Sandra Olsen v. Department Of Labor And Industries Of The State Of Wa

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
SANDRA K. OLSEN,
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No. 69269-1-1
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DEPARTMENT OF LABOR UNPUBLISHED OPINION
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Respondent. FILED: April 28, 2014
Leach, J. — Sandra Olsen appeals a superior court judgment denying her
workers' compensation benefits for thoracic outlet syndrome. She claims that the
court abused its discretion when it permitted testimony from Dr. Gary Franklin
about the Department of Labor and Industries' 2010 guidelines, Work-Related
Neurogenic Thoracic Outlet Syndrome: Diagnosis and Treatment. Because
Olsen opened the door to this testimony, we affirm.
Background
In 2007, Olsen filed an application with the Department of Labor and
Industries (Department) for workers' compensation benefits for right carpal tunnel
syndrome, right hand tenosynovitis, and left wrist tendonitis that arose on
October 4, 2007, as a result of the conditions of her employment. The
Department allowed these claims.
No. 69269-1-1/2
In 2010, Dr. George Thomas and Dr. Kaj Johansen evaluated Olsen for
thoracic outlet syndrome. Both Thomas and Johansen diagnosed Olsen with
nonspecific neurogenic thoracic outlet syndrome and opined that it was more
probable than not an occupational^ related condition. Dr. Daniel Neuzil and Dr.
Robert Price also examined Olsen. Both Neuzil and Price concluded that Olsen
did not suffer from neurogenic thoracic outlet syndrome. The Department issued
an order denying Olsen's claim for neurogenic and/or vascular thoracic outlet
syndrome, concluding that it was "unrelated to the industrial injury for which this
claim was filed." Olsen appealed the Department's order to the Board of
Industrial Insurance Appeals (Board).
During her case in chief, Olsen called Thomas and Johansen as expert
witnesses. She asked Thomas if he was "familiar with the 2010 Department of
Labor and Industries guidelines for the diagnosis and treatment of neurogenic
thoracic outlet syndrome that were developed by the Washington State Industrial
Insurance Medical Advisory Committee." Olsen also asked Thomas if the
guidelines "recognize nonspecific neurogenic thoracic outlet syndrome," if they
"make any errors," if Thomas had an "overall opinion regarding the guidelines," if
the guidelines represent the standard for diagnosing and treating neurogenic
thoracic outlet syndrome nationally or in Washington, and if they provide any
guidance for diagnosing and treating neurogenic thoracic outlet syndrome.
Olsen asked Johansen about his opinion of the guidelines, if Johansen relied on
them in his medical practice to diagnose and treat thoracic outlet syndrome, and
No. 69269-1-1/3
if the guidelines would apply where a patient has been diagnosed with
nonspecific thoracic outlet syndrome.
The Department called as expert witnesses Neuzil, Price, and Department
Medical Director Dr. Gary Franklin. Franklin testified about the development and
use of the guidelines. He also discussed how the 2010 guidelines compared to
the previous version of the guidelines. Olsen objected to and moved to strike
portions of Franklin's testimony based upon relevance, prejudice, hearsay, and
lack of foundation. After the Department completed its direct examination of
Franklin, Olsen moved to strike his entire testimony based upon relevance and
prejudice. The Board overruled Olsen's objections and denied her motions to
strike. The Board affirmed the Department. Olsen next appealed to the superior
court.
Before jury selection, Olsen renewed her objection to Franklin's testimony
based upon relevance, arguing that the guidelines "were not effective until
October 2010 when the issue in this case is whether or not this lady, Sandra
Olsen, developed a condition in October 2007. So almost the entirety of his
conversation is focusing on these guidelines which came out three years later."
The court ruled, "I'm not going to permit him to testify about standards that came
into existence at a later time, or about how those standards were developed. I
don't see that that's relevant to this particular case."
After opening statements, the trial court reiterated that Franklin could not
testify about the 2010 guidelines. The Department asked the court to reconsider
No. 69269-1-1/4
this ruling on the basis that Olsen "opened the door to a discussion of the
guidelines" because she specifically asked both Johansen and Thomas about the
guidelines. The Department argued, "For the Department not [to] be able to
respond to the discussion of the guidelines with subsequent witnesses, I think is
incredibly unfair and prejudicial, in fact, to the Department." The trial court
explained that at the time of her ruling, she was unaware that Olsen called her
witnesses to testify before the Department called Franklin:
[Y]ou did open the door then. Urn, if you had called them in reply,
uh, subject to your objection to strike Dr. Franklin's testimony, that
might be a different issue.
I—I really don't think that I have a choice but to permit the—
the State from—from providing a response. Otherwise, what we're
doing is we're dissecting what the Board considered and then
asking the jury to—to match up their decision with something that's
different from what they heard. So, urn, I—I am gonna reverse my
ruling on that and let it all in.
A jury found that the Board was "correct in deciding that Sandra Olsen
does not suffer from neurogenic thoracic outlet syndrome naturally and
proximately caused by the distinctive conditions of her employment at San Mar
Corporation." The trial court affirmed the Board's decision.
Olsen appeals.
Analysis
A trial court reviews de novo the Board's decision based upon the Board
record.1 The trial court may resolve independently questions about the
1 Sepich v. Dep't of Labor & Indus., 75 Wash. 2d 312, 316, 450 P.2d 940
(1969) (citing Mercer v. Dep't of Labor & Indus., 74 Wash. 2d 96, 99, 442 P.2d 1000
(1968); Shufeldt v. Dep't of Labor & Indus., 57 Wash. 2d 758, 760, 359 P.2d 495
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No. 69269-1-1/5
admissibility of evidence.2 We will not overturn a trial court's ruling on an
evidentiary matter absent a manifest abuse of discretion.3 A trial court abuses its
discretion if its decision is manifestly unreasonable or is based on untenable
grounds.4
Olsen challenges the relevancy of Franklin's testimony.5 Relevant
evidence has "any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence."6
A party may open the door to otherwise inadmissible testimony.7 "'It would
be a curious rule of evidence which allowed one party to bring up a subject, drop
it at a point where it might appear advantageous to him, and then bar the other
(1961); Floyd v. Dep't of Labor & Indus., 44 Wash. 2d 560, 578, 269 P.2d 563
(1954)).
2 Sepich, 75 Wash. 2d at 316 (citing Mercer, 74 Wash. 2d at 99).
3 City of Bellevue v. Raum, 171 Wash. App. 124, 149, 286 P.3d 695 (2012)
(quoting Sintra, Inc. v. City of Seattle, 131 Wash. 2d 640, 662-63, 935 P.2d 555
(1997)), review denied, 176 Wash. 2d 1024 (2013).
4 State v. Emery, 161 Wash. App. 172, 190, 253 P.3d 413 (2011) (quoting
State v. Allen. 159Wn.2d 1, 10, 147 P.3d 581 (2006)), affd, 174 Wash. 2d 741, 278
P.3d 653 (2012).
5 Olsen did not renew her objections in the trial court based upon
prejudice, hearsay, or lack of foundation. Therefore, she may not raise these
objections on appeal. See Sepich, 75 Wash. 2d at 319 ("The statement of facts
reveals that the objections made at the Board level were not renewed at trial. It
is well settled that objections to evidence cannot be raised for the first time on
appeal." (citing Omeitt v. Dep't of Labor & Indus., 21 Wash. 2d 684, 152 P.2d 973
(1944))).
6ER401.
7 Ang v. Martin, 118 Wash. App. 553, 561-62, 76 P.3d 787 (2003) (citing
State v. Avendano-Lopez, 79 Wash. App. 706, 714, 904 P.2d 324 (1995)), affd,
154 Wash. 2d 477, 114 P.3d 637 (2005).
No. 69269-1-1/6
party from all further inquiries about it.'"8 "The trial court has considerable
discretion in administering this open-door rule."9
Even if Franklin's testimony about the guidelines was not relevant, Olsen
opened the door to this testimony. Before Franklin testified, Olsen questioned
both of her expert witnesses during her case in chief about the guidelines.
During his testimony, Franklin rebutted specific assertions from these witnesses.
When Olsen sought to exclude Franklin's testimony, she did not inform the
trial court that her expert witnesses testified about the guidelines before the
Department called Franklin to testify. After learning this information, the court
appropriately determined that Olsen opened the door to Franklin's challenged
testimony and acted well within its discretion by reversing its earlier ruling.
Excluding Franklin's testimony after receiving part of the evidence about the
guidelines from prior witnesses "'not only leaves the matter suspended in air at a
point markedly advantageous to the party who opened the door, but might well
limit the proof to half-truths.'"10 Therefore, the trial court did not abuse its
discretion when it permitted Franklin's entire testimony.
Conclusion
Because Olsen opened the door to rebuttal testimony about the
Department's 2010 guidelines, Work-Related Neurogenic Thoracic Outlet
8Ang, 118 Wash. App. at 562 (quoting State v. Gefeller, 76 Wash. 2d 449, 455,
458P.2d 17(1969)).
9 Ang, 118 Wash. App. at 562 (citing 5 Karl B. Tegland, Washington
Practice: Evidence Law and Practice § 103.14 (4th ed. 1999)).
10 Ang, 118 Wash. App. at 562 (quoting Gefeller, 76 Wash. 2d at 455).
No. 69269-1-1/7
Syndrome: Diagnosis and Treatment, the trial court did not abuse its discretion
when it permitted Franklin's testimony. We affirm.
f/^dUL^ry
WE CONCUR:
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