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Johnson v. Weyerhaeuser Co.

January 24, 1997

DENNIS R. JOHNSON, APPELLANT,
v.
WEYERHAEUSER COMPANY, EMPLOYER, AND THE DEPARTMENT OF LABOR AND INDUSTRIES, STATE OF WASHINGTON, RESPONDENTS.



Appeal from Superior Court of Lewis County. Docket No: 93-2-00013-6. Date filed: 02/13/95. Judge signing: Hon. David R. Draper.

Petition for Review Granted June 3, 1997,

Authored by David H. Armstrong. Concurring: J. Dean Morgan, Carroll C. Bridgewater.

The opinion of the court was delivered by: Armstrong

ARMSTRONG, J. -- Dennis Johnson appeals a superior court verdict affirming a Board of Industrial Insurance Appeals (BIIA) decision closing his claim with a permanent partial disability for low back impairment. He had sought, among other things, a permanent total disability for a psychiatric condition. Johnson assigns error to (1) the trial court's admission of evidence that he and his wife received collateral benefits, and (2) jury instructions regarding the taxability of those benefits. Finding no abuse of discretion, we affirm.

FACTS

Dennis Johnson injured his back at work in June 1979. The Department of Labor and Industries (Department) closed Johnson's workers' compensation claim in January 1990, with time loss compensation to April 27, 1987. The Department also ordered Weyerhaeuser, Johnson's self-insured employer, to pay Johnson a permanent partial disability for low back impairment. Johnson appealed, claiming a permanent total disability partly due to "cognitive impairment." Weyerhaeuser defended, arguing Johnson was not totally and permanently disabled but that he lacked motivation to work.

Before the Industrial Appeals Judge (IAJ), Johnson moved to exclude evidence that he received collateral benefits. Weyerhaeuser argued the evidence would show Johnson was not financially motivated to work. The IAJ denied Johnson's motion because of In re Lawrence Musick, *fn1 in which the BIIA permitted such evidence in a permanent and total disability case.

Weyerhaeuser presented the testimony of at least eleven experts. Occupational experts testified to Johnson's reluctant participation in vocational services. At least seven physicians testified that Johnson exhibited inconsistent or unexplainable symptoms; two of the physicians specifically diagnosed Johnson as malingering, and a third agreed his diagnosis was consistent with malingering.

Through the cross examination of two physicians, Weyerhaeuser showed the amount of income Johnson received from Weyerhaeuser disability retirement, social security, and time loss compensation. A vocational consultant testified that tax-free income could reduce motivation to seek re-employment. A psychiatrist agreed, testifying that the receipt of benefits could affect Johnson's motivation to return to work. He noted Johnson's medical records contained "numerous references to secondary gain," defined as "deriving support from the environment by maintenance of symptoms that would not otherwise be forthcoming."

On direct examination, Johnson testified that he "just barely [had] enough money to live on or get by" after he started collecting disability retirement payments. Johnson also volunteered that his wife was receiving workers' compensation benefits, but that she was not receiving as much as her previous wages. Johnson also testified that his wife had been working "full time" before her injury. A vocational rehabilitation counselor called by Johnson testified that he believed time loss compensation could be subject to income tax.

To contradict testimony of the Johnsons' dire financial situation, the former work status of Mrs. Johnson, and the taxability of workers' compensation, Weyerhaeuser wanted to prove the amount of the Johnsons' income. Johnson objected, but the IAJ allowed Weyerhaeuser to show the amounts the Johnson household was receiving from social security disability, social security for dependent children, Weyerhaeuser retirement, and time loss compensation. In addition, through an official of Mrs. Johnson's employer, Weyerhaeuser established that Mrs. Johnson was a seasonal worker who had been receiving time-loss compensation since 1985. The official also established the amounts of Mrs. Johnson's average annual salary in 1981-83 and time loss compensation in 1985, 1987, and 1989-91. Furthermore, the official testified that workers' compensation benefits were not taxable.

The IAJ's proposed decision reversed the Department, granted a permanent partial disability for mental health, and awarded time loss compensation through June 1988. Weyerhaeuser appealed to the BIIA.

The BIIA found no error in admitting evidence of collateral benefits, but reversed the IAJ's proposed decision and affirmed the Department's order. *fn2 Johnson appealed to the Lewis County Superior Court, again moving to exclude evidence of collateral benefits. The trial court denied the motion and the jury returned a verdict affirming the BIIA's findings. Johnson appeals, assigning error to the following: (1) admitting evidence he received social security disability, Weyerhaeuser disability, and time loss payments; *fn3 (2) admitting ...


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