Neil Beck, V Glacier Northwest, Inc. ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
May 23, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
NEIL R. BECK, No. 49246-6-II
Appellant,
v.
GLACIER NORTHWEST INC., UNPUBLISHED OPINION
Respondent.
WORSWICK, J. — Neil Beck appeals from a jury verdict affirming the closure of his
industrial insurance claim. He argues that the trial court erred in instructing the jury that special
consideration should be given to the testimony of an attending physician. Because any potential
error was harmless, we affirm.
FACTS
In 2005, Beck worked as a concrete mixer truck driver for Glacier Northwest, Inc. In
May 2005, Beck’s coworker grabbed him in a bear hug and twisted him while Beck was seated.
The injury caused a thoracic strain in Beck’s back. Beck filed a workers’ compensation claim
with Glacier Northwest, a self-insured employer. The claim closed in April 2007 with an award
for permanent partial disability.
In June 2009, Beck filed an application to reopen his claim. He contended that his
condition had worsened to the point of total disability and required further treatment. The Board
of Industrial Insurance Appeals ultimately reopened Beck’s claim for further authorized
treatment. In March 2013, Beck’s claim was again closed after a determination that Beck had
No. 49246-6-II
reached maximum medical improvement, no further treatment was necessary, and he was not
totally disabled.
Beck appealed to the Board. The Board considered evidence and testimony of Beck and
his wife, Dr. Gritzka, Dr. Bald, Dr. Harris, and Dr. Earle, in addition to viewing a surveillance
video showing Beck engaged in home reconstruction projects.
Dr. Gritzka is an orthopedic surgeon who saw Beck three times at the request of Beck’s
counsel.1 When asked if Beck had reached maximum medical improvement, Dr. Gritzka
testified that “if we had a more specific exact diagnosis, then our treatment could be directed
towards something other than covering up the pain.” Clerk’s Papers (CP) at 131. He
recommended X-rays of Beck’s thoracic spine, a physical capacities evaluation, and a psychiatric
evaluation. While Dr. Gritzka testified that Beck was not capable of returning to his past work
as a concrete driver from June 2009 through April 2011 and December 2012 through May 2013,
he could not say whether Beck was unable to perform any continuous gainful employment
during those periods of time.
Drs. Bald, Harris, and Earle all testified that Beck’s conditions were fixed and stable and
in need of no further treatment. Dr. Bald is an orthopedic surgeon who performed an
independent medical examination of Beck at Glacier Northwest’s request in October 2009. At
that time, Dr. Bald recommended that Beck perform additional self-directed exercise to remain
fit, but recommended no further formal treatment. Dr. Bald opined that in 2009 through 2013
1
Dr. Gritzka saw Beck in October 2006, December 2009, and February 2014.
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No. 49246-6-II
Beck had no physical capacity restrictions and noted that during all relevant periods on appeal,
Beck was fully capable of sustained gainful employment.
Dr. Harris is an orthopedic surgeon who examined Beck at Glacier Northwest’s request in
November 2012 and did not identify any anatomic injury to Beck’s cervical, thoracic, or lumbar
spine. Dr. Harris diagnosed Beck with degenerative disc disease and found Beck’s condition
fixed and stable because Beck had several years of nonoperative treatment, was not a surgical
candidate, and there was no additional treatment that could be considered curative.
Dr. Earle was Beck’s attending physician for a short period and saw Beck on three
occasions in 2012. Dr. Earle’s treatment plan was to strengthen Beck’s back, taper him off
narcotics, and get him back to work. Dr. Earle ordered a bone scan of Beck’s back which
showed normal results. At Beck’s third appointment with Dr. Earle, Beck brought up a new
laser surgery being performed in Texas which he had learned about on the Internet. Dr. Earle
explained that the surgery was neither mainstream nor approved by the Department of Labor and
Industries, and he discouraged Beck from pursuing it. Beck became hostile with Dr. Earle for
not agreeing to the surgery, and as a result, Dr. Earle discharged Beck from his care. Dr. Earle
ultimately concluded that there was no reasonable and necessary treatment that would help Beck.
After viewing surveillance footage showing Beck doing extensive home renovation work
without any signs of pain, Dr. Earle concluded that Beck was capable of at least medium-level
work.
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No. 49246-6-II
Glacier Northwest introduced video evidence from a private investigator who had filmed
Beck on three different dates between June 2012 and September 2012.2 The Board stated that
the videos showed Beck engaged in home reconstruction projects such as building a deck. In the
videos, Beck appeared capable of normal function and physical activity, including repetitive
motion and repetitive lifting of heavy objects. He also appeared capable of normal activities
consistent with employment, such as lifting boards overhead, operating industrial equipment, and
using hand tools. The Board found that the videos showed Beck moving easily and smoothly
without any apparent significant pain or any obvious deficits of motion or strength.
The Board concluded that (1) Beck did not require further proper and necessary treatment
for any condition proximately caused by his industrial injury, (2) Beck was not temporarily
totally disabled because of his industrial injury, and (3) no condition proximately related to
Beck’s industrial injury permanently worsened or became aggravated during the relevant time
period.
Beck then appealed to superior court. Over Beck’s objection, the trial court gave the
following instruction to the jury:
You should give special consideration to testimony given by an attending
physician. Such special consideration does not require you to give greater weight
or credibility to, or to believe or disbelieve such testimony. It does require that you
give any such testimony careful thought in your deliberations.
CP at 819. The jury affirmed the Board’s order and decision.
2
These videos are not included in the record on appeal. This summary of their contents is based
on the Board’s order.
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No. 49246-6-II
ANALYSIS
Beck argues that the trial court erred by instructing the jury that special consideration be
given to an attending physician’s testimony, because Beck is able to give articulable reasons for
not accepting the physician’s testimony. He further argues that giving the instruction was not
harmless because Glacier Northwest referred to it in its closing argument as part of its strategy to
distinguish Dr. Earle’s testimony from Dr. Gritzka’s. We assume without deciding that the
instruction was erroneously given, but hold that any instructional error was harmless.
I. SPECIAL CONSIDERATION INSTRUCTION
In Clark County v. McManus, 185 Wash. 2d 466, 476, 372 P.3d 764 (2016), our Supreme
Court held that the instruction that special consideration should be given to the opinion testimony
of an attending physician in workers’ compensation cases is mandatory. Washington courts
consider the instruction reasonable because an attending physician is not an expert hired to give a
particular opinion consistent with one party’s view of the case. See Young v. Dep’t of Labor &
Indus., 81 Wash. App. 123, 129, 913 P.2d 402 (1996); Intalco Aluminum v. Dep’t of Labor &
Indus., 66 Wash. App. 644, 654, 833 P.2d 390 (1992).
Appellate courts recognize that an attending physician who has cared for and treated a
patient over a period of time is better qualified to give an opinion as to the patient’s condition
than a doctor who has seen and examined the patient once. Ruse v. Dep’t of Labor & Indus., 138
Wash. 2d 1, 6, 977 P.2d 570 (1999). Even where a special consideration testimony is given, the
weight and credibility given to an attending physician’s testimony remains up to the jury. See
McManus, 185 Wash. 2d at 472 (noting that the special consideration instruction does not require
the jury to give more weight or credibility to the attending physician’s testimony, but only to
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No. 49246-6-II
give it careful thought). The primary reason behind the special consideration instruction is that
an attending physician is not a paid expert, but rather an unbiased expert who is “‘better qualified
to give an opinion as to the patient’s disability.’” Ruse, 138 Wash. 2d at 6 (quoting Spalding v.
Dep’t of Labor & Indus., 29 Wash. 2d 115, 129, 186 P.2d 76 (1947)).
II. ANY ERROR WAS HARMLESS
Beck contends that giving the special consideration instruction was not harmless because
Glacier Northwest referred to it in its closing argument as part of its strategy to distinguish Dr.
Earle’s testimony from Dr. Gritzka’s. We disagree.
To succeed on a claim that a jury instruction was erroneously given, Beck must show that
the error was not harmless. Blaney v. Int’l Ass’n of Machinists, 151 Wash. 2d 203, 211, 87 P.3d
757 (2004). “An erroneous instruction is harmless if it is ‘not prejudicial to the substantial rights
of the part[ies] . . . and in no way affected the final outcome of the case.’” Blaney, 151 Wash. 2d at
211 (alterations in original) (quoting State v. Britton, 27 Wash. 2d 336, 341, 178 P.2d 341 (1947)).
Here, Beck contends that he was prejudiced by the special consideration instruction
because Glacier Northwest referenced it in its closing argument as part of its strategy to
distinguish Dr. Earle’s testimony from Dr. Gritzka’s testimony. However, the special
consideration instruction clearly states, “Such special consideration does not require you to give
greater weight or credibility to, or to believe or disbelieve such testimony. It does require that
you give any such testimony careful thought in your deliberations.” CP at 819.
Additionally, Glacier Northwest’s case did not hinge on Dr. Earle’s testimony. Rather it
focused on the lack of evidence supporting Beck’s position and the abundance of evidence
against it. The evidence included surveillance footage showing Beck doing extensive home
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No. 49246-6-II
renovation work without any signs of pain, MRI (magnetic resonance imaging) results showing
no disc protrusion, and the testimony of two additional doctors who testified in support of
Glacier Northwest’s position.
Given that the special consideration instruction did not require the jury to adopt or give
more weight to Dr. Earle’s testimony, and the abundance of other evidence cutting against
Beck’s position at trial, Beck cannot show that any error in issuing the special consideration
instruction was prejudicial. Consequently, we hold that any error was harmless. We affirm.
ATTORNEY FEES
Beck argues that, should he prevail on this appeal and on retrial in superior court, he is
entitled to attorney fees pursuant to RCW 51.32.130. However, because Beck does not prevail,
we do not consider his request for fees.
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 in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Bjorgen, C.J.
Lee, J.
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