Chris Sears v. The Boeing Co., Et Ano. ( 2020 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
CHRIS SEARS,
No. 80369-7-I
Appellant,
v. DIVISION ONE
THE BOEING COMPANY, and UNPUBLISHED OPINION
THE DEPARTMENT OF LABOR
AND INDUSTRIES
Respondent.
LEACH, J. — Chris Sears was injured while working as a welder for the
Boeing Company in 2016. He filed a claim for time loss and medical benefits with
the Department of Labor and Industries (Department). The Department denied
Sears benefits and closed his claim. Sears appealed to the Board of Industrial
Insurance Appeals (BIIA), which affirmed the Department’s decision. Sears then
appealed to King County Superior Court, which affirmed the BIIA. Here, Sears
appeals the superior court’s determination. We affirm.
BACKGROUND
Injury and Treatment
On November 4, 2016, Chris Sears injured his neck and shoulder while
working as a welder for the Boeing Company, a self-insured employer. Sears was
working in a welding chamber when he experienced pain in his left shoulder and
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80369-7-I/2
arm and heard a loud pop in his left shoulder. While welding, Sears wore a 16 to
19 ounce helmet. To cover his face with the helmet’s shield, Sears repeatedly
opened and closed it by flipping his head forward.
On November 8, 2017, Sears returned to work. His neck and left arm pain
increased when he wore his welding helmet. The next morning, Sears woke up
with severe left shoulder pain, arm pain, and tingling. He sought medical care.
Sears received physical therapy, a left shoulder injection, and chiropractic
treatment. His condition temporarily improved.
Nurse Practitioner Laurie Gwerder was Sears’s attending health care
provider in November 2016. During this time, she wrote a note restricting Sears
from certain work activities that would add stress to his arms, shoulder, and neck.
In January 2017, she diagnosed Sears with “cervical radiation or radiculopathy and
restricted the weight of his welding helmet, as it may be precipitating pain in his
neck and radiating into his left arm.”
After Sears’s injuries, he wore a light weight welding shield instead of a
helmet. To cover his face with the light weight shield, Sears could either flip his
head forward or use his hand.
In November and December 2016, Sears used his sick leave and vacation
leave to miss one to two days of work per week. Sears did not work from
January 31 to May 17, 2017.
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Prior History of Symptoms
Before this industrial injury, Sears experienced neck and back pain caused
by accidents in February 1999 and November 2005. In 2006, Sears had C5-6
discectomy and fusion surgery. After recovering from the surgery, he had some
stiffness but no upper extremity numbness or activity limitations. Dr. David
Montgomery, Sears’s chiropractor, treated Sears on April 14, 2008 for chronic
neck and back pain, but his symptoms did not radiate at that time.
In June 2011, Sears experienced pain radiating down his arms and constant
neck pain. In January 2013 and November 2014, Sears was treated for neck and
back pain. In February 2015 and 2016, he was treated for pain that radiated down
his left arm. This pain worsened on October 28, 2016.
Procedural History
On November 8, 2016, Sears filed an application for time loss benefits with
the Department. The Department allowed his claim for medical treatment and
ordered Boeing to provide appropriate benefits under the Industrial Insurance Act
(IIA).
Sears asked for temporary total disability benefits from January 30, 2017
through April 3, 2017. And, Sears asked the Department to penalize Boeing for
an unreasonable delay in benefit payments for the same period.
The Department issued four orders. First, on May 19, the Department
determined Boeing had reasonable medical doubt because Sears’s physician did
not decide whether his neck problem was causally related to the industrial injury
3
No. 80369-7-I/4
and denied Sears’s request. Second, on May 19, the Department denied Sears’s
request for time loss benefits. Third, on May 30, the Department determined
Boeing was not responsible for Sears’s cervical radiculopathy. And, fourth, on
July 11, the Department closed Sears’s claim and determined he was not entitled
to an award for time loss or permanent partial disability benefits. Sears appealed
all four of the Department’s orders to the Board of Industrial Insurance Appeals
(BIIA).
Boeing wished to present the deposition testimony of Dr. Donald Lambe.
On January 25, 2017, Dr. Lambe, an Orthopedic Surgeon, evaluated Sears and
determined the November industrial injury caused a left should strain, but the injury
was resolved. Dr. Lambe determined that if Sears had cervical radiculopathy, it
was likely a preexisting condition unrelated to his industrial injury, and his industrial
injury did not impact his neck.
Sears first objected to Dr. Lambe’s telephonic deposition testimony. On
January 24, 2018, Sears withdrew his objection via email. On February 8, Boeing
notified the Industrial Appeals Judge (IAJ) and Sears that it would conduct the
telephonic deposition of Dr. Lambe on March 27, 2018. On March 21, Boeing
informed the IAJ that Dr. Lambe suffered an injury requiring emergency surgery
on March 26. On April 23, Boeing notified the IAJ and Sears that it rescheduled
Dr. Lambe’s telephonic deposition for May 15. On April 26, 2018, Sears again
objected to the telephonic testimony.
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On May 14, 2018, the night before the deposition, Sears served an after-
hours motion to strike Dr. Lambe’s telephonic deposition testimony. At the May 15
deposition, Sears again objected to the telephonic deposition arguing the parties
did not agree to it as required by WAC 263-12-115. The telephonic deposition
proceeded and Sears had the opportunity to cross-examine Dr. Lambe.
On May 31, 2018, the IAJ held a telephonic conference to address Sears’s
motion to strike. The IAJ asked Sears to explain how the telephonic deposition
prejudiced him. Sears argued the telephonic deposition prejudiced him because
he was not provided an index of the exhibits Dr. Lambe reviewed, he had a difficult
time coordinating documents and exhibits with the witness, the call dropped, and
Dr. Lambe’s accent with the static phone connection made it difficult to understand
and provide him an opportunity to actively object. Sears also argued the
January 24th withdrawal of his objection to Dr. Lambe’s testimony was a one-time
waiver conditioned on the deposition occurring by a certain date. The IAJ
determined Sears did not condition his withdrawal on the deposition occurring by
a certain date. The IAJ also found Sears’s May 14 motion to strike untimely. The
IAJ denied Sears’s request to strike Dr. Lambe’s testimony but granted Sears a
second opportunity to cross-examine Dr. Lambe. The IAJ stated a preference for
Dr. Lambe’s testimony to be in person but “would agree to do a telephone hearing
with both parties present.”
On June 14 and June 25, Sears again objected to Dr. Lambe’s telephonic
testimony. The IAJ determined “there were solutions offered during the deposition
5
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to Mr. Carson to allow him and his client, maybe, a better opportunity to hear.” The
IAJ also determined there was no “intentional wrongdoing” in rescheduling the
telephonic deposition testimony. The IAJ permitted Dr. Lambe’s telephonic
testimony and allowed Sears to cross-examine Dr. Lambe a second time.
The IAJ reviewed the testimony and determined the “Department order
finding that the injury didn’t proximately cause cervical radiculopathy was correct.”
On October 4, 2018, the IAJ issued a proposed order affirming all four Department
decisions. It determined “The difference between treatment before and after the
injury was that Mr[.] Sears’ radiating symptoms resolved with treatment before the
injury[.] They didn’t resolve after the injury.” Because it determined his neck injury
was an unrelated preexisting condition and Boeing provided evidence that it had
alternative tasks for him that met his physical restrictions, the IAJ determined
Sears was not entitled to compensation or a penalty. The IAJ affirmed three
Department orders and dismissed the fourth for claim closure.
Sears sought review of the proposed order. On December 5, 2018, the BIIA
denied Sears’s request and the proposed order became final.
Sears appealed to King County Superior Court. He asked the superior court
to strike Dr. Lambe’s testimony because it occurred by phone. The court asked
Sears to explain how Dr. Lambe’s telephonic testimony prejudiced him. Sears
argued he was prejudiced by the delay in litigating the issue with Dr. Lambe’s poor
recollection of Sears, Dr. Lambe’s thick accent, the dropped call, static phone
connection, and lack of a medical index. He argued these issues made it difficult
6
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for him to cross-examine Dr. Lambe. He also argued he was prejudiced because
he did not agree to the telephonic deposition. The court determined Dr. Lambe’s
telephonic testimony did not prejudice Sears and denied Sears’s request to strike
the testimony.
The jury determined the BIIA’s decision was correct and answered the four
questions on the special verdict form affirmatively. Based on the jury verdict, the
superior court affirmed the BIIA’s decision.
Sears appeals.
ANALYSIS
I. Standard of Review
Washington’s IIA provides for superior court review of BIIA determinations,
and it includes the right to a jury trial. 1 The superior court reviews the BIIA
decisions de novo.2 The superior court considers only the evidence contained in
the BIIA record.3 The superior court considers the BIIA’s findings and decisions
prima facie correct. The party challenging them has the burden to prove otherwise
by a preponderance of evidence.4 “On review, the superior court may substitute
its own findings and decision for the Board’s only if it finds ‘from a fair
1
Rogers v. Dep’t of Labor & Indus., 151 Wn. App. 174, 179, 210 P.3d 355(2009).
2
Rogers, 151 Wn. App. at 179.
3
McDonald v. Dep’t of Labor & Indus., 104 Wn. App. 617, 619, 17 P.3d
1195 (2001); RCW 51.52.115.
4
Ruse v. Dep’t. of Labor & Indus., 138 Wn. 2d 1, 5, 977 P.2d 570 (1999);
RCW 51.52.115.
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preponderance of credible evidence’, that the Board’s findings and decision are
incorrect.’”5
Our appellate “review is limited to examination of the record to see 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.”6
The ordinary civil standards of review, rules of evidence, and rules of civil
procedure govern appeals from superior court decisions in IIA cases. 7
II. Dr. Lambe’s Testimony
Sears argues the superior court should not have admitted Dr. Lambe’s
telephonic testimony and asks this court to strike the testimony and remand for a
new trial. The Department and Boeing claim the superior court properly admitted
Dr. Lambe’s testimony and that Sears cannot demonstrate the admission of
Dr. Lambe’s telephonic testimony prejudiced him.
We review evidentiary rulings for abuse of discretion.8 A trial court abuses
its discretion when it makes a manifestly unreasonable decision or bases its
5
Ruse, 138 Wn. 2d at 5-6 (quoting McClelland v. ITT Rayonier, Inc., 65 Wn.
App. 386, 390, 828 P.2d 1138 (1992)).
6
Ruse, 138 Wn. 2d at 6 (quoting Young v. Dep’t. of Labor & Indus., 81 Wn.
App. 123, 128, 913 P.2d 402 (1996)).
7
Gomez v. Dep’t of Labor & Indus., 13 Wn. App. 2d 644, 650, 467 P.3d
1003 (2020); RCW 51.52.140.
8
State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999).
8
No. 80369-7-I/9
decision on untenable grounds or reasons.9 We view “the evidence ‘in the light
most favorable’ to the party who prevailed at the superior court.”10
Waiver/ Prejudice
As an initial matter, the Department and Boeing argue Sears waived his
objection to the telephonic deposition. Sears asks this court to ignore his
January 24 waiver claiming he conditioned it on expediting litigation. The IAJ
determined Sears’s waiver was not “conditional on the deposition being taken by
a certain date.” Reviewing the evidence in the light most favorable to the party
that prevailed in superior court, the trial court did not abuse its discretion in finding
the waiver was not conditional because substantial evidence supports it.
The Department and Boeing argue that even if the superior court improperly
admitted Dr. Lambe’s telephonic testimony, the error was harmless and Sears did
not suffer any prejudice. Boeing also argues any prejudice was cured when Sears
was permitted to cross-exam Dr. Lambe for a second time. “A harmless error is
an error which is trivial, or formal, or merely academic, and was not prejudicial to
the substantial rights of the party assigning it, and in no way affected the final
outcome of the case.” 11 Here, the IAJ and the superior court asked Sears to
explain how Dr. Lambe’s testimony prejudiced him. They both determined that
Sears could not show any prejudice. If the initial deposition prejudiced Sears, the
9
Finch, 137 Wn.2d at 810.
10
Stone v. Dep’t of Labor & Indus., 172 Wn. App. 256, 260, 289 P.3d 720(2012).
11
In re Det. of Pouncy, 168 Wn.2d 382, 391, 229 P.3d 678 (2010) (quoting
State v. Britton, 27 Wn.2d 336, 341, 178 P.2d 341 (1947)).
9
No. 80369-7-I/10
IAJ cured it by permitting Sears to cross-examine Dr. Lambe for a second time
after reviewing the record. The trial court did not abuse its discretion by deciding
that any prejudice caused by the dropped call, static phone connection, thick
accent, and lack of a medical index were remedied by Sears’s ability to cross-
examine Dr. Lambe a second time.
a. Request to Strike Testimony on Appeal
Sears asks this court to strike Dr. Lambe’s testimony and remand for retrial.
He claims the parties did not agree to a telephonic deposition and the superior
court did not have good cause to overcome WAC 263-12-115(10)’s requirement
that the parties agree to a telephonic deposition. The Department and Boeing
respond that the superior court acted within its discretion when it admitted
Dr. Lambe’s telephonic deposition.
WAC 263-12-115(10) and WAC 263-12-117(2) provide:
When testimony is taken by perpetuation deposition, it may be taken
by telephone if all parties agree. For good cause the industrial
appeals judge may permit the parties to take the testimony of a
witness by telephone deposition over the objection of a party after
weighing the following nonexclusive factors:
• The need of a party to observe a witness’s demeanor.
• Difficulty in handling documents and exhibits.
• The number of parties participating in the deposition.
• Whether any of the testimony will need to be translated.
• Ability of the witness to travel.
• Availability of quality telecommunications equipment and
service.
Sears withdrew his objection to the telephonic deposition on January 24,
2018, and renewed his objection the evening before and during the deposition.
10
No. 80369-7-I/11
The IAJ determined Sears’s withdrawal of his original objection was an agreement
to a telephonic deposition. The trial court did not abuse its discretion in reaching
the same conclusion.
The IAJ also considered Sears’s objections to the telephonic deposition
testimony and weighed the nonexclusive factors of WAC 263-12-115(1) and
WAC 263-12-17(2).
Well, telephone testimony is generally okay as long as both
parties have the documents that the witness is going to rely upon and
as long as both parties can hear him well Mr. Carson felt like there
was bad audio quality in the deposition that was taken by phone
previously, so if that could be remedied and if he can have all of the
records that the doctor is relying on.
If it turns out that Dr. Lambe is still not capable of traveling
then I would agree to do a telephone hearing with both parties
present and then I could rule on the objections. If he is capable of
traveling then we’d want it to be live at his earliest possible date.
The IAJ decided good cause existed for a telephonic deposition if Dr. Lambe was
unable to travel and Sears received the records he requested. The IAJ also
determined Boeing and the Department did not act in bad faith in rescheduling the
deposition. Because the IAJ acted within its discretion after weighing the WAC,
the trial court did not abuse its discretion when it declined to strike Dr. Lambe’s
testimony.
Sears also argues Boeing disregarded the IAJ’s order for Dr. Lambe to
appear on June 25, 2018. Because Sears does not support this claim with a
citation to the record, we do not consider it.12
12
In re Estate of Lint, 135 Wn.2d 518, 531-532, 957 P.2d 755 (1998).
11
No. 80369-7-I/12
b. Hearsay
During the May 15 deposition, Dr. Lambe testified to interviewing and
examining Sears and then drafting a report based on that examination. Sears
objected to Dr. Lambe’s testimony stating, “It also sounds like he was reading in
the records.” Dr. Lambe testified, “I have a recollection of performing the interview
exam[.] I do not recall specifics[.] As normal practice, I rely upon my report for the
specifics.”
Before the superior court, Sears objected that Dr. Lambe “was reading
verbatim or nearly verbatim from his prepared report. And there is a hearsay
objection to just reading the report into the record directly from their witness.” He
also argued the testimony was hearsay within hearsay. The superior court
affirmed the IAJ’s decision to overrule Sears’s objection to the testimony.
Sears presents a number of arguments for why Dr. Lambe’s testimony was
inadmissible hearsay. “‘Hearsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered into evidence to prove the
truth of the matter asserted.”13 Generally, hearsay is inadmissible at trial.14
First, Sears argues Boeing did not meet its burden of showing Dr. Lambe
was unavailable to testify in person as required by CR 32 and ER 804. CR 32
provides the deposition of a health care professional may be used at trial even if
the health care professional is available to testify if the opposing party had the
13
ER 801(c).
14
ER 802.
12
No. 80369-7-I/13
opportunity to prepare for cross-examination. ER 804(b)(1) provides an exception
to the hearsay rule when a witness is unavailable and “the party against whom the
testimony is now offered, or in a civil action or proceeding, [. . .] had an opportunity
and similar motive to develop the testimony by direct, cross, or redirect
examination.” The superior court determined “we’re not dealing with hearsay here.
Because we have the [Dr. Lambe] testifying in court as to what he heard.”
Dr. Lambe was unavailable to testify in person but was available to testify by phone
at the hearing in front the IAJ. And, Sears had an opportunity to cross-examine
Dr. Lambe by phone during the deposition. After Sears received additional reports
to review, the IAJ provided him with a second opportunity to cross-examine
Dr. Lambe by phone. Because Dr. Lambe was available to testify by phone in front
of the IAJ, the hearsay rules for an unavailable witness did not apply. Substantial
evidence supports the superior court’s determination and it did not abuse its
discretion.
Second, Sears argues Dr. Lambe’s testimony was inadmissible hearsay
and hearsay within hearsay under ER 805 because the report Dr. Lambe relied on
was an out of court statement and contained statements of non-testifying
witnesses. At trial, he argued it was hearsay within hearsay because the medical
report included Sears’s out of court statements and summaries of medical records
prepared by non-testifying doctors.
The Department argues that ER 803(a)(5) allows Dr. Lambe’s testimony.
ER 803(a)(5) provides an exception to the hearsay rule and permits a witness with
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No. 80369-7-I/14
an insufficient memory to testify by reading a record to “a matter about which a
witness once had knowledge.” The witness must testify they “made or adopted”
the record “when the matter was fresh in the witness’ memory.” 15
Because Dr. Lambe testified to drafting the report based on his examination
and using the report to refresh his memory, the trial court did not abuse its
discretion by determining his testimony was admissible.
Third, Sears argues the testimony was inadmissible because Dr. Lambe’s
report was not admitted into evidence. ER 803(a)(5) provides that if the court
admits the testimony of a witness that uses a record to refresh their recollection,
the “record may be read into evidence but may not itself be received as an exhibit
unless offered by an adverse party.” Because Sears identifies no authority
requiring the report be admitted into evidence and did not offer the report as
evidence, this claim fails.
At trial and on appeal, Boeing argues Dr. Lambe’s testimony was
admissible under ER 803(a)(5) because it was a statement made for the purpose
of a medical diagnosis or treatment. Because we determined the superior court
did not abuse its discretion in admitting Dr. Lambe’s testimony over Sears’s
objection, we do not reach this argument.
c. Non-Responsive Witness and Reasonable Control
Sears argues Dr. Lambe was a non-responsive witness and the superior
court should have stricken his non-responsive testimony. Sears also argues the
15
ER 803(a)(5).
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No. 80369-7-I/15
IAJ could not exercise reasonable control over Dr. Lambe’s telephonic testimony
under ER 611(a). The superior court considered the argument that Dr. Lambe was
unresponsive and determined he directly responded to Sears’s questions and
overruled Sears’s objection. Sears does not argue the superior court abused its
discretion in overruling his objection and does not explain how the IAJ failed to
exercise reasonable control of Dr. Lambe. Because we do “not consider an
inadequately briefed argument,” we do not consider this argument. 16
III. Exhibit 4 - Activity Prescription Form
Exhibit 4 is an Activity Prescription From prepared by Laurie Gwerder, a
nurse practitioner and Sears’s attending health care provider in November 2016.
The prescription restricts the activities Sears could perform at work from January 3,
2017 to February 2, 2017.
During Gwerder’s deposition, she used the Form to refresh her memory.
Neither party offered Exhibit 4 into evidence during Gwerder’s deposition. Later,
Sears offered Exhibit 4 during his own testimony before the IAJ. The Department
and Boeing objected. The IAJ did not admit Exhibit 4 into evidence because Sears
was not the proper witness to testify to the medical opinions in the Form.
At trial, Sears tried again to admit Exhibit 4 into evidence. The superior
court asked Sears why Exhibit 4 was relevant and whether “an exception to the
hearsay rule that would allow its admission.” Sears argued the form was relevant
16
Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486,
254 P.3d 835 (2011).
15
No. 80369-7-I/16
to show he relied on the form when he limited his activity and to show he was
entitled to time loss. The Department and Boeing objected to the exhibit arguing
it was inadmissible hearsay. The superior court sustained their objections.
Sears argues the superior court should have admitted Exhibit 4 17 as
relevant evidence under ER 401. The Department and Boeing argue the superior
court properly excluded Exhibit 4 as inadmissible hearsay because Sears offered
Exhibit 4 during his testimony to prove statements made in it were correct rather
than offering it during Gwerder’s testimony. Boeing also argues this court should
not consider this issue because Sears did not provide evidence to support it.
WAC 263-12-115(4) and ER 401 allow the BIIA and superior court to
exclude irrelevant evidence. As previously discussed, hearsay is a statement
“offered in evidence to prove the truth of the matter asserted.”18 Because Sears
offered Exhibit 4 to show he was entitled to time loss, it was inadmissible hearsay.
Sears has not identified any applicable exception to the hearsay rule. So, the
superior court did not abuse its discretion by affirming the BIIA’s decision not to
admit Exhibit 4.
17
Sears originally argued the superior court also improperly excluded
Exhibit 6. On reply, Sears concedes the record does not support Exhibit 6 was
offered. So, we do not address Exhibit 6.
18
ER 801(c).
16
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IV. Jury Instructions
Sears argues the superior court abused its discretion by giving jury
instructions that misstated the law and prevented him from arguing his theory of
the case.
We review jury instructions de novo. 19 We review jury instructions to
determine whether it properly stated the law, do not mislead the jury, and if it
allowed each party to argue its theory of the case. 20 “An instruction’s erroneous
statement of the applicable law is reversible error only where it prejudices a
party.”21 We review a superior court’s decision not to give a requested instruction
for abuse of discretion.22
a. Jury Instruction 10
Sears argues the superior court improperly provided the jury with Boeing’s
requested instruction instead of his version. The Department argues the superior
court properly provided jury instruction 10 because it correctly stated the law about
proximate cause under the IIA and did not prevent Sears from arguing his theory
of the case.
Sears concedes instruction 10 is not an error and argues the instruction
demonstrates the superior court’s misunderstanding of the IIA, and he was
19
McDonald, 104 Wn. App. at 622 (citing Hue v. Farmboy Spray Co., 127
Wn.2d 67, 92, 896 P.2d 682 (1995)).
20
Joyce v. Dep’t of Corr., 155 Wn.2d 306, 323, 119 P.3d 825 (2005).
21
McDonald, 104 Wn. App. at 622 (citing Hue, 127 Wn.2d at 92).
22
Gomez, 13 Wn. App. 2d at 650.
17
No. 80369-7-I/18
prevented from presenting his case. Because Sears did not object to this
instruction, he did not preserve his claim for appellate review. We decline to review
it.23
b. Jury Instruction 13
Sears argues jury instruction 13 improperly expands RCW 51.32.090
requirements for time loss compensation. Initially, Sears did not challenge
instruction 13. Later, he argued the instruction properly included the word
“performed” but improperly excluded the word “obtained.” He argued the two
words have different meanings and that the instruction should state, “Temporary
Total Disability is a disability that temporarily incapacitates a work[er] from
performing gainful occupation or obtaining.” The superior court determined
“obtained” was unnecessary because “performing” allowed Sears to make the
same argument. Jury instruction 13 provided:
Time loss compensation is payable to a worker while
temporarily totally disabled and undergoing medical treatment as a
direct result of an accepted industrial injury. Temporary total disability
is a disability that temporarily incapacitates the worker from
performing any work at any gainful occupation. A worker is not totally
disabled solely because he is unable to return to his former
occupation. Instead, a worker is totally disabled if he or she is not
capable of reasonably continuous gainful employment at any kind of
generally available work.
First, Sears argues the sentence, “Time loss compensation is payable to a
worker while temporarily totally disabled and undergoing medical treatment as a
23
RAP 2.5(a); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251(1995).
18
No. 80369-7-I/19
direct result of an accepted industrial injury,” impermissibly expands what is
required to provide time loss benefits under RCW 51.32.090(4)(b). He argues
instead of “as a direct result,” the instruction should state “proximately caused by.”
RCW 51.32.090(4)(b) provides the procedure for employers to offer available work
or temporary total disability payments to employees. It does not provide any
standard for determining whether an employee is temporarily totally disabled as a
result of their injury or whether an injury caused a disability. Also, the court gave
instruction 12.
A cause of a condition or disability is a proximate cause if it is
related to the condition or disability in two ways: (1) the cause
produced the condition or disability in a direct sequence unbroken by
any new, independent cause, and (2) the condition or disability would
not have happened in the absence of the cause.
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.
Reading instructions 12 and 13 together, the jury would know “proximate
cause” and “directly” or “direct result” to have the same meaning. So,
instruction 13 properly stated the law, was not misleading, allowed Sears to argue
his theory of the case, and was not prejudicial. We find no error.
c. Jury Instruction 14
Sears argues jury instruction 14 misstates the law and the superior court
should have given his proposed jury instruction for unreasonable delay.
19
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The Department and Boeing claim this court should not review Sears’s
challenge to instruction 14 because he did not object to it at trial. Sears argues he
took exception to “D-19, which turned into jury instruction fourteen.” At trial, the
judge proposed instruction D-19.
MR. CARSON: I’m going to take exception to that, Your
Honor’s granting that.
JUDGE STEINER: Okay, and --
MR. CARSON: Not D-19, the previous one, 18.
JUDGE STEINER: Oh, you already have.
MR. CARSON: Okay.
JUDGE STEINER: So how about D-19?
MR. CARSON: I’m, it --
JUDGE STEINER: Any objection to D-19, is what I’m
asking.
MR. CARSON: No, Your Honor.
Because Sears did not object to instruction 14, he did not preserve his claim for
appellate review. We decline to review it.24
Sears also argues the superior court should have given three proposed
instructions that the jury needed to determine whether Boeing unreasonably
delayed the payment of time loss compensation benefits to Sears.
First, Sears proposed an instruction stating, “Where temporary disability
compensation is payable. First payment thereof shall be mailed within 14 days
after receipt of the claim.” At trial and on appeal, Sears argues the instruction was
necessary for the jury to determine “whether there was an unreasonable delay.”
At trial, he said, “The 14 days gives a yardstick for what would be reasonable or
unreasonable.” The superior court determined it was not necessary for the jurors
24
RAP 2.5(a); Roberson v. Perez, 156 Wn.2d 33, 39, 123 P.3d 844 (2005).
20
No. 80369-7-I/21
to consider “that he wasn’t paid within 14 days” because “there was not a dispute
as to whether it was paid or not.” Second, Sears proposed an instruction stating,
“A penalty for self-insured employer is appropriate if the [. . .] self-insured
unreasonably delayed the payment of benefits.” And, “Benefits will not be
considered unreasonable delay if paid within three calendar days.” The superior
court determined the three-day requirement was “not necessary for the jury”
because “[t]here was never a payment.”
Jury instruction 14 stated:
The Department of Labor and Industries may impose a penalty
if a self-insurer unreasonably delays or refuses to pay benefits as they
become due. The Department shall issue an order determining
whether there was an unreasonable delay or refusal to pay benefits
within thirty days upon the request of the claimant.
A delay in payment of benefits is not unreasonable if the
employer possessed a genuine doubt from a legal or medical
standpoint as to its liability for benefits.
The jury could either find Boeing unreasonably delayed paying benefits or Boeing
refused to pay benefits. The superior court denied each of the proposed
instructions because it was not necessary for the jury to consider whether there
was an unreasonable delay when Boeing refused to pay. The jury did not need to
determine the number of days of delay because Boeing never paid Sears the
contested payments. So, the superior court did not abuse its discretion in denying
these instructions.
Third, Sears proposed an instruction stating, “A self-insured employer must
provide SIF-2 report of accident to workers injured on the job; and must report their
worker’s industrial injuries illness to the Department with SIF-2s.” He argued the
21
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instruction was important for the jury to determine whether there was a
compensable claim for time loss. The superior court denied this instruction
because it would “cause more confusion to the jury. It doesn’t sound necessary
for either of these claims that you’ve mentioned.” Because it was likely to confuse
the jury, the superior court did not abuse its discretion in denying the instruction.
Also, Sears does not explain how the absence of this instruction impaired his ability
to argue his theory of the case to the jury.
d. Proposed Jury Instruction 18
Sears argues the superior court improperly denied his proposed jury
instruction 18.25 The complete text of proposed jury instruction 18 is not in the
record. Because Sears did not provide an adequate record to review this claim,
we decline to review it.26
e. Special Verdict Form
Sears argues the superior court should have given his proposed special
verdict form and not the one proposed by Boeing. Specifically, he argues the first
question on the form improperly includes the words “not responsible” and
improperly excludes the word “aggravation.”
25
In his brief, Sears argues proposed jury instruction 19 was improperly
denied. But, the proposed instruction he references is actually proposed jury
instruction 18.
26
Bulzomi v. Dep’t of Labor & Indus., 72 Wn. App. 522, 525, 864 P.2d 996(1994).
22
No. 80369-7-I/23
As an initial matter, the Department argues that because Sears did not
place his proposed verdict form in the record, this court should not review the issue.
A party dissatisfied with a special verdict form “has a duty to propose an
appropriate alternative.” 27 We may review a party’s claimed special verdict error
when that party “stat[es] distinctly the matter to which [counsel] objects and the
grounds of [counsel’s] objection.” 28 Because Sears stated the grounds for his
objection and provided the terms he would use to rephrase the question, we review
his claim.
“A special verdict form is sufficient if it allows the parties to argue their
theories of the case, does not mislead the jury, and properly informs the jury of the
law to be applied.” 29 “It is a reversible error when [. . .] the special verdict form
misstates the law and prejudice[s] a party.” 30 “Although a special verdict form need
not recite each and every legal element necessary to a particular cause of action
where there is an accurate accompanying instruction, it may not contain language
that is inconsistent with or contradicts that instruction.”31
The BIIA finding of fact states, “Mr. Sears’ cervical radiculopathy was not
proximately caused or aggravated by his November 4, 2016 industrial injury.” In
superior court, Sears objected to question number one on the special verdict form.
27
City of Bellevue v. Raum, 171 Wn. App. 124, 145, 286 P.3d 695 (2012).
28
CR 51(f); Raum, 171 Wn. App. at 145 (quoting Wickswat v. Safeco Ins.
Co., 78 Wn. App. 958, 966-67, 904 P.2d 767 (1995)).
29
Raum, 171 Wn. App. at 145 (citing Hue v. Farmboy Spray Co., 127 Wn.2d
67, 92, 896 P.2d 682 (1995)).
30
Theon v. CDK Construction Services, Inc., 13 Wn. App. 2d 174, 179, 466
P.3d 261 (2020).
31
Capers v. Bon Marche, 91 Wn. App. 138, 144, 955 P.2d 822 (1998).
23
No. 80369-7-I/24
He argued the BIIA’s finding supports phrasing the question as “[c]ervical
radiculopathy proximately caused [or aggravated] by the November 4th, 2016
injury.” The superior court considered whether the terms “proximately caused” and
“aggravated” should be included in the special verdict form where “the other
instructions talk about when Boeing would be responsible for this, if it was
proximately caused, if it was aggravated.” Sears conceded that those concepts
were covered in the other jury instructions. The court determined that neither the
question proposed by Sears or Boeing “mimic” the BIIA’s finding. It determined
Boeing’s question was more similar to the BIIA’s finding than Sears’s question and
chose Boeing’s. Question number one read, “Was the Board correct when it
determined that Boeing was not responsible for the condition diagnosed as cervical
radiculopathy?”
Sears argues the special verdict form misstates the law because the phrase
“‘not responsible’ suggests a legal conclusion.” And, Sears argues the exclusion
of the phrase “or aggravated” prevented him from properly presenting his theory
of the case. The jury instructions do not use the word “aggravated.” But, using
different words, the instructions provide a tool for the jury to decide whether Boeing
was responsible for aggravating Sears’s existing cervical radiculopathy. The
instructions provide:
If you find that: (1) before the industrial injury, Chris Sears had
a condition that was not disabling or requiring treatment; and
(2) because of the industrial injury the pre-existing condition was
lighted up or made active; then Chris Sears is eligible for benefits for
his need for treatment even though his need for treatment may be
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greater than it would have been for a person in the same
circumstances without that pre-existing condition.
The instructions also provide, “The law does not require that the industrial injury
be the sole proximate cause of such condition or disability.” When read as a whole,
these instructions ask the jury to determine whether the industrial injury aggravated
Sears’s preexisting condition. We presume jurors follow instructions.32 Because
the jury could make this determination without the exact phrase “or aggravated,”
the exclusion of that phrase did not prevent Sears from presenting his theory of
the case. The superior court did not abuse its discretion in providing the special
verdict form.
V. Cumulative Error
Sears argues the cumulative effect of the superior court’s rulings
substantially prejudiced him and denied him a fair trial. In criminal cases, a
defendant may be entitled to a new trial if cumulative errors deny the defendant a
fair trial. 33 Recently, in Rookstool v. Eaton, we extended the cumulative error
doctrine to civil cases.34 “The test to determine whether cumulative errors require
reversal [. . .] is whether the totality of circumstances substantially prejudiced the
defendant and denied him a fair trial.”35 “Cumulative error is not a method for
considering unpreserved issues on appeal. It is simply a recognition that the net
32
Diaz v. State, 175 Wn.2d 457, 474, 285 P.3d 873 (2012).
33
State v. Saunders, 120 Wn. App. 800, 826, 86 P.3d 232 (2004).
34
12 Wn. App. 2d 301, 310, 475 P.3d 1144 (2020).
35
Rookstool, 12 Wn. App. 2d at 310 (quoting In re Pers. Restraint of Cross,
180 Wn.2d 664, 690, 327 P.3d 660 (2014)).
25
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impact of multiple small errors can still result in a prejudicial impact on the trial.” 36
Here, we do not find cumulative errors that substantially prejudiced Sears.
In addition to the previously discussed claims, Sears argues the superior
court improperly excluded or struck evidence, questions, testimony, jury
instructions, and that the superior court acted with “sublime bias” by interrupting
his counsel. Because Sears does not cite to authorities to support these claims,
we decline to review it.37
CONCLUSION
We affirm the superior court.
WE CONCUR:
36
Rookstool, 12 Wn. App. 2d at 311-12.
37
DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193(1962).
26