Opinion
No. 34491-2-II.
March 18, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 03-2-13709-5, D. Gary Steiner, J., entered February 3, 2006.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Bridgewater and Penoyar, JJ.
Martha Graham appeals the trial court's award of $65,000 for personal injuries she suffered in a motor vehicle accident. She argues that substantial evidence does not support the award and that the trial court abused its discretion in allowing certain documents and expert witness testimony into evidence. We affirm.
FACTS
Graham's assignments of error require us to include a lengthy fact recitation. We derive the facts from unchallenged findings of facts, medical records and other exhibits, and trial testimony. Because we review under a challenge to the sufficiency of the evidence standard, we set forth the facts in the light most favorable to the respondent. Keever Assocs., Inc. v. Randall, 129 Wn. App. 733, 737, 119 P.3d 926 (2005), review denied, 157 Wn.2d 1009 (2006).
Medical Treatment and Related Events Chronology On March 23, 2001, Sergeant Mark Jenkins of the Tacoma Police Department drove his service vehicle into the rear end of Graham's vehicle. The two automobiles were traveling fewer than 10 mph in "`stop-and-go'" traffic on Highway 16. Clerk's Papers (CP) at 1310. Graham's vehicle incurred $1,163.27 in property damage. An ambulance took her to the hospital where emergency department staff diagnosed her complaints of cervical and upper back pain as a cervical sprain.
In the two weeks following the accident, Graham experienced acute pain in her lumbar spine. She sought help at the emergency department at Good Samaritan Hospital on April 13 2001, where she was diagnosed with an "acute lumbar strain and muscle spasm." CP at 1311.
On April 15, 2001, Dr. Golan, Graham's primary care physician, began treating her for her lumbar strain. She complained of low back pain without radiation into her legs. Dr. Golan's objective examination found moderate tenderness without neurological deficits, and he diagnosed a "sprain lumbar region." CP at 1311. During Graham's April 30 follow-up visit, Dr. Golan found moderate tenderness without neurological deficits. Again, he diagnosed a "sprain lumbar region" and referred Graham to Apple Physical Therapy. CP at 1311.
Apple Physical Therapy staff initially assessed Graham and gave her a "Thoracolumbar strain" diagnosis. CP at 1311. Graham had five physical therapy appointments between May 8, 2001 and June 1, 2001. Graham reported that a "hitch" in her gait had decreased by June 1, 2001. CP at 1312. On June 6, 2001, she reported that she had stepped in a dip in the road that day and was experiencing an increase in her back problems. She also reported that before she stepped in the dip, "she felt good with relatively no `hitch' in her gait." CP at 1312.
Dr. Golan saw Graham on June 20, 2001. She complained of pain in her right knee, but she reported that pain related to her thoracic and lumbar sprain had improved.
Graham had further treatments at Apple Physical Therapy on August 13, 2001 and September 17, 2001. During the first visit she described her more aggressive home exercise program and resultant decrease in symptoms. During the September 17 treatment, the physical therapist noted that Graham's sacroiliac and lumbar mobility was "within normal limits." CP at 1312. The therapist determined that Graham's "SI [sacroiliac] dysfunction [was] resolved." CP at 1312. She had no more sessions with Apple Physical Therapy after September 17, 2001. She had one further therapy session at Harbor Physical Therapy on October 9, 2001. As of her last physical therapy appointment, "Graham had incurred medical bills totaling $4,674.88 related to the lumbar strain." CP at 1313.
We recite the medical bill total from unchallenged finding of fact 20, which we treat as a verity on appeal. Perry v. Costco Wholesale, Inc., 123 Wn. App. 783, 792, 98 P.3d 1264 (2004).
Dr. Golan's records from Graham's October 22, 2001 visit indicate that she was no longer experiencing back pain. Dr. Golan's assessment also indicated no back tenderness. Graham told Dr. Golan's nurse that she was stopping physical therapy treatments. Dr. Golan did not otherwise diagnose or describe any back problems during this visit.
Graham next sought treatment for back pain at an urgent care clinic on March 4, 2002.
She described the onset of her current symptoms occurred three days before she went to the urgent care clinic. She stated that she had experienced four previous episodes of back pain requiring medical evaluation since the March 23, 2001 accident.
On March 11, 2002, Graham returned to Harbor Physical Therapy for the first time since October 9, 2001. On March 11, she resumed therapy treatments, reporting that her symptoms had "flared up" approximately one and one-half weeks before. CP at 1314.
On March 14, 2002, an MRI test ordered by Dr. Golan revealed:
Mild diffuse protrusions are present at L2-3, L3-4, L4-5 and L5-S1. There is central accentuation at L4-5 which may represent a small extruded disc. Mild disc degeneration is also present at these levels. Note is also made of a mild diffuse protrusion at T11-12, more prominent anteriorly than posteriorly.
Ex. 63 at 14. The radiologist diagnosed lumbago, sprain lumbar region, and "MV collision NOS-driver." Ex. 63 at 15. Dr. Golan told Graham that her MRI was essentially normal.
Graham began seeing an orthopedic surgeon, Dr. Brack, on April 11, 2002. Dr. Brack noted neurological deficits suggesting impingement of the right L4-5 nerve root in Graham's spine. Dr. Brack determined that Graham's degenerative disc disease predated the March 23, 2001 accident and was unrelated to the accident.
In May and July 2002, Dr. Brack performed a microdiskectomy, foraminotomy, and fusion of Graham's vertebrae. After the first surgery, Graham reported that her leg pain had completely resolved. After both procedures, Graham reported that much of her low back pain had ceased. In an August 5, 2002 follow-up visit with Dr. Brack's colleague, Graham said she was "completely free of . . . preoperative pain. She [was] quite thrilled with the result." CP at 1316.
During the 2001-2002 school year, Graham taught at Gig Harbor High School. On June 14, 2002, her principal wrote an end of year evaluation describing Graham's health issues:
In the early fall, she was attacked by a raccoon and seriously injured; she had to undergo painful and extensive rabies treatment for this attack. During the winter, she developed a tooth infection, which again took her out of school for a while. In school, she was on pain medication and had difficulty focusing on teaching, due to the pain and the medications. In the spring, she began having severe back pain. In April, she missed eight days of school and was on pain medication for much of that time. She was able, through donated sick leave, to officially withdraw from her position on May 1.
Ex. 80 at 19.
In April 2004, Graham saw Dr. Glacy for management of her renewed back pain. Dr. Glacy noted evidence of a neurological deficit, the first since Dr. Brack's April 2002 examination. A second MRI test on April 14, 2004, revealed progression of Graham's degenerative disc disease.
Graham moved to Arizona but continued to see Dr. Brack for follow-up of her back surgeries. On February 5, 2004, Dr. Brack found her condition to be fixed and stable.
Employment and Psychological Issues Chronology
Unrelated to the accident, Graham had received treatment for mixed state bipolar affective disorder since 1995. She taught in the South Kitsap School District from 1995 to 1999, but quit in June 1999, after reporting that she was having memory problems and difficulty teaching and that she had been diagnosed with a mild cognitive impairment.
Graham did not teach during the 1999-2000 school year. She attended, but did not complete, airline training courses and was not offered an airline job. She worked nine days as a substitute teacher from February 27, 2001 through April 13, 2001.
In July 1999, Graham applied for Social Security Disability Insurance (SSDI) benefits, indicating in her application that she had quit her teaching position because of her disability. The Social Security Administration (SSA) denied her claim, as well as her request for reconsideration. She then requested an administrative hearing.
Graham also applied for employee disability benefits in October 2003, stating that she had been totally disabled since 1994, based on her bipolar disorder, and she did not anticipate that she would ever return to work.
In June 2001, an administrative law judge (ALJ) heard Graham's appeal and found that she had "the following severe impairments: bipolar II affective disorder and an anxiety relate[d] panic disorder with recurrent panic attacks" and that her disability was retroactive to June 15, 1999. Ex. 112. The ALJ does not mention Graham's March 2001 motor vehicle accident in its findings.
Before receiving the ALJ's decision in September 2001, Graham obtained temporary contract employment with the Peninsula School District for the 2001-2002 school year. On January 28, 2002, records from Graham's psychiatrist showed that she had been experiencing difficulties with her bipolar disorder after she resumed teaching. The Peninsula School District did not renew her contract and she left its employ on April 29, 2002.
On May 8, 2002, Graham applied for disability benefits from an insurance company. She claimed benefits due to her back injury and bipolar disorder. In applying, she stated that she did not anticipate ever returning to work. She completed this form prior to any of Dr. Brack's surgeries. Records from her treating psychiatrist included in the application indicate that she had been totally disabled by her bipolar condition for the preceding two years. Her treating psychologist completed an Attending Physician's Statement for the application on June 12, 2002, stating that Graham had been totally disabled by her bipolar disorder since October 14, 1997, and might never return to work.
Discovery and Trial
Graham sued Jenkins for negligence. Before trial, the parties engaged in discovery, following a case management schedule set by the trial court. The schedule was altered and amended and varyingly followed by the parties.
During discovery, the parties stipulated to obtaining Graham's application for SSDI benefits and the resulting documents. The SSA records were not obtained until after trial started. Over Graham's initial objection, the trial court allowed Jenkins' expert to testify about the records. It later admitted the documents into evidence.
Approximately two months before trial, Jenkins sought to substitute one orthopedic surgeon expert witness for another previously disclosed. Over Graham's objection, the trial court granted the substitution, provided Jenkins paid for the discovery deposition of the newly-disclosed expert.
In the days preceding trial, Jenkins deposed Graham's trial expert neuropsychologist. Jenkins' ongoing interrogatories requested any reports prepared by experts. During the deposition, Jenkins learned for the first time that the neuropsychologist, who had been hired for forensic purposes, had prepared an MMPI report using clinical instead of forensic norms. Jenkins reviewed the newly disclosed report with a consulting neuropsychologist, Dr. Marlowe, who reviewed the MMPI using forensic rather than clinical norms. Over Graham's objection, Dr. Marlowe's report and her foundational testimony were allowed into evidence.
The matter was tried to the bench. At trial, various experts opined about Graham's disabilities and employment prospects. A rehabilitation counselor testified that Graham could not perform as a teacher due to her bipolar disorder but that, absent the disorder, she could work at a variety of positions even with her current back condition. A physical capacities expert testified that, although Graham could not work eight hours per day on a consistent and competitive basis, she could work with limitations.
Among other treating health care providers and experts, Dr. Brack testified at trial. During direct examination, Dr. Brack testified about Graham's diagnosis, causation, and treatment. He initially assessed Graham as having chronic persistent low back pain causally related to the March 23 accident because she did not have any pre-accident back complaints.
As noted, various treating and other experts testified, but it is Dr. Brack's testimony that is pivotal to the case.
Dr. Brack stated that on March 23, 2001, Graham had a pre-existing multilevel degenerative disc disease. He testified that the accident aggravated this disease. He also diagnosed a right L4/5 forminal disc protrusion or bulge that he said was causally related to the accident.
Dr. Brack testified that, after conservative care did not relieve Graham's condition, he performed back surgeries on Graham in May and July 2002. Dr. Brack further testified that the back surgeries were causally related to the accident. In reaching these opinions, Dr. Brack relied on Graham's history that before the accident she had not experienced back problems. He also relied on her history that she experienced chronic, persistent low back pain (daily pain lasting beyond six to nine months) since the accident.
During cross-examination, Jenkins' counsel presented Dr. Brack with medical records and other evidence concerning Graham's treatment from the March 2001 accident until he saw her in April 2002. After being shown this evidence for the first time, Dr. Brack agreed that he could not, on a more probable than not basis, state that any of the conditions he treated Graham for were caused or aggravated by the accident.
During cross-examination, Dr. Brack reviewed Dr. Golan's records, physical therapy records, urgent care and emergency records, and other information set forth above regarding Graham's condition between the March 23, 2001 accident and his first visit with Graham on April 11, 2002.
On re-direct, Graham's counsel asked Dr. Brack: "Given your review of these documents, Doctor, is it fair to say that your previous assumptions that you made in April of 2002 regarding Ms. Graham's chronic and persistent lower back pain remain true assumptions?" Verbatim Report of Proceedings (VRP) at 163-64. Dr. Brack replied, "Yes." VRP at 164. Dr. Brack also agreed that given his assumptions about Graham's history of chronic and persistent low back pain since the accident, his opinions expressed on direct examination remained the same.
On re-cross examination, Jenkins' counsel inquired:
Q: Your opinion on causation is based on an assumption; is that correct?
A: The history information. It still seems to be correct.
Q: Well, the things that [Graham's counsel] just pointed out to you, each time he said "and if you assume that those symptoms continue" and "if you assume" Each time your opinion is based on an assumption that her condition, her symptoms were in fact both chronic and persistent?
A: That's correct.
Q: You take that away, and you can't testify on a more probable than not basis as to causation; is that correct?
A: That's correct.
VRP at 165.
The Trial Court's Findings of Fact and Conclusions of Law After trial, the court concluded that "[o]ne hundred percent of the fault for the March 23, 2001 motor vehicle accident is attributable to Sgt. Jenkins." CP at 1322. The trial court also concluded that Graham suffered a "cervical, thoracic and lumbar sprain" as a result of the accident. CP at 1322.
Finally, the trial court concluded that Graham failed to establish that the accident aggravated her pre-existing degenerative disc disease, caused disc herniation, or accounted for any injuries she received treatment for after October 9, 2001. It determined that she suffered no further impairment of her earning capacity as a result of the accident because her psychologist, her psychiatrist, and the ALJ had all previously found to her to be "totally disabled" by pre-existing unrelated medical conditions. The trial court awarded Graham $65,000 in general and special damages on her negligence claim and she appeals.
At the time of trial, Graham received monthly disability payments.
ANALYSIS Admission of Expert Witness Testimony and exhibits
Graham first contends that the trial court abused its discretion in making various evidentiary rulings. She argues that the trial court should not have allowed Jenkins' late substitution of an expert witness, Dr. Bede, in violation of the court's order setting case schedule, and it should have granted her motion to exclude Dr. Bede. She asserts that Jenkins' substitution of this expert was untimely, without good cause, and made for an improper tactical purpose. She further asserts that the late substitution prejudiced her because she prepared her case expecting orthopedic surgeon Dr. Battaglia, and not orthopedic surgeon Dr. Bede, to testify.
Graham argues that without the improperly admitted evidence, substantial evidence does not support entry of findings of fact 25, 27, 29, 33, 43, 47, 48, 49, and 51-55. These findings relate to Graham's medical and disability conditions, including treatments and diagnoses she received, procedures she underwent, findings on examination, and findings regarding her application process for disability benefits. Graham further argues that even if the trial court did not abuse its discretion in admitting the evidence, substantial evidence does not support the trial court's entry of conclusions of law 6-11. These conclusions concern Graham's damages and causation.
We review a trial court's evidentiary rulings for abuse of discretion. Havens v. CD Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994). A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. Wash. State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993).
Barci v. Intalco Aluminum Corp. sets forth the numerous factors a trial court must weigh in deciding whether to allow late witness disclosure. 11 Wn. App. 342, 349-50, 522 P.2d 1159 (1974). The trial court must also take care not "to exclude testimony as a sanction absent any showing of intentional nondisclosure, willful violation of a court order, or other unconscionable conduct.'" Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997) (quoting Fred Hutchinson Cancer Research Ctr. v. Holman, 107 Wn.2d 693, 706, 732 P.2d 974 (1987)) (internal quotations marks omitted).
Those factors include determining:
(a) the presence or absence of good faith attempts by the proponent of the witness to comply with the rules of discovery, (b) the availability or discoverability of the witness at an earlier time, (c) the circumstances of the proponent at the time of the securing of the witness, i.e., whether a physical injury or illness had progressed to a point where diagnosis and/or prognosis was possible and/or whether the passage of time had made the consequences of the acts of the parties discernible to an expert witness at an earlier time, (d) the materiality of the proposed testimony to the proponent, (e) the extent of surprise to the opponent, (f) the availability of opportunity to the opponent to depose the witness, (g) the availability of opportunity to the opponent to prepare for cross-examination, (h) the opportunity to the opponent to secure contradicting witnesses, (i) the prejudice presented to a proponent or opponent's case if a continuance is granted, (j) the impact upon both parties of the expenses of delay, and (k) the ability of an imposition of costs on a proponent to remedy any hardship imposed on an opponent by the late calling of a witness.
Barci, 11 Wn. App. at 349-50.
In Fred Hutchinson, the trial court was held not to abuse its discretion when it allowed a previously undisclosed expert witness to testify after trial began. 107 Wn.2d at 706. The Fred Hutchinson court reasoned that no prejudice could be shown where opposing counsel had the opportunity to interview the witness before he testified. 107 Wn.2d at 706.
In support of her argument, Graham cites Dempere v. Nelson, 76 Wn. App. 403, 886 P.2d 219 (1994), Kramer v. J.I. Case Mfg., Co., 62 Wn. App. 544, 815 P.2d 798 (1991), and Lampard v. Roth, 38 Wn. App. 198, 684 P.2d 1353 (1984). She argues that these cases require the trial court to exclude undisclosed witnesses. In all three cases, the trial court's discretionary rulings excluding late disclosed expert were affirmed where counsel had no reasonable excuse for the delay. Dempere, 76 Wn. App. at 406; Kramer, 62 Wn. App. at 551-53; Lampard, 38 Wn. App. at 201-02. Because, like the trial court, we cannot discern an intentional or willful violation, these cases do no apply here.
Here, Jenkins provided Graham with Dr. Bede's name one month before the final discovery cutoff and almost two months before trial. Graham deposed Dr. Bede before trial, apparently at the defense's expense. The trial court determined that Graham had sufficient time to depose the witness and prepare for cross-examination. It also noted that although the substitution of the expert witness was not advantageous for Graham, it did not rise to the level of prejudice sufficient to require exclusion of the testimony. We agree. The trial court did not abuse its broad discretion.
We note that Graham likewise took advantage of the trial court's flexibility when she made an additional designation after the deadline set by its initial order.
Graham also argues that Jenkins misled the trial court in opposing her motion to exclude Dr. Bede. She asserts that Jenkins' purported reason for substituting Dr. Bede for Dr. Battaglia inaccurately claimed Dr. Battaglia's unavailability. The trial court heard the parties' countering arguments on this issue and rejected Graham's. It did not abuse its discretion in doing so.
Graham next contends that the trial court should not have allowed testimony from psychologist Dr. Wendy Marlow. Graham also asserts that the trial court abused its discretion when it admitted Dr. Marlowe's report for the limited purpose of showing Graham's Minnesota Multiphasic Personality Inventory-2 (MMPI) test results. She argues that Dr. Marlow's raw data should have been excluded because it was based on forensic rather than clinical norms. We disagree.
For various reasons, Jenkins' counsel did not depose Graham's neuropsychology expert until shortly before trial. At that time, Jenkins learned that the neuropsychologist, who had been listed for forensic purposes, had administered an MMPI that was scored using clinical rather than forensic norms. Jenkins conferred with an expert who scored the test using the correct norms. Graham objected when Jenkins sought to introduce the new scoring during the neuropsychologist's cross-examination.
The trial court allowed the testing to come into evidence once Jenkins' expert testified and laid a foundation that the proper scoring methodology was followed. We cannot say that the trial court abused its broad discretion under these facts.
Finally, with regard to the trial court's rulings about Drs. Bede and Marlow, a review of the findings indicates that the trial court did not rely on either Dr. Bede's or Dr. Marlow's testimony in entering its findings of fact and conclusions of law. Graham's arguments that the trial court abused its discretion with regard to this expert testimony fail.
Graham argues that the findings and conclusions are weighted toward Jenkins because defense counsel drafted the trial court's signed findings and conclusions. We disagree with Graham's assumption. Each side prepared proposed findings and conclusions. This careful trial judge reviewed the findings and conclusions before signing the ones prepared by Jenkins' counsel. It certainly had the opportunity to edit them for accuracy.
Admission of Social Security Administration Records
Graham further contends that the trial court abused its discretion in admitting exhibit 112, Graham's SSA documents, because the exhibit contains hearsay, was undisclosed in Jenkins' ER 904 designation, and was unauthenticated and incomplete. Graham asserts that the trial court improperly allowed the documents to be referred to during testimony of Jenkins' vocational rehabilitation expert, William Skilling.
Graham also argues that Skilling did not produce the documents during his deposition. No one disputes that the parties stipulated to obtaining the records, that the SSA delayed in providing them, and that the records did not arrive until three days into trial. Based on these facts, this argument fails.
Exhibit 112 contained Graham's application for Social Security disability, her requests for reconsideration, notice of appeal, pre-hearing statement, and the ALJ's opinion that Graham's bipolar condition disabled her. We first note that Graham's argument lacks merit in that the parties stipulated to obtaining the records that Graham now argues are unauthenticated and that she listed on her ER 904 designation.
In response to Graham's hearsay argument, the trial court admitted the documents under ER 703 because they were of a type reasonably relied on by experts in forming opinions on the subject. Under these procedural facts, the trial court did not abuse its broad discretion in admitting the evidence.
Graham argues that exhibit 112 contained the opinion of an undisclosed expert, Dr. Johnson, who opined on Graham's mental condition during the hearing.
Finally, the trial court did not admit exhibit 112 during Skilling's testimony. It admitted it without objection at the close of trial. Upon marking the documents, Jenkins' counsel gave exhibit 112 to Graham's counsel, who replied, "I anticipate you're going to offer those for admission." VRP at 1142. Graham's counsel asked for time to review the documents over lunch and later stated that he had no objection to admitting exhibit 112. Given this procedural history, the trial court did not err in admitting the exhibit.
We agree with Jenkins that even if counsel had properly objected and the trial court had erred in admitting the documents, any error was harmless as Graham, in essence, testified to the contents of her Social Security records.
Award of Damages and related conclusions of law
Graham next contends that even if the trial court did not abuse its discretion in making various evidentiary rulings, nothing supports conclusions of law 6, 7, 8, 9, 10 and 11. Graham asserts that the evidence showed that all of her treating doctors agreed that her injuries claim related to the accident.
In conclusions of law 6, 7, 8, and 10, the trial court decided that Graham failed to establish by a preponderance of evidence that (1) the motor vehicle accident aggravated her preexisting degenerative disc disease; (2) the accident caused her L4-5 disc herniation; (3) any of her post-October 9, 2001 treatment resulted from the accident; and (4) she sustained any wage loss or impairment of future earning capacity because of the accident. In conclusion of law 9, the court determined that $4,674.88 in medical costs resulted from the accident. Finally, in conclusion of law 11, the trial court concluded that Graham's psychologist, psychiatrist, and an ALJ had already determined that Graham was disabled prior to the accident and that she suffered no earning capacity impairment as a result of it.
After a bench trial where the trial court has weighed the evidence, we limit our review to whether substantial evidence supports its findings of fact and, if so, whether those findings support its conclusions of law. Keever Assocs., Inc. v. Randall, 129 Wn. App. 733, 737, 119 P.3d 926 (2005), review denied, 157 Wn.2d 1009 (2006). Substantial evidence is sufficient to persuade a fair-minded person the truth of the asserted matter. Keever, 129 Wn. App. at 737. On appeal, we take the evidence and reasonable inferences therefrom in favor of the respondent. Keever, 129 Wn. App. at 737. We defer to the fact finder on credibility and conflicting evidence, and we do not substitute our judgment in this regard. Keever, 129 Wn. App. at 737, Weyerheuser v. Tacoma-Pierce County Health Dep't, 123 Wn. App. 59, 65, 96 P.3d 460 (2004).
The trial court heard testimony and/or reviewed reports from Graham's treating physicians: Drs. Golan, Brack, Shonnard, Glacy, Raghunath, and Galpert. The trial court heard testimony from various retained experts. The trial court also reviewed records from Apple Physical Therapy, Harbor Physical Therapy, an urgent care clinic, and the testimony of psychiatrist Dr. Johnson at the SSA hearing.
A review of Dr. Golan's records shows that by October 2001, Graham no longer suffered any back pain as a result of the accident and had ceased her physical therapy treatments. The Apple Physical Therapy records indicate that Graham's dysfunction had resolved as of September 17, 2001. Further, Graham's March 2002 MRI showed her degenerative disc disease and central accentuation at her L4-5 nerve root predated the accident.
Dr. Brack's testimony and records identify that an impingement of Graham's L4-5 nerve root was likely attributable to her degenerative disc disease. But following a skillful cross-examination, Dr. Brack admitted that, given all of the evidence presented to him, he could not, on a more probable basis, say that Graham's condition after October 2001, resulted from the March 23, 2001 accident.
The trial court heard further testimony and reviewed records showing that (1) Graham had received a SSA finding of permanent disability due to bipolar disorder, retroactive to 1999; (2) at the time of trial, she had been and was continuing to receive monthly disability payments for her bipolar condition; (3) she had a history of bipolar disorder interfering with her ability to work, including records showing she had been permanently disabled by this disorder as early as 1997; and (4) she reported having difficulty with her disorder since resuming teaching during the 2001-2002 school year.
Substantial evidence supports the trial court's findings of fact and they, in turn, support its conclusions of law. Although we, or other judges, might decide this case differently, we cannot substitute our view for that of the fact finder when it comes to credibility of the witness and conflicting evidence, and the weight to give conflicting evidence.
We are likewise not persuaded by Graham's argument that because she was working at the time of the motor vehicle accident, the accident impaired her earning capacity. The record discloses a history of bipolar disorder interfering with her ability to work, including her own pre-accident claims that her bipolar disorder was permanently disabling.
That she was unable to work as of April 2002, does not by itself demonstrate that the motor vehicle accident was the reason, particularly in light of her report to Dr. Raghunath in late January 2002, that she was experiencing rapid mood changes after resuming teaching and was entering another manic phase. The letter from Graham's supervisor also indicates that Graham was having multiple difficulties during this period that interfered with her ability to work. Further, the trial court's decision that the accident did not impair Graham's earning capacity is consistent with the fact that she was receiving benefits based on her own representation that she was unable to work due to her bipolar disorder.
Jenkins cross-appeals several trial court evidentiary rulings, arguing that the trial court erred by (1) denying his motion to exclude late disclosed witnesses, (2) denying his ability to call plaintiff's expert witness, (3) denying his motion to set aside the trial court's order denying plaintiff's motion to exclude, and (4) allowing admission of posttrial evidence. Because we affirm, we do not address Jenkins' cross 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 pursuant to RCW 2.06.040, it is so ordered.
We concur:
Bridgewater, J. Penoyar, J.