Opinion
No. 32220-0-II.
Filed: April 25, 2006.
Appeal from Superior Court of Mason County. Docket No. 03-2-00008-0. Judgment or order under review. Date filed: 08/27/2004. Judge signing: Hon. Anna Marie Laurie.
Counsel for Appellant(s), Richard Paul Lentini, Attorney at Law, 1201 3rd Ave Ste 3400, Seattle, WA 98101-3034.
Counsel for Respondent/Cross-Appellant, Frederick Wayne Lieb, Putnam Lieb, 907 Legion Way SE, Olympia, WA 98501-1520.
UNPUBLISHED OPINION
Julie A. Reams suffered two injuries during the month of June 2000 while employed by Simpson Timber Company (Simpson). Simpson appeals the trial court's denial of its motions for judgment as a matter of law to reverse the Board of Industrial Insurance Appeals' (BIIA) findings that Reams was entitled to time loss compensation between November 1, 2000 and June 13, 2001, and that industrial injuries caused Reams' right shoulder condition. It also appeals the trial court's rulings (1) excluding evidence from Reams' applications for unemployment compensation and private short-term disability benefits; and (2) awarding Reams attorney fees. Reams cross-appeals the court's dismissal of her claim for injuries to her left shoulder and its limitation on her attorney fees award. We affirm the jury verdict, reverse the trial court's dismissal of Reams' left shoulder condition claim and its denial of attorney fees documented in Reams' attorney's second and third fee declarations, and remand the case for further proceedings.
Procedural History and Factual Background I. Procedural History
Reams began working for Simpson on April 27, 2000, as a `Miscellaneous Relief' laborer. Administrative Record Transcript (AR Transcript) (Feb. 28, 2002) at 5. Reams' permanent employment with Simpson and union membership depended on her successful completion of an initial three month probationary period. During that period, Simpson reserved the right to terminate Reams for any reason.
On June 21, 2000, Reams was feeding rough cut boards into a chipper where they were reduced to chips and sawdust. Before reaching the chipper, boards projected from a conveyor belt and dropped onto a `shaker tray' that guided them into the chipper. AR Transcript (Feb. 26, 2002) at 96-97. When Reams attempted to remove boards jammed in the chipper's feeding area, the conveyor belt projected a board, striking the back of Reams' head (June 21 injury). Reams did not lose consciousness and continued to work. Although she began to experience headaches, dizziness, and tightness in her neck, and despite the emergence of a large lump on the back of her head shortly after the June 21 injury, Reams continued to work and did not report the incident or file an industrial injury application until October 5, 2000. The Department of Labor Industries (Department) denied the claim on July 2, 2001, finding that Reams' condition was not the result of the alleged injury.
Before attempting to remove the jammed boards, the conveyor belt had been turned off. The record is unclear about how the conveyor belt reactivated while Reams was removing the jam.
There was conflicting testimony about why Reams delayed reporting the June 21 injury. On one hand, both Reams and Mr. Boeger, one of Reams' healthcare providers, testified that Reams specifically instructed him to not report the incident to Simpson because she was still working within Simpson's probationary period and feared being fired for violation of Simpson's safety procedures. But Reams later testified that fear of termination was not the reason she delayed reporting the June 21 injury.
On June 30, 2000, `something popped' between Reams' shoulder blades when she was throwing 8-foot 2x4 studs into a container box (June 30 injury). AR Transcript at 105. Reams testified, however, that the June 30 injury did not immediately cause pain in her shoulders. Rather, the incident severely affected her legs, prompting her to call her supervisor, who provided her with an industrial injury claim number. On July 24, 2000, she filed a claim with the Department that was allowed on July 31, 2000. The Department closed that claim on March 16, 2001, ordering that time loss compensation be paid through September 24, 2000, with no permanent partial disability award.
Reams appealed the Department's denial of her June 21 injury claim and the closing of the June 30 injury claim. The BIIA reversed both Department orders, finding that (1) the June 21 injury caused `an aggravation of a preexisting asymptomatic lipoma, with resulting headaches and dizziness; an aggravation of a preexisting left shoulder condition and a new right shoulder condition; and muscular pain in her neck and back;' and (2) the June 30 injury caused `neck and back pain, and an aggravation of bilateral preexisting shoulder conditions.' Administrative Record (AR) at 8. Further, the BIIA explained that the June 21 and June 30 injuries collectively aggravated and lit up a latent preexisting degenerative condition in her right shoulder that resulted in an impingement syndrome.
The BIIA ordered the Department to require Simpson to allow the June 21 injury claim and `provide such further benefits as may be indicated or required by law.' AR at 10. Further, the BIIA ruled that Reams was temporarily and totally disabled between November 1, 2000 and June 13, 2001, and required that Simpson pay Reams time loss compensation for that period, in addition to a variety of back medical bills.
Simpson appealed the BIIA's decision to the Mason County Superior Court. At a pretrial hearing on May 2, 2004, the trial court excluded evidence that Reams' (1) unemployment benefits applications from December 2000 to February 2002 indicated that she was available and able to work and seeking employment; and (2) private disability benefits application signed in late January 2001 stated that she had not and would not seek unemployment benefits.
At the conclusion of the evidence at trial, Simpson filed five CR 50 motions for judgment as a matter of law. Reams filed a cross-motion, arguing that the evidence was clear that she was temporarily totally disabled between November 1, 2000 and June 13, 2001.
Specifically, Simpson argued that, as a matter of law, there was no evidence that (1) Reams was temporarily and totally disabled between November 1, 2000 and June 13, 2001; (2) Reams had an established left shoulder condition caused by her industrial injuries; (3) Reams had an established right shoulder condition caused by her industrial injuries; (4) Reams' lipoma caused her headaches and dizziness; and (5) Reams had an established lower back condition caused by her industrial injuries.
The trial court granted Simpson's CR 50 motion regarding Reams' alleged left shoulder condition, denied the other motions, and submitted all remaining issues to the jury. The jury affirmed all of the remaining BIIA rulings. Consequently, the trial court entered judgment on August 27, 2004, reversing the BIIA's findings of fact and conclusions of law on Reams' left shoulder condition and affirming all other BIIA rulings. Further, the trial court awarded Reams attorney fees and costs but limited them to the attorney's first fee declaration.
II. Factual Background A. Evidence of Reams' Ability to Work Between November 1, 2000 and June 13, 2001
Following her June 2000 injuries, Reams visited Dr. Trygstad's office for the first time on July 5, 2000. Mr. Boeger, Trygstad's physician assistant, released Reams to light duty at Simpson after hearing the complaints related to the June 2000 injuries. Before the June 21 and June 30 injuries, Boeger had treated her for back, leg, abdominal, and shoulder pain since 1998. The record indicates that Boeger provided the majority of primary treatment for Reams. Trygstad provided secondary supervisory review but maintained familiarity with Reams' case.
Reams remained on light duty until August 3, 2000, when Boeger released her from work entirely on her complaint that Simpson gave her increasingly difficult physical assignments that worsened her back, headache, dizziness, and shoulder symptoms. Reams returned to light duty again on September 24, 2000, but thereafter complained of dizziness and headaches. Reams requested that Boeger release her from light duty on October 12, 2000, but Boeger denied the request. Boeger testified that as of October 12, 2000, there was no injury that would keep Reams from taking light duty work. Boeger further testified that on October 23, 2000, he and Trygstad concurred with the results of an independent medical examination (IME) that no objective reason existed for Reams to not return to work. But on November 1, 2000, Boeger again released Reams from work based on her continuing complaints of pain and dizziness and not on any new objective physical findings. Boeger explained that it was his opinion that the light duty fire watch job Simpson offered that required her to use a catwalk was unsafe due to her dizziness and headache complaints. Because Simpson did not propose a light duty job that Boeger felt was safe for Reams, he did not release her for either full or light duty work from November 1, 2000 through the last time he treated her in March 2001.
Reams testified that between July 5, 2000 and July 17, 2000, her light duty work was making her dizzy and that Boeger `just kept writing me out of work and he was giving me Demoral for the muscle spasms.' AR Transcript at 112.
Simpson placed Reams on fire watch.
Dr. Chenault, an orthopedist, began treating Reams in December 2000. He testified initially that Reams was unable to work as of November 2000. But he later explained that while he thought Reams was unable to do her normal job, she was able to do some work as long as it did not involve heavy overhead lifting or repetitive overhead reaching.
Trygstad testified that Reams was unable to return to her job from November 2000 through June 2001. But he also explained that during that period, it may have been possible for Reams to participate in light duty work and that, to some degree, his opinion regarding her ability to work relied on her perception of that ability.
Reams volunteered at her friend's latte stand `off and on for four weeks' during October 2001. AR Transcript (Feb. 28, 2002) at 24. She worked by herself for three to five hours at a time. While this activity occurred after the relevant time period between November 2000 and June 2001, Reams testified that her shoulder condition was `about the same to worse' than it was in June 2001. AR Transcript at 40.
Reams worked between two and five days a week at the latte stand.
Reams also testified that during December 2000, she searched for less physically demanding jobs, such as clerical, office, cashier, and clerk work. She further testified that, given her education and labor background, she would have been able to find such a job `if there was jobs available, but the job markets [sic] really lousy right now.' AR Transcript (Feb. 26, 2002) at 137.
B. Expert Testimony About Reams' Right Shoulder Condition
Boeger testified that in December 2000, he diagnosed Reams with several medical conditions relating to her right shoulder, that Reams' symptoms were consistent with right shoulder impingement syndrome, and that the conditions and impingement syndrome were probably caused by Reams' June 2000 injuries. Boeger also explained that shoulder impingement syndrome is usually chronic but that a single traumatic event can aggravate or trigger a `domino effect' leading to impingement syndrome. AR Deposition (Boeger) at 61.
Chenault testified that in December 2000, he diagnosed Reams with right shoulder impingement syndrome, that the condition was consistent with the type of work she had been doing at Simpson before the June 2000 injuries, and that the condition was related to the June 2000 injuries on a `more probable than not' basis. AR Deposition (Chenault) at 20. He further testified that an April 12, 2001 examination revealed that Reams' condition remained largely unchanged. He also explained that Reams had preexisting problems in her right shoulder that became symptomatic after her June 2000 injuries. Chenault clarified that shoulder impingement syndrome can be caused by cumulative repetition over a period of years and finally be triggered by a specific event.
Chenault also testified that his opinion with regard to causation was based on the presumption that Reams had been working a specific type of job at Simpson for six months before the injury and that his opinion might change if Reams did not always work that type of job and if she had only been working at Simpson for two months before the injury. He testified later that Simpson's questioning did not change his opinion that Reams' right shoulder impingement was caused by the June 2000 injuries.
Trygstad testified that he agreed with Chenault's opinions regarding Reams' right shoulder impingement and that the June 2000 injuries aggravated or `lit up' the condition. But he also testified that it was possible, as opposed to probable, that the June 30 injury caused Reams' shoulder pain and that it could be a contributing cause to Reams' right shoulder impingement syndrome. Further, Trygstad acknowledged that Reams did not complain of right shoulder pain during her first visit to his office on July 5, 2000, and that she did not complain about pain in her right shoulder joint until December 2000. He also testified that it was possible that Reams' right shoulder became symptomatic sometime between June 30, 2000 and December 1, 2000, because of ordinary use unrelated to work and that Reams' failure to complain specifically of right shoulder pain until about five months after her June 2000 injuries would not necessarily indicate that the condition was unrelated to those injuries.
C. Expert Testimony About Reams' Left Shoulder Condition
In January 1999, Reams had surgery on her left shoulder but did not complain of any pain relating to that condition for over a year before the June 2000 industrial injuries. Boeger testified, however, that although Reams' left shoulder condition appeared resolved by June 2000, the post-surgical shoulder was at greater risk of injury than a normal shoulder.
On July 5, 2000, Reams complained of pain in her neck and upper back radiating to her left shoulder. During a later visit in July 2000, Reams complained of pain in her left shoulder. Boeger also testified that it was probable that Reams' June 2000 injuries aggravated her left shoulder condition.
Chenault testified that Reams complained of neck pain, headaches, and right shoulder pain when she visited him on December 4, 2000, but that she later reported bilateral shoulder pain. He did not discuss whether the June 2000 injuries either aggravated a preexisting left shoulder condition or caused a new one.
Trygstad testified that on July 17, 2000, Reams' left shoulder demonstrated a normal range of motion. He also testified that it was his understanding that the June 21 injury resulted in left shoulder pain and that through June 2001, Reams received several `triggerpoint injections' to relieve pain in both of her shoulders. AR Deposition (Trygstad) at 18. He further explained that (1) there was some causal relationship between problems in both shoulders and the June 21 injury; and that (2) it was possible that the June 30 injury was related to the development of left shoulder pain.
But Trygstad later testified that all opinions he gave were on a `more probable than not' basis. AR Deposition (Trygstad) at 37.
ANALYSIS I. Motions for Judgment as a Matter of Law A. Standard of Review
We review motions for judgment as a matter of law de novo, applying the same standard as the trial court. Davis v. Microsoft Corp., 149 Wn.2d 521, 530-31, 70 P.3d 126 (2003). A judgment as a matter of law is appropriate when, after viewing the evidence in the light most favorable to the nonmoving party, the court determines that there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party. Davis, 149 Wn.2d at 531. The nonmoving party is not bound by the unfavorable portion of the evidence, but is entitled to have the case submitted to the jury on the basis of the evidence most favorable to him. Venezelos v. Dep't of Labor Indus., 67 Wn.2d 71, 72, 406 P.2d 603 (1965) (citing Mutti v. Boeing Aircraft Co., 25 Wn.2d 871, 877, 172 P.2d 249 (1946)).
The superior court reviews BIIA decisions de novo. RCW 51.52.115; Anderson v. Weyerhaeuser Co., 116 Wn. App. 149, 153, 64 P.3d 669 (2003), review granted, 150 Wn.2d 1035 (2004). The BIIA's findings and decision are prima facie correct, and the burden is on the attacking party to prove by a preponderance of the evidence that the BIIA was incorrect. Weyerhaeuser, 116 Wn. App. at 153. If the BIIA acted within its authority and correctly found the facts and construed the law, the superior court must affirm its decision. Weyerhaeuser, 116 Wn. App. at 153.
On appeal, our review is limited to examination of the record to determine 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. Weyerhaeuser, 116 Wn. App. at 153 (quoting Ruse v. Dep't of Labor Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999)).
B. Simpson's CR 50 Motion on Reams' Ability to Work Between November 1, 2000 and June 13, 2001
Simpson argues that Reams could perform general light duty work between November 1, 2000 and June 13, 2001, that her inability to obtain work during that time period was due to fluctuations in the labor market and not the June 2000 injuries, and that she was therefore not entitled to time loss compensation.
Reams responds that her age, limited education, and work history qualified her only for labor-related jobs. She further contends that the expert medical testimony establishes that she was totally and temporarily disabled between November 1, 2000 and June 13, 2001.
Workers who sustain injuries or occupational diseases in the course of their employment that incapacitate them from obtaining any gainful employment are `totally disabled' under the Industrial Insurance Act and are entitled to time loss compensation. RCW 51.08.160; RCW 51.32.010; RCW 51.32.090. When a worker is only temporarily totally disabled, entitlement to time loss compensation ceases when the worker's recovery is so complete that the worker's capacity, at any kind of work, is restored to that existing at the time of the industrial injury. RCW 51.32.090(3).
An ability to perform light or sedentary work of a general nature typically precludes a finding of total disability. Herr v. Dep't of Labor Indus., 74 Wn. App. 632, 636, 875 P.2d 11 (1994). A worker's inability to participate in her customary duties does not amount to a disability if she can obtain gainful employment suitable to her qualifications and training. See Leeper v. Dep't of Labor Indus., 123 Wn.2d 803, 812-15, 872 P.2d 507 (1994); Herr, 74 Wn. App. at 636-37. If a worker's inability to obtain work is due to fluctuations in the labor market rather than the industrial injury, the worker is not totally disabled. Leeper, 123 Wn.2d at 815. But if the claimant shows that the injury in some part caused the inability to obtain work, then the failure to obtain work is relevant evidence of total disability. Leeper, 123 Wn.2d at 815. A worker who is unable to perform or obtain reasonably continuous gainful employment is totally disabled. Leeper, 123 Wn.2d at 806, 810. The circumstances of the claimant's attempts to seek employment and reasonable inferences drawn from medical and vocational evidence both provide proof of the disability. Leeper, 123 Wn.2d at 815.
Here, there is substantial evidence that Reams was willing and able to undertake general light duty work and that her failure to do so was partly the result of a poor labor market as well as the June 2000 injuries. For example, Chenault testified that while he thought Reams was unable to do her normal job, she was able to do some work as long as it did not involve heavy overhead lifting or repetitive overhead reaching. Further, Reams demonstrated her continued willingness to work when she testified that she was looking for suitable work for which she was physically capable during the time period at issue and that, even given her education and labor-related background, she felt that she would have been able to obtain employment `if there was jobs available, but the job markets [sic] really lousy right now.' AR Transcript at 137. But Simpson did not present any evidence that it was the job market and not Reams' injury-related conditions that, in fact, prevented her from obtaining gainful employment, nor did it present any evidence that it offered light duty work accommodating Reams' dizziness, headaches, and other limitations.
Moreover, after testifying that Reams was unable to return to her job at Simpson, Trygstad explained only that it may have been possible for Reams to participate in light duty work, and that, to some degree, his opinion regarding her ability to work relied on her perception of that ability. To the extent that Chenault's and Trygstad's opinions differed on this issue, the relative weight of that evidence, as well as its relative credibility, were issues for the jury. Smith v. Am. Mail Line, Ltd., 58 Wn.2d 361, 368, 363 P.2d 133 (1961).
Because all evidence must be viewed in the light most favorable to Reams, and because all evidence must be considered in evaluating the reasons for Reams' inability to obtain work, and because competent, but conflicting expert medical testimony is for the jury to evaluate, the trial court did not err in denying Simpson's CR 50 motion regarding Reams' temporary total disability.
C. Simpson's CR 50 Motion on Reams' Right Shoulder Condition
Simpson argues that there is insufficient evidence establishing that Reams' right shoulder impingement syndrome is causally related to her June 2000 injuries. Specifically, Simpson argues that Chenault's testimony on this issue given in response to a hypothetical question was based on false factual assumptions.
Reams responds that while Chenault misunderstood how long she had been working at Simpson before the June 2000 injuries, his testimony, when taken as a whole, did not rely on the duration of Reams' employment as a material, determining factor in his opinion regarding causality.
An expert medical opinion on the causal relationship between an industrial injury and a subsequent disability must be based on full knowledge of all material facts. Sayler v. Dep't of Labor Indus., 69 Wn.2d 893, 896, 421 P.2d 362 (1966). An expert medical opinion given in response to a hypothetical question is without probative value if based on the existence of conditions or facts not included in the question, or established by the evidence. Sayler, 69 Wn.2d at 896. If the doctor giving the opinion has not been advised of a vital element bearing on the causal relationship, his conclusion or opinion does not have sufficient probative value to support an award. Sayler, 69 Wn.2d at 896. Whether a fact is material to the formulation of a fair, intelligent, and sound opinion is a preliminary question of admissibility for the trial court. Vaupell Indus. Plastics, Inc. v. Dep't of Labor Indus., 4 Wn. App. 430, 435, 481 P.2d 577 (1971). The materiality of a fact must be established by or be apparent from evidence such as the medical expert's own testimony. Vaupell, 4 Wn. App. at 435.
Here, Chenault initially gave his opinion that the June 2000 injuries caused Reams' right shoulder impingement syndrome while under the belief that Reams had been working at Simpson for six months, not two months, and that Reams had been working a particular type of job at Simpson during that period. But Chenault explained only that his opinion might change had he known that Reams had been working at Simpson for about two months in multiple capacities, not that his opinion would change had he known the precise facts of Reams' history at Simpson. Similarly, Chenault later testified that Simpson's questions about the cause of Reams' right shoulder impingement that clarified her work history at Simpson did not change his opinion that the June 2000 injuries caused the impingement.
Simpson also argues that Trygstad's testimony was inadequate to establish a causal relationship because it spoke in terms of `possib[ility]' as opposed to `probab[ility].' Br. of Simpson at 18; Reply Br. of Simpson at 6. Although Trygstad indeed testified that it was `possible' that the June 30 injury caused Reams' shoulder pain and that it `could' be a contributing cause to Reams' right shoulder impingement syndrome, he also testified more conclusively that the condition was caused on a more probable than not basis by the June 2000 injuries. AR Depositions (Trygstad) at 24, 26.
The trial court struck this portion of Trygstad's testimony.
Further, Boeger testified that in December 2000, he diagnosed Reams with several conditions to her right shoulder, that the symptoms Reams exhibited were consistent with right shoulder impingement syndrome, and that the conditions and impingement syndrome were probably caused by Reams' June 2000 injuries.
Viewing the evidence in the light most favorable to Reams, the trial court properly denied Simpson's CR 50 motion regarding Reams' right shoulder condition.
D. Simpson's CR 50 Motion on Reams' Left Shoulder Condition
Reams argues that the trial court erred in granting Simpson's motion for judgment as a matter of law on her left shoulder condition. Specifically, Reams argues that the record contains ample evidence that the June 2000 injuries aggravated her `at risk' left shoulder and that her healthcare providers documented pain and treatment to her left shoulder after the June 2000 injuries.
Simpson responds that the record is devoid of any evidence that Reams suffered from a specific left shoulder condition following the June 2000 injuries. Thus, the trial court properly granted its motion for judgment as a matter of law, determining that the jury could not have found the existence of a left shoulder condition or its causal relationship to the June 2000 injuries.
Injured workers must establish through expert medical testimony that it is more probable than not that an industrial injury caused a subsequent disability or condition. Grimes v. Lakeside Indus., 78 Wn. App. 554, 561, 897 P.2d 431 (1995). If an industrial injury aggravates a quiescent preexisting condition, any subsequent disability or impairment is attributed to the industrial injury and not the preexisting condition. Dennis v. Dep't of Labor Indus., 109 Wn.2d 467, 472, 474, 745 P.2d 1295 (1987); Bennett v. Dep't of Labor Indus., 95 Wn.2d 531, 533, 535, 627 P.2d 104 (1981).
An industrial injury need not be the sole proximate cause of a subsequent condition, but expert medical testimony expressed in terms of possibility rather than probability is insufficient to establish causation. Grimes, 78 Wn. App. at 561. An expert's medical conclusion may consider a claimant's subjective reporting, but it must also be based, at least in part, on objective medical findings. Lewis v. ITT Cont'l Baking Co., 93 Wn.2d 1, 3, 603 P.2d 1262 (1979). The opinions of a worker's treating medical practitioners are given special consideration in industrial insurance cases. Loushin v. ITT Rayonier, 84 Wn. App. 113, 124-25, 924 P.2d 953 (1996).
Here, Simpson is correct that none of Reams' treating medical practitioners diagnosed her with a specific left shoulder condition resulting from the June 2000 injuries. But the medical practitioners documented Reams' subjective complaints of left shoulder pain. And Boeger testified that it was probable that the June 2000 injuries aggravated Reams' left shoulder.
Furthermore, Reams received treatment to relieve pain in both shoulders following the June 2000 incidents. Trygstad testified that Reams received several `triggerpoint injections' to relieve pain in both of her shoulders. AR Deposition (Trygstad) at 18. It was undisputed that there were objective medical findings that Reams suffered from a preexisting left shoulder condition that required surgery and that she had not complained of left shoulder symptoms for over a year before the June 2000 injuries.
Reams argues that before considering the CR 50 motion, the trial court had improperly excluded two portions of Trygstad's testimony on the causal relationship between the June 2000 injuries and her left shoulder condition. The result was that the trial court first struck Trygstad's testimony about causation and then granted Simpson's CR 50 motion dismissing that claim for lack of evidence. Specifically, Reams argues that Trygstad's testimony when read as a whole with the testimony of other expert medical witnesses establishes a causal connection between the incidents at work and her left shoulder condition.
The two portions of excluded testimony at issue are:
(1) Regarding the June 21st Injury
Q: You have talked about a number of continuing symptoms through June of 2001, including neck, problems to both shoulders, headaches and some low back symptoms. In your opinion, are those causally related, at least in part, to the June 21, 2000 injury?
. . . .
A: Yes, I think there is some relationship between those symptoms and the incident described.
AR Deposition (Trygstad) at 23-24.
(2) Regarding the June 30th Injury.
Q: I would like you to assume that she has testified that shortly after the second injury she also experienced increasing amounts of pain in her shoulders, and I would ask whether or not you have an opinion as to whether or not the shoulders would also be related at least in part to the June 30th injury, the second injury?
. . . .
A: I would say that it's possible that that also played a part in development of the shoulder pain.
AR Deposition (Trygstad) at 24.
Here, Trygstad's excluded testimony stated conclusively that there was `some relationship' between the June 21 injury and problems to both shoulders. AR Deposition (Trygstad) at 24. He also testified to the treatment she received for both shoulders. His testimony was sufficient to establish causation because an industrial injury need not be the sole proximate cause of a condition. Grimes, 78 Wn. App. at 561. The trial court erred in striking his testimony about the June 21 injury.
In contrast, Trygstad testified only that it was possible that the June 30 injury was causally related to the development of shoulder pain. The trial court properly excluded this testimony because expert medical testimony expressed in terms of possibility rather than probability is insufficient to establish causation. Grimes, 78 Wn. App. at 561.
Viewing the evidence in the light most favorable to Reams, a rational trier of fact could have found that Reams aggravated a preexisting left shoulder condition as a result of the June 2000 injuries. Thus, the trial court improperly granted Simpson's CR 50 motion regarding Reams' left shoulder condition and we reverse and remand on that issue, allowing Trygstad's testimony on causation of Reams' left shoulder condition from the June 21 incident.
This conclusion is in line with the broad policy behind the Industrial Insurance Act (the Act). The Act was intended to provide compensation to all covered workers injured in their employment. Dennis, 109 Wn.2d 467, 470, 745 P.2d 1295 (1987). To serve this goal, the Act should be liberally construed, with all doubts resolved in favor of the worker. Dennis, 109 Wn.2d at 470; Intalco Aluminum Corp. v. Dep't of Labor Indus., 66 Wn. App. 644, 654, 833 P.2d 390 (1992).
II. The Trial Court's Evidentiary Rulings
Simpson next challenges several of the trial court's evidentiary rulings.
A. Standard of Review
A trial court has `broad discretion in ruling on evidentiary matters and will not be overturned absent manifest abuse of discretion.' Cox v. Spangler, 141 Wn.2d 431, 439, 5 P.3d 1265 (2000) (quoting Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662-63, 935 P.2d 555 (1997)). A trial court abuses its discretion when it takes a view no reasonable person would take or applies the wrong legal standard to an issue. Cox, 141 Wn .2d at 439.
B. Collateral Source Rulings
Simpson argues that the trial court erred when it excluded evidence that Reams represented to the Employment Security Department that she was available and able to work during the disputed timeframe and that when she applied for proceeds from a private disability policy she stated that she would not receive unemployment compensation. Collateral source evidence relates to benefits an injured plaintiff receives from sources wholly independent of and collateral to the wrongdoer. Adcox v. Children's Orthopedic Hosp. Med. Ctr., 123 Wn.2d 15, 39, 864 P.2d 921 (1993). Washington cases applying the collateral source rule focus on the injured party's receipt of benefits. See, e.g., Cox, 141 Wn.2d at 439; Johnson v. Weyerhaeuser Co., 134 Wn.2d 795, 804, 953 P.2d 800 (1998); Adcox, 123 Wn.2d at 39; Ciminski v. SCI Corp., 90 Wn.2d 802, 803, 585 P.2d 1182 (1978).
Under the collateral source rule, payments from someone other than the wrongdoer will not be considered in order to reduce a plaintiff's recoverable damages from the wrongdoer. Cox, 141 Wn.2d at 439; see also Ciminski, 90 Wn.2d at 803. While the collateral source rule has been traditionally applied to personal injury actions in Washington, it also applies in worker's compensation proceedings. Weyerhaeuser, 134 Wn.2d at 804. Thus, in the worker's compensation setting, payments received by an injured worker from a source independent of the Department will not be considered to reduce time loss compensation otherwise recoverable.
1. Certification to the Employment Security Department
Simpson argues that the trial court improperly excluded statements Reams made to the Employment Security Department that she was able to work, available for work, and seeking employment. More specifically, Simpson contends that while the collateral source rule may bar evidence of the receipt of benefits from an independent collateral source, it does not bar statements made about her ability and availability for work. Reams responds that the collateral source rule bars the admission of evidence that she received unemployment benefits.
There is no restriction on receiving both unemployment compensation and time loss benefits. The normal remedy in such a situation is that the employee eventually reimburses the Employment Security Department for the unemployment benefits received if time loss is later determined to be appropriate for the same time period. See RCW 50.20.085 and .190 Reams acknowledged this fact in her testimony.
Here, Simpson did not attempt to introduce evidence that Reams received unemployment benefits. Rather, it attempted to demonstrate that Reams was not totally disabled between November 1, 2000 and June 13, 2001. Simpson argues that Reams' testimony that she reported to the Employment Security Department on a weekly basis from early December 2000 to at least February 2001 that she was able to work and available for work was probative evidence that Reams was not totally disabled for at least part of the time period at issue, contrary to her trial testimony.
Reams testified that she started looking for other work on or about December 1 when Simpson laid her off due to a lack of available work. She answered affirmatively to the question from Simpson that she told the Employment Security Department that she was physically able and available for work each day from December 2000 on. She stated: `Yes. I was looking for work in something I can do. Rather [sic] I could have existed, that's another question. You don't know. You got to do something.' AR Transcript (Feb. 28, 2002) at 45-46. Reams testified that she was available and looking for `[c]lerical, office work, cashier, clerk, like in a drugstore where the freight and stuff is not majorly [sic] heavy.' AR Transcript (Feb. 26, 2002) at 136. Furthermore, she clearly indicated that she was looking for `[p]hysically easy jobs.' AR Transcript at 136. Reams' statements to the Employment Security Department were not inconsistent with her trial testimony that she tried to find work for which she was qualified and able given her injury-related physical limitations, and thus they were not admissible statements to impeach her. ER 613; ER 801(d). Furthermore, under these circumstances, the only purpose for attempting to admit information about her application for unemployment benefits would have been to inform the jury of these payments as a collateral source available to Reams. The collateral source rule bars such information and the trial court did not err in excluding her statements to the Employment Security Department.
2. Reams' Statements to Disability Insurer
Simpson argues that the trial court also improperly excluded Reams' statement in an application for private disability benefits dated January 29, 2001, that she had not and would not apply for unemployment benefits. More specifically, Simpson argues that the trial court erroneously applied the collateral source rule and that Reams' statement in her application for private disability benefits was admissible to impeach her credibility under ER 607, ER 608(b)(1), or ER 613(b).
Reams responds that ER 404(b) bars the admission of her statements and further that the exception under ER 608(b) does not apply.
Reams' reference to ER 404(b) is misplaced. ER 404(b), while occasionally invoked in civil cases, is `usually thought of as barring evidence of prior misconduct in a criminal case.' 5D Karl B.Tegland, Courtroom Handbook on Washington Evidence at 221 (2006). Moreover, ER 404(b) governs the admissibility of `other crimes, wrongs, or acts.' Reams' representation on her short-term disability application, while it could be construed as an `act,' seems more akin to a statement or representation, not an `act.'
Simpson argues that it did not attempt to introduce her statement on her application for disability benefits to show receipt of benefits from a collateral source. Rather, Simpson argues that it tried to introduce the statement to attack Reams' credibility. Prior inconsistent statements by a witness that are contrary to her testimony and that may have been objectionable as hearsay may be admitted for the limited purpose of attacking the witness's credibility. See ER 612; see also 5D Karl B. Tegland, Courtroom Handbook on Washington Evidence at 322-25 (2006).
Simpson's reference to ER 607 is misplaced. ER 607 is not concerned with whether a witness may be impeached by introducing the witness's own inconsistent statements or whether a witness's prior misconduct demonstrates the witness's truthfulness or untruthfulness. 5A Wash. Prac., sec.sec. 607.17, 607.20 (1999).
Here, Reams testified during direct examination that she applied for unemployment benefits in December 2000. On cross-examination, Simpson attempted to impeach Reams by introducing the statement Reams made on an application for short-term disability benefits, dated January 29, 2001, indicating that she was not applying for unemployment benefits. The trial court sustained an objection to the statement's admissibility after considering Reams' testimony. Her testimony explained why and when she actually applied for short-term disability:
They [the Union] asked me to fill this out for The Nelson Trust for wages prior to my unemployment wages. And that's why, when I checked this, it said `No.' It said `Yes' to the plan, and `No' to the unemployment insurance.
Tanya Dierick called me at home on December — around December 1st or so, said I was going to be on layoff. That was — Then I was going onto the unemployment insurance.
This was supposed to be for back compensation, not for unemployment compensation. Because between the light duty period and unemployment, there was a time period where there was no funds, which we lost our truck, the house payments were behind, and The Nelson Trust and the union contacted me to try to help me get caught up on the back bills.
And that is what this was supposed to be for. I wasn't trying to defraud anybody.
AR Transcript (Feb. 28, 2002) at 53.
When asked if she had filled out the form on January 29, 2001, she replied:
Around there because the — I originally signed up for it for the month of 11/1.
And it had to go through — The doctors had to send all their things in. Simpson had a letter — had to send a letter in to — denying me LI benefits to get this approved.
So, the whole process was a long period of getting approved. And by the time I even received the money from The Nelson Trust, I was on unemployment.
But, also, I signed a waiver with The Nelson Trust, if I made an income off of LI or anything else, I have to pay The Nelson Trust back all the money that they loaned me.
And then the unemployment book, it states disability and unemployment are two different things in the unemployment handbook.
If I would have thought I owed this money back, then I would have found a way to pay it. Or, if I find that I owe unemployment, I'll find a way to pay it whether I win this case or not. I got to do something.
The trust was supposed to be for back wages. Sorry.
AR Transcript at 53-54.
Reams' testimony was unrefuted. Her explanation removed any apparent inconsistency in her testimony that she applied for unemployment compensation in December, yet told The Nelson Trust that she would not apply for it, and explained that the short-term disability was to fill the gap between her time loss payments and unemployment compensation. The trial court did not err in excluding reference to her disability application. Again, its introduction would have informed the jury of a collateral source but would not have been proper impeachment of inconsistent testimony by Reams.
III. Attorney Fees A. Award of Attorney Fees and Costs to Reams
Simpson argues that the trial court erred in awarding Reams attorney fees and costs following the jury's verdict in her favor because the trial court had earlier reduced her right to relief by granting Simpson's CR 50 motion on Reams' alleged left shoulder condition. Specifically, Simpson argues that our Supreme Court's holding in Boeing Co. v. Heidy, 147 Wn.2d 78, 51 P.3d 793 (2002), precludes an award of attorney fees to Reams, or to any other worker who loses some aspect of benefits, regardless of magnitude, on appeal.
But Simpson misreads both Heidy and RCW 51.52.130. In Heidy, our Supreme Court held that Heidy sustained his right to relief, entitling him to attorney fees and costs, even though he lost on two of three issues on appeal. 147 Wn.2d at 89. The Court elaborated that the plain language of RCW 51.52.130 states that a court shall award reasonable attorney fees to the worker where a party other than the worker appeals and the worker's right to relief is sustained on appeal. Heidy, 147 Wn.2d at 89. The Court stated that `[t]here is a difference between a worker's right to relief and a worker's theory about why he or she has a right to relief. The worker's theory need not be sustained — only the right to relief.' Heidy, 147 Wn.2d at 89 n. 5.
Here, Simpson appealed the BIIA's decision to the Mason County Superior Court and successfully moved for judgment as a matter of law reversing the BIIA's decision regarding Reams' left shoulder condition. But Simpson lost on all remaining issues. While Simpson is correct that Reams' one theory of recovery was reduced, Reams prevailed at trial in every other respect and on her right to relief under the statute. Reams sustained the remaining theories as well as her right to relief on appeal.
B. The Reasonableness of the Trial Court's Award of Attorney Fees
Reams argues that the trial court erred when it did not include hours documented in a second and third declaration by Reams' attorneys in its order setting attorney fees, dated August 27, 2004.
We review the reasonableness of an attorney fees award under the abuse of discretion standard. Heidy, 147 Wn.2d at 90; Fisher Props. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 375, 798 P.2d 799 (1990). A trial court abuses its discretion only when the exercise of its discretion is manifestly unreasonable or based on untenable grounds or reasons. Heidy, 147 Wn.2d at 90.
`The general rule is that time spent on establishing entitlement to, and amount of, a court awarded attorney fee is compensable where the fee shifts to the opponent under fee shifting statutes.' Fisher Properties, 115 Wn.2d at 378 (internal cites omitted). A trial court may not rely on irrelevant factors to deny a proper award of attorney fees. Pham v. Seattle City Light, 124 Wn. App. 716, 723-24, 103 P.3d 827 (2004). Irrelevant factors may include post-verdict settlement negotiations, unfiled amended complaints, an unsuccessful summary judgment motion, research on tax consequences, documentation of an unsuccessful lodestar multiplier, and a motion on the merits at the Court of Appeals. Pham, 124 Wn. App at 725-26.
The court's order setting attorney fees contains several findings outlining how the amount was reached, and it explains that the trial court considered all briefs, declarations, and affidavits in reaching its fee award. But the court refused to award fees for post-verdict work or include time Reams' counsel spent on Simpson's (1) five CR 50 motions; (2) Reams' opposition to the motions and her own motion for reconsideration of the court's rulings; (3) attempts to negotiate with Simpson on wording of the final judgment before entry; and (4) entry of the disputed judgment. The trial court did find that the number of hours and accompanying hourly rate were reasonable. The basis of the trial court's rejection was that time spent to justify the attorney fees request itself was `something like compounding interest.' Report of Proceedings (Aug. 27, 2004) at 4.
Here, Simpson's CR 50 motions and responses thereto were substantive legal work entirely related to the substance of the trial and the disputed matters. And, under RCW 51.52.130, Reams was entitled to attorney fees as the prevailing party whose right to relief was sustained on appeal. She was required to both document those fees for the court's consideration and, in light of Simpson's argument that she was not entitled to any attorney fees, prepare adequate legal authority to sustain her right. Thus, the trial court abused its discretion in rejecting consideration of the work done during trial on substantive issues, post-verdict work, and work necessary to prove Reams' right to attorney fees.
We reverse the trial court's evidentiary ruling excluding Trygstad's causation testimony on the left shoulder condition from the June 21 injury and its dismissal of Reams' left shoulder condition from the jury's consideration, and remand for further proceedings. We also reverse its denial of attorney fees represented in Reams' trial counsel's second and third declarations for trial and post-verdict work done on Reams' behalf, and remand for further consideration of additional fees. We affirm the trial court in all other respects and award Reams attorney fees on appeal under RCW 51.32.130 pending compliance with RAP 18.1.
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 QUINN-BRINTNALL, JJ., concur.