Goodman v. Boeing Co.

• Decision Date: 25 July 1994
• Docket Number: No. 31648-6-I,31648-6-I
• Citation: 75 Wn.App. 60,877 P.2d 703
• Court: Washington Court of Appeals
• Parties: , 3 A.D. Cases 983, 5 NDLR P 314 Janice L. GOODMAN, Respondent, v. The BOEING COMPANY, a Delaware corporation; and Amelia Anderson and John Doe Anderson, husband and wife, Appellants.

Page 60

75 Wn.App. 60

877 P.2d 703, 3 A.D. Cases 983, 5 NDLR P 314

Janice L. GOODMAN, Respondent, v. The BOEING COMPANY, a Delaware corporation; and Amelia Anderson and John Doe Anderson, husband and wife Appellants.

No. 31648-6-I.

Court of Appeals of Washington Division 1.

July 25, 1994.

Russell Louis Perisho, Perkins Coie, Seattle, for appellants

Abraham Albert Arditi, Seattle, for respondent.

WEBSTER, Chief Judge.

Boeing appeals a jury verdict and court orders in favor of Janice Goodman in a handicap discrimination action. Goodman cross-appeals the court's setoff and subrogation of her Industrial Insurance Act (IIA) benefits.

FACTS

Goodman began working at Boeing microfilming airplane manuals in August 1984, a job requiring the repetitive use of the arms and hands. At the time, Goodman was also teaching classical ballet and high school gymnastics part-time. Two-and-a-half months later, Goodman was broadsided in a car accident injuring her head, neck, back and left arm. X-rays taken at the time of the accident established that Goodman had preexisting moderate osteoarthritis in her thumb joints. Goodman states she was not told of the arthritis at the time and did not know when she joined Boeing that she had it. Therefore, she did not include it in her employment information papers when she took the job with Boeing. When she began to experience pain in her right shoulder, elbow, wrist and thumb from filming, at the end of 1986, Goodman first requested that she be rotated from microfilming, and began to make efforts to transfer to other jobs at Boeing. In April 1987, while working, Goodman was injured; she was diagnosed as having tennis elbow in her right arm. Her then supervisor, Cherry Williams, wrote a report stating the injury was caused by constant arm and shoulder movement, and under corrective action taken, she wrote "n/a". Goodman filed a claim with the State Department of Labor and Industries for this injury, which was accepted, and covered all her subsequent medical and psychiatric expenses. Boeing, a self-insurer for purposes of workers' compensation, had paid $37,548.66 in time loss compensation in connection with this temporary total disability by the time of trial.

In June 1987 Goodman saw her private doctor, Dr. Cancro, who determined that she had experienced a recurrence of tennis elbow and had also aggravated the osteoarthritis in her right thumb from "overuse." He prescribed a right hand Goodman worked at Boeing 14 more months, and left on medical leave in January 1989, from which she did not return. In 1989, Goodman had a series of operations on both her hands: Dr. Almquist operated on her right elbow and thumb in January 1989, on her left thumb in August 1989, and on her left thumb again, due to complications, in March 1990. He permitted her to recommence work but cautioned her to avoid much hand movement. Dr. Blue operated on Goodman's left thumb in February 1992, and advised her she could return to work provided it involved minimal use of her hands.

splint which Goodman wore at work. Goodman brought in notes from Cancro about her need to wear the splint and avoid overtime and overuse, and gave them to her supervisor, Amelia Anderson. Anderson admits she knew Goodman had doctor's notes but contests receiving them and contests knowing their substance, though a co-worker testified that she saw Goodman hand one to Anderson. Subsequently, Anderson continued to assign Goodman to work overtime and asked her to correct filming errors in addition to her own. Goodman and two co-workers testified that Anderson also often called Goodman "stupid" and criticized her style of dress and treated her condescendingly. Cancro also sent two notes to Axia, Boeing's workers' compensation claims processing firm (a division of Aetna), recommending Boeing modify Goodman's work. In late 1987, a new supervisor, Cherry Williams, did rotate Goodman, to a job coordinating microfilming wiring plans, and she did well there, but 2 weeks later when Williams was moved elsewhere and replaced by Jorene Zumdahl, a friend of Anderson's, Goodman was reassigned to filming. Zumdahl would stand behind Goodman and clap to ensure she kept her filming pace up. While Goodman was on the wiring job, Anderson told another worker to stop assisting her. About a month after Goodman was reassigned to filming, Cancro sent Axia a note saying the transfer had helped Goodman's condition and the reassignment was causing her elbow problem to recur. Six months later, Goodman's left arm swelled up and she went to Boeing medical, as advised by her supervisors. The Boeing doctor diagnosed tendonitis, prescribed Motrin and gave Goodman a left hand wrist/thumb splint which she also wore to work. Goodman did not tell this doctor about the ongoing nature of her problems. Williams again wrote the injury report, this time stating that Goodman had pulled a tendon through overuse; for corrective action, Williams wrote "none", but then noted that Goodman's recent transfer to the wiring position had eliminated the prolonged movement of her arms. Cancro sent Axia a note stating that since Goodman's reassignment to filming, her elbow had flared up again, she was being overused as a photocopier and should be rotated.

At trial, Goodman claimed that Boeing work had aggravated her preexisting arthritic condition to a disabling point and that she should have been provided another job by Boeing that did not involve extensive use of her hands. Goodman claimed that she requested transfers she did not get. Boeing said she was not turned down because of her handicap but for reasons such as lack of qualification. Boeing said it offered Goodman receptionist jobs on three occasions and that she declined them. Goodman denies receiving these offers. In March 1992, a vocational rehabilitation counselor took information from Dr. Blue to Boeing about Goodman's physical capacities. Blue concluded Goodman was medically able to do four jobs offered by Boeing. In consultation with Blue, Boeing made the final necessary accommodations to a receptionist position and offered it to Goodman the day before trial. Goodman declined it saying the job was at a location far from her home, in the same department she worked in before, her hands would be very visible, and she was being set up to be fired. Blue and Fatta (a Boeing doctor) said they could not guarantee that Goodman would be able to perform the job even with the accommodations. Diane Newman, an occupational therapist, testified that Goodman could not do the job without hurting herself because it still involved repetitive hand movement. Kent Shaffer, a vocational rehabilitation counselor, testified that

Goodman's opportunities in the labor market were nil. Blue testified that any normal [877 P.2d 708] job could create a risk for Goodman. Goodman suffered severe depression and experienced panic attacks; she was treated psychiatrically and with antidepressants.

PROCEDURAL FACTS

Goodman sued Boeing and Anderson in December 1990, asserting: (a) handicap discrimination under RCW 49.60, (b) negligent infliction of emotional distress, (c) intentional infliction of emotional distress, and (d) deliberate injury under RCW 51.24.020. The court granted Boeing's pretrial motion to strike a request for punitive damages under RCW 49.60.030(2). The case was tried to a jury.

After Goodman rested, the court dismissed her deliberate injury claim. It also dismissed that aspect of her RCW 49.60 claim based on Boeing's failure to transfer her because of the perceived effects of her hand injury. The jury returned a special verdict (a) against Boeing on the RCW 49.60 reasonable accommodation claim, (b) against Boeing and Anderson on the negligent infliction claim, and (c) against Goodman on the intentional infliction claim. The jury awarded Goodman (a) $97,159.80 for lost past earnings and earnings capacity, (b) $288,356.46 for lost future earnings and earnings capacity, (c) $200,000 for pain, suffering, emotional distress and loss of enjoyment, (d) $25,000 for disfigurement, and (e) $553,091 for future medical expenses, household help and other nonmedical expenses.

After verdict, the court offset $37,548.66--the amount of IIA time-loss benefits Goodman received up to trial--against the award for lost past earnings and earnings capacity. The court subrogated Boeing to Goodman's future workers' compensation benefits. The court awarded Goodman $266,801.34 in attorneys' fees and costs.

Boeing timely filed its notice of appeal, stating that due to serious, prejudicial errors in evidentiary rulings and jury instructions, a new trial should be ordered on Goodman's handicap discrimination and negligent infliction of emotional distress claims. Goodman cross-appealed, asking the court to affirm the judgment, except for the $37,548.66 offset and subrogation of Boeing to Goodman's future workers' compensation benefits. Goodman also requests reasonable attorneys' fees. She adds that if this court reverses any part of the judgment on appeal, it should also reverse dismissal of her claims for punitive damages, deliberate injury, and disparate treatment.

I

The central issue in this case is whether the exclusive remedy provisions of the IIA bar Goodman's RCW 49.60 claim for damages for workplace injuries. Boeing claims the court's instructions improperly allowed the jury to award Goodman damages resulting from her industrial injury, arguing that the IIA bars such damages, and that Boeing was prejudiced by the court's refusal to apply the bar to Goodman's RCW 49.60 claim. ¹

When reviewing a challenge to jury instructions, our inquiry is whether the trial court abused its discretion by giving or refusing to give certain instructions. See Connor v. Skagit Corp., 30 Wash.App. 725, 731, 638 P.2d 115 (1981), aff'd, 99 Wash.2d 709, 664 P.2d 1208 (1983). Jury instructions are not erroneous if they (1) permit each party to argue the theory of the case, (2)...