Duncan v. Boeing Co.
| Docket Number | 56663-0-II |
| Decision Date | 06 June 2023 |
| Parties | DAVID L. DUNCAN, Appellant, v. BOEING COMPANY, Respondent. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
CRUSER A.C.J.
David Duncan was a Boeing employee and was exposed to Dinol, an anticorrosive chemical agent, on the job on February 5, 2015. Immediately upon exposure, Duncan experienced uncontrollable coughing and shortness of breath. He was seen by Boeing's medical department who performed a breathing test and sent him home with work restrictions.
Duncan was a 59-year-old lifelong smoker, but he maintains that he had suffered no respiratory symptoms aside from bronchitis up until the exposure. After the exposure, he was seen by several doctors. He was diagnosed with reactive airway disease as well as chronic obstructive pulmonary disease (COPD), a disease commonly associated with smokers.
On February 17, 2015, Duncan filed a claim with the Department of Labor and Industries (Department), which was accepted. The Department closed Duncan's claim on July 27, 2017, but it reversed that decision on September 6, 2017. The September 2017 order was then reversed by an Industrial Appeals Judge (IAJ) at the Board of Industrial Insurance Appeals (Board) who directed the Department to find that Duncan was not entitled to time loss benefits between May 8, 2017 and July 27, 2017 and to close the claim without an award of permanent partial disability as of July 27, 2017. Duncan petitioned the Board for review, and the decision closing the claim was affirmed. The Board's main rationale was that Duncan's symptoms were caused by his smoking, and were exacerbated only temporarily by his chemical exposure and had long since ceased by July 27, 2017.
Duncan then appealed to Pierce County Superior Court, which held a jury trial. The jury affirmed the Board's decision affirming the closure of Duncan's claim. Duncan now complains that the court erroneously instructed the jury that it allowed the parties to present testimony in the wrong order, that it erroneously admitted testimony of Duncan's coworker Dan Luu, and that it erroneously awarded attorney fees and costs to Boeing.
We hold that (1) the first challenged jury instruction did not mislead the jury or misstate the law, (2) the second challenged jury instruction was not an abuse of discretion (3) the court did not abuse its discretion in altering the order of testimony from the order it was presented in before the Board, (4) admitting the testimony of Dan Luu was not an abuse of the court's discretion, and (5) the court did not err in awarding Boeing nominal attorney fees and costs.
FACTS
David Duncan was born in November 1955. Prior to working at Boeing, Duncan worked in real estate for one year, but did not find it lucrative enough to continue. Duncan also had experience working in automotive transmission repairs.
Duncan began smoking as a teenager, and smoked a pack a day for about 40 years, with some short breaks during that time. Despite being a smoker, he maintains that he had not experienced shortness of breath, nausea, wheezing, or coughing aside from the occasional cold. He was active, having chaperoned his son's Boy Scout troop on ten-mile hikes on Mount Rainier and Mount Pilchuck. However, he was prescribed Combivent, a bronchodilator inhaler, for previous bronchitis, and was previously diagnosed with COPD. He used the Combivent inhaler three to four times a day or "intermittently, prior to exercise." Clerk's Papers (CP) at 645.
Duncan began working with Boeing in 2007 as a plane mechanic. In Duncan's daily work, he used an aerosol called Dinol, which is an anticorrosive coating known as a "corrosion inhibitor compound" that dries into a hard, waxy substance. Id. at 471. Dinol is "used extensively in building airplanes." Id. at 573. Duncan's role was to apply Dinol to cover the areas of each plane that the quality assurance team had flagged. In order to apply Dinol, Duncan needed to lie down to reach narrow spaces.
On February 5, 2015, Duncan was working inside the left wall of an aircraft applying Dinol in a confined space. A coworker named Dan Luu was in the same aircraft, about four feet away from Duncan when the exposure occurred. On that particular plane, "quality assurance had tagged 39 places" that needed Dinol application, so Duncan had a large area to cover. Id. at 470. The record is inconsistent on whether Duncan was wearing a mask at the time. Boeing's accident report "does not say specifically what the injuries were, but [Duncan's] lungs and skin were exposed." Id. at 575.
While working with Dinol, Duncan experienced immediate shortness of breath and uncontrollable coughing. He felt suffocated and like he couldn't breathe. Within five or ten minutes of breathing Dinol, his "windpipe had closed up and was contracting and burning." Id. at 483. Dan Luu led Duncan out of the aircraft, and Duncan approached his manager Lynn Hilman and told her he needed to see the medical office.
When Duncan went to Boeing Medical, he was sent home. After going home, his coughing worsened and he decided to find a private doctor. He also experienced decreased energy and drastic weight loss after the exposure, losing 10 to 15 pounds in the first three weeks and 25 pounds within the first couple of months.
Duncan saw Dr. Thomas Young, a naturopath, who diagnosed Duncan with chemical pneumonia and prescribed antibiotics. Dr. Young then referred Duncan to Dr. Arthur Knodel, a pulmonologist. Dr. Knodel concluded that Duncan:
had an inhalation lung injury from the Dynol; that he had tobacco-induced COPD, predominately emphysema; that he had some kind of reactive airway disease. He also had interstitial lung disease. He had multiple pulmonary nodules in his lungs; and at that time nicotine dependant [sic].
Id. at 810. Dr. Knodel was concerned that the nodules may indicate cancer, and did not believe that they were related to his Dinol exposure. Dr. Knodel recommended that Duncan stop smoking, prescribed Albuterol as needed, ordered a positron emission tomography (PET) scan to screen for cancer, and recommended a follow-up pulmonary function test in three months.
In May 2015, Duncan was seen by Dr. Khaled Abdel-Rahman for an independent medical evaluation (IME). Dr. Abdel-Rahman examined Duncan and found that he "had rales[1] . . . but no wheezing." Id. at 577. Dr. Abdel-Rahman entertained the possibility of hypersensitivity pneumonitis and believed Duncan needed further evaluation, referring him for a CT scan and other testing. Upon the return of those test results, Dr. Abdel-Rahman diagnosed Duncan with irritant-induced asthma and concluded that the condition was possibly work-related. He recommended bronchodilators.
Two additional IMEs were performed in 2016, by Dr. Garrison Ayars, an allergy and immunology specialist, and Dr. Dennis Stumpp, an occupational medicine physician with toxicology experience. Dr. Ayars conducted an IME of Duncan in April 2016, to determine if his "occupational injury had reached maximum medical improvement" and whether Duncan was "capable of reasonably continuous gainful employment." Id. at 592-93. Dr. Ayars examined Duncan's lungs and found Id. at 592. Dr. Ayars diagnosed Duncan with non-work-related COPD and concluded that he did not have any work-related lung disease. He found no evidence to support Dr. Abdel-Rahman's theory of hypersensitivity pneumonitis.
Dr. Stumpp conducted an IME of Duncan in November 2016. Like Dr. Ayars, Dr. Stumpp diagnosed Duncan with COPD and concluded that Duncan did not have a temporary exacerbation of any underlying condition as a result of the exposure. He disagreed with any diagnosis of reactive airway disease and pneumonitis. He also concluded that any Dinol reaction "would be a very self-limited reaction lasting several hours to at most a day or two following the exposure" and that it would not have explained Duncan's symptoms. Id. at 705.
After the exposure, Duncan stopped smoking for about four to eight weeks, and then resumed smoking at "a quarter pack[ or] half pack a day." Id. at 492. He was able to quit completely in mid-2017.
Duncan took two to three days off of work after the exposure. When he returned to work, he was prohibited from using Dinol and from being within 15 to 30[2] feet of Dinol. Duncan worked on light duty at Boeing until January 2017, performing such tasks as tool kit preparation. Even in his light-duty role, "Duncan was reexposed to dry Dinol, [and] he had more shortness of breath." Id. at 579. He was not able to find a chemical-free position so was let go in a medical layoff in January 2017.
Duncan continued to experience symptoms after leaving Boeing, and was treated with pulmonary rehab in order to learn strategies to recover quickly when he loses his breath. His coughing and nausea have decreased, but he still experienced shortness of breath and wheezing as of 2018.
On February 17, 2015, Duncan applied for benefits with the Department for his February 5, 2015 injury. In March 2015 the Department allowed Duncan's claim and decided that he was entitled to medical treatment for his work-related injury on February 5, 2015. On May 12, 2017, the Department closed Duncan's claim, having decided that he no longer required treatment effective May 7, 2017. Duncan protested, and the decision to close the claim was affirmed on July 27, 2017. However, when Duncan protested again, the July order was reversed, and...
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