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McClure v. Department of Labor and Industries

May 6, 1991

KATHLEEN G. MCCLURE, APPELLANT,
v.
THE DEPARTMENT OF LABOR AND INDUSTRIES, RESPONDENT



Forrest, J. Grosse, C.j., and Baker, J., concur.

Author: Forrest

Kathleen G. McClure (McClure) appeals from a jury verdict sustaining the order of the Board of Industrial Insurance Appeals finding that she had suffered no aggravation of her psychiatric disability and her claim should not be reopened. The one issue presented is whether the trial court erred in rejecting McClure's proposed instruction:

An expert's opinion regarding a worker's claim for compensation for psychological injuries may be based solely on the worker's subjective complaints; objective medical findings need not be the basis for any portion of the expert's opinion.

Statements of complaints by the worker made to a physician are called subjective complaints. Findings of disability which can be seen, felt or measured by an examining physician are called objective findings.

Finding no error, we affirm.

In 1973 McClure injured her back during the course of her employment. A workers' compensation claim was filed and allowed by the Department of Labor and Industries (Department). The claim was closed in 1974 allowing medical treatment only.

In 1976 the claim was reopened for aggravation of the condition, additional benefits were paid for psychiatric, as well as physical, disabilities. The claim was closed again in 1980.

In 1984 McClure filed another application to reopen the claim for aggravation. The Department issued an order denying the application. McClure appealed the order to the Board of Industrial Insurance Appeals. The sole issue submitted to the Board was whether McClure's psychiatric condition had worsened. The Board adopted the proposed order of the industrial appeals judge affirming the order of denial. McClure appealed the decision to the superior court. The jury returned a verdict sustaining the Board's order.

[1, 2] The trial court has broad discretion in deciding how instructions will be worded and whether more specific or clarifying instructions are necessary to avoid misleading

the jury.*fn1 Instructions are sufficient if, read as a whole, they are not misleading, they properly inform the jury of the applicable law, and they allow the parties to argue their theories of the case.*fn2

[3] In cases where a worker claims only an aggravation of physical disability it is proper to instruct the jury that medical testimony must be at least partially based on objective findings.*fn3 When a worker claims a psychiatric disability, however, the medical testimony may be based entirely upon subjective findings. Price v. Department of Labor & Indus.*fn4

In Price the court stated that it would be "improper to instruct the jury on the objective-subjective distinction in a case involving psychiatric disability." Price, at 529. McClure argues that Price should not be read so narrowly as to exclude her proposed instruction. We agree. The language in Price was directed to an instruction which required objective findings as a basis for an aggravation of psychiatric disability. This was held to be error. It is clear from the opinion that the court did not mean to foreclose an instruction informing the jury that such objective findings are not necessary in cases of ...


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