Patrick McManus appeals the trial court's judgment and order reversing an award of benefits under the Industrial Insurance Act
by the Department of Labor and Industries (Department). He claims the trial court improperly admitted hearsay evidence through the testimony of his treating physician. He also contends that the jury was improperly instructed. We agree with McManus, reverse the judgment, and remand for a new trial.
Patrick McManus is a former Clark County employee. Between 1999 and 2011, he worked full-time for the County operating a street sweeper. He stopped working in April 2011 because of debilitating, degenerative spinal disease, which he attributes to his work as a street sweeper operator. Shortly after leaving work, McManus filed a claim for workers' compensation under Title 51 RCW, the Industrial Insurance Act (Act).
In reviewing the claim, the Department considered deposition testimony from several witnesses. McManus testified that he began experiencing pain that radiated across his low back and down his left leg in early 2010. He attributed this pain to the cramped confines and bumpy rides of the street sweepers he operated for the County. In particular, he claimed that, while the first two street sweepers he operated had adjustable air ride seats and relatively ergonomic cab-designs, the third and final machine he operated, which he was assigned in either 2008 or 2009, had an uncomfortable cab layout and a negative air ride seat that, according to McManus, felt like a block of concrete whenever he hit a bump.
McManus also testified regarding a preexisting back condition and other possible causes for his pain. He testified that his weight had hovered around the 330 pound mark for the past 30 years and that he had used tobacco products regularly until 2011. He acknowledged sustaining a low back injury at age 19, which resulted in flare-ups of pain in his low back and legs. McManus also conceded having been on prescription medication for pain in his lower back, buttocks, and left leg since 2001, approximately nine years before the onset of the symptoms he alleged were work-related.
The sole medical expert to testify on behalf of McManus was Dr. Paul Won, who is board certified in preventative and family medicine. In his deposition, Dr. Won testified that he began treating McManus in January 2005 following a low back injury unrelated to the condition alleged in his workers' compensation claim. After this initial treatment, McManus had continued to work his regular job as a street sweeper operator. According to Dr. Won, McManus had a gradual increase in low back pain during this time. On June 25, 2010, Dr. Won obtained a magnetic resonance imaging (MRI) scan of McManus' back. The scan showed various spinal changes as compared to a prior study, including a central disc protrusion at the L2-3 vertebra. Based on this scan, Dr. Won diagnosed McManus with displacement of a lumbar intervertebral disc at L2-3. Dr. Won next treated McManus on April 11, 2011, at which time McManus complained about low back pain due to a poor quality seat cushion in his street sweeper.
On direct examination, Dr. Won acknowledged a November 14, 2011 letter to McManus' claims representative, in which Dr. Won had opined that the cause of McManus' lower back condition was his work as a street sweeper operator. Dr. Won testified that his opinion had not changed since writing the November 14 letter. He opined, that "driving trucks with jarring and bouncing has made a major material contribution to [McManus'] lumbar condition." CABR (Won) at 30-31. According to Dr. Won, this opinion was based on his understanding of McManus' medical history and the physical forces McManus' spine endured during his street sweeping work.
On cross examination, Dr. Won testified over McManus' hearsay objection that he was aware a consulting neurosurgeon, Dr. Wrobel, had opined that it was unknowable whether or not the disc protrusion at L2-3 was related to McManus' employment. Dr. Won also stated he was aware of Dr. Wrobel's opinion that "no one could relate the protrusion at 23 [sic] and the stenosis to the work activities with Clark County." CABR (Won) at 39. While Dr. Won conceded that a neurosurgeon would likely have greater expertise than him in determining the etiology of degenerative disc disease such as McManus', he ultimately did not agree with Dr. Wrobel's opinion and testified that his own initial opinion that McManus' low back condition arose from the conditions of his work as a street sweeper was still valid based on his knowledge of McManus' medical history.
The County offered the deposition testimony of two experts, Dr. Thomas Dietrich and Dr. James Harris. Dr. Wrobel did not testify. Dr. Dietrich, a board certified neurosurgeon, stated that he had rendered an opinion based on a July 14, 2011 examination of McManus. Dr. Dietrich concluded that McManus' low back condition did not arise naturally and proximately from the distinctive conditions of his employment, however he acknowledged that the repetitive bouncing up and down McManus endured over a period of years as a street sweeper operator likely played a role in the rate of degenerative change in his condition.
Dr. Harris, a board certified orthopedic surgeon, testified that he conducted a review of McManus' records at the request of Clark County. Dr. Harris compared a December 14, 2005 computed tomography (CT) scan of McManus' lumbar spine with the June 25, 2010 MRI ordered by Dr. Won and concluded that the 2010 imaging showed a new central disc protrusion at the L2-3 level. Dr. Harris' initial report indicated that McManus' employment could be a possible cause of the abnormalities visible in the imaging scans. However, Dr. Harris testified that his initial conclusion was speculative, rendered with insufficient information on his part. He testified that, after additional research, his ultimate conclusion was that McManus' low back condition was not the result of an industrial injury. Dr. Harris attributed the injury to the normal aging process. He noted that, by age 50, about half the population would experience similar degenerative changes. He also recognized the role of obesity and heredity in such degenerative changes. While acknowledging that the conditions of McManus' work may have contributed to symptoms of this underlying condition, Dr. Harris maintained that McManus' work did not cause the condition.
At the close of evidence, an industrial appeals judge determined that McManus' injury was work-related, awarded him compensation under the Act, and issued a proposed decision and order, which included the following findings of fact:
1. On April 10, 2012, an industrial appeals judge certified that the parties agreed to include the Jurisdictional History, as amended, in the Board record solely for jurisdictional purposes.
2. Patrick J. McManus worked as a street sweeper operator for Clark County from 1998 or 1999 to April of 2011. As a street sweeper operator, Mr. McManus worked 40 hours per week, and sometimes worked overtime. While operating the street sweeper, Mr. McManus repetitively hit holes and dips along the curb line, which can be the roughest part of the road. Bumpy conditions jarred his back, causing pain. In 2008 or 2009, Clark County purchased a new street sweeper. Mr. McManus experienced more bumping and jarring while operating the new street sweeper. In April of 2011, Mr.McManus ceased working as a street sweeper operator due to pain in his low back.
3. As early as 1976, prior to his employment with Clark County, Mr. McManus was seen and treated for intermittent, chronic low back pain and degenerative disc changes. An MRI dated February 24, 2006 showed moderately severe degenerative changes in the entire lumbar spine. An MRI dated June 25, 2010, showed moderately severe degenerative changes in the entire lumbar spine, and also a new central disc protrusion at the L2-3 level.
4. Repetitive jarring and bumping constitute distinctive conditions of employment.
5. Mr. McManus sustained an aggravation of his pre-existing cervical degenerative disc changes arising naturally and proximately out of the distinctive conditions of his employment with Clark County.
CABR at 70-71.
The County petitioned for review by the Board of Industrial Appeals (Board). On McManus' motion, the Board excluded Dr. Won's testimony regarding his knowledge of Dr. Wrobel's opinions. The Board affirmed the industrial appeals judge's decision and adopted its proposed decision and order.
The County petitioned for review in the Clark County Superior Court. At trial, the jury was instructed that the sole question before it was whether "the Board of Industrial Insurance Appeals [was] correct in deciding that Patrick McManus' low back condition, diagnosed as aggravation of degenerative disc changes and a new central disc protrusion at L2-3 level[, ] arose naturally and proximately from the distinctive conditions of his employment with Clark County operating a street sweeper?" Clerk's Papers at 98. The jury concluded that the Board was incorrect in concluding that McManus' back condition arose from his employment operating the street sweeper. The trial court entered an order reversing the Board's decision. McManus appeals.
Before trial, the County requested that the trial court reverse the Board's ruling excluding that part of Dr. Won's testimony relating to Dr. Wrobel's opinion. The County argued that this testimony was admissible under ER 703 because, although hearsay, Dr. Won relied on Dr. Wrobel's opinion in forming his own conclusions as to the cause of McManus' condition. The trial court agreed with the County, reversed the ruling of the Board and overruled McManus' objection. McManus argues that the trial court's ruling was error. We agree.
A superior court on review of a Board's decision has discretion to review the Board's evidentiary rulings. We review for abuse of discretion. Gorre v. City of Tacoma, 180 Wn.App. 729, 769-70, 324 P.3d 716 (2014), petition for review granted, No. 90620-3, (Jan. 8, 2015). A trial court abuses its discretion if its decision is manifestly unreasonable or its discretion is exercised on untenable grounds or for untenable reasons. Boeing Co. v. Harker-Lott, 93 Wn.App. 181, 186, 968P.2d 14(1998).
Generally, the out of court statements of a non-testifying declarant are inadmissible to prove the truth of the matter asserted. ER 802. The County contends that Dr. Wrobel's statements are admissible for impeachment purposes under ER 613 or as a statement of a party-opponent under ER 801 (d)(2). Both arguments lack merit. Dr. Wrobel's opinion was not a prior statement by Dr. Won, and thus, could not be used for impeachment of Dr. Won under ER 613. And because Dr. Wrobel was not a party to the case, one authorized by a party to make a statement, or an agent or employee of a party, the ER 801(d)(2) exemption for admissions of party-opponents does not apply.
The County also contends that Dr. Wrobel's statements were admissible, even if hearsay, under the statement for medical diagnosis or treatment (ER 803(a)(4)) or learned treatise (ER ...