Judd v. Department of Labor and Industries

• Decision Date: 03 December 1991
• Docket Number: No. 10810-4-III,10810-4-III
• Citation: 820 P.2d 62,63 Wn.App. 471
• Parties: Ernest P. JUDD, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES, and Department of Social and Health Services, Respondents,
• Court: Washington Court of Appeals

Page 471

63 Wn.App. 471

820 P.2d 62

Ernest P. JUDD, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES, and Department of Social and Health Services, Respondents,

No. 10810-4-III.

Court of Appeals of Washington Division 3, Panel Three.

Dec. 3, 1991.

Jeffry K. Finer, Stiley & Kodis, Spokane, for appellant.

Kenneth O. Eikenberry, Atty. Gen. and Dennis J. Beemer, Daniel J. Judge, Asst. Atty. Gen., Spokane, A. Craig McDonald, Asst. Atty. Gen., Yakima, for respondents.

SHIELDS, Acting Chief Judge.

Ernest P. Judd sought Superior Court review of a decision of the Board of Industrial Insurance Appeals affirming an order of the Department of Labor and Industries (DLI) denying his claim for industrial insurance benefits. The jury affirmed the Board's order. Mr. Judd appeals, contending the trial court erroneously instructed the jury when it substituted the word "doctor" for the word "physician" in the first sentence of instruction 6, ¹ the "attending physician" instruction. We affirm.

In 1976 Mr. Judd began working in the accounting department at Lakeland Village, a residential facility for individuals with mental disabilities. Lakeland selected his name from a list of mentally handicapped workers. His initial supervisor was aware Mr. Judd suffered from profound psychiatric conditions which had persisted since at least age 18. A successor supervisor implemented changes in the accounting department beginning in 1981. Mr. Judd's work performance declined beginning in 1982. He received psychiatric services or was hospitalized for psychiatric problems during 18 of the 26 years between 1962 and 1988.

In May 1985 Mr. Judd admitted himself to Sacred Heart Medical Center's psychiatric unit where he was treated by Duane Green, Ph.D., a licensed clinical psychologist on the staff. He was discharged in June and again hospitalized in July 1985 for psychiatric problems. Dr. Green continued to treat Mr. Judd during these hospitalizations and following hisdischarge. Mr. Judd left his employment at Lakeland in July 1985. On August 30, 1985 he applied for industrial insurance benefits, claiming an occupational disease within the meaning of RCW 51.08.140. He alleged his preexisting psychiatric disorder was aggravated by work-related mental stress. ² In November 1985, William Allan, M.D., a psychiatrist, began treating Mr. Judd. In mid-1986 Robert Baxley, M.D., a psychiatrist, examined Mr. Judd on one occasion at the request of DLI.

The sole issue before us is whether the instruction to give special consideration to Mr. Judd's attending doctor rather than to Mr. Judd's attending physician was error.

Dr. Green testified Mr. Judd had a passive-aggressive personality disorder; was hospitalized in May 1985 due to increased family conflicts involving his daughter; and, his depression in May, June and July 1985 was attributable to his lifelong underlying personality disorder, rather than to his work. Dr. Allan testified "stress incidents" on the job caused Mr. Judd to be anxious, which in turn contributed to his depression, obsession and paranoid feelings toward his supervisor. Dr. Baxley testified Mr. Judd's work environment did not exacerbate his psychiatric condition; rather he was merely responding to work-related stress in a way consistent with his preexisting personality.

The testimony of the treating or attending physician in worker's compensation cases was first given special consideration in Spalding v. Department of Labor & Indus., 29 Wash.2d 115, 186 P.2d 76 (1947). Spalding, at 128-29, 186 P.2d 76, stated:

While we do not desire to be understood as laying down any hard and fast rule, it is our opinion that an attending physician, assuming of course that he shows himself to be qualified, who has attended a patient for a considerable period of time for the purpose of treatment, and who has treated the patient is better qualified to give an opinion as to the patient's disability than a doctor who has seen and examined the patient once.

Two principles underpin the validity of this "attending physician" instruction: (1) reliability of the witness' basis of knowledge and (2) the special competence of the witness to testify regarding medical matters.

Mr. Judd concedes an attending psychologist has the depth of experience with a particular patient to have a reliable basis of knowledge, but contends such a witness does not have special competence regarding medical matters; an attending psychologist, who may have a doctoral degree, is not a physician. His argument ignores Dr. Green's role as a mental health care provider both when treating Mr. Judd's psychiatric problems and when testifying before the Board.

Whether an expert witness is a licensed physician is an important factor to be taken into consideration, but is not dispositive here for the same reasons it is not dispositive in deciding whether an expert witness who is not a physician may testify in medical negligence cases. Harris v. Groth, 99 Wash.2d 438, 439, 663 P.2d 113 (1983) discussed the use of expert testimony in medical negligence cases as it relates to both the standard of care and causation, and held, "nonphysicians, if otherwise qualified, may give expert testimony in a medical malpractice case." It is a matter within the trial court's discretion. Per se limitations on the testimony of otherwise qualified nonphysicians are not in accord with the general trend in the law of evidence, which is away from reliance on formal titles or degrees. Harris, at 449, 663 P.2d 113. This trend is noted in 5A K. Tegland, Wash.Prac., Evidence § 289, at 382-83 (3d ed. 1989):

The witness need not possess the academic credentials of an expert; practical experience may suffice. Training in a related field or academic background alone may also be sufficient. [ER] 702 states very broadly that the witness may qualify as an expert by virtue of knowledge, skill,...