OAKLEY v. NORDSTROM, 126 Wn. App. 1054 (2005)

No. 31844-0-IIThe Court of Appeals of Washington, Division Two.
Filed: April 5, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County. Docket No. 03-2-07706-8. Judgment or order under review. Date filed: 05/07/2004. Judge signing: Hon. Brian Maynard Tollefson.

Counsel for Appellant(s), Carroll Guy Jr Rusk, Law Offices of David B Vail, 819 Martin Luther King Jr. Way, Tacoma, WA 98415-0707.

Counsel for Defendant(s), John R. Wasberg, Attorney General Office, 900 4th Ave Ste 2000, Seattle, WA 98164-1076.

Counsel for Respondent(s), Amy L. Arvidson, Keehn Arvidson PLLC, 701 5th Ave Ste 3470, Seattle, WA 98104-7097.

Hunt, J.

Geraldine Oakley, a former Nordstrom employee, appeals a jury verdict affirming the Board of Industrial Insurance Appeals’ decision that her Nordstrom employment did not cause her carpal tunnel syndrome. Oakley argues that the trial court erred when it refused to give the jury a curative instruction to prevent the court’s `attending physician’ instruction from misleading the jury. Finding no abuse of discretion, we affirm the superior court’s affirmance of the Board of Industrial Insurance Appeals’ rejection of Oakley’s claim.

FACTS I. Carpal Tunnel Syndrome
Geraldine Oakley worked regularly for Nordstrom in the distribution center and accounts payable section from 1979 until 1990. She frequently knitted and crocheted during breaks at work and in her spare time at home.

In 1990, Oakley was involved in a car accident, and she had lower back surgery and surgery for Temporo-Mandibular Joint Syndrome (TMJ).[1] She was absent from Nordstrom on medical leave from the time of the accident until she resigned in May 1991. After she resigned, she worked sales on-call from summer 1991 to January 1993, when she resumed working regularly in Nordstrom’s ladies shoes department.

In 1991, Oakley began wearing wrist braces for pain and numbness, although she had not been diagnosed with a specific injury. In 1993, Oakley had problems with her fingers `going to sleep,’ her wrists hurting, and pain in the fingers of both hands. On August 10, 1993, she saw Dr. Alfred Blue for these symptoms. Oakley did not report on Dr. Blue’s intake form that she was employed, nor did Dr. Blue ask Oakley any questions about her work activities. Based on Oakley’s symptoms and reported history, Dr. Blue diagnosed Oakley with carpal tunnel syndrome. The record is unclear as to when Oakley informed Nordstrom about her diagnosis, although she continued to work for Nordstrom until February 2001.

In June 2001, Dr. Blue performed surgery on Oakley’s wrists, but her symptoms persisted.[2] Dr. Blue stated he had no reason to believe that Oakley’s work activities at Nordstrom had caused her carpal tunnel syndrome because Oakley never mentioned work as a possible cause. He also did not believe that cashiering at Nordstrom was the type of heavy, repetitive work that would cause carpal tunnel syndrome. Dr. Blue opined that the cause of Oakley’s injury was idiopathic, meaning `unknown,’ and had more to do with the `process of proceeding through life.’

II. Industrial Insurance Claim
On September 20, 2001, Oakley filed an industrial insurance claim with the Department of Labor and Industries (Department) claiming her carpal tunnel syndrome was related to work. Nordstrom Northwest Risk Management requested that Dr. Stan Kopp examine Oakley.

In March 2002, Dr. Kopp reviewed Oakley’s medical records and occupational history. Dr. Kopp also physically examined Oakley. Kopp concluded that Oakley’s carpal tunnel syndrome was related to her work at Nordstrom, including her keyboarding, writing, and cashiering. Kopp also stated that Oakley’s knitting and crocheting could be a contributing factor.

In January 2003, the Department referred Oakley to Dr. Roy Broman for a medical examination. Dr. Broman reviewed Oakley’s medical records and asked Oakley about her work activities. Oakley reported that the problem had started in 1993, that she had had two surgeries on her right wrist, but that the difficulties were ongoing. Dr. Broman diagnosed Oakley with an `industrial occupational repetitive trauma injury with bilateral carpal tunnel syndrome’ and multiple unrelated medical problems. Report of Proceedings (RP) at 94.

Lillian Wilcox, who works for Nordstrom, has completed ergonomic evaluations of Nordstrom’s various jobs to ensure compliance with Washington Administrative Code (WAC) 296-62-051
on ergonomics.[3] Wilcox determined that none of the jobs at Nordstrom are considered `caution zone jobs’ because the tasks are varied and intermittent.

The Department first rejected Oakley’s claim. Later, however, on April 19, 2001, the Department reversed its earlier rejection and allowed the claim. Nordstrom appealed to the Board of Industrial Insurance Appeals (Board).

III. Appeals
On February 11, 2003, an Industrial Appeals judge issued a proposed decision and order reversing the Department’s decision to allow Oakley’s claim. The judge concluded that Oakley’s work at Nordstrom had not proximately caused her bilateral carpal tunnel syndrome within the meaning of RCW 51.08.140.

Oakley filed a petition for review, which the Board denied.

Oakley next filed a notice of appeal in Pierce County Superior Court, where a jury heard the case. Nordstrom and Oakley proposed the `attending physician’ jury instruction, which the court gave. Instruction number seven. The trial court refused to give Oakley’s initial proposed instruction number 13, which stated: `A medical opinion based upon an inadequate foundation will be disregarded entirely.’ Clerk’s Papers (CP) at 76. Oakley then revised instruction number 13 to read:

An expert medical opinion concerning causal relationship between an industrial injury and a subsequent disability must be based upon full knowledge of all material facts. If the doctor has not been advised of a vital element bearing upon causal relationship, his conclusion or opinion does not have sufficient probative value.

CP at 81. When the trial court also denied Oakley’s request to give this instruction, Oakley did not take exception. But, the trial court did give a similar instruction, 6 Washington Pattern Jury Instructions: Civil 2.10, at 45 (5th ed. 2005) (WPI), number six, proposed by Nordstrom, which read:

A witness who has special training, education, or experience may be allowed to express an opinion in addition to giving testimony as to facts.
You are not, however, required to accept his or her opinion. To determine the credibility and weight to be given to this type of evidence, you may consider, among other things, the education, training, experience, knowledge, and ability of the witness. You may also consider the reasons given for the opinion and the sources of his or her information, as well as considering the factors already given to you for evaluating the testimony of any other witness.

CP at 91.

The jury returned a special verdict affirming the Board’s decision that Oakley’s carpal tunnel syndrome did not arise naturally and proximately from distinctive conditions of her employment with Nordstrom.

Oakley appeals the jury’s verdict.

ANALYSIS I. Jury Instructions A. Standard of Review
Jury instructions are sufficient if, when read as a whole, they properly inform the jury about the applicable law, permit each party to argue his or her theory of the case, and are not misleading. Tiderman v. Fleetwood Homes, 102 Wn.2d 334, 337-38, 684 P.2d 1302 (1984). Whether to give a particular jury instruction is within the trial court’s discretion. Boeing Co. v. Harker-Lott, 93 Wn. App. 181, 186, 968 P.2d 14 (1998), review denied, 137 Wn.2d 1034 (1999).

We review a trial court’s refusal to give a requested instruction for an abuse of discretion. Boeing, 93 Wn. App. at 186. A trial court abuses its discretion if its decision was manifestly unreasonable, or its discretion was exercised on untenable grounds, or for untenable reasons. Boeing, 93 Wn. App. at 186. We find no abuse of discretion here.

B. Oakley’s Proposed Curative Instruction Number 13
Oakley argues that the trial court erred in refusing to give her proposed curative instruction number 13, which was necessary to prevent the `attending physician’ instruction from misleading the jury. This argument fails for three reasons.

First, the record does not show that Oakley objected or took exception to the trial court’s rejection of either version of her proposed instruction number 13. Nor does the record include argument by either counsel about the jury instructions.[4]
Thus, we conclude that Oakley did not object.[5]

We will not consider an alleged instructional error where, as here, trial counsel did not properly object. Estate of Ryder v. Kelly-Springfield Tire Co., 91 Wn.2d 111, 114, 587 P.2d 160
(1978); Reed v. Pennwalt Corp., 93 Wn.2d 5, 6, 604 P.2d 164
(1979). See also Civil Rule (CR) 51(f).[6] Therefore, we do not consider Oakley’s argument that the trial court erred in refusing to give her proposed instruction number 13.

Second, the doctrine of invited error precludes Oakley’s argument that the trial court erred in failing to give a curative instruction. The invited error doctrine prohibits a party from setting up an error at trial and then complaining about it on appeal. State v. Gentry, 125 Wn.2d 570, 646, 888 P.2d 1105 (1995) (party may not request an instruction, and later complain on appeal that requested instruction was given.) Here, both parties proposed the `attending physician’ instruction, WPI 155.13.01, which the trial court gave as jury instruction seven.[7] It is this instruction that Oakley now claims on appeal necessitated a curative instruction to prevent the jury from giving undue weight to the attending physician’s testimony. Because Oakley proposed the `attending physician’ instruction, her argument that giving it was in error and, therefore, needed a curative instruction fails.

Third, any error in failing to give Oakley’s curative instruction 13 was harmless because the trial court gave instruction number six.[8] See CP at 91. Instruction six explained that jurors (1) need not believe or accept an expert’s opinion, (2) may consider the education, training, experience, knowledge, and ability of the expert witness, and (3) may also consider the reasons given for the expert opinion and the sources of his or her information. Because instruction six explained essentially what Oakley’s proposed instruction 13 had sought to explain, any error in failing to give Oakley’s instruction was harmless.

We hold, therefore, that the trial court did not abuse its discretion by refusing to give Oakley’s proposed jury instruction number 13.

II. Attorney Fees
Oakley requests attorney fees under Rules of Appellate Procedure (RAP) 14 and RCW 51.52.130. Because she did not prevail on appeal, she is not entitled to attorney fees, RAP 14.2, and we deny her request.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Affirmed.

QUINN-BRINTNALL, C.J. and VAN DEREN, J., Concur.