Lisa K. Johnson, Respondent V. Liberty Mutual Insurance Co., Appellant

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
LISA K. JOHNSON,
Respondent,
v.
LIBERTY MUTUAL INSURANCE
COMPANY,
Appellant,
DEPARTMENT OF LABOR AND
INDUSTRIES,
Respondent.
No. 76026-2-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	January 17, 2017
Leach, J. 	— 	Liberty 	Mutual 	Insurance Company appeals the superior
court's judgment reversing the Board of Industrial Insurance Appeals (Board).
The Board had affirmed a 	Department of Labor and 	Industries (Department)
decision 	to 	deny 	benefits 	to 	Lisa 	Johnson 	for 	neurogenic 	thoracic 	outlet
syndrome (TOS). 	Liberty Mutual challenges the sufficiency of the evidence to
support the judgment, the exclusion of one of its expert witnesses, the special
verdict form, 	the trial court's conclusions of law, and several jury instructions.
The Department joins Liberty Mutual in asking this court to reverse, contending
that the trial court improperly instructed the jury to interpret the law and to give
Johnson the benefit of the doubt in finding facts. 	Because we agree with the
Department, we reverse and remand for a new trial.

No. 76026-2-1 / 2
Background
Johnson 	has 	performed 	clerical 	work 	for 	Liberty 	Mutual 	and 	its
predecessor company since 1988.
Johnson 	filed 	an 	occupational 	disease 	claim 	under 	the 	Industrial
Insurance Act1 in 2009, complaining of numbness and tingling in her right pinkie
and ring finger and pain in her elbow, upper arm, and shoulder. 	Dr. Carlton Keck
diagnosed 	Johnson with lateral epicondylitis. 	She 	received 	surgery for that
condition twice, in 2010 and 2011. 	The Department allowed the claim in June
2010, eventually allowing Johnson time-loss compensation for the diagnosed
condition through July 2012.
Johnson continued to suffer right arm and 	hand 	pain and 	numbness.
Eventually, Dr. Kaj Johansen diagnosed her with TOS.2 Johnson saw numerous
specialists and underwent further tests, but no other doctors diagnosed TOS.
Johansen 	nonetheless 	performed two 	surgeries for 	TOS, 	in April 2012 	and
November 	2013. 	Neither 	relieved 	Johnson's 	symptoms 	beyond 	short-term
improvements.
The Department did not accept Johnson's claim that she had TOS related
to 	her 	occupation. 	It closed 	the 	claim 	after 	it 	received 	confirmation 	that
Johnson's elbow conditions had reached maximum medical improvement.
1 Title 51 RCW.
2 This is a rare condition caused by irritation of the nerves in the thoracic
area.
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No. 76026-2-1 / 3
Johnson 	appealed 	the 	Department's 	decision 	to 	the 	Board. 	In 	a
deposition, Johansen testified that he diagnosed Johnson with TOS based on
five criteria he had developed.3 	Johansen performed the two surgeries based on
his diagnosis. 	Liberty Mutual presented testimony from four other specialists
who examined Johnson between August 2009 and July 2012. 	All four disagreed
with Johansen's TOS diagnosis.4
An industrial appeals judge found that Johnson "did not suffer neurogenic
thoracic outlet syndrome proximately caused or aggravated by her occupational
disease." 	She found the four dissenting specialists' testimony more persuasive
than Dr. Johansen's. 	She issued a proposed order concluding that conditions
proximately caused by Johnson's occupational disease were fixed and stable
and did not entitle Johnson to further proper and 	necessary treatment. 	She
proposed affirming the Department's order. 	The Board then adopted the judge's
proposed decision.
Johnson appealed to the superior court. 	The parties tried the case to a
jury. 	The jury found 	that the Board erred "when it found that plaintiffs work
activities with defendant did not proximately cause or aggravate thoracic outlet
syndrome." 	Accordingly, the trial court reversed the Board's order. 	The court
3 Those criteria are: 	a credible explanation for how the problem occurred
(a traumatic event or an occupation involving out-front or overhead arm posture);
a characteristic history, including symptoms, physical findings, and responses to
provocative 	tests; 	the 	condition 	failing 	to 	improve; 	satisfactory exclusion 	of
alternative diagnoses; and response to a scalene block.
4 These included neurologist Lewis Almaraz, MD (August 2009), vascular
surgeon Daniel Neuzil, MD (July 2012), orthopedic surgeon James Harris, MD
(September 2010), and vascular surgeon Richard Kremer, MD (April 2012).
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No. 76026-2-1 / 4
remanded this case to the Department to issue an order to Liberty Mutual to
allow Johnson's 	claim.5 	Liberty Mutual 	appeals. 	Both 	Johnson 	and 	the
Department appear as respondents.
Standard of Review
We apply the ordinary civil standard of review to trial court decisions on
appeal from the Board.6 We review "whether substantial evidence supports the
trial court's factual findings and then review, de novo, whether the trial court's
conclusions of law flow from the findings."7
Analysis
We agree with the Department that the trial court made a prejudicial error
in instructing the jury.
We review de novo alleged errors of law in jury instructions.8 We reverse
the trial court where it erroneously instructed the jury about the applicable law
and that error was prejudicial.9 	Jury instructions are sufficient where they allow
the parties to argue their theories, do not mislead the jury, and, when taken as a
whole, properly inform the jury of the law to apply.10 	We presume that a clear
misstatement of the law is prejudicial.11
5 The court also awarded Johnson $42,233.33 in costs and fees for the
appeal.
6 RCW 51.52.140.
7 Watson v. Dep't of Labor & Indus., 133 Wn. App. 903, 909, 138 P.3d 177
(2006)).
8 Hue v. Farmbov Spray Co.. 127 Wn.2d 67, 92, 896 P.2d 682 (1995).
9 Hue. 127Wn.2dat92.
10 Hue. 127Wn.2dat92.
11 Keller v. City of Spokane. 146 Wn.2d 237, 249-50, 44 P.3d 845 (2002).

No. 76026-2-1 / 5
In jury instruction 14, the trial court informed the jury,
It is your duty to apply the law you have been provided to the
facts of this 	case. 	You should keep in mind that the Industrial
Insurance Act 	is 	remedial 	in 	nature 	and 	its 	beneficial 	purpose
should 	be 	liberally 	construed 	in order 	to 	achieve 	its 	goal 	of
providing compensation to all covered employees injured in their
employment, with doubts resolved in favor of the worker. 	This does
not require you to view the facts in a light more favorable to the
injured worker in this case, but where reasonable minds may differ
as to the meaning of the law you have been provided, the benefit of
the doubt belongs to the injured worker.
Relying on this instruction, Johnson's counsel argued repeatedly in closing that
"the benefit of the doubt belongs to the injured worker."
Jury instruction 14 misstated the law and misled the jury.
While courts liberally interpret ambiguities in the Industrial Insurance Act in
favor of its beneficiaries, they 	do 	not apply liberal construction to determine
facts.12 	In Hastings v. Department of Labor & Industries.13 the Supreme Court
found that the trial court erred in offering an instruction similar to the one here.
The trial court had instructed the jury "that the Workmen's Compensation Act of
the State of Washington should be liberally applied in favor of its beneficiaries,
the 	injured workmen" and "its beneficent provisions should 	not be limited or
curtailed by narrow construction."14 	The Supreme Court observed that while a
trial court must "give a liberal interpretation of the workmen's compensation act"
in its instructions, "the jury is confined to a determination of the facts of the case
12 Cooper v. Dep't of Labor & Indus.. 188 Wn. App. 641, 648, 352 P.3d
189 (2015); Ehman v. Dep't of Labor & Indus.. 33 Wn.2d 584, 595, 206 P.2d 787
(1949).
1324Wn.2d1, 13, 163 P.2d 142 (1945).
14 Hastings. 24 Wn.2d at 12.

No. 76026-2-1 / 6
from the evidence presented, in accordance with the court's instructions as to the
law."15 	In the 	case before 	it, though, 	"the jury was 	directed to apply the act
'liberally' and 	was cautioned 	against a 	narrow construction thereof. 	In other
words," the court held, "the jury was invested with a power that only the court
should exercise."16
Jury 	instruction 	14 	has the 	same 	problems. 	The 	instruction 	is 	both
misleading and facially incorrect. 	It incorrectly states the jury's role, misinforming
the jury that "where reasonable minds may differ as to 	the meaning of the
law . . . , the benefit of the doubt belongs to the injured worker." 	A jury does not
interpret "the meaning of the law." A jury determines "the facts of the case from
the evidence presented, in accordance with the court's instructions as to the
law."17 	By instructing the 	jury about 	how it should 	interpret the 	Industrial
Insurance Act, 	instruction 14 misstated the law. 	Also, this instruction risked
misleading 	the 	jury 	by 	conflating 	the 	functions 	of 	fact 	finding, 	statutory
interpretation, and applying the law to facts. 	The authority Johnson cites does
not support instruction 14; it shows only that courts are to liberally construe the
Industrial Insurance Act—something no party contests.18
Because 	instruction 	14 	clearly 	misstated 	the 	law, 	we 	presume that it
prejudiced 	Liberty Mutual.19 	Johnson offers no persuasive argument that the
15 Hastings. 24 Wn.2d at 13.
16 Hastings. 24 Wn.2d at 13.
17 Hastings. 24 Wn.2d at 13.
18 See RCW 51.12.010; Dennis v. Dep't of Labor & Indus.. 109 Wn.2d
467, 470, 745 P.2d 1295 (1987).
19 Keller, 146 Wn.2d at 249-50.

No. 76026-2-1 / 7
instruction 	did 	not 	prejudice 	Liberty 	Mutual 	and 	thus 	fails 	to 	rebut 	the
presumption.
Even if instruction 14 did not clearly misstate the law and merely misled
the jury, Liberty Mutual has shown prejudice because the misleading statement
"was actively urged upon the jury."20 Johnson expressly relied on instruction 14's
concept that the "benefit of the doubt" belongs to the worker in advocating that
the jury should find certain facts, urging the jury to "[ajpply the jury instructions
giving the benefit of the doubt to the plaintiff in this case and sign the verdict form
'No.'" 	Indeed, this concept made up most of counsel's closing rebuttal argument.
"'A 	new 	trial 	is 	the 	appropriate 	remedy 	for 	prejudicial 	errors 	in jury
instructions.'"21 	We thus remand for a new trial.
Because we remand for 	a 	new trial, we need not decide whether the
evidence presented in the first trial was sufficient to support the jury verdict. 	Nor
do we examine the trial court's discretionary decision to exclude as cumulative
the testimony of an orthopedic surgeon, Dr. Harris.
20 Anfinson v. FedEx Ground Package Svs.. Inc.. 174 Wn.2d 851, 876-77,
281 P.3d 289 (2012) ("Anfinson has demonstrated that this misleading statement
was prejudicial by showing that the incorrect statement was actively urged upon
the jury during 	closing 	argument. 	No greater showing 	of 	prejudice from 	a
misleading jury instruction is possible without impermissibly impeaching a jury's
verdict."). 	We need not consider the State's other contention, that instruction 14
improperly shifted the burden of proof to Liberty Mutual to show that the Board's
decision was correct.
21 Furfaro v. City of Seattle. 144 Wn.2d 363, 382, 27 P.3d 1160 (2001)
(quoting Aero Int'l. Inc. v. United States Fire Ins. Co.. 713 F.2d 1106, 1113 (5th
Cir. 1983)).

No. 76026-2-1 / 8
But because the other issues in this appeal are likely to come up again on
remand, we address them here.22 	On each issue, Liberty Mutual's arguments on
appeal lack merit.
First, the trial court used a sufficient special verdict form.
The Board found that (1) Johnson did not suffer from TOS proximately
caused or aggravated by her occupational disease and (2) the conditions that
Johnson's occupational disease proximately caused or aggravated were fixed
and stable and did not need proper and necessary treatment as of July 17, 2013.
Liberty Mutual points out that while the first issue received the most attention, the
Board made two distinct findings and Johnson sought review of both. 	The trial
court selected a verdict form that considered only the first issue. 	Liberty Mutual
contends that the special verdict form's exclusion of the second issue confused
and misled the jury about the issues on appeal.
A special verdict form is sufficient if it allows the parties to argue their
theories of the case, does not mislead the jury, and properly informs the jury of
the law to apply.23
Here, the special verdict form was sufficient and did not prejudice Liberty
Mutual. 	The Board determined that TOS was not related to Johnson's work.
Thus, its second finding pertained only to the accepted condition, epicondylitis,
the only claim-related condition that the Board had found to be fixed and stable
22 See Joyce v. Dep't of Corr.. 155 Wn.2d 306, 325, 119 P.3d 825 (2005).
23 Hue, 127Wn.2dat92.
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No. 76026-2-1 / 9
as of the date of its order. 	Because the parties did not contest that condition in
the superior court, the court had no reason to include it in the special verdict
form.
Second, the trial court's remand order would not usurp the Department's
authority to determine benefits for accepted conditions.
The trial court judgment states,
[T]he 	July 	7, 	2014 	order 	of the 	Board 	of 	Industrial 	Insurance
Appeals, 	is hereby reversed, 	and the 	claim is remanded to the
Department of Labor and Industries with instructions to issue an
order that directs the 	Self-Insured 	Employer, 	Liberty 	Mutual, 	to
allow the 	claim 	of Thoracic 	Outlet Syndrome and 	pay 	medical
expenses, time loss, and all 	other benefits associated with that
condition, if any.
(Emphasis added.)
Liberty Mutual calls this "a blanket statement authorizing benefits" and
asserts 	that 	it is 	inappropriate 	where 	the 	Department, 	which 	has 	original
jurisdiction, has not addressed payment of medical benefits, time loss, or other
benefits here. 	Liberty Mutual asserts that the trial court order thus did not "flow
from" the jury's sole finding—that the Board was incorrect that Johnson's work
activities did not proximately cause or aggravate TOS.
A trial court's conclusions of law must flow from its findings.24 	Neither the
Board nor the trial court may consider matters that the Department has not yet
considered.25
24 Watson. 133 Wn. App. at 909.
25 Lenk v. Dep't of Labor & Indus.. 3 Wn. App. 977, 982, 478 P.2d 761
(1970).

No. 76026-2-1/10
The trial 	court's 	order here was 	not "a 	blanket statement authorizing
benefits." 	Instead, it did exactly what Liberty Mutual asks: 	it required that the
Department decide what treatment is reasonable and necessary and what time
loss or other benefits are appropriate. 	Nothing in the judgment required the
Department to order medical expenses, time loss, 	or other benefits until the
Department determined those costs resulted from TOS.
Third, Liberty Mutual's challenges to the trial court's jury instructions other
than instruction 14 lack merit.
Liberty 	Mutual 	contends 	that 	instruction 	4, 	defining 	an 	occupational
disease, misstates the law and misled the jury. We disagree.
As a preliminary matter, Liberty Mutual appears to base its argument on
the instruction Johnson proposed. 	The trial court offered a different instruction to
the jury. The trial court's instruction read,
An occupational disease is defined by statute as:
Any disease that arises naturally and proximately out
of the employment.
A disease "arises naturally out of employment" if it came
about as a matter of course as a natural consequence or incident of
distinctive conditions of his or her particular employment. 	The work
conditions 	need 	not 	be peculiar to, 	nor 	unique to, 	his worker's
particular employment. 	The disease need not be common to the
claimant's 	particular 	employment. 	The 	claimant 	need 	not
demonstrate a 	logical 	relationship 	between the disease and the
work.
This 	instruction 	properly stated the 	law. 	Contrary to 	Liberty Mutual's
assertion, it expressly stated that the occupational disease must arise out of the
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No. 76026-2-1 /11
employment. 	And jury instruction 5 further explained that for a condition to be
compensable under the Industrial Insurance Act, it must be proximately caused
by work conditions. 	Instruction 5 also defined the proximate cause requirement.
These instructions are consistent with the statute as the Supreme Court
interpreted it in Dennis v. Department of Labor & Industries.26 As Johnson points
out, these instructions allowed Liberty Mutual to argue that TOS did not "arise[ ]
naturally out of employment." 	To that end, for example, Dr. Kremer testified that
the type of clerical work Johnson did is not the type of activity that activates the
scalene muscle and causes TOS.
Liberty Mutual's proposed instruction would note that the conditions must
be more likely to develop as a result of work activities as opposed to any other
work or nonwork activity. While this is an accurate statement,27 the trial court did
not abuse its discretion in declining to give it. As noted above, instructions 4 and
5 correctly described the legal standard. 	Instruction 6 further informed the jury
that Johnson had the burden of showing by a preponderance of the evidence that
the Board's application of that standard was incorrect.
Liberty Mutual also claims that instruction 4 misled the jury by stating that
the "claimant need not demonstrate a logical relationship between the disease
26 	RCW 	51.08.140 	('"Occupational 	disease' 	means 	such 	disease 	or
infection 	as 	arises 	naturally 	and 	proximately 	out 	of 	employment 	under the
mandatory or elective adoption provisions of this title."); Dennis v. Dep't of Labor
& Indus.. 109 Wn.2d 467, 481, 745 P.2d 1295 (1987).
27 Dennis. 109 Wn.2d at 481.
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No. 76026-2-1/12
and 	work." 	This statement is consistent with the 	holding in Dennis.28 	And
although it is potentially confusing standing alone, 	instructions 4 and 5, read
together, adequately explained the proximate cause requirement to the jury.
Next, Liberty Mutual contends that instruction 13 improperly shifted the
burden of proof from Johnson to Liberty Mutual. 	We disagree.
Instruction 13 did not, as Liberty Mutual states, instruct the jury to give "the
benefit 	of 	the 	doubt" 	to 	Johnson 	and 	"disregard 	preexisting 	frailties 	and
infirmities." 	Instead, the instruction accurately stated that a claimant "is to be
taken as he or she is, with all his preexisting frailties and bodily infirmities."29 	It
reminded the jury that the occupational disease must proximately cause the
claimant's disability. 	Instruction 13 did not misstate the law.
Liberty Mutual further contends the trial court abused 	its discretion 	in
giving instruction 13 because Johnson offered no evidence of aggravation of a
preexisting condition. 	The instruction thus confused the issues and placed an
unsupported theory before the jury. 	Liberty Mutual is incorrect: 	it presented
expert testimony that Johnson complained of pain and tingling as early as 2003
and that if Johnson did have TOS, it was caused by a congenital condition and
not employment. 	This evidence supports the theory 	underlying instruction 13
and justifies the trial court's decision to give it.
28 Dennis. 109 Wn.2d at 479 (holding that a worker does not need to
"demonstrate a 'logical relationship between the disease-based disability and the
work'") (quoting Dennis v. Dep't of Labor & Indus.. 44 Wn. App. 423, 436, 722
P.2d 1317 (1986)).
29 See Dennis. 109 Wn.2d at 471.
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No. 76026-2-1/13
Liberty Mutual further contends that the trial court abused its discretion in
declining to give 	two of Liberty Mutual's proposed 	instructions. 	Defendant's
instruction 13 would have told the jury, "You are to determine the whether [sic]
plaintiff was medically fixed and stable regarding any claim-related condition on
or about the date that the Department of Labor and Industries closed the claim,
which was July 17, 2013." 	Defendant's instruction 14 would have informed the
jury that "[p]roper and necessary medical treatment is provided for an accepted
condition under the Industrial Insurance Act until the worker reaches a state of
'maximum medical improvement.'" 	It also would have defined "maximum medical
improvement."
As discussed above, the trial court did not err in omitting from the special
verdict form the issue of whether "conditions proximately caused by [Johnson's]
occupational disease were fixed and stable ... as of July 17, 2013." 	For the
same reasons, defendant's instructions 13 and 14 were unnecessary and would
have caused needless confusion. 	The trial court did not abuse its discretion in
declining to give them.
Finally, Johnson requests the fees and costs she incurred in responding to
Liberty Mutual's appeal at the trial court level and in this court. 	Because we do
not sustain Johnson's right to relief, we deny her request.30
30 RCW 51.52.130; RAP 18.1.
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No. 76026-2-1 /14
Conclusion
Because the trial court committed prejudicial error in instructing the jury to
liberally construe the Industrial Insurance Act when finding facts, we reverse the
judgment of the trial court and remand for a new trial.
WE CONCUR:
/^Lf^\ t y
SOf/Jt^C^yJ 	, 	i^^^r.
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