CARNATION COMPANY, INC. v. Hill

Dolliver, J.

On March 3, 1983, as she lifted large boxes from a conveyor belt to a pallet at Carnation's Moses Lake plant, Madge Hill injured her back. Since then she has not returned to work. On October 24, 1983, Hill filed a report of accident with the Department of Labor and Industries alleging an industrial injury.

The Department of Labor and Industries rejected Ms. Hill's claim finding her condition preexisted the injury alleged and was not the result of an industrial injury. Claimant filed an appeal with the Board of Industrial Insurance Appeals which accepted the appeal and held a hearing. The Board issued a proposed decision and order which reversed the Department of Labor and Industries and found that Hill suffered from an industrial accident.

Carnation appealed to Grant County Superior Court. In response to a prehearing motion, the trial court judge excluded the evidence of a polygraph test taken by Hill. Hill's attorney, however, referred to the fact that Hill was willing to take a polygraph test in her closing statement to the jury. The jury was instructed to disregard counsel's mention of the polygraph. Carnation's motion for a mistrial was denied.

At the Board hearing, Carnation submitted three exhibits relative to Hill's medical history. Hill's attorney stipulated to the authenticity of the records, but preserved objections based on relevancy, materiality, prejudice, and the collateral source rule. There is no record of any ruling on Hill's objection, but the exhibits in question were certified to the trial court as being part of the record of the Board proceedings. At trial, the judge excluded the exhibits over Carnation's objection.

The three excluded exhibits were doctors' reports spanning the past 15 years of Hill's medical history. The records contained references to Hill's ongoing back problems and weakness in her legs which Carnation argued were relevant to Hill's preexisting condition. The reports also included references to Hill's alcoholism and various unrelated injuries from which she had suffered in the decade prior to her industrial accident. Hill argued these reports were introduced to inflame the jury and had no relevance to her back injuries. Although the doctors' records were excluded, the doctors gave testimony regarding the possibility Hill's back injury was a preexisting condition.

The jury returned a verdict in favor of Hill, affirming the decision of the Board. The court entered a judgment awarding Hill attorney fees and costs and denying Carnation's motion for a new trial.

Carnation appealed and, in a split decision, the Court of Appeals upheld the Superior Court's decision on the merits but reversed the award of attorney fees. Carnation Co. v. Hill, 54 Wn. App. 806, 776 P.2d 158 (1989).

Carnation requested a new trial claiming that in closing argument Hill's counsel improperly argued facts outside the record and exhibits which should have been part of the record were improperly excluded by the trial court. In order to constitute reversible error, moving counsel must show the attorney misconduct had a substantial likelihood of affecting the jury's verdict. DeLor v. Symons, 93 Wash. 231, 232-33, 160 P. 424 (1916); State v. Rice, 110 Wn.2d 577, 757 P.2d 889 (1988).

Although in her closing argument, Hill's attorney improperly referred to her client's willingness to submit to a polygraph test even though the test results had been excluded from evidence, the jury was given a curative instruction by the judge and told to disregard the remark. A jury is presumed to follow the court's instructions and that presumption will prevail until it is overcome by a showing otherwise. Tennant v. Roys, 44 Wn. App. 305, 315, 722 P.2d 848 (1986). The remark by counsel was isolated; a curative instruction was given by the court; and Carnation has not shown a substantial likelihood the remark affected the verdict. There was no reversible error.

RCW 51.52.110 indicates that the entire record of the Board of Industrial Insurance Appeals is to become the record at trial, and the trial judge in this case excluded three of the medical record exhibits that were part of the Board's certified record. As with the attorney misconduct, Carnation has shown no prejudice from this exclusion. The information in the medical records relating to the possible preexisting condition of Hill was presented in the testimony of the expert doctors at trial; thus no prejudice resulted from its exclusion. Therefore, we hold no reversible error was committed.

The major issue before the court is whether employees who prevail at the board level and again at the superior court level are entitled to attorney fees. The pertinent part of RCW 51.52.130 reads as follows:

If the decision and order of the board is reversed or modified and if the accident fund is affected by the litigation then the attorney's fee fixed by the court for services before the court only, and the fees of medical and other witnesses and the costs shall be payable out of the administrative fund of the department. In the case of self-insured employers, if the decision and order of the board is reversed or modified resulting in additional benefits by the litigation that would be paid from the accident fund if the employer were not self-insured, then the attorney fees fixed by the court for services before the court, only, and the fees of medical and other witnesses and the costs shall be payable directly by the self-insured employer.

The award of attorney fees in a workers' compensation case is controlled by statute. Pennsylvania Life Ins. Co. v. Department of Empl. Sec., 97 Wn.2d 412, 645 P.2d 693 (1982). RCW 51.52.130 allows the award of attorney fees only if the decision and order of the Board of Industrial Insurance Appeals is reversed or modified resulting in additional benefits for the employee. This did not happen here.

At the outset we emphasize this case is not simply a replay of Johnson v. Tradewell Stores, Inc., 95 Wn.2d 739, 630 P.2d 441 (1981). Johnson involved the issue of disparate treatment of injured employees whose employers were self-insured rather than under the state system. The court stated:

We do not believe it reasonably can be claimed that the "object, purpose and spirit" (Whitehead [v. Department of Social & Health Servs., 92 Wn.2d 265, 269, 595 P.2d 926 (1979)]) of the industrial insurance act is to exclude workers whose only deficiency is the chance that their employers choose to be self-insured.

Johnson, at 743. The court then went on to hold there was "no reasonable basis for a classification between those workers whose employers are under the state system and those whose employers are self-insured, and that this classification is unconstitutional." Johnson, at 744. In contrast, the present case contains no distinction between those employees whose employers are under the state system and those who are self-insured. They are both treated the same; there is no entitlement to attorney fees by a worker who successfully resists an appeal in superior court from an award granted by the Board.

The outcome in the case before us is controlled by Trapp v. Department of Labor & Indus., 48 Wn.2d 560, 295 P.2d 315 (1956). There the court held that

a workman or beneficiary who is successful in the superior court in resisting an appeal from a decision and order of the board of industrial insurance appeals and who secures an affirmance of the decision and order appealed from, is not entitled to an attorney's fee "payable out of the administrative fund of the department [of Labor and Industries]." RCW 51.52.130.

Trapp, at 561. The court then made the following comment:

Why the employer ... or the department in the present case, should not be required to pay the claimant a reasonable attorney's fee, is far from clear; however, the statute we are called upon to construe is clear. The arguments which have been advanced ... by Mr. Trapp in the present case must of necessity be directed to the legislature.

Trapp, at 562.

While the claimant recognizes the existence of Trapp, she refuses to accord to it a continuing vitality. Rather, she believes Trapp has been overcome by Johnson. We disagree. The issue in Johnson was the matter of equal protection for workers who, through no fault of their own, worked for employers who were self-insured. As the court made clear, it was the intention of the Legislature that all benefits granted to workers be available regardless of how an employer was insured. In this case that is not the problem. Here all employees are treated the same; there is no constitutional issue. While the distinctions made by the Legislature as to attorney fees on appeal may be arguable public policy, it is the policy the Legislature has chosen to adopt. As stated in Trapp, "the statute ... is clear." Trapp, at 562.

It would be judicial legislating of the most egregious nature for this court simply to amend the statute and award the requested attorney fees, particularly because the language complained of by the claimant was brought to the attention of the Legislature in Trapp in 1956, with no legislative correction being made since then. We contrast this with the swift action taken by the Legislature to correct the constitutional defect pointed out by the court in Johnson. The rectification of what is alleged by the claimant to be a defect in the statute rests with the Legislature.

The Court of Appeals is affirmed.

Callow, C.J., and Brachtenbach, Andersen, Durham, and Smith, JJ., concur.