Blue Chelan, Inc. v. Department of Labor & Industries ( 1984 )

Stafford, J.

Edward Sisson contracted allergic bronchitis and chronic obstructive pulmonary disease while employed by Blue Chelan, Inc. He filed a claim with the Department of Labor and Industries for permanent disability. The Department closed the claim with compensation for partial disability of 25 percent. Sisson appealed to the Board of Industrial Insurance Appeals. The Board's hearing examiner found Sisson totally and permanently disabled. The Board adopted the hearing examiner's decision and found that Sisson's disability attributable to his industrial disease, combined with his age (64 years) and training (eighth-grade education, experienced only in heavy labor), totally and permanently prevented him from engaging in any full-time occupation on a reasonably continuous basis.

Blue Chelan appealed the Board's order to the Superior Court where the case was heard by a jury. The following interrogatories were submitted to the jury:

Interrogatory No. 1:

Was the Board of Industrial Insurance Appeals correct in its determination that Mr. Sisson was totally and permanently disabled on June 14, 1978?

Answer:_(Yes or No)

If your answer as to Interrogatory No. 1 is "Yes," you will not answer Interrogatory No. 2. If your answer to Interrogatory No. 1 is "No," you will answer Interrogatory No. 2.

Interrogatory No. 2:

On or about June 14, 1978 and as a proximate result of his January 28, 1976 industrial injury, was Mr. Sisson capable of obtaining and performing gainful employment on a reasonably continuous basis?

Answer:_(Yes or No)

If your answer to Interrogatory No. 2 is "No," you will not answer Interrogatory No. 3. If your answer to Interrogatory No. 2 is "Yes," you will answer Interrogatory No. 3.

Interrogatory No. 3:

Expressed in percentage terms what was Mr. Sisson's permanent partial disability proximately resulting from his industrial injury of January 28, 1976 as said disability existed on or about June 14, 1978?

Answer:_(not less than 25%)

After the jury had answered interrogatories 1 and 2 "No", the jury informed the court that it had reached a tentative verdict and asked whether it should answer interrogatory 3. The court instructed the jury to do so, and the jury thereafter answered the third interrogatory "50%The trial court entered judgment on the verdict, affirming the Board's determination that Sisson was totally and permanently disabled.

Blue Chelan and the Department both appealed. The Court of Appeals reversed and remanded the cause for a new trial, finding that the answers to the interrogatories were inconsistent. We agree and affirm.

I

Our disposition of this case depends upon the characterization of the interrogatories submitted to the jury, that is, upon the form of the verdict. Superior Court Civil Rule 49 describes both general and special verdicts. "A general verdict is that by which the jury pronounces generally upon all or any of the issues in favor of either the plaintiff or defendant." CR 49(-). In contrast, a special verdict consists of the jury's responses to specific questions "in the form of a special written finding upon each issue of fact." CR 49(a). The trial court may also submit to the jury a general verdict form accompanied by interrogatories upon one or more issues of fact the decision of which is necessary to the verdict. CR 49(b).

The three interrogatories submitted to the jury are each special interrogatories which, taken together, comprise the jury's special verdict. While both the first and second interrogatories do address the ultimate issue in the case, neither asks the jury to find generally for the plaintiff or the defendant, nor was the jury ever asked to answer a general verdict form, the hallmark of a general verdict. Consequently, the interrogatories must be construed as a special verdict. See Simien v. S.S. Kresge Co., 566 F.2d 551, 555-56 (5th Cir. 1978).

The jury's responses to the special interrogatories cannot be harmonized. The jury was instructed, in accordance with the statutory definition of "permanent total disability", that "[a] worker is totally disabled if unable to perform, regular gainful employment within the range of his or her capabilities, training, education, or experience." (Italics ours.) Instruction 8. See also instruction 12; RCW 51.08.160. The jury was further instructed that total disability is permanent when it is "reasonably certain to continue for the foreseeable future." (Italics ours.) Instruction 8.

For the jury to find that Sisson was not capable of obtaining and performing gainful employment on a reasonably continuous basis, as it did in interrogatory 2, it must also have found that Sisson was totally and permanently disabled. In interrogatory 1, however, the jury found Sisson was not totally and permanently disabled. By answering "No" to both interrogatories 1 and 2, the jury in effect found that Sisson both was and was not capable of performing work. The jury's answers are therefore irreconcilably inconsistent.¹

Neither a trial court nor an appellate court may substitute its judgment for that which is within the province of the jury. In light of the irreconcilable inconsistency in the jury's findings, it is impossible to determine whether the jury meant to affirm or reverse the Board's ruling. Thus, the only proper recourse is to remand the cause for a new trial. See Great W. Land & Imp. Co. v. Sandygren, 141 Wash. 451, 252 P. 123 (1927); Tuthill v. Palermo, 14 Wn. App. 781, 545 P.2d 588, review denied, 87 Wn.2d 1002 (1976); 2 L. Orland, Wash. Prac., Trial Practice § 293, at 317 (3d ed. 1972); see also Andrasko v. Chamberlain Mfg. Corp., 608 F.2d 944 (3d Cir. 1979); Guidry v. Kem Mfg. Co., 598 F.2d 402 (5th Cir. 1979) (construing Fed. R. Civ. P. 49), cert. denied, 445 U.S. 929 (1980).

II

Petitioner Sisson argues that the Department has no right to appeal a superior court judgment upholding a decision of the Board. The Department can initiate an appeal from a Board decision to the superior court only in limited circumstances not presented here. RCW 51.52.110. Although the Department may be unable to initiate an appeal to the superior court, it is made a necessary party in such an appeal. Aloha Lumber Corp. v. Department of Labor & Indus., 77 Wn.2d 763, 775, 466 P.2d 151 (1970). Appeal from the judgment of the superior court may be taken by any "aggrieved party". RAP 3.1. Blue Chelan initiated the appeal of the Superior Court's judgment as it was permitted to do under the court rules and our prior decisions. Allied Stores Corp. v. Department of Labor & Indus., 60 Wn.2d 138, 141, 372 P.2d 190 (1962). Thus, the requirement of participation on appeal of the "aggrieved party", Blue Chelan, has been satisfied. We find it unfortunate, however, that the Department was clearly shouldering a disproportionate responsibility on appeal and do not condone such action.

We affirm the Court of Appeals in its result and remand the cause for a new trial.

Williams, C.J., and Utter, Brachtenbach, and Pearson, JJ., concur.

1 Even if the first interrogatory could properly be characterized as a "general verdict", the second interrogatory would have to be characterized in the same manner as both interrogatories ask essentially the same question. Thus, no matter how the interrogatories are labeled, they cannot be harmonized.