Lewis v. Simpson Timber Co.
| Decision Date | 06 May 2008 |
| Docket Number | No. 36268-6-II.,36268-6-II. |
| Citation | 189 P.3d 178,145 Wash.App. 302 |
| Court | Washington Court of Appeals |
| Parties | Cindy J. LEWIS, Respondent, v. SIMPSON TIMBER COMPANY, Appellant. |
Schuyler Tryon Wallace Jr., William Alexander Masters, Wallace Klor & Mann PC, Lake Oswego, OR, for Appellant.
Douglas Peter Wyckoff, Williams Wyckoff & Ostrander PLLC, Olympia, WA, for Respondent.
Debra M.H. Tollefson, Attorney General's Office, Olympia, for Other Parties.
¶ 1 Simpson Timber Company appeals the trial court's decision awarding Cindy Lewis workers' compensation benefits under the Industrial Insurance Act (IIA), Title 51 RCW, because of the injury she sustained from her exposure to a toxic agent at a Simpson work site. It argues that the trial court erred when it: (1) required Simpson to present its evidence to the jury first, even though Lewis had the burden of proof; (2) erroneously instructed the jury; (3) failed to grant Simpson's motions for judgment as a matter of law; and (4) made numerous erroneous evidentiary rulings. Holding that the trial committed no reversible error, we affirm.
¶ 2 Simpson manufactures lumber in a production line. Rough lumber is brought to the line and initially fed into a planer. Thereafter, the lumber is sprayed with fungicide to prevent mold growth. Then it is sent through graders and trimmers, before it is finally wrapped in paper, tagged, and shipped as the final lumber product.
¶ 3 A vendor delivers the concentrated fungicide to Simpson and dilutes it with water to differing concentrations, depending on the type of wood being processed. The diluted fungicide is stored in the basement and piped up to the first floor, which houses the production line machinery. The fungicide is automatically sprayed onto the lumber by a spray box about four feet long, two feet wide, and five feet high.1 The spray box has four nozzles that spray the lumber from both the top and the bottom as it passes out of the planer. In August 2002, Simpson changed the fungicide it was using to Mycostat-P and, around August 2003, it began using a similar fungicide called Mycostat-P20.
¶ 4 Lewis worked in an area of Simpson's plant known as the "north planer" or "east line" as a "clean up" worker. Administrative Record Trans. (AR Tr.) (Nov. 14, 2005) at 14-15.2 She removed excess wood scraps and wood shavings from the main floor work area spanning between the planer and the trimmer and from the basement under this work area, but she was not responsible for any janitorial duties. Open slats on the main floor directed wood shavings and excess wood to the basement. Untreated wood fell to the basement before it went through the planer and treated wood fell from under the lumber grader. Lewis wore a hard hat, safety glasses, hearing protection, rubber gloves, work boots with ankle support, and coveralls.
¶ 5 Excess fungicide spray fell down from the main floor into the basement and dripped on Lewis. At times, her coveralls were soaking wet from the excess fungicide spilling into the basement. Simpson placed five gallon buckets under areas of the main floor with steady drips to catch the excess solution. Lewis was responsible for emptying the five gallon buckets back into the main chemical storage tanks in the basement.3 On at least two occasions, the tanks overflowed and the diluted fungicide solution covered the basement floor to a depth of two to four inches. When the overflows occurred, Lewis put sawdust on the floor to absorb the solution and later disposed of the saturated sawdust.
¶ 6 Lewis worked for Simpson for over 30 years. But, in August 2002, she began to experience unexplained symptoms. She had a rash on her arms and chest, bleeding ears, difficulty communicating with others, weight gain, bloody noses, pain when touching others, an asthma-like cough, and difficulty walking. She also experienced digestive problems, ringing in her ears, headaches, tingling under the skin, hallucinations, heart palpitations, and memory loss. In the middle to the end of 2003, she gained about 70 pounds, which she and others described as puffiness and water retention. She also had a marked decrease in energy. Before 2002, she worked two jobs, totaling approximately 75 to 80 hours per week. By the time of the administrative hearing, she was only able to work between 15 and 25 hours per week.
¶ 7 Lewis's coworkers noticed her weight gain, blotchy-looking skin, decreased energy level, lack of concentration, and occasional inability to formulate sentences quickly. Her husband corroborated her symptoms. Her coworkers experienced some skin and respiratory irritation during 2002 and 2003, but the symptoms usually subsided quickly, anywhere from immediately after removing themselves from the chemical area to over the weekend away from the worksite.
¶ 8 Lewis reported her symptoms to her supervisor, and they filled out an accident report in April 2003. Her supervisor reassigned her to the chipper area, where the excess lumber and wood boxes are broken down into wood chips. At this assignment, she was exposed to treated wood, but not dripping solution. Lewis still experienced problems here so her supervisor assigned her as a clean up worker in the dry kiln department. In this position, she was not exposed to the fungicide solution or treated wood.
¶ 9 Still experiencing symptoms, Lewis quit working at Simpson Timber in August 2003. Since that time, her conditions have improved.4 She has not gained more weight and has no bleeding in the ears, bloody noses, or rashes. Her skin no longer hurts when she is touched and her respiratory symptoms have improved. But she still feels as if she has asthma because, when she becomes ill, her symptoms persist for a much longer duration than they did previously. She still experiences problems with her memory, although she is able to communicate better. She testified that exposure to some smells causes her symptoms to worsen. Those smells are asphalt, gasoline or oil smells, vehicle exhaust fumes, and vehicle air fresheners. When she is exposed to gas fumes, her heart beats very quickly, and she becomes light-headed, dizzy, and tired.
¶ 10 Lewis has seen numerous physicians and a naturopath in an attempt to diagnosis her symptoms. Dr. David Buscher, one of her treating physicians, diagnosed her with solvent intoxication or toxic chemical exposure and Dr. Philip Ranheim, a physician Lewis saw for a second opinion, diagnosed her with toxic chemical exposure that developed into chemical sensitivity.5 According to the depositions of four physicians who examined her, her physical exams and laboratory tests — with the exception of Buscher's laboratory tests — were often normal.6 Three physicians opined that, more probably than not, her work at Simpson did not cause her symptoms, but two physicians opined that, more probably than not, her work at Simpson did cause her symptoms. Currently, Buscher prescribes oxygen therapy and organic sleeping pills for Lewis. At Buscher's direction, Lewis also puts four vials of unknown substance under her tongue in the morning and makes a drink from an unidentified powder to detoxify her body.
¶ 11 Lewis successfully submitted a workers' compensation claim to the Department of Labor and Industries (L & I). L & I found that she "sustained an injury or occupation[al] disease while in the course of employment with [Simpson]." Administrative Record (AR) at 99. It required Simpson to "pay all medical and time loss benefits as may be indicated in accordance with the industrial insurance laws." AR at 99. Simpson unsuccessfully requested that L & I reconsider the claim and time loss benefits. It then appealed L & I's decision to the Board of Industrial Insurance Appeals (BIIA).7
¶ 12 Simpson requested that the BIIA require Lewis to submit to a CR 35 physical examination.8 Its motion requested that Lewis "undergo a mental examination," but also stated that "[t]he scope of the examination will consist of [Lewis's] physical disabilities, if any." AR at 133. The parties then agreed that Lewis would submit to a CR 35 examination by Dr. Anthony Montanaro, but that the examination would "be physical only, and that there [would] be no mental examination." AR at 149. Simpson also provided Lewis with all of the questions that it posed to the examiner before Lewis attended the examination.
¶ 13 Montanaro opined that Lewis was possibly suffering from depression. After the discovery deadline, Lewis proffered a psychological medical expert to rebut Montanaro's opinion, to which Simpson objected. The Industrial Appeals Judge (IAJ) ruled:
[A]ll testimony by any witness concerning an expression of psychiatric opinion about this claimant should be barred, because that was the agreement of the parties at the outset of this period of hearing preparation. That was the clause put in the order allowing the CR 35 exam in the first place. So even if not deliberate, if there were an expression of psychiatric opinion, that would be inconsistent with the posture of this case that all parties agreed to back then. Therefore ... [Simpson Timber's] motion will be granted and [Lewis's expert] shall not testify, nor shall any witness testify concerning an expression of psychiatric opinion about this claimant.
¶ 14 During their depositions, however, Montanaro and Martin mentioned psychiatric conditions. In Lewis's closing motions and summation, she asked the IAJ to exclude portions of Martin's and Montanaro's testimony because they testified about Lewis's psychological conditions. In response, Simpson argued that the IAJ's ruling did not apply to Martin's testimony because it made the ruling after Martin had testified and Lewis had not objected to Martin's testimony. The IAJ excluded the portions of Martin's and Montanaro's...
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