, 684-85, 571 P.2d 229 (1977). Nonetheless, we cannot say that the giving of instruction 14 constituted reversible error, or that Price was deprived of the chance to fully argue her case.
The instruction complained of also stated that "[findings of disability which can be seen, felt, or measured by psychological observation by an examining organic or psychiatric physician are called objective findings." We believe that the inclusion of this sentence permitted the jury to fully consider the relevant psychiatric testimony. For example, Dr. Dennis Elrod, Jr., testifying on Price's behalf, explained that he found Price to be well oriented, pleasant, and cooperative. Elrod further reported that Price's mental status proved normal, that she showed no signs of thought or memory disorders, and that Price had no difficulty in terms of formal thinking or mood. Elrod's findings were not the mere parroting of Price's subjective complaints. Rather, they were the product of his independent professional analysis, derived by the application of his education, training, and experience to the specifics of Price's situation.
Taken as a whole, instruction 14 permitted the jury to consider Price's theory of the case, and was reasonably [144]*144understandable to the average juror. See State v. Dana, 73 Wn.2d 533, 537, 439 P.2d 403 (1968); Levea u. G.A. Gray Corp., 17 Wn. App. 214, 224-25, 562 P.2d 1276 (1977). Moreover, the precise wording of instructions is well within the sound discretion of the trial court. Dana, at 536. We cannot say that the trial court abused its discretion in this instance.
Finally, Price claims that the trial court did not properly instruct the jury on her theory of the case. She maintains that the instructions and the verdict form did not present the issue of increased permanent partial disability to the jury.
The salient instruction here is number 23, which stated:
This is a civil action and requires only five of you to agree upon a verdict. Your verdict in this cause will be in the form of answers to the following interrogatories:
Interrogatory No. 1:
Was the Board of Appeals correct in finding that between March 17, 1976 and June 20, 1978, the plaintiff's psychiatric and organic conditions due to her industrial injury of August 11, 1969 did not worsen or become more disabling in any degree? Answer:_(Yes or No)
If your answer to Interrogatory No. 1 is "Yes," you will answer no further interrogatory. If your answer to Interrogatory No. 1 is "No," you will answer Interrogatory No. 2.
Interrogatory No. 2:
Did the plaintiff become totally and permanently disabled between March 17, 1976 and June 20, 1978, as a proximate result of the August 11, 1969 industrial injury?
Answer:_(Yes or No)
The jury answered interrogatory 1 affirmatively, thereby indicating that the Board was correct in finding that Price's condition had not been aggravated to any degree. Accordingly, any error related to the presentation of the issue of partial disability was rendered harmless. See Gaunt v. Alaska S.S. Co., 57 Wn.2d 847, 849, 360 P.2d 354 (1961).
[145]*145Affirmed.
Williams, J., concurs.