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City of Seattle v. Harrison2/16/1999
UNPUBLISHED
When an attending physician testifies in a workers' compensation case, a jury instruction stating that the jury should give the physician's testimony special consideration is generally required. Moreover, the deposition testimony of a witness who is unavailable to testify is generally admissible. Because the record before us fails to demonstrate a tenable basis for the court's refusal to give the requested instruction and because the court abused its discretion in excluding the deposition testimony of a witness who was unavailable under the circumstances of this case, we reverse and remand for further proceedings.
While Mary Harrison was working for the City of Seattle, she and her supervisor, Robert Russell, had an altercation. During this incident, which occurred in Russell's office, they both became agitated and raised their voices. The two made physical contact when Harrison tried to exit through the doorway that Russell was blocking.
Harrison left work for the rest of the day and never returned. On her way home, she began shaking and hyperventilating. She immediately sought medical care and was referred to Dr. Robert Olsen for psychiatric treatment.
Several months after the incident, she filed a claim for industrial insurance benefits with the Department of Labor and Industries. When the Department denied her claim on the stated basis that she had not suffered an industrial injury, she appealed. Ultimately, the Board of Industrial Insurance Appeals found that Harrison had sustained a compensable industrial injury.
Contending that a compensable industrial injury requires a physical condition, the City appealed the Board's decision to the superior court for a de novo jury trial. The court entered Judgement on the jury's verdict for the City.
Harrison appeals.
I. Jury Instructions
Relying on Hamilton, Harrison requested that the trial court give the following instruction:
You should give special consideration to testimony given by an attending physician. Such special consideration does not require you to give greater weight or credibility to, or to believe or disbelieve such testimony. It does require that you give any such testimony careful thought in your deliberations.
Harrison contends that the refusal to give this instruction was prejudicial error. We agree.
We review a trial court's refusal to give instructions based on a factual dispute for abuse of discretion. We review the refusal to give a jury instruction based upon a rule of law de novo. Because the record fails to explain the trial court's refusal to give the requested Hamilton instruction, we cannot determine whether the refusal was based on a factual dispute or a ruling of law. But because there is no dispute that the wording of the instruction is a proper statement of the law, we assume that the abuse of discretion standard applies. A court abuses its discretion only when that discretion is exercised on "untenable grounds, or for untenable reasons."
In Hamilton, our Supreme Court held that instructing the jury to give special consideration to the attending physician's testimony in an industrial insurance case is not an impermissible comment on the evidence. Rather, such an instruction merely states the "long-standing rule of law in workers' compensation cases that special consideration should be given to the opinion of a claimant's attending physician." That instruction correctly states the law, and the jury must be instructed as to the applicable law.
Nothing in the record before us indicates why the trial court refused to give the Hamilton instruction. A
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