381 P.3d 205
Wash. Ct. App.2016Background
- Felipe suffered a closed‑head injury after a 2011 work‑related fall; he developed chronic headaches, dizziness, memory problems, fatigue, and depression and received initial benefits from the Department of Labor and Industries.
- Department closed the claim in May 2012; Felipe’s treating physician later reported worsening headaches and sought to reopen the claim in November 2012, requesting neurologic evaluation, MRI, and referral to a traumatic brain injury specialist.
- An MRI in November 2012 reported possible remote small hemorrhage; the Department neurologist (Stump) concluded the original concussive syndrome had resolved and did not find objective worsening.
- The Department denied reopening; the Board affirmed. At superior court, the trial judge read the Board testimony to the jury and instructed that aggravation must be supported by medical testimony based at least in part on objective findings.
- The jury returned a defense verdict; Felipe appealed, arguing the jury instruction improperly required objective findings for his postconcussive (subjective) symptoms and prevented him from presenting his theory of the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reopening/aggravation claim requires medical opinion based in part on objective findings | Felipe: objective finding requirement excused for conditions with exclusively subjective symptoms (postconcussive syndrome); expert may rely on subjective findings | Department: Price limited to psychological conditions; Felipe’s claim involves a physical injury so objective findings required | Reversed: where symptoms are exclusively subjective (e.g., postconcussive headaches), objective‑finding requirement is improper and prejudicial |
| Whether Price v. DLI controls here | Felipe: Price’s rationale extends to postconcussive syndrome because symptoms cannot be objectively measured | Department: Price applies only to mental/emotional disabilities, not physical head injury | Court: Price applies where symptoms are inherently subjective; the physical origin does not resurrect an objective‑finding requirement |
| Prejudice from the jury instruction | Felipe: instruction prevented jury from considering subjective‑based medical opinions and skewed argument | Department: instruction proper to guard against feigned claims and unsupported subjective complaints | Court: instruction was prejudicial because it forced futile reliance on marginal MRI artifact and let Department argue absence of objective findings as dispositive |
| Entitlement to appellate attorney fees under RCW 51.52.130(1) upon remand | Felipe: requests fees if remand results in additional relief | Department: fees unavailable because remand does not yet affect accident/medical funds; prevailing party not determined | Court: fee award premature on remand; may be considered later if plaintiff ultimately prevails |
Key Cases Cited
- Price v. Dep’t of Labor & Indus., 101 Wn.2d 520 (Wash. 1984) (eliminated objective‑finding requirement for psychiatric/postconcussive or otherwise exclusively subjective disability claims)
- Peterson v. Dep’t of Labor & Indus., 178 Wash. 15 (Wash. 1934) (recognition that claims with subjective symptoms may be compensable despite lack of organic explanation)
- Husa v. Dep’t of Labor & Indus., 20 Wn.2d 114 (Wash. 1944) (upheld award despite absence of physical findings explaining symptoms)
- Anderson v. Dep’t of Labor & Indus., 23 Wn.2d 76 (Wash. 1945) (rejected rigid objective‑symptom rule for neurasthenic/subjective conditions)
- Gakovich v. Dep’t of Labor & Indus., 29 Wn.2d 1 (Wash. 1947) (overruled insofar as inconsistent with Price’s progeny)