Connie Kennelly v. Kennewick Gen. Hosp.

FILED
DECEMBER 20, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
CONNIE KENNELLY, )
) No. 35625-6-III
Appellant, )
)
v. )
)
KENNEWICK GENERAL HOSPITAL, ) UNPUBLISHED OPINION
)
Respondent. )
FEARING, J. —Connie Kennelly appeals an adverse jury verdict denying her
worker compensation benefits for claimed total disability. She challenges jury
instructions that informed the jury of findings of fact entered by the Department of Labor
& Industries (DLI) Board of Industrial Insurance Appeals (BIIA). Because the jury
instructions properly informed the jury of material and ultimate findings of the BIIA, we
conclude that the trial court did not abuse its discretion when promulgating the jury
instructions.
FACTS
Kennewick General Hospital (KGH) employed Connie Kennelly as its pathology
office coordinator. Kennelly suffers from glaucoma and diabetic retinopathy. In 2010,
Kennelly stopped driving and required a magnification device to perform her job as
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office coordinator. KGH provided the magnifier.
On May 21, 2011, Connie Kennelly tripped and fell while working alone in the
basement of KGH. Kennelly immediately felt pain in her upper thigh, and an x-ray
revealed a fractured left femur. After surgery and further treatment, the fracture solidly
healed. Prior to the industrial injury, Kennelly had no mobility impediments. On May
25, 2011, Kennelly filed a workers’ compensation claim for her fractured left femur.
On discharge from rehabilitation, Connie Kennelly took a prescribed blood thinner
to prevent clots. Approximately four months later, Kennelly awoke unable to see. Her
eye physician stopped the blood thinner. Kennelly’s eyesight returned.
Kennelly’s healed left leg is now 1.9 centimeters shorter than the right leg.
Kennelly cannot walk long distances and cannot squat and return to standing. At some
unknown date after the cessation of the blood thinner and return of eyesight, Connie
Kennelly became totally blind in her left eye and legally blind in the right eye. Due to
vision limitations, Kennelly concluded she cannot safely return to work at KGH.
On May 16, 2014, DLI closed Connie Kennelly’s worker compensation claim.
Kennelly received time-loss benefits through February 18, 2014. On closure of her
claim, DLI awarded Kennelly a permanent partial disability award of ten percent of the
amputation value of the left leg above the knee joint.
Connie Kennelly filed an appeal, of DLI’s decision, with the BIIA. On May 22,
2014. An Industrial Appeals Judge (IAJ) affirmed DLI’s decision. The IAJ declined any
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award for Kennelly’s eye condition, denied total disability benefits, and rejected payment
for further treatment. When issuing a proposed decision, the IAJ entered the following
findings of fact that hold relevance to this appeal: (4) other than the accommodation of a
heel lift, Kennelly has no claim-related restrictions as of February 19, 2014, (5) as of
February 19, 2014, Kennelly could perform sedentary work when considering only the
limitations proximately caused by the industrial injury; and (7) on May 16, 2014,
Kennelly had a permanent partial disability, proximately caused by the industrial injury,
equal to ten percent of the amputation value of the left leg above knee joint with short
thigh stump.
Connie Kennelly filed a petition for review to the BIIA of the IAJ’s proposed
decision and order. In response, the BIIA adopted the IAJ’s proposed decision and order.
PROCEDURE
Connie Kennelly appealed the BIIA decision to the Benton County Superior
Court. On appeal to the superior court, Kennelly narrowed her claim to time loss
compensation and a pension.
This appeal surrounds the trial court’s jury instruction 5, to which Connie
Kennelly objected. She requested that the trial court remove subsections numbered 4, 5,
and 7 in the instruction. The entirety of jury instruction 5 read:
This is an appeal from the findings and decision of the Board of
Industrial Insurance Appeals. The Board made the following material
findings of fact:
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1. Connie R. Kennelly sustained an industrial injury on
May 21, 2011, when she tripped over a chair while working
in the basement of Kennewick General Hospital, severely
fracturing her left femur. A blood thinner prescribed to
prevent clots while she was unable to walk due to the left leg
fracture causes hemorrhaging in her eyes, which had no
lasting effect;
2. As of May 16, 2014, Ms. Kennelly’s left lower
extremity condition proximately caused by the industrial
injury was fixed and stable and did not need further proper
and necessary treatment;
3. Ms. Kennelly is approximately 65 years old with an
executive secretary and legal secretary degree. She has work
experience in medical transcription, medical billing, medical
reception, and as a medical secretary and manager. She has
advanced diabetic retinopathy in both eyes, advanced
glaucoma, vitreous hemorrhages, and exposure keratopathy
related to thyroid disease;
4. Other than the accommodation of a heel lift, Ms.
Kennelly has no claim-related restrictions as of February 19,
2014;
5. Ms. Kennelly is able to perform sedentary work
when considering only the limitations proximately caused by
the industrial injury as of February 19, 2014;
6. Ms. Kennelly was able to perform and obtain
gainful employment on a reasonably continuous basis as of
February 19, 2014.
7. On May 16, 2014, Ms. Kennelly had a permanent
partial disability proximately caused by the industrial injury
equal to 10 percent of the amputation value of the left leg
above knee joint with short thigh stump.
By informing you of these findings the court does not intend
to express any opinion on the correctness or incorrectness of the Board’s
findings.
Clerk’s Papers (CP) at 81-82.
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Before the trial court, Connie Kennelly argued that, although RCW 51.52.115
required the court to instruct the jury on BIIA’s material findings, numbered paragraphs
4, 5 and 6 lacked materiality. Kennelly’s proposed jury instruction 5 omitted the three
paragraphs.
The trial court also delivered jury instruction 11, which read:
Total disability requires consideration of the residuals of the
worker’s industrial injury, age, training, education, prior work experience,
and any pre-existing physical or mental restrictions.
CP at 88.
During closing argument to the jury, KGH’s counsel commented:
Proximately caused. What proximately caused her inability to
work? Blindness or leg fracture? Counsel wants you to bundle them
together and put her on a pension for the rest of her life. . . .
Report of Proceedings (RP) at 59-60. Kennelly objected to the argument by stating:
“[y]our Honor, objection. I’m sorry.” RP at 60. Kennelly identified no basis for the
objection.
The jury returned a verdict that affirmed BIIA’s finding that Connie Kennelly
could perform and obtain gainful employment on a reasonably continuous basis as of
February 19, 2014.
LAW AND ANALYSIS
Jury Instruction
On appeal, Connie Kennelly repeats her argument that the trial court should have
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omitted some paragraphs from jury instruction 5. We review errors of law in jury
instructions de novo. Hue v. Farmboy Spray Co., 127 Wash. 2d 67, 92, 896 P.2d 682
(1995). Jury instructions are sufficient if they: (1) allow each party to argue their theories
of the case, (2) do not mislead the jury, and (3) when read as a whole, properly inform the
trier of fact of the law to be applied. Adcox v. Children’s Orthopedic Hospital and
Medical Center, 123 Wash. 2d 15, 36, 864 P.2d 921 (1993). If any of these elements are
missing, the instruction is erroneous. Anfinson v. FedEx Ground Package System, Inc.,
174 Wash. 2d 851, 860, 281 P.3d 289 (2012). An erroneous instruction is reversible error
only if it prejudices a party. Anfinson v. FedEx Ground Package System, Inc., 174 Wash. 2d
at 860.
RCW 51.52.115 controls this appeal. The statute provides, in relevant part:
In all court proceedings under or pursuant to this title the findings
and decision of the board shall be prima facie correct and the burden of
proof shall be upon the party attacking the same. . . . In appeals to the
superior court hereunder, either party shall be entitled to a trial by jury upon
demand, and the jury’s verdict shall have the same force and effect as in
actions at law. Where the court submits a case to the jury, the court shall
by instruction advise the jury of the exact findings of the board [BIIA] on
each material issue before the court.
(Emphasis added.)
Unless the board finding is on a “material issue” before the court, the superior
court need not advise the jury of a BIIA finding. Stratton v. Department of Labor &
Industries, 1 Wash. App. 77, 459 P.2d 651 (1969). In addition to the statutory limitation to
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material findings of fact, the trial court should also place in the jury instruction only those
findings containing ultimate facts and not those containing evidentiary or subordinate
facts. Gaines v. Department of Labor & Industries, 1 Wash. App. 547, 551-52, 463 P.2d
269 (1969). Admittedly, the dividing line between evidentiary and ultimate findings of
fact cannot be readily stated. Gaines v. Department of Labor & Industries, 1 Wash. App. at
552. Nevertheless, the Gaines court offered examples of “findings of ultimate fact” to
include: (1) a finding on the identity of the claimant and her employer, (2) the claimant’s
status as an employee or dependent under the worker compensation act, (3) the nature of
the accident, (4) the nature of the injury or occupational disease, (5) the nature and extent
of disability, (6) the causal relationship between the injury or the disease and the
disability, and (7) other ultimate facts, the existence or nonexistence of which the
outcome of the litigation depends. Gaines v. Department of Labor & Industries, 1 Wn.
App. at 552.
Gaines v. Department of Labor & Industries also added another qualifier to the
nature of jury instructions to be rendered in a worker compensation trial. The trial court
included a board finding that read:
In testifying as a witness and in presenting himself as a subject for
examination to the several doctors who examined him to determine the
nature and extent of his conditions attributable to his injury of December
23, 1959, claimant purposely misrepresented his physical condition, his
physical limitations, and the extent of his pain, to such an extent as to
discredit his subjective complaints, except as the same where born[e] out by
objective findings of the doctors.
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Gaines v. Department of Labor & Industries, 1 Wash. App. at 548. This court ruled that
the finding is not the kind of finding required to be read to the jury because it could have
had the effect of “utterly destroying the plaintiff’s credibility, making recovery
improbable.” Gaines v. Department of Labor & Industries, 1 Wash. App. at 551.
A second example of an improper argumentative finding harming the credibility of
the claimant comes from Stratton v. Department of Labor & Industries, 7 Wash. App. 652,
501 P.2d 1072 (1972). The finding read in part:
Associated with this psychiatric disorder is a demonstrated lack of
motivation in the claimant to seek out and maintain gainful employment,
coupled with a strong tendency and desire to realize a monetary gain from
his injury.
Stratton v. Department of Labor & Industries, 7 Wash. App. at 654. The finding was not
based on any medical or other evidence in the record and only the opinion of the board.
This court considered the instruction to prejudicially describe Stratton’s attitude,
comment on his character, and argue as to why he should not be awarded a pension.
Connie Kennelly contends that the trial court erred when inserting paragraphs 4, 5,
and 6 in jury instruction 5, which paragraphs constituted three BIIA findings. She asserts
the three findings lacked materiality to her appeal to the superior court. We separately
address each jury instruction paragraph.
Paragraph 4 of the jury instruction provides, “[o]ther than the accommodation of a
heel lift, Ms. Kennelly has no claim-related restrictions as of February 19, 2014.” CP at
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81. Unlike the findings in Stratton and Gaines, paragraph 4 did not attack Kennelly’s
credibility or consist of opinions of the board. Rather, the paragraph arises from medical
evidence presented to the board. The paragraph holds relevance to the ultimate issue of
whether Kennelly was a totally disabled worker as of February 19, 2014. The sole issue
for jury determination was whether Connie Kennelly was a totally disabled worker as of
February 19, 2014. The mention of a heel lift may be more subordinate than ultimate
facts, but the instruction as a whole relates to the conclusion that Kennelly had no
restrictions resulting from her work injury.
Paragraph 5 of jury instruction 5 read: “Ms. Kennelly is able to perform sedentary
work when considering only the limitations proximately caused by the industrial injury as
of February 19, 2014.” CP at 81. Again, unlike the findings in Stratton and Gaines, this
finding does not attack the credibility of a witness. Medical testimony supported the
finding. Connie Kennelly’s treating physician, orthopedist Arthur Thiel, concluded that,
if not for the vision problems, the femur fracture would not prevent Kennelly from
returning to sedentary work. Mark Miller, an orthopedic surgeon, agreed with Dr. Thiel.
Dr. David Bauer concluded that Kennelly had no claim-related restrictions and could
perform her job.
The material finding equates to an ultimate fact. Connie Kennelly alleged
“permanent total disability” in accordance with RCW 51.08.160. Permanent total
disability constitutes a “condition permanently incapacitating the worker from
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performing any work at any gainful occupation.” RCW 51.08.160. Paragraph 5
addressed the issue of Kennelly’s ability to perform any work at “any gainful
occupation.”
Connie Kennelly contends that paragraph 5 is incomplete, misleading, and
confusing for the jury, and she thereby asserts that the paragraph equates to a comment
on the evidence because the finding displays bias of the BIIA. She complains that the
trial court placed only one set of facts into the findings and disregarded the other set of
facts. A comment on the evidence is one that conveys to the jury a judge’s personal
attitude about the merits of the case. Hamilton v. Department of Labor & Industries, 111
Wash. 2d 569, 571, 761 P.2d 618 (1988).
In support of her contention that the BIIA biasedly chose facts that only suited its
purpose, Connie Kennelly cites to a letter written by Arthur Thiel, wherein Dr. Thiel
states:
[a]s a result of the eye injuries plus the damage to the leg, the patient
is no longer able to safely ambulate . . . to and from work and does not have
the vision to . . . do her work.
CP at 210. Kennelly contends that BIIA disregarded Dr. Thiel’s opinion and formed its
own opinion, rendering any jury instruction on the opinion a comment on the evidence.
We disagree.
The IAJ, on behalf of BIIA, heard testimony contrary to the testimony of Dr.
Arthur Thiel. BIIA had authority to adopt evidence contrary to evidence posited by
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Connie Kennelly as the truth without impermissibly commenting on the evidence or
displaying bias. Dr. Thiel, in his deposition, even readily admitted that his specialty is
not ophthalmology, and he stated that a person with normal vision could return to work
safely after a leg fracture. Dr. Thiel’s testimony thereby differed from his September 10,
2014 letter. The BIIA also heard testimony from Mark Miller and David Bauer that
Kennelly could perform sedentary work based on limitation from her work injury.
Connie Kennelly implies that the jury likely concluded that the trial court tacitly
agreed with KGH’s witnesses’ testimony as the truth since jury instruction 5 did not
mention any evidence contrary to the findings of fact. This argument fails to recognize
the language at the end of jury instruction 5. The language informed the jury that the
enumerated findings were those of the BIIA, not the court, and the jury could disregard
the findings.
Paragraph 7 of jury instruction 5 read: “On May 16, 2014, Ms. Kennelly had a
permanent partial disability proximately caused by the industrial injury equal to 10
percent of the amputation value of the left leg above knee joint with short thigh stump.”
CP at 81. We read this instruction along with jury instruction 11 that declared “[t]otal
disability requires consideration of the residuals of the worker’s industrial injury, age,
training, education, prior work experience, and any pre-existing physical or mental
restrictions.” CP at 88. Based on the law to apply in jury instruction 11, the finding
found in paragraph 7 of the jury instruction constituted a material, ultimate fact. Connie
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Kennelly’s permanent partial disability equaling ten percent of the amputation value of
the left leg above knee joint with short thigh stump related to the “residuals of the
worker’s injury.” Medical evidence supported the finding, and the underlying facts
contained in the finding loomed important to the issue before the jury. Like the other
three challenged paragraphs, paragraph 7 constituted a conclusory statement supported by
subordinate medical evidentiary facts.
Although Connie Kennelly agrees paragraph 7 is a true statement, she argues its
inclusion served only to confuse the jury. While that assertion may be true because a jury
of lay persons might have trouble distinguishing between permanent total disability and
permanent partial disability, when read in context with the other instructions, the
paragraph is less confusing.
Closing Argument
Connie Kennelly assigns error to the trial court’s failure to advise the jury that
KGH’s counsel misstated the law during closing arguments. She argues that counsel for
KGH misrepresented the law when it argued to the jury: “Proximately caused her
inability to work? Blindness or leg fracture? Counsel wants you to bundle them together
and put her on a pension for the rest of her life.” RP at 60. Immediately after the
statement, Kennelly objected stating: “[y]our Honor, objection. I’m sorry.” RP at 60.
On appeal, Connie Kennelly contends opposing counsel’s argument misstated the
law. Nevertheless, at trial, Kennelly never asserted this basis for her objection, which
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seemingly was withdrawn. One must specify the basis for an objection to a question in
order to preserve the objection for appellate review. State v. Guloy, 104 Wash. 2d 412, 422,
705 P.2d 1182 (1985). Thus, we do not address the substance ofKennelly's second
assignment of error.
CONCLUSION
We affirm the trial court's judgment in favor of employer KGH.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Pennell, A.CJ.
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