Opinion
No. 35957-0-II.
July 1, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-2-04178-5, Ronald E. Culpepper, J., entered January 26, 2007.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Houghton and Hunt, JJ .
In October 1997, Sammie Williams was injured while working as a healthcare facility housekeeper for Chunyk Conley/Quad C (Quad C). Williams obtained workers' compensation benefits, which Quad C contested. Following conflicting decisions at two administrative levels, a Pierce County Superior Court jury rendered a verdict in Quad C's favor, determining that Williams' continuing ailments were not caused by his industrial injury. Williams now argues that the jury's verdict should be reversed because (1) substantial evidence does not support the jury's finding that his industrial injury was not a proximate cause of his morbid obesity; and (2) jury instruction 15 was confusing, misleading, and a misstatement of the law, as well as a comment on the evidence. Because substantial evidence supports the jury's finding and jury instruction 15 was proper, we affirm.
FACTS
In October 1997, Quad C employed Williams as a full-time housekeeper at its Bel Air Healthcare Facility. Williams' duties at the facility included mopping, waxing, stripping, and buffing floors. He was also responsible for disposing of garbage. Williams estimated that he spent six to seven hours of his work shift either walking or on his feet. As of October 1997, 46-year-old Williams stood at 5 feet 11 inches and weighed approximately 290 pounds. Prior to October 1997, Williams had degenerative joint disease in his left knee, which was neither symptomatic nor disabling, and hypothyroidism.
Although Williams' hypothyroidism caused him to be overweight most of his adult life, his condition had stabilized in 1997.
On October 3, 1997, at the end of his work shift, Williams left the building to dispose of garbage. As he reentered into an unlit room, a steel laundry cart located on a nearby ramp rolled against Williams' left leg. Williams twisted and immediately experienced pain in his left knee. He then went home. The next day, Williams reported the incident to his supervisor, who instructed Williams to go to the emergency room. Williams obtained treatment at the Allenmore Hospital's emergency room. Medical personnel restricted him to light work duty for the next two-to-three weeks, and provided him with a crutch.
On November 17, 1997, Williams consulted with orthopedic surgeon John Jiganti regarding the pain in his left knee. Dr. Jiganti initiated a conservative course of treatment that included physical therapy, provision of pain medication, and an injection of a Cortisone-like medication. Williams returned to his usual work, but the pain continued. A subsequent MRI revealed that Williams had a possible tear in the medial meniscus and a mild injury to the medial collateral ligament. On February 24, 1998, Dr. Jiganti performed arthroscopic surgery on Williams' left knee, which revealed a tear in the medial meniscus and chondromalacia, or roughening of the undersurface of the kneecap. Dr. Jiganti resected the medial meniscus and performed a chondroplasty, or smoothing of the undersurface of the kneecap. After recovering from the knee surgery, Williams returned to work as a janitor/light kitchen helper for two weeks at the Park Rose Healthcare Facility. Due to continuing left knee symptoms, however, Williams permanently ceased working.
On October 16, 1997, Williams filed an application for benefits with the Department of Labor and Industries (Department), alleging that he was injured on October 3, 1997, during the course of his employment with Quad C. The Department allowed the claim for benefits on February 6, 1998. On January 17, 2001, the Department ordered Quad C to pay time-loss compensation to Williams for the period of May 27, 2000, through January 16, 2001, and to continue such payments as indicated by the law and the facts. On October 21, 2004, the Department issued an order closing Williams' claim with time-loss compensation as paid through January 15, 2001 and directed that Williams be compensated for permanent partial disability. The Department reasoned that Williams' conditions had stabilized. By this time, Williams, who had progressively gained weight since October 1997, had become morbidly obese and developed left foot plantar faciitis.
"Morbid obesity" refers to obesity greater than 100 pounds above ideal weight. administrative Record (AR) at 345.
On December 8, 2004, Williams filed a notice of appeal with the Board of Industrial Insurance Appeals (BIIA). On October 19, 2005, the BIIA reversed the Department's order, concluding that Williams' morbid obesity and plantar faciitis were proximately caused by the industrial injury and that the Department was responsible under Williams' claim for aggravation of degenerative joint disease of the left knee, plantar faciitis of the left foot, and morbid obesity. The BIIA ordered the Department to pay Williams time-loss compensation for the period of January 16, 2001, through October 21, 2004, and declared that the claim remain open for further proper and necessary medical or surgical treatment. At the time of the appeal, Williams weighed approximately 474 pounds. Quad C requested review by the BIIA, which the BIIA denied.
On January 6, 2006, Quad C appealed to Pierce County Superior Court, where a jury was impaneled to conduct a de novo review of the closed record. The Department elected to forgo participation in the appeal. The trial court instructed the jury to give special consideration to the testimony of Williams' attending physician. It also instructed the jury that it was not bound by the attending physician's opinions and that it could consider, among other things, the education, training, experience, knowledge and ability of that doctor, the reasons given for the opinion, and the sources of the doctor's information, in determining the weight to be given such testimony.
The jury ultimately rendered a verdict in favor of Quad C. The verdict form asked whether the BIIA was correct that Williams' industrial injury was the proximate cause of (1) the rapid progression and degeneration of his degenerative joint disease to the extent that it was symptomatic and disabling as of October 21, 2004; (2) the rapid progression of plantar faciitis in his left foot as of October 21, 2004; and (3) his significant weight gain to the extent that by October 21, 2004, he became morbidly obese. The jury answered "no" to all three questions. Clerk's Papers (CP) at 194-95. On January 26, 2007, the court entered a judgment upon the verdict. Williams now appeals.
ANALYSIS
Williams argues that we should reverse the jury's verdict for two reasons. First, he argues that substantial evidence does not support the jury's finding that his industrial injury was not a proximate cause of his morbid obesity, and that the jury's conclusions regarding his plantar faciitis and knee condition improperly rested upon Quad C's theory that morbid obesity was an intervening, superseding cause of his current condition. Williams claims that the jury "played into its prejudices and irrationality" when it returned a verdict in Quad C's favor. Appellant's Br. at 11. Second, Williams argues that jury instruction 15 was confusing, misleading, and a misstatement of the law, as well as a comment on the evidence. Because substantial evidence supports the jury's finding and the jury instruction neither misstated the law nor constituted an improper comment on the evidence, we affirm the jury's verdict in Quad C's favor.
I. Standard of Review
As a preliminary matter, the parties appear to disagree about the proper standard of review we should apply when reviewing jury verdicts in cases appealed from the BIIA pursuant to RCW 51.52.115.
Chapter 51.52 RCW governs appeals from BIIA decisions.
Under Washington law, the BIIA's decision is prima facie correct and the burden of proof is on the party attacking it. Ruse v. Dep't of Labor Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999); see also RCW 51.52.115. On review, the trier of fact may substitute its own decision only if it finds by a preponderance of the evidence that the BIIA's findings are incorrect. See Ruse, 138 Wn.2d at 5. Our review is limited to the examination of the record to determine whether substantial evidence supports the jury's verdict to overturn the BIIA's decision. See Ruse, 138 Wn.2d at 5-6; Bennett v. Dep't of Labor and Indus., 95 Wn.2d 531, 534, 627 P.2d 104 (1981). We review the evidence in the light most favorable to the party that prevailed before the jury. See Bennett, 95 Wn.2d at 534. Substantial evidence is defined as a quantum of evidence sufficient to persuade a rational fair-minded person the premise is true. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). We do not review credibility determinations on appeal. In re Marriage of Rideout, 150 Wn.2d 337, 350, 77 P.3d 1174 (2003).
In workers' compensation litigation, live witnesses appear only before the BIIA. During superior court proceedings, the record is closed and the parties' attorneys read the transcript to the jury. Therefore, Williams argues, we should defer to the administrative law judge (ALJ) on credibility determinations because the ALJ was the only trier of fact to see the witnesses. However, it is well settled that the weight of such testimony is for the jury. Bennett v. Dep't of Labor and Indus., 95 Wn.2d 531, 534, 627 P.2d 104 (1981).
II. Proximate Cause of Morbid Obesity
Williams argues that the entire verdict should be reversed because insufficient evidence supports the finding that the industrial injury did not proximately cause his morbid obesity, and the remaining conclusions turned on this finding. We disagree.
The phrase "proximate cause" means a cause which in a direct sequence, unbroken by any independent cause, produces the condition or disability complained of and without which such condition or disability would not have happened. See Cook v. Seidenverg, 36 Wn.2d 256, 263, 217 P.2d 799 (1950) (citing Hellan v. Supply Laundry Co., 94 Wash. 683, 163 P. 9 (1917)). There may be one or more proximate causes of a condition or disability. For a worker to recover benefits under the Industrial Insurance Act, the industrial injury must be a proximate cause of the alleged condition or disability for which benefits are sought. The law does not require that the industrial injury be the sole proximate cause of such condition or disability. See City of Bremerton v. Shreeve, 55 Wn. App. 334, 339-40, 777 P.2d 568 (1989); 6A Washington Pattern Jury Instruction: Civil 155.06, at 124 (2002) (WPI). Here, the jury completed a verdict form. Question 3 asked, "Was the [BIIA] correct that Sammie Williams' industrial injury of October 3, 1997 was a proximate cause of his significant weight gain to the extent that by October 21, 2004, he was morbidly obese?" CP at 187. The jury's answer to this question was "no." CP at 187.
A. Medical Testimony
Williams argues that substantial evidence does not support the jury's conclusion that the industrial injury was not a proximate cause of his morbid obesity. Williams points to the fact that his attending physician, Dr. Tonia Jensen, testified that in her opinion the industrial injury more likely than not caused his morbid obesity. According to Dr. Jensen, Williams' eating habits did not change after the injury; he was simply less active. Dr. Jensen also stated that it was reasonable to believe that Williams' weight gain was tied to the knee pain following the knee injury because "he didn't weigh that much before his knee hurt." Administrative Record (AR) at 247. Despite Dr. Jensen's testimony, substantial evidence supports the jury's finding.
Medical testimony proffered to establish the casual relationship between an industrial injury and an alleged condition or disability must be phrased in terms of medical probability, not possibility. Testimony as to possibility means testimony confined to words of speculation and conjecture. Medical testimony that an incident could cause, might cause, or possibly could cause such a condition is not sufficient. See Vanderhoff v. Fitzgerald, 72 Wn.2d 103, 107-08, 431 P.2d 969 (1967).
Williams argues that Dr. Richard McCollum, a board certified orthopedic surgeon, provided the only evidence that supports the jury's conclusion that the industrial injury was not a proximate cause of his morbid obesity, and that Dr. McCollum's testimony was "severely flawed" and did not constitute substantial evidence. Appellant's Br. at 15. Williams' argument is unpersuasive. Although Dr. McCollum never physically examined Williams, he is a certified Department examiner and reviewed Williams' medical records before rendering an opinion to the BIIA. Williams argues that Dr. McCollum's opinion was insufficient because it was not framed in terms of medical probability. However, Quad C's attorney prefaced his examination of Dr. McCollum with the following:
I am going to ask you now a series of questions about your review. Many of your responses to my questions may ask for your opinion. The law provides that a doctor may testify as to medical opinion only if it is based on reasonable medical probability, and in answering my questions calling for an opinion will you base your answer on a more-probable-than-not basis even if I don't specifically include that standard in my question?
AR at 395. Dr. McCollum answered in the affirmative. Later, the attorney asked whether Dr. McCollum recalled seeing documentation regarding Williams' increase in weight. Dr. McCollum again answered in the affirmative. When asked whether he had an opinion as to whether the October 3, 1997 knee injury contributed to Williams' weight gain in any way, Dr. McCollum answered:
If he gained weight, it wasn't related to this accident. He gained a lot of weight so I don't see how — I mean we have hundreds and thousands of people that have knee surgery and don't gain weight so the probability of that is low. I don't see how it's related.
AR at 407.
Based on Dr. McCollum's previous assurance that he would base his answers on a more-probable-than-not-basis, there is no reason to believe that his opinion here was not properly based on medical probability. Furthermore, that Dr. McCollum was not Williams' attending physician goes only to the weight of his testimony. The law does not preclude a testifying physician's reliance on medical records in forming an opinion based on medical probability. While the trial court instructed the jury to give special consideration to the testimony of Williams' attending physician (Dr. Jensen), it was also entitled to weigh the conflicting testimony in coming to the conclusion that the industrial injury did not proximately cause Williams' morbid obesity. Although brief, Dr. McCollum's testimony regarding Williams' weight gain was sufficient to persuade a fair-minded rational person to agree with this conclusion.
B. Preexisting Susceptibility
Williams next argues that a preexisting susceptibility to morbid obesity is not, as a matter of law, a sustainable basis upon which to find a lack of causation. Williams cites Wendt v. Department of Labor and Industries, 18 Wn. App. 674, 682-83, 571 P.2d 229 (1977), for the "fundamental principle that, for disability assessment purposes, a workman is to be taken as he is, with all his preexisting frailties and bodily infirmities." He also cites jury instructions 7 and 9 in support of this proposition. Jury instruction 9 stated:
Jury instruction 7 stated, "The benefits of worker's compensation are not limited to those who are in perfect health at the time they receive their injuries. Nor does it matter that the injury might not have produced the same effect in the case of a person in normal health." CP at 170.
You are instructed that if any injury makes active a latent or quiescent infirmity or weakened condition . . . then the resulting disability is to be attributed to the injury and not to the pre-existing condition. Under such circumstances, if the accident or injury complained of is a proximate cause of the disability for which compensation or benefits is sought, then the previous physical condition of the worker is immaterial and recovery may be received for the full disability, independent of any pre-existing or congenital weakness.
CP at 172. In light of this language, Williams ignores an important point. The jury found that the industrial injury was not a proximate cause of Williams' morbid obesity. Therefore, the jury was not required to consider preexisting susceptibility to morbid obesity. Clearly, the jury weighed the evidence and determined that the industrial injury did not, in a direct sequence unbroken by any independent cause, produce Williams' current condition. In finding that the industrial injury was not a proximate cause of Williams' condition, the jury necessarily concluded that his morbid obesity had other causes. Dr. McCollum testified that he could not see how Williams' significant weight gain was related to the industrial injury. In assessing this testimony, it appears that the jury did not believe that Williams' injury made active "a latent or quiescent infirmity or weakened condition" and merely concluded that his significant weight gain was not proximately caused by the injury. CP at 172.
C. Other Evidence Supporting the Jury's Verdict
In addition to Dr. McCollum's testimony, other evidence supports closure of Williams' claim. Again, we review the record to determine whether substantial evidence supports the jury's verdict. See Ruse, 138 Wn.2d at 5-6; Bennett, 95 Wn.2d at 534. Substantial evidence is defined as a quantum of evidence sufficient to persuade a rational fair-minded person the premise is true. Wenatchee, 141 Wn.2d at 176. In addition to the evidence discussed above, other evidence is sufficient to support the jury's verdict in this case.
On August 14, 2003, the Department responded to the dispute counsel submitted on Williams' behalf. It concluded, "Based on a preponderance of medical opinion, [Williams] is able to return to the job he held at the time of his injury." AR at 206. The Department based its conclusion, in part, on the medical opinions of Drs. Fenner (an orthopedist) and Foster (an independent medical examiner). Dr. Fenner reported that Williams' condition was fixed and stable and noted no work restrictions. Dr. Foster noted that "with no other changes than the natural progression of pre-existing degenerative changes unrelated to the industrial injury, Mr. Williams is able to perform his regular duties as housekeeping assistant without limitations." AR at 207. This evidence also supports the jury's verdict in Quad C's favor.
III. Jury Instruction 15
Williams next argues that jury instruction 15 was confusing, misleading, and a misstatement of the law, as well as a comment on the evidence. Williams contends that jury instruction 15 applied a more onerous standard on attending physicians' testimony than it placed on other experts, and that the instruction prejudiced him. We disagree.
In this case, the trial court instructed the jury to give special consideration to the testimony of Williams' attending physician. The trial court then instructed the jury:
You are not bound by the attending physician's opinions. In determining the credibility and weight to be given such opinion evidence, you may consider, among other things, the education, training, experience, knowledge and ability of that doctor, the reasons given for the opinion, the sources of the doctor's information, together with the factors already given you for evaluating the testimony of any other witnesses.
CP at 178 (jury instr. 15). "[J]ury 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." Cox v. Spangler, 141 Wn.2d 431, 442, 5 P.3d 1265 (2000). Jury instructions are sufficient when they allow parties to argue their case theories, do not mislead the jury, and when taken as a whole, properly inform the jury of the law to be applied. Cox, 141 Wn.2d at 442.
A. Comparison of Jury Instructions in Hamilton to Those in This Case
Both Williams and Quad C refer to Hamilton v. Department of Labor and Industries, 111 Wn.2d 569, 761 P.2d 618 (1988), regarding this issue. If the jury instructions discussed in Hamilton are both substantively and functionally similar to those given in this case, then Hamilton is dispositive. In Hamilton, the Department argued that the trial court improperly instructed the jury that it should give special consideration to the opinion of the claimant's attending physician. 111 Wn.2d at 570. The Department claimed that this instruction invaded the province of the jury and constituted an improper comment on the evidence. Hamilton, 111 Wn.2d at 570.
The Washington Supreme Court concluded that the jury instruction did not constitute an improper comment on the evidence because it merely stated 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. The court also concluded that there was no merit to the Department's argument that the instruction confused or misled the jury, as a clarifying instruction immediately succeeding the instruction in question (similar to the instruction at issue in this case) merely "support[ed] the court's impartial interest in the evidence." Hamilton, 111 Wn.2d at 573.
As previously indicated, 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 177. In Hamilton, jury instruction 11 (the instruction at issue in that case) stated:
In cases under the Industrial Insurance Act of the State of Washington, special consideration should be given to the opinion of the plaintiff's attending physician.
This "special consideration" instruction first appeared as a Washington Pattern Jury Instruction in 2002. See WPI 155.13.01. The language used in jury instruction 14 in this case mirrors that of the current version of WPI 155.13.01.
In both cases, each special consideration instruction was followed by a clarifying instruction. In this case, jury instruction 15 (the instruction at issue in this case) immediately followed jury instruction 14. Again, jury instruction 15 stated:
You are not bound by the attending physician's opinions. In determining the credibility and weight to be given such opinion evidence, you may consider, among other things, the education, training, experience, knowledge and ability of that doctor, the reasons given for the opinion, the sources of the doctor's information, together with the factors already given you for evaluating the testimony of any other witnesses.
CP at 178. Williams' attorney objected to this instruction as confusing, misleading, redundant, and unsupported by current law. In Hamilton, jury instruction 12, which immediately followed jury instruction 11, stated:
You are not bound, however, by such an opinion. In determining the credibility and weight to be given such opinion evidence, you may consider, among other things, the education, training, experience, knowledge and ability of that doctor, the reasons given for the opinion, the sources of the doctor's information, together with the factors already given you for evaluating the testimony of any other witness.
Viewing these two sets of jury instructions side by side, it is clear that although they are similar, the language they contain is not identical. Although the first jury instruction in each case (14 and 11, respectively) instructs the jury to give special consideration to the testimony or opinion of an attending physician, jury instruction 14 in this case adds, "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 177. The second jury instruction in each case (15 and 12, respectively) clarifies, however, that the jury is not bound by such an opinion and that it may consider various factors in determining the weight and credibility to be given such opinion evidence. The only difference is the use of the phrase "attending physician's opinions" in lieu of the phrase "such an opinion" in jury instruction 15. CP at 178. Williams argues that if the instruction had substituted the phrase "expert opinion" or "medical opinion" for "attending physician's opinion," it would have been "perfectly acceptable." Appellant's Br. at 23-24.
Ultimately, the trial court should have patterned jury instruction 15 after the more neutral language contained in Washington Pattern Jury Instruction 2.10, thus avoiding any unnecessary emphasis on the testimony of attending physicians. WPI 2.10 states:
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.
It does not follow, however, that jury instruction 15, as worded in this case, misstated the law. Furthermore, Williams' argument that jury instruction 15 was confusing and misleading is without merit. The instruction merely clarified that, despite the special consideration that is to be given to the testimony of attending physicians, jurors are not bound to accept this testimony and may consider various factors in determining the weight and credibility to be given to such evidence.
B. Improper Comment on the Evidence
An instruction which does no more than accurately state the law pertaining to an issue does not constitute an impermissible comment on the evidence by the trial court judge under article 4, section 16 of the Washington Constitution. Hamilton, 111 Wn.2d at 571. An impermissible comment on the evidence is one which conveys to the jury a judge's personal attitudes toward the merits of the case or allows the jury to infer from what the judge said or did not say that the judge personally believed or disbelieved the particular testimony in question. Hamilton, 111 Wn.2d at 571 (citing State v. Ciskie, 110 Wn.2d 263, 282-83, 751 P.2d 1165 (1988)). Williams' argument that jury instruction 15 allowed the jury to infer that the judge found the attending physicians' testimony less persuasive or weighty is without merit.
Williams does little to demonstrate that the jury inferred (or could have inferred) from jury instruction 15 that the judge personally disbelieved the testimony of Williams' attending physicians. It is clear that jury instruction 15 merely elaborated upon jury instruction 14 by presenting factors the jury is entitled to consider in determining the credibility and weight to be given to an attending physician's testimony. We will not assume that harm resulted from an instruction that mirrors WPI 2.10 in both substance and function. Here, jury instruction 15 did nothing more than accurately state the law. Thus, Williams' argument fails.
C. Prejudice
Williams argues that jury instruction 15 was prejudicial because it swayed the jury to give more weight to Dr. McCollum's testimony, and therefore render a verdict in Quad C's favor. The jury was also instructed, however, that the law does not permit the judge to comment on the evidence, and that it was to disregard anything that appeared to convey the judge's personal opinion. Furthermore, they were instructed to consider the instructions as a whole. Williams offers no evidence that jury instruction 15 had any prejudicial effect on the jury. Rather, he argues that the jury's apparent decision to give less weight to the testimony of Williams' attending physicians necessarily proves the prejudicial effect of the jury instruction. His argument is merely theoretical and is without merit.
IV. Attorney Fees
Finally, Williams requests attorney fees and costs pursuant to RCW 51.52.120. Quad C also requests "proper fees and costs." Resp't's at 16. Because we affirm the jury's verdict in Quad C's favor, we deny Williams's attorney fees and award attorney fees to Quad C.
"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, or in cases where a party other than the worker or beneficiary is the appealing party and the worker's or beneficiary's right to relief is sustained, a reasonable fee for the services of the worker's or beneficiary's attorney shall be fixed by the court." 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.
HOUGHTON, J. and HUNT, J., concur.