Carnation Co. v. Hill

Thompson, C.J.

Carnation Company appeals a judgment on a verdict which upheld the finding of the Board of Industrial Insurance Appeals that Madge Hill had sustained an industrial injury while working for Carnation. Carnation is self-insured for industrial insurance purposes. The primary issues concern the Superior Court's exclusion of medical records considered by the Board and its award of attorney fees to Ms. Hill. We affirm the portion of the judgment upholding the Board's finding, but reverse the Superior Court's award of fees.

Ms. Hill was employed by Carnation in 1977. On March 3, 1983, this 60-year-old woman was working in palletizing, which required her to move large boxes weighing 18 to 24 pounds from a conveyor belt to a pallet on the floor. While lifting a box, she felt a catch in her back and was unable to straighten up. She testified she experienced severe pain in her lower back and down her left leg. After that day, she did not return to work.

Although Ms. Hill consulted her physician immediately, she did not file an accident report with Carnation until October 20, 1983. On November 23, 1983, the Department of Labor and Industries rejected her claim of an industrial injury. On reconsideration, the Department set aside its original order, but still rejected Ms. Hill's claim on the basis that her condition was preexisting and was not related, to the accident. Ms. Hill appealed to the Board, and a hearing was held.

Two orthopedic surgeons who examined Ms. Hill testified at the Board hearing. Dr. Scott Linder was of the opinion that the accident caused Ms. Hill's disability. He stated it was predictable that the type of work she was engaged in would aggravate the back problems she had in the past. On the other hand, Dr. Patrick Halpin believed that Ms. Hill's complaints were consistent with the progression of a degenerative disease process. He specifically noted that she had visited her doctor as recently as December 1982 complaining of pain in the left buttock and a charley horse.

At the hearing on October 30, Carnation also offered exhibit 1, office notes of Ms. Hill's personal physician from 1966 through May 1981; exhibit 2, physician office records for the period of December 1981 through May 10, 1983; and exhibit 3, records from Samaritan Hospital. These records document that Ms. Hill had been previously diagnosed in 1978 and in 1982 as suffering from diseases of the lower back variously described as spinal stenosis, spondylo-listhesis, and degenerative disc disease. However, the majority of the records contained in the exhibits relate to other conditions not pertinent to her alleged disability.

Ms. Hill's attorney stipulated "to the fact that [the exhibits] are the records to [sic] which they purport to be . . ., we are not waiving objections as to the relevancy, materiality, collateral, source, prejudicial information, et cetera." The Board record also contains a letter from Ms. Hill's attorney to the industrial appeals judge dated November 14, 1984:

Thank you for your November 6, 1984 letter and its enclosures. Enclosed are copies of those exhibits to which this office objects as that material is irrelevant, immaterial and prejudicial. In regard to the DSHS examination that information is a collateral source. In regard to the stab wounds and alcoholism references that information is again irrelevant, immaterial and prejudicial.

The record does not contain a ruling on these objections.

A polygraph technician testified in Ms. Hill's behalf at the hearing. He described his extensive experience in the area, the procedures which he used in testing Ms. Hill, and his opinion that Ms. Hill was telling the truth when she stated that the accident of March 3, 1983, caused her disability. As part of her proposed decision and order, the industrial appeals judge granted Carnation's motion to quash testimony regarding the polygraph results.

The industrial appeals judge found Ms. Hill credible and concluded that the Department's order denying her coverage should be set aside. The Board denied Carnation's petition for review and adopted the proposed decision of the industrial appeals judge as the final order of the Board. Carnation appealed to superior court.

Before trial, Carnation successfully moved to exclude the polygraph evidence. The court also granted Ms. Hill's request that exhibits 1, 2, and 3 be excluded, despite Carnation's submission of the affidavit of John D. Fairley, the secretary of the Board of Industrial Insurance Appeals, attesting that the exhibits were part of the official record considered by the appeals board in reaching its decision.

In closing argument, Ms. Hill's counsel argued that her client had been willing to take a polygraph examination. The court denied Carnation's motion for a mistrial and instructed the jury to disregard counsel's reference to the polygraph test. The jury returned a verdict upholding the Board's decision in favor of Ms. Hill. As part of the judgment, the court awarded Ms. Hill $5,850 in attorney fees.

First, did the court err when it excluded the medical records which apparently had been considered by the appeals board in reaching its decision?

Carnation contends that Ms. Hill stipulated to the admission of the exhibits before the Board. "Objections to evidence can be considered only upon the specific grounds made before the Board." Sepich v. Department of Labor & Indus., 15 Wn.2d 312, 316, 450 P.2d 940 (1969). The reason for the rule is that if proper objection is made before the Board, the party offering the evidence has the opportunity to obviate the objection or waive it intelligently. If new objections were permitted in the trial court, it would be too late for the opponent to correct or complete the record. Sepich, at 317. But here, the record contains the November 14, 1984, letter by Ms. Hill's counsel to the industrial appeals judge objecting to admission of the exhibits on grounds of prejudice and relevancy.

Carnation also argues that Ms. Hill waived any objection to the exhibits by not petitioning for review of the Board's decision. However, in Homemakers Upjohn v. Russell, 33 Wn. App. 777, 781, 658 P.2d 27 (1983), the court interpreted the applicable statutes as meaning that a person aggrieved by a Board decision must file a petition for review or waive objections and irregularities. "If a party who is satisfied with the hearing examiner's proposal does not petition, he has waived nothing." Homemakers, at 781.

" 'In the event such petition for review is filed, the failure of any party not aggrieved by the proposed decision and order to file a petition for review shall not be deemed a waiver by such party of any objections or irregularities disclosed by the record.'" Homemakers, at 782 (quoting WAC 263-12-145). Since Ms. Hill was not aggrieved by the proposed decision, she did not have to file a petition for review to preserve her objection to the admission of the exhibits.

Finally, any error in excluding the exhibits was harmless. As noted above, the expert medical testimony by both Ms. Hill's witness and Carnation's witness indicated that Ms. Hill had suffered from back problems prior to the accident. Thus, the court's exclusion of the exhibits did not prejudice Carnation. See Rice v. Janovich, 109 Wn.2d 48, 63, 742 P.2d 1230 (1987). We conclude that the Superior Court did not err when it excluded exhibits 1, 2, and 3.

Second, did the court err in denying Carnation's motion for a mistrial following counsel's reference during closing argument to Ms. Hill's willingness to take a polygraph examination?

In DeLor v. Symons, 93 Wash. 231, 232-33, 160 P. 424 (1916), the court held that counsel's statements to the jury which were outside the record were not so prejudicial as to warrant reversal when the trial court had instructed the jury to disregard them and the size of the verdict did not indicate any passion or prejudice on the jury's part. See also State v. Rice, 110 Wn.2d 577, 602, 757 P.2d 889 (1988). State v. Davenport, 100 Wn.2d 757, 762-63, 675 P.2d 1213 (1984); Colburn v. Great N. Ry., 166 Wash. 200, 209, 6 P.2d 635 (1932).

Here, the court instructed the jury to disregard counsel's reference to Ms. Hill's willingness to take a polygraph examination. "A jury is presumed to follow jury 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) (citing In re Metropolitan Seattle, 67 Wn.2d 923, 930-31, 410 P.2d 790 (1966)). Viewed in the context of the entire record, the isolated remark was not so prejudicial as to warrant a new trial. The trial court did not abuse its discretion in rejecting Carnation's motion for a mistrial. Vasquez v. Markin, 46 Wn. App. 480, 483, 731 P.2d 510 (1986), review denied, 108 Wn.2d 1021 (1987).

Third, did the court err when it awarded Ms. Hill costs and attorney fees under RCW 51.52.130?

RCW 51.52.130 provides:

If, on appeal to the court from the decision and order of the board, said decision and order is reversed or modified and additional relief is granted to a worker or beneficiary, or in cases where a party other than the worker or beneficiary is the appealing party and the worker's or beneficiary's right to relief is sustained by the court, a reasonable fee for the services of the worker's or beneficiary's attorney shall be fixed by the court. . . . 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.

(Italics and underscoring ours.)

The first portion of the statute pertains to the fixing of fees by the superior court. It does not authorize the award of fees. Its purpose is to prevent the charging of unreasonable attorney fees. Johnson v. Tradewell Stores, Inc., 24 Wn. App. 53, 57, 600 P.2d 583 (1979), aff'd, 95 Wn.2d 739, 630 P.2d 441 (1981).

The underscored portion of the statute provides that the fees fixed by the court shall be paid out of the Department's administrative fund "[i]f the decision and order of the board is reversed or modified ..." The italicized portion of the statute provides the same benefit to a similarly situated employee of a self-insured employer, i.e., in circumstances in which the "decision and order of the board is reversed or modified ..." It was added by Laws of 1982, ch. 63, § 23, after the Supreme Court opinion in Johnson. Johnson had held that the earlier version of the statute violated the equal protection clause. Specifically, it did not provide for the award of attorney fees to employees of self-insured employers in situations in which employees of employers insured by the state accident fund received such an award.

Here, the decision of the Board was not reversed or modified. Thus, RCW 51.52.130 does not provide attorney fees and costs to Ms. Hill. The fact that Carnation is self-insured is irrelevant. In Simpson Timber Co. v. Smith, 37 Wn. App. 796, 800, 682 P.2d 969 (1984), the court noted:

Pennsylvania Life [Ins. Co. v. Department of Empl. Sec. 97 Wn.2d 412, 645 P.2d 693 (1982)] reiterates the fundamental proposition on which Trapp [v. Department of Labor & Indus., 48 Wn.2d 560, 295 P.2d 315 (1956)] and Harbor Plywood [Corp. v. Department of Labor & Indus., 48 Wn.2d 553, 295 P.2d 310 (1956)] were based: a party is not entitled to an award of attorney's fees under a statute such as RCW 51.52.130 unless the award—not merely the fixing—of fees is specifically provided for in the statute. That proposition governs this case.

See also Spring v. Department of Labor & Indus., 39 Wn. App. 751, 757, 695 P.2d 612 (1985).¹

Nevertheless, Ms. Hill contends the award of fees is justified because employees of self-insured employers are treated differently than those of employers insured through the state fund. She points out that self-insured employers may appeal questions of fact while the Department of Labor and Industries may not. RCW 51.52.110. The result is that employees of self-insured employers are subject to the appellate process more often than their counterparts in the state system.² We are not persuaded by this argument.

The difference in treatment asserted is that the self-insured employer has a broader right of appeal. But this difference does not flow from the attorney fee statute. Rather, the statutory provision for the award of attorney fees treats both types of employees the same. The Department is free to appeal questions of law and, if it loses the appeal, is not subject to an award of attorney fees unless the appellate court also increases the award to the employee. In order effectively to have raised an equal protection issue here, Ms. Hill would have had to object to the filing of the appeal itself.

The position advocated by Ms. Hill has not been approved by the Legislature. Since attorney fees in these types of appeals are a creature of statute, we would be infringing on the province of the Legislature if we were to award fees here. This we decline to do.

The portion of the judgment upholding the finding of the Board of Industrial Insurance Appeals is affirmed. The portion of the judgment awarding Ms. Hill attorney fees on appeal is reversed. Our holdings make it unnecessary for us to address Ms. Hill's cross appeal.

Green, J., concurs.

1 Ms. Hill relies on Deaconess Hosp. v. Hoye, 30 Wn. App. 536, 635 P.2d 1095 (1981). Deaconess is distinguishable. There, the court did not consider the statute's limitation on fee awards to cases in which the Board's decision is reversed or modified.

2 Carnation counters that under RCW 51.52.110, an employer insured by the state fund who is aggrieved by a Board decision may appeal a question of fact. But the significant comparison here is between the self-insured employer and the Department. The interests of these latter two entities are similar, i.e., they will have to pay if the claimant's position is upheld. An employer insured by the state fund is less likely to appeal because it has less at stake. While its industrial insurance premiums may go up following a successful claim, it is not liable for the award itself.