Opinion
No. 62692-2-I.
January 4, 2010.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-2-08609-7, Eric Z. Lucas, J., entered November 5, 2008.
Affirmed by unpublished opinion per Becker, J., concurred in by Schindler, C.J., and Grosse, J.
A jury overturned a Board of Industrial Insurance Appeals decision and found that Gilberto Gutierrez was entitled to reopen his claim for a 1995 industrial injury. The trial court properly admitted, as an adoptive admission, a letter from the Department of Labor and Industries explaining its initial disability determination. Substantial evidence supports a finding that the 1995 injury proximately caused an objective worsening of Gutierrez's lower back condition. Finally, the trial court accurately instructed the jury on the lighting up and segregation doctrines. We affirm.
FACTS
Gilberto Gutierrez injured his lower back on September 11, 1995, while working for Northwest Hardwoods, a Weyerhaeuser subsidiary. At the time, he had a preexisting condition of degenerative disc disease in his lumbar spine. On June 24, 1999, the Department closed Gutierrez's application for benefits with a category 2 permanent partial disability award. In a letter attached to the June 24, 1999 order, the Department explained that it was a "lighting up" case and so the disability was attributed fully to the industrial injury, not the preexisting condition:
In the Supreme Court decision of Miller vs Department of Labor and Industries, the judges found that there is an unbroken line of court decisions that hold that if the industrial condition lights up or makes active a latent infirmity or weakened physical condition, then the resulting disability is to be attributed to the injury and not the pre-existing physical condition. Therefore, because there is not medical documentation that the pre-existing physical condition was symptomatic and disabling, the full disability amount is legally attributable to the 9/11/95 injury.
On February 4, 2005, Dr. Ralph Haller, an orthopedic surgeon, treated Gutierrez for back pain. Gutierrez applied to reopen his claim on February 10, 2005. The Department denied his application on the grounds that "medical evidence shows that the condition caused by your injury has not objectively worsened since your final claim closure."
Gutierrez appealed to the Board. Industrial Appeals Judge J.E. Sullivan reversed the January 30, 2006 order denying Gutierrez's application. Judge Sullivan found that "Mr. Gutierrez's back condition, proximately related to his September 11, 1995 industrial injury, had objectively worsened between the dates of June 24, 1999 and January 30, 2006." The Board granted Weyerhaeuser's petition for review of the proposed order and affirmed the Department's January 30, 2006 order denying Gutierrez's application to reopen his claim. The Board did not admit the June 24, 1999 letter and found that Dr. Haller's opinions were "equivocal and unpersuasive."
Gutierrez appealed the Board's decision to the Snohomish County Superior Court. Gutierrez moved for summary judgment, arguing that the Department's June 24, 1999 order, with the letter attributing Gutierrez's permanent impairment to his industrial injury, was res judicata on the issue of causation and conclusively established that his present worsened condition was caused by that industrial injury. Weyerhaeuser opposed the motion for summary judgment on the ground that the causation facts were still in dispute. The trial court denied the motion without explanation. After a trial, a jury found that the Board erred "in deciding that Mr. Gutierrez's lumbar spine condition, proximately caused by the industrial injury of September 11, 1995, did not worsen between June 24, 1999, and January 30, 2006." The trial court entered judgment and remanded the matter to the Department to reopen Gutierrez's claim and consider his entitlement to benefits. Weyerhaeuser appeals.
STANDARD OF REVIEW
We construe the Industrial Insurance Act, Title 51 RCW, liberally and resolve all doubts in favor of the worker. Intalco Aluminum Corp. v. Dep't of Labor Indus., 66 Wn. App. 644, 654, 833 P.2d 390 (1992).
RCW 51.52.110 allows for superior court review of a final decision and order from the Board. As the party challenging a determination of the Board, Gutierrez had the burden of establishing by a preponderance of the evidence before the superior court that the findings of the Board were incorrect. See RCW 51.52.115 ("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"); Cochran Elec. Co. v. Mahoney, 129 Wn. App. 687, 121 P.3d 747 (2005).
We will not disturb a jury's verdict when it is supported by substantial evidence. We view the evidence in the light most favorable to Gutierrez since he prevailed before the jury. Bennett v. Dep't of Labor Indus., 95 Wn.2d 531, 534, 627 P.2d 104 (1981). As the party challenging the sufficiency of the evidence, Weyerhaeuser must admit the truth of Gutierrez's evidence and all inferences that can reasonably be drawn therefrom. See Intalco, 66 Wn. App. at 653.
A jury instruction is erroneous when it does not properly inform the trier of fact on the applicable law, but erroneous instructions are reversible only when prejudicial. See Leeper v. Dep't of Labor Indus., 123 Wn.2d 803, 809, 872 P.2d 507 (1994); Lewis v. Simpson Timber Co., 145 Wn. App. 302, 318, 189 P.3d 178 (2008).
LETTER OF JUNE 24, 1999
Weyerhaeuser objected to the admission of the June 24, 1999 letter before the Board on the grounds of "lack of foundation (authenticity) and hearsay." Gutierrez unsuccessfully argued that the letter was a business record and an admission of a party-opponent, and also that the Board could take judicial notice of the letter. The Board concluded that it could not take judicial notice of hearsay, the letter was not authenticated as a business record, admitting the letter as a party admission would not solve the authentication problem, and that the letter was of "questionable probative value."
Before the trial court, Weyerhaeuser argued that that letter contained hearsay and was not the admission of a party-opponent because Weyerhaeuser and the Department, while aligned, were not the same party. The Department joined Weyerhaeuser's objection to the letter's admission, but only on the grounds that it was irrelevant and prejudicial. The trial court admitted the letter as an admission by a party-opponent and concluded that the letter was relevant because it explained the facts of what happened to the claim Gutierrez was trying to reopen.
Under ER 801(d)(2), an admission of a party-opponent is not hearsay when the "statement is offered against a party and is . . . (ii) a statement of which the party has manifested an adoption or belief in its truth." A party-opponent can manifest adoption of a statement by words, gestures, or complete silence. Silence will constitute an adoptive admission only if the party-opponent heard the statement, was able to respond, and the circumstances surrounding the statement were such that it is reasonable to conclude that the party-opponent would have responded had there been no intention to acquiesce. State v. Cotten, 75 Wn. App. 669, 689, 879 P.2d 971 (1994).
Weyerhaeuser argues that the Department's letter cannot be used against it because "employers should not be expected to challenge an adjudicator's informal statements or risk being bound by those statements." RCW 51.52.050 states that whenever the Department "has made any order, decision, or award, it shall" issue the decision in a specified format with a recitation of appeal rights. Because the June 24, 1999 letter did not recite Weyerhaeuser's appeal rights, we agree with Weyerhaeuser that the letter itself was not an appealable order. See Lee v. Jacobs, 81 Wn.2d 937, 506 P.2d 308 (1973) (holding that letter from Department's claims consultant was not an appealable order). But unlike the letter in Lee, this letter was attached to, and explained the reasoning of, an appealable determination — the June 24, 1999 order. If the reasoning supporting that appealable determination had been flawed, it is reasonable to conclude that Weyerhaeuser would have appealed it. Because Weyerhaeuser did not appeal the order, it follows that Weyerhaeuser intended to acquiesce to the rationale underlying that order as explained in the letter.
Weyerhaeuser responds that it had no cause to appeal the category 2 determination, even if it disagreed with the rationale expressed in the letter because it felt that the category 2 determination was sustainable on other grounds. But the record does not support Weyerhaeuser's argument. In fact, Weyerhaeuser did appeal the Department's original determination that Gutierrez had a category 2 partial permanent disability when it protested the closing order making that determination. See proposed decision and order ("It appeared undisputed that Board Exhibit No. 1 had been generated by the Department in response to the employer's March 17, 1998 protest to a February 26, 1998 closing order."); see also exhibit 1 ("Attached is the order affirming the 2/26/98 order which awarded Category 2."). Because Weyerhaeuser did not appeal the order attached to the letter explaining the order, we hold that Weyerhaeuser acquiesced to and adopted the statement contained in the June 24, 1999 letter.
Weyerhaeuser asserts that the June 24, 1999 letter should not have come in as the admission of a party-opponent because the Department was only a nominal party to this action. As a self-insurer, Weyerhaeuser could be required to pay additional benefits when the claim is reopened. Nevertheless, the Department was more than a nominal party to this action. Gutierrez brought this action to seek relief from a decision issued by the Department.
Finally, we note that the Board erred when it concluded that admitting the letter as an admission of a party-opponent would not cure a lack of authentication. Under ER 801(d), an admission of a party-opponent is not hearsay and does not require authentication.
Weyerhaeuser also contends that the June 24, 1999 letter was not relevant. Gutierrez claims that Weyerhaeuser waived the relevance argument by not raising that claim before the Board. The record shows, however, that the Board did consider whether the letter was relevant, albeit on the Department's objection. And Gutierrez did not advance his waiver argument before the trial court; as a result, he has waived that argument before this court under RAP 2.5.
On the merits, we conclude that the trial court did not abuse its discretion by ruling that the letter was relevant to the issue of what happened to the claim Gutierrez was trying to reopen. The issue before the jury was whether his lumbar spine condition, proximately caused by the industrial injury of September 11, 1995, worsened after he closed that claim because of his industrial injury. Evidence illuminating the facts surrounding his original claim closure is relevant to establishing the baseline against which to measure objective worsening. The trial court did not err by admitting the letter.
SUBSTANTIAL EVIDENCE
Weyerhaeuser argues that substantial evidence does not support the jury's finding that Gutierrez's 1995 industrial injury proximately caused an objective worsening of his lower back condition between June 24, 1999, and January 30, 2006. The Department is authorized to readjust a beneficiary's rate of compensation when aggravation of the disability takes place. To establish entitlement to claim reopening, Gutierrez had to produce medical testimony, some of it based upon objective symptoms, that his injury worsened since his initial claim closure on June 24, 1999, and that his September 11, 1995 injury caused the worsening of the condition. Phillips v. Dep't of Labor Indus., 49 Wn.2d 195, 197, 298 P.2d 1117 (1956). "It is not always necessary, however, to prove every element of such causation by medical testimony. If, from the facts and circumstances and the medical testimony given, a reasonable person can infer that the causal connection exists, the evidence is sufficient." Bennett, 95 Wn.2d at 533.
Gutierrez testified that he heard a loud pop in his back while he was working in the "chipper room" on September 11, 1995. He reported the incident to his supervisor right away. Gutierrez did not have back problems before the injury. After his injury, Gutierrez's back bothered him, his legs suffered from numbness, and he had trouble sleeping. He received treatment from an orthopedic surgeon, but his back never returned to the way it felt before the injury and his lower back remained painful.
Gutierrez testified that his lower back condition worsened after the original claim closure, leading him to see Dr. Haller in February 2005. Dr. Haller performed an examination and concluded that Gutierrez "had mild back pain on straight leg raising and pain when he extended his back." Dr. Haller helped Gutierrez apply for claim reopening to get an MRI (magnetic resonance imaging) scan. When the claim had not been reopened by September 2005, Gutierrez paid for an MRI scan. Dr. Haller testified that the MRI showed a "tear in the disc at L4-5" that was not present in a June 1997 CT scan. Dr. Haller concluded that Gutierrez's back condition worsened after the claim was closed:
Q. (By Mr. Kohles) . . .
So as I understand it, your opinion as indicated in the records that we have discussed, did Mr. Gutierrez's condition, his low back, worsen from the date the department closed his claim, June 24, 1999, as compared with the last department order dated January 30, 2006?
. . . .
A. Yes, I believe it did worsen.
Q. . . . And that worsening is substantiated by any objective findings?
A. By his history, which is not objective, and by the MRI.
Q. That MRI finding of a change in his disc?
A. Yes.
Q. Opinions you have given today are on a more-probable-than-not basis?
A. Yes.
Dr. Haller testified that he concluded the worsening was caused by the industrial injury because Gutierrez never did fully recover and never got back to his "preinjury state":
I think basically the annular tear is caused by a combination of his pre-existing degenerative disc disease and the industrial injury, and I don't think you can say by looking at that which one exactly, you know, contributed to the whole thing. I think they both contributed to it.
Q. [By Mr. Kohles] And if that pre-existing condition got worsened or aggravated by a work-related injury, is there any way medically to tell when that worsening would have stopped or does that set a course in effect that you can't run back?
. . . .
A. That's a difficult question. I think that if, you know, he had a work-related exacerbation, and then after a time he became asymptomatic again and remained asymptomatic for several months and then his back started hurting again, then I would say it was probably from his pre-existing condition getting worse and that his work exacerbation had —
Q. Come to an end?
A. — come to an end and healed. And the reason that I've testified in this case that it was my opinion that he was — that it was related to his exacerbation is that he told me he never really did fully recover, and so he never did get back to the preinjury state.
Q. So that's the history that you have to work with.
A. Yes.
Q. I want you to add to that history that the department administratively made a determination that he had a Category 2 low back as a rating. Do you understand what that rating is?
A. Yes.
Q. Given the aggravation of the pre-existing asymptomatic low back condition and the state of affairs as you can see in the records, does that seem like a reasonable rating as of June of 1999?
. . . .
A. So just for speaking in general for patients of mine that I've rated that have a back injury with some objective findings, such as an abnormal MRI Scan or abnormal physical exam that persists, then I think a Category 2 is a reasonable rating for that.
Q. Once that rating is determined, and I want to assume that's the rating we have here, June of 1999, and that the testimony in this case is exactly what you described, Mr. Gutierrez's back never did go back to baseline, that he was able to continue to work for a period of time, and then he had the increases in symptoms that came on without any new injury in the same areas of his low back, does that support the concept that his industrial injury aggravated a condition that never got back to baseline, never got better, and now that's what's worse?
. . . .
A. That's the way I put it together.
Q. . . . All right. So that explains the annular tearing that's now visible on the MRI scan and the worsening of his complaints and findings and functionality that he's described to you in the course of treatment. Correct?
. . . .
A. Yes. But, you know, the tricky thing is he could have gotten all of this stuff without ever having had an industrial injury so that's what makes it so difficult.
Weyerhaeuser argues that Dr. Haller's testimony is insufficient because he could not definitively state whether the annular tear was caused by the natural progression of his preexisting degenerative disc disease or by his 1995 industrial injury. But that argument ignores the evidence that Gutierrez's 1995 industrial injury "lit up" his previously asymptomatic degenerative back condition. The Washington Supreme Court has held that if an injury "lights up or makes active a latent or quiescent infirmity or weakened physical condition occasioned by disease, then the resulting disability is to be attributed to the injury, and not to the preexisting physical condition." Miller v. Dep't of Labor Indus., 200 Wash. 674, 682, 94 P.2d 764 (1939).
[I]f the accident or injury complained of is the proximate cause of the disability for which compensation is sought, the previous physical condition of the workman is immaterial and recovery may be had for the full disability independent of any preexisting or congenital weakness; the theory upon which that principle is founded is that the workman's prior physical condition is not deemed the cause of the injury, but merely a condition upon which the real cause operated.
Miller, 200 Wash. at 683.
Here, Gutierrez presented sufficient evidence for a jury to find that his 1995 industrial injury aggravated or "lit up" his preexisting and asymptomatic degenerative back disease and that, once aggravated, his back never returned to its pre-injury state. Objective medical evidence, in the form of an MRI, showed that his lower back condition worsened. Dr. Haller could not say that the 1995 industrial injury was the exclusive cause of Gutierrez's worsened condition, but it was not necessary for him to do so in order to establish a basis for reopening the claim. Dr. Haller's testimony that both the industrial injury and the preexisting disease contributed to his present condition is sufficient to support the jury's proximate cause determination. See instruction 9 ("The law does not require that the industrial injury be the sole proximate cause of such condition or disability.").
INSTRUCTIONS 12
Weyerhaeuser contends that the trial court erred by giving instruction 10, which states:
You are instructed that if an injury lights up or makes active a latent or quiescent infirmity or weakened condition, whether congenital or developmental, then the resulting disability is to be attributed to the injury and not to the preexisting condition. Under such circumstances, if the accident or injury complained of is a proximate cause of the disability for which compensation or benefits is sought, then the previous physical condition of the workman is immaterial and recovery may be received for the full disability, independent of any preexisting or congenital weakness.
Weyerhaeuser's proposed instruction would have removed the line stating, "the previous physical condition of the workman is immaterial" and added, "such a lighting up does not mean the underlying condition or pathology becomes allowed. It means the injury has caused symptoms of the preexisting condition which constitute a disability."
Instruction 10, with the immateriality line, accurately describes the lighting up doctrine. See Miller, 200 Wash. at 683 ("previous physical condition of the workman is immaterial"). This court has previously held that a trial court committed prejudicial error by failing to give identical lighting up instructions where the claimant sought to reopen a claim based on aggravation of an industrial injury that made a preexisting condition symptomatic. Wendt v. Dep't of Labor Indus., 18 Wn. App. 674, 676-78, 571 P.2d 229 (1977). The Wendt court noted that it did not necessarily approve the precise wording of the instruction used. Wendt, 18 Wn. App. at 680 n. 2. But Weyerhaeuser's proposed language does not improve upon it. And giving instruction 10 did not prevent Weyerhaeuser from arguing its theory of the case, which was that Gutierrez's preexisting degenerative disc disease alone caused his worsened condition. Weyerhaeuser wanted the jury to know that the 1999 order addressed Gutierrez's condition at that time only, and it did not mean that any progression of the preexisting disease must forever be viewed as part of the 1995 industrial injury. The instruction allowed for that argument.
Weyerhaeuser argues that the trial court abused its discretion by giving instruction 11 because it unnecessarily refers to a previous permanent partial disability:
When a worker receives an injury to a member or part of his body already (from whatever cause) permanently partially disabled, resulting in the amputation thereof or in an aggravation or increase in such permanent partial disability (but not resulting in the permanent total disability of such worker) then his compensation for such partial disability shall be adjudged with regard to the previous disability of the injured member or part and the degree or extent of the aggravation or increase of the disability incurred, by segregating any permanent partial disability that is not related to the industrial injury.
Weyerhaeuser claims that instruction 11 was unnecessary because "there was no claim or evidence that claimant's preexisting degenerative disc disease constituted a permanent partial disability before the September 11, 1995 injury." Gutierrez argues that the instruction was necessary to prevent Weyerhaeuser from arguing that Gutierrez had a preexisting partial permanent disability caused by his degenerative back condition that predated the industrial injury and was not affected by the injury.
The test for the sufficiency of instructions involves three determinations: (1) that the instructions permit the party to argue that party's theory of the case; (2) that the instruction(s) is/are not misleading; and (3) when read as a whole, all the instructions properly inform the trier of fact on the applicable law. Leeper, 123 Wn.2d at 809.
Gutierrez argues that the instruction helped the jury understand that his degenerative back condition could not have risen to the level of a partial permanent disability before his industrial injury because, if that were the case, the Department would have excluded any portion of the permanent partial disability award not attributable to his 1995 industrial injury and it did not. But the instruction was unnecessary on those grounds because Weyerhaeuser was not arguing that Gutierrez's preexisting condition caused a partial permanent disability predating his industrial injury.
Gutierrez also argues that the instruction was necessary to explain why his present worsening could not be attributable to a 1998 slip and fall at home that Dr. Price testified about. During closing argument, Gutierrez said that the Department would have segregated out any disability relating to that fall if that had caused his condition to worsen. But the segregation statute applies to "previous disabilities," meaning disabilities that existed before the industrial injury. RCW 51.32.080(5). Because the 1998 slip and fall happened after Gutierrez's 1995 injury, any disability related to the fall would not be segregated from Gutierrez's claim for a partial permanent disability award related to his 1995 injury. Thus, the fact that the Department did not segregate out any disabilities related to the 1998 slip and fall is not probative of whether that accident caused his present worsening.
Although the instruction was unnecessary, giving it to the jury was not prejudicial. The instruction was not misleading because its language was almost identical to the segregation statute. See RCW 51.32.080(5). The instruction at most prevented Weyerhaeuser from making an argument it claims it would not have made anyway. And during its closing statement, Weyerhaeuser informed the jury that the segregation instruction did not apply because it was not claiming that Gutierrez had a permanent partial disability predating his industrial injury. We find no basis for reversal in the instructions.
ATTORNEY FEES
Because Gutierrez prevails on appeal, he is entitled to attorney fees under RCW 51.52.130(1), which provides:
If, on appeal to the superior or appellate 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, a reasonable fee for the services of the worker's or beneficiary's attorney shall be fixed by the court.
Affirmed.
CONCUR.