Reymundo Felipe v. Department Of Labor And Industries Of The State Of Wa

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
REYMUNDO FELIPE, NO. 75232-4-
Appellant, DIVISION ONE
v.
PUBLISHED OPINION
DEPARTMENT OF LABOR AND
INDUSTRIES OF THE STATE OF
'S><
WASHINGTON,
CO (
Appellant. FILED: September 12, 2016 ^
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Leach, J. — Reymundo Felipe appeals an adverse trial court judgmfgt
3
that denied his request to reopen a worker's compensation claim for additional
medical treatment. Felipe challenges a trial court jury instruction requiring him to
support his aggravation claim with evidence of objective medical findings.
Because the nature of Felipe's injury excuses any requirement for objective
findings and the court's instruction prevented Felipe from arguing his theory of
the case, we reverse and remand for proceedings consistent with this opinion.
As neither party has yet prevailed, we deny Felipe's request for an award of
attorney fees under RCW 51.52.130(1) as premature.
FACTS
Felipe suffered a closed head injury when he fell off a ladder in April 2011
while working. He does not know what caused the fall. He first remembers
NO. 75232-4-1 / 2
waking up in a hospital with head pain. His doctors read two CAT (computed
axial tomography) scans, performed on April 19 and April 25, as normal. He
developed headaches that his neurologist thought were consistent with
postconcussive syndrome. He experienced depression in May 2011. Felipe
applied to the Department of Labor and Industries (Department) for industrial
insurance benefits. The Department allowed the claim and provided benefits to
Felipe.
Felipe treated with several providers. He began seeing Dr. Jon
Sukachevin in November 2011. Felipe's headaches had improved but then
became worse two months before this visit. Sukachevin diagnosed Felipe with
several conditions, including major depression, headache, and concussion.
Felipe's headaches improved at the end of 2011 with the help of medication.
The Department closed his claim on May 9, 2012. As of that date, he
experienced some headaches that resolved with pain medication.
Sukachevin continued to see Felipe for his ongoing conditions, including
other industrial injuries. Sukachevin referred Felipe to a psychologist for his
depression, who, in turn, referred Felipe to a brain injury specialist because he
thought Felipe suffered from a traumatic brain injury. Industrial insurance
covered only one visit to the psychologist. The Department denied the referral to
a brain injury specialist.
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On October 24, 2012, Sukachevin saw Felipe for newly developed
headaches. At the visit, Felipe reported that these headaches began a month
earlier and described them as similar to the headaches he experienced after his
April 2011 fall. He had at least four headaches per day with a pain level of nine
out of ten, up from four out of ten. Felipe also experienced associated vertigo
and light-headedness. Sukachevin diagnosed Felipe with "[tjraumatic brain injury
[secondary to his April 2011 injury], new problem, uncontrolled; and major
depression, uncontrolled." Sukachevin later described Felipe's diagnosis more
specifically as a "closed head injury."
After seeing Felipe in October 2012 for headaches, Dr. Sukachevin
assisted Felipe in applying to the Department to reopen his claim based on his
worsening condition. On the November 6, 2012, application, Sukachevin listed
Felipe's symptoms: headaches, dizziness, memory problems, fatigue, and
depression. He described Felipe's headaches as "worse." He proposed a
treatment plan: "refer him to the neurologist and—and a traumatic brain injury
specialist, refer for MRI [magnetic resonance imaging] of the brain and to follow
up with the psychologist." Felipe had an MRI on November 17. The radiologist's
report stated that the MRI revealed "'punctate blooming artifacts, subcortical
white matter, white frontal lobe, suspicious for an area of remote small
hemorrhage.'"
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In January 2013, neurologist Dr. William Stump examined Felipe at the
Department's request. Stump performed a general physical examination and a
neurological exam. He also reviewed Felipe's medical records and MRI report.
Felipe reported to Dr. Stump painful headaches, dizziness, depression, anxiety,
and sleeping difficulties. Stump diagnosed Felipe with a closed head injury due
to his April 2011 fall, concluding that he most likely suffered from a concussive
syndrome as a result but that it had resolved. The State agrees that Dr. Stump
based his closed head injury diagnosis on subjective findings alone.1
The Department denied Felipe's application to reopen his claim. On
reconsideration, the Department affirmed its earlier order. Felipe appealed to the
Board of Industrial Insurance Appeals (Board).
The Board received each party's medical testimony through deposition.
Sukachevin opined that Felipe experienced an aggravation of his April 2011
injury. He based this opinion on the fact that Felipe had passed out in March
2013 and that he reported that the intensity of his headaches had worsened. He
also opined that the MRI report "showed evidence that patient may have had a
hemorrhage in the brain" and that this was related to his accident because of a
lack of any other episodes of head trauma since Felipe's fall. On cross-
examination, Sukachevin testified that the November 17 MRI findings were the
1 The State acknowledged this at oral argument.
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NO. 75232-4-1 / 5
only objective medical evidence of Felipe's worsening condition. He testified that
he doesn't read MRI films, so he based his interpretation on the radiologist's
report. He also testified about the possibility that the CAT scan missed this
abnormality in April 2011.
Stump testified that Felipe's condition had not objectively worsened after
May 9, 2012. He disagreed that the MRI report showed that Felipe suffered from
a hemorrhage. He concluded that Felipe "had persistent pain in the top of his
head" but concluded that this was not a result of the April 2011 injury because
the changes that would have developed at the time of Felipe's injury would have
healed within three to six months—before the time the new headaches began.
The Board affirmed the Department's order. Felipe appealed to the
superior court.
At the superior court trial, counsel read to the jury the testimony given to
the Board. The trial court instructed the jury that proof of Felipe's claimed
aggravation must be supported by medical testimony based in part on one or
more objective findings.
Aggravation of Reymundo Felipe's industrially related
condition and the extent of Reymundo Felipe's increased disability
on the date of claimed aggravation must be supported by medical
testimony based at least in part upon one or more objective
findings.
Statements of complaints by the worker made to a physician
are called subjective complaints. Findings of disability that can be
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NO. 75232-4-1 / 6
seen, felt, or measured by an examining physician are called
objective findings.
In determining whether aggravation has occurred and the
extent of any resulting increased disability, a physician cannot rely
solely upon complaints, but must have some objective basis for his
or her opinion. On the other hand, a physician need not rely solely
upon objective findings. If there are objective findings, then the
physician may also consider subjective complaints.
Felipe objected to the court's instruction. He argued that the nature of his injury
excused him from presenting objective evidence of aggravation. The jury
returned a defense verdict. Felipe appeals.
STANDARD OF REVIEW
An appellate court reviews jury instructions de novo and reverses the trial
court only when an instruction contains an error of law that prejudices a party.2
"'Jury instructions are sufficient if they allow the parties to argue their theories of
the case, do not mislead the jury and, when taken as a whole, properly inform the
jury of the law to be applied.'"3 We review de novo a party's entitlement to
statutory fees.4
ANALYSIS
Felipe claims that the trial court should not have required him to prove his
aggravation claim with expert testimony based at least in part on objective
2 Joyce v. Dep'tofCorr., 155 Wash. 2d 306, 323, 119 P.3d 825 (2005).
3 Joyce, 155 Wash. 2d at 323 (quoting Hue v. Farmbov Spray Co., 127
Wash. 2d 67, 92, 896 P.2d 682 (1995)).
4 Sacred Heart Med. Ctr. v. Knapp, 172 Wash. App. 26, 28, 288 P.3d 675
(2012).
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NO. 75232-4-1 / 7
findings. He contends that expert testimony based on subjective findings is
sufficient.
As the Industrial Insurance Act (MA)5 is remedial in nature, courts liberally
construe it in favor of the worker.6 The MA permits an injured worker to reopen a
claim upon showing that an aggravation of a disability occurred within seven
years after the Department closed that claim.7 The aggravation need not be the
result of the work injury but can be a worsening produced by daily life.8 Though
not required by statute, some case law requires the worker to support a request
to reopen with some objective medical evidence, verified by a physician, that the
injury has worsened since the closure of the claim.9
Objective findings of disability are those that can be seen, felt, or
measured by a physician.10 Subjective findings are those based on the patient's
report to the physician about symptoms perceived only by the senses and
feelings of the patient.11
5 Title 51 RCW.
6 Wilber v. Dep't of Labor & Indus., 61 Wash. 2d 439, 446, 378 P.2d 684
(1963).
7 RCW 51.32.160(1)(a); Dep't of Labor & Indus, v. Slaugh, 177 Wash. App.
439, 446, 312 P.3d 676 (2013), review denied, 180 Wash. 2d 1007 (2014).
8 Tollvcraft Yachts Corp. v. McCoy, 122 Wash. 2d 426, 432, 858 P.2d 503
(1993).
9 Tollvcraft Yachts Corp., 122 Wash. 2d at 432; Wilber, 61 Wash. 2d at 446.
10 Wilber, 61 Wash. 2d at 445 (quoting Hinds v. Johnson, 55 Wash. 2d 325, 327,
347 P.2d 828 (1959)).
11 Wilber, 61 Wash. 2d at 445 (quoting Hinds, 55 Wash. 2d at 327).
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In Price v. Department of Labor & Industries,12 the Supreme Court
eliminated the objective finding requirement for psychiatric disabilities. Felipe
argues that the rationale for this decision applies equally to his injury and
resulting symptoms. The Department disagrees, claiming Felipe's claim involves
only physical conditions.
Price applied to reopen her worker's compensation claim based on
increased neck and low back pain.13 She presented expert testimony that the
pain she felt was real, though perhaps partly of psychological origin, and affected
her ability to work just as if she had objective symptoms that fully explained her
pain.14 The Department presented expert testimony that because Price's pain
was caused largely by psychological factors, she would be able to work if she
were denied benefits because this would make her feel the urgency of work.15
Price lost before the Department,16 the Board,17 and the superior court.18
On appeal, Price challenged a jury instruction nearly the same as the one
Felipe challenges. She argued that the instruction was inappropriate when a
worker claims a psychological or psychiatric disability.19 The instruction, taken
2 101 Wash. 2d 520, 529, 682 P.2d 307 (1984).
3 Price, 101 Wash. 2d at 522.
4 Price, 101 Wash. 2d at 523.
5 Price. 101 Wash. 2d at 523.
6 Price, 101 Wash. 2d at 522.
7 Price, 101 Wash. 2d at 523.
8 Price, 101 Wash. 2d at 524.
9 Price, 101 Wn.2dat524.
NO. 75232-4-1 / 9
almost verbatim from former pattern jury instruction 155.09,20 told the jury that
Price had to prove her alleged increase in disability with medical testimony based
in part on objective medical findings:
"The extent of any alleged increase in plaintiff's permanent
disability . . . must be established by medical testimony based at
least in part upon one or more objective findings. In evaluating
such increased disability, if any, a physician cannot rely solely upon
complaints but must have some objective basis for his opinion."[21]
The Supreme Court agreed with Price. It quoted the note on use for the
challenged former pattern instruction: "This instruction may not be proper in
instances of mental, emotional, post concussion syndrome, loss of hearing and
loss of sight cases, because these conditions may not have objective findings
present.'"22
The court provided two rationales for its decision. It first stated that it had
not departed from a line of decisions that began with Peterson v. Department of
Labor & Industries.23 In Peterson, the court reversed a trial court decision
denying the aggravation claim of a worker with a large number of subjective
symptoms with no organic explanation.24
20 6 Washington Practice: Washington Pattern Jury Instructions:
Civil 155.09, at 464 (2d ed. 1980) (WPI).
21 Price, 101 Wash. 2d at 523 (alteration in original).
22 Price, 101 Wash. 2d at 525 (quoting WPI 155.09 note on use at 464
(1980)).
23 178 Wash. 15, 33 P.2d 650 (1934).
24 Peterson, 178 Wash, at 21-22.
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NO. 75232-4-1/10
The court then discussed two cases that followed Peterson: Husa v.
Department of Labor & Industries25 and Anderson v. Department of Labor &
Industries.26 It noted that in Husa it affirmed a worker's compensation award
even though the physicians examining the worker could find no physical
condition explaining his symptoms.27 The court stated that the Department's
view requiring objective findings to compensate the worker for his mental
condition "'is merely to quarrel with the decision in Peterson.'"28
The court described its holding in Anderson: "This court upheld the award
of compensation for the neurasthenic condition, rejecting the Department's
contention that there must be objective symptoms to support any compensation
award."29 It stated that the Anderson decision acknowledged the objective
finding rule but declined to apply it because that would exclude traumatic
neurasthenia from the category of compensable injuries and effectively overrule
Peterson and Husa.30
The court then noted its decision in Gakovich v. Department of Labor &
Industries,31 which it described as "inexplicably" ignoring Peterson, Husa, and
25 20 Wash. 2d 114, 146 P.2d 191 (1944).
26 23 Wash. 2d 76, 159 P.2d 397 (1945).
27 Price, 101 Wn.2dat525.
28 Price, 101 Wash. 2d at 525 (quoting Husa, 20 Wash. 2d at 120-21).
29 Price, 101 Wash. 2d at 526 (citing Anderson, 23 Wash. 2d at 78-79).
30 Price. 101 Wash. 2d at 527 (quoting Anderson, 23 Wash. 2d at 79).
3129Wn.2d1,4, 184 P.2d 830 (1947).
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NO. 75232-4-1/11
Anderson.32 The court overruled Gakovich insofar as it was inconsistent with the
court's opinion.33
The court provided a second rationale for its decision. The objective
finding rule existed to address two concerns: (1) the distinction between a
treating and nontreating physician for purposes of the hearsay rule and (2) the
fear of fictitious and feigned claims.34 The court stated that both of these reasons
had been eliminated.35
The court found the challenged instruction prejudicial in part because the
Department's counsel argued to the jury that Price's claim failed because her
experts based their opinions on her subjective complaints.36
Felipe analogizes his headache pain, depression, and memory problems
stemming from his postconcussive syndrome to a psychological or psychiatric
disability because his symptoms cannot be measured, felt, or seen by a
physician. For this reason, he contends that Price controls and the objective
finding requirement should not apply to his claim. The Department responds that
32 Price, 101 Wash. 2d at 527.
33 Price, 101 Wash. 2d at 528.
34 Price, 101 Wn.2dat527.
35 Price, 101 Wash. 2d at 527-28.
36 Price, 101 Wash. 2d at 529.
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NO. 75232-4-1 /12
Price applies only to claims involving psychological conditions and Felipe
suffered a physical injury.37
Price teaches that if the symptoms of a condition are exclusively
subjective in nature, an instruction on objective-subjective evidence is
improper.38 The Department's attempt to distinguish Price by noting that Felipe's
injury began with physical trauma to the head fails. The court's approving quote
of its observation in Husa and Peterson defeats this argument: "The fact,
however, that physical manifestations of appellant's injury have disappeared,
makes his condition and suffering none the less real. 39
A recent Board decision confirms our reading of Price:
The requirement for objective medical findings in applications to
reopen is excused for those conditions that are not subject to
objective measurement. The rigid requirement that there must be
objective medical findings to support allowance of a condition—as
contended by the Department—comes from conflating the
requirement for objective findings in reopening claims and the
requirement for objective findings supporting entitlement to
permanent partial disability. Contrary to the Department's
argument, there is no statutory or judicial requirement requiring
objective medical findings to support allowance of a claim.[40]
37 While Felipe claims depression to be one of his symptoms and bases
his claim for reopening in part on this, he presented no evidence to the trial court
to show that his depression worsened between May 9, 2012, and August 7,
2013, and thus we conclude that he may not make that claim to this court.
38 Price, 101 Wn.2dat528.
39 Price, 101 Wash. 2d at 526 (quoting Husa, 20 Wash. 2d at 121 (quoting
Peterson, 178 Wash, at 19)).
40 In re Bover, No. 13 19364, 2014 WL 7649068, at *6 (Wash. Bd. of
Indus. Ins. Appeals Dec. 2, 2014) (footnotes omitted).
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NO. 75232-4-1/13
We also observe that after the Price decision, the note on use for former
WPI 155.09, relied on by the court in its opinion, has been modified more
emphatically to limit its use: "This instruction should be given in cases of
physical disability but should not be given in cases involving mental or emotional
disability, loss of hearing or sight, or postconcussion syndrome."41
The symptoms of Felipe's claimed aggravation are subjective in nature.
Neither party has suggested that the frequency or severity of Felipe's headaches
can be seen, felt, or measured by a physician. The Department conceded at oral
argument that its expert forensic neurologist based his diagnosis of Felipe's
original condition and his recovery on subjective symptoms. Similarly, Felipe's
treating physician relied on subjective findings to support his diagnosis of
aggravated headaches.
The trial court erred by instructing the jury that Felipe had to support his
claimed aggravation with expert medical testimony based in part on one or more
objective findings. This error prejudiced Felipe. The instruction forced his
counsel to claim futilely that an MRI artifact provided objective evidence of
aggravation. It permitted the Department's counsel to argue forcefully, as he did,
that Felipe's claim failed due to the absence of objective findings without the jury
needing to consider if Felipe's disability had worsened.
41 6A Washington Practice: Washington Pattern Jury Instructions:
Civil 155.09 note on use at 157 (6th ed. 2012).
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NO. 75232-4-1 /14
Felipe requests an attorney fee award if this court remands and he is
successful below, citing RCW 51.52.130. That statute requires an award of
attorney fees to a worker where a "decision and order is reversed or modified
and additional relief is granted."42 In a worker's appeal from the decision of the
Board, the litigation must affect the accident fund or medical aid fund to support a
fee award.43 The accident fund pays benefits to injured workers, while the
medical aid fund provides medical treatment benefits to those workers.44 The
Department argues that this case does not affect the medical aid or accident
funds because "a direct and immediate impact on funds" is necessary. Thus, it
argues, Felipe is not entitled to attorney fees under the statute.
When an appellate court remands a case for retrial, as we do here, that
court cannot properly award fees because the prevailing party has not yet been
determined.45 Thus, at this time a fee award is premature, but the trial court may
award appellate attorney fees after retrial, if appropriate.46
42 RCW 51.52.130(1).
43 RCW 51.52.130; Tobin v. Dep't of Labor & Indus., 169 Wash. 2d 396, 406,
239 P.3d 544 (2010).
44 WR Enters.. Inc. v. Dep't of Labor & Indus., 147 Wash. 2d 213, 216-17, 53
P.3d 504 (2002).
45 Clark County v. McManus, 188 Wash. App. 228, 245, 354 P.3d 868
(2015), rev'd on other grounds. 185 Wash. 2d 466, 372 P.3d 764 (2016).
46 See McManus, 188 Wash. App. at 245.
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NO. 75232-4-1/15
CONCLUSION
Felipe based his aggravation claim on worsened headaches produced by
a closed head injury, which do not require objective evidence for diagnosis. The
trial court erred when it instructed the jury that Felipe had to prove his claim with
expert medical testimony based at least in part on objective findings. This error
prevented Felipe from arguing his theory of the case. We reverse and remand
the case for a new trial. We decline to award attorney fees under RCW
51.52.130(1) because neither party has yet prevailed.
WE CONCUR:
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