ALASKA AIRLINES, Appellant, v. HILLARY SPANJER, Respondent.
No. 86738-5-I
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
August 4, 2025
UNPUBLISHED
COBURN, J. — Alaska Airlines appeals from a jury verdict in favor of Hillary Spanjer, who sought coverage from the Department of Labor and Industries (Department) for a surgery that she received following a workplace injury. The jury affirmed a Board of Industrial Insurance Appeals (Board) order directing self-insured employer Alaska Airlines to pay for the surgery. Alaska Airlines contends that the trial court erred in rejecting its proposed jury instruction. See
FACTS
Spanjer was a flight attendant for Alaska Airlines. In 2018 Spanjer was injured during a plane‘s hard landing while on duty. She subsequently filed for workers’ compensation benefits with the Department, under the Industrial Insurance Act (IIA),
Spanjer filed a request for the Department to cover the SI joint fusion surgery, which the Department denied in June 2021. Spanjer proceeded to get the surgery. The Department declined Spanjer‘s subsequent request to reconsider, affirming its coverage denial. Spanjer appealed to the Board.
- On January 5, 2022, an industrial appeals judge certified that the parties agreed to include the Jurisdictional History in the Board record solely for jurisdictional purposes.
- Hillary Spanjer sustained an industrial injury on July 5, 2018 while working as a flight attendant for Alaska Airlines, when the plane she was in landed hard on the runway. Ms. Spanjer was jostled around, and felt immediate shooting pain in her back and neck.
- Ms. Spanjer‘s condition diagnosed as a right [SI] joint strain/sprain/dysfunction was proximately caused by the industrial injury.
- On May 7, 2021, Ms. Spanjer underwent a[n] [SI] joint fusion surgery.
- The May 7, 2021 [SI] joint fusion surgery was proper and necessary medical treatment for Ms. Spanjer‘s condition proximately caused by the industrial injury.
In November Alaska Airlines petitioned for review. The Board denied the petition, adopting the IAJ‘s proposed decision and order.
In January 2023 Alaska Airlines appealed the Board‘s decision to the King County Superior Court. The case proceeded to a jury trial, where the same testimony admitted at the IAJ‘s hearing, as part of the certified appeal Board record, was read to the jury. We recite below the testimony that is relevant to the issue raised in this appeal.
Dr. Curcin, an orthopedic surgeon who specializes in spinal surgeries, testified that he has never performed an SI joint fusion surgery because on a national and international level they are generally “not a widely accepted procedure in the mainstream orthopedic spinal surgery community.”
Dr. Bays testified that he was approved by the Department to provide treatment to individuals with workers’ compensation claims. As an approved provider, Dr. Bays must follow the Department‘s rules and guidelines regarding treatment coverage. Dr. Bays did not know whether Spanjer‘s surgery would be authorized. He met with the claims manager and followed up with a written report “that went through my rationale as to why I thought this was the procedure that should be performed.” Alaska Airlines’ counsel asked Dr. Bays:
Q. So when you‘re talking about getting essentially special circumstances that may allow an otherwise denied procedure to be covered, that‘s where you‘re asking the Department to cover controversial, obsolete, investigational or experimental treatment under
WAC 296-20-[0]2850 , correct?A. I don‘t know about the legal interpretation of the case or the statutes that have been raised. I‘m not an attorney. All I can say is that it‘s not uncommon for self-insured employers or the Department to entertain case-by-case basis whether or not a procedure that has not been previously allowed, or that isn‘t allowed on a case-by-case basis, cannot be entertained by an individual who can get permission to proceed with that. ... Just because it‘s investigational and experimental doesn‘t mean that it can‘t be done. ... I know that it can be done. And ... it was with this intent that I was trying to get this [SI joint fusion surgery] approved.
Dr. Boone testified that when he first saw Spanjer, he told her the Department would not approve SI joint fusion surgery. He continued:
[The Department] does not cover the procedure. Although, since January, it‘s kind of changed a little bit, so now I actually have a couple of patients that I got approval for SI joint fusions on.
Typically ... the vast majority of my patients get denied for this based on [Department]
claims, which is not an uncommon thing for me to see in my practice. It also occurs with hip arthroscopy or hip scopes. [The Department] refuses to pay for something called femoral neck osteochondroplasty. So we have to tell the patients the same thing as well, too. Doesn‘t mean it‘s not medically necessary or indicated. It just means [the Department] has decided they don‘t want to pay for it.
At the close of testimony, the trial court considered the parties’ proposed jury instructions. Alaska Airlines submitted Proposed Instruction 15, which stated:
The department or self-insurer will not allow nor pay for treatment measures of an unusual, controversial, obsolete, or experimental nature. Services that are controversial, obsolete, investigational or experimental are presumed not to be proper and necessary. An injured worker however has a right to an individual determination as to whether that particular medical treatment is proper and necessary treatment and can prove by a preponderance of evidence that the presumption of [non-]coverage1 does not apply and that the proposed treatment was reasonable and necessary.
The court said it was “stumbling over” the last part of the instruction “where it says, ‘and can prove by a preponderance of the evidence that the presumption of non-coverage does not apply.‘” Alaska Airlines acknowledged that the instruction may be confusing as to the assignment of burden of proof because the employer has the “initial” burden at trial to prove a prima facie case that the Board‘s decision was wrong.
After hearing initial argument from the parties, the trial court denied the instruction on the basis that it was confusing as to the jury‘s role in applying the burden of proof. The court stated:
I think it will confuse the jury, and so I‘m not giving it on the basis of I think it confuses the jury as to what their role is in applying the burden of proof. So we‘re going to move on.
[Alaska Airlines’ counsel]: Just one second just for --
THE COURT: Yes.
[Alaska Airlines’ counsel]: -- clarification for the record, Your Honor. This Court does not have any intention on providing any instruction that the Department or self-insurer will not pay for treatment measures of an unusual, controversial, obsolete, or experimental nature?
THE COURT: That‘s not the instruction before me.
[Alaska Airlines’ counsel]: I understand.
THE COURT: And so if you have an instruction to propose ... you can propose it, and I‘ll consider argument on it. But to say I have rejected an instruction that hasn‘t been proposed ... I don‘t think is fair.
During further argument, Spanjer asserted that neither the Department nor the Board made a finding on the record that the SI joint fusion surgery is controversial or experimental.2 Therefore, Spanjer argued below, the proposed instruction “suggests ... something that was not concluded” and is a comment on the evidence. The trial court agreed, stating that if the court provided an instruction to the jury that “us[ed] the words, unusual, controversial, obsolete, or experimental in nature, based on the record that‘s before me, I do think it‘s a comment on the evidence. I am commenting as the Court giving these instructions on the evidence, so I‘m not going to do that.” The court reiterated:
Okay. I‘m ready to rule. So I am, as previously stated, am rejecting Alaska Airlines’ proposed instruction, as I believe it is an improper comment on the evidence based on the record before the Court.
The court‘s final instructions to the jury included Instruction 12, which stated in relevant part:
A worker who sustains an industrial injury is entitled to receive proper and necessary health care services for the diagnosis and treatment of any condition proximately caused by the injury. Proper and necessary services may be either curative or rehabilitative.
Curative treatment is treatment intended to produce permanent changes which eliminate or lessen the clinical effects of the condition. Rehabilitative treatment is treatment intended to allow an injured or ill worker to regain functional activity on a long-term basis.
The jury affirmed the Board, finding that Spanjer‘s SI joint fusion surgery was proper and necessary treatment for her condition that was proximately caused by her workplace injury. Accordingly, the trial court remanded Spanjer‘s claim to the Department with instructions to order self-insured employer Alaska Airlines to pay for the surgery.
Alaska Airlines appeals.
DISCUSSION
Waiver
As a threshold matter, Spanjer contends that Alaska Airlines waived its ability to argue that the SI joint fusion surgery was controversial or experimental because it did not argue this issue in its petition for review to the Board as required under
Under the IIA, injured workers are entitled to “receive proper and necessary medical and surgical services.”
Subsection (4) of
medical treatment is not expressly specified in the rules as one that is
Under
Here, Alaska Airlines’ petition to the Board meets the standard under
In addition to plainly identifying its contention that the surgery was not proper and necessary, Alaska Airlines cited
We observe that Spanjer makes this waiver argument for the first time on appeal. See
Standard of Review
In the context of an appeal of a workers’ compensation claim, the superior court only hears evidence or testimony that was included in the Board record. Gomez v. Dep‘t of Lab. & Indus., 13 Wn. App. 2d 644, 650, 467 P.3d 1003 (2020). The superior court reviews the Board‘s decision de novo. Murray, 192 Wn.2d at 499.
“The ordinary civil standards of review govern appeals from superior court decisions in industrial insurance cases.” Gomez, 13 Wn. App. 2d at 650 (citing
Jury Instruction
Alaska Airlines contends that the trial court abused its discretion by refusing to give its proposed instruction stating that controversial or experimental treatment is presumed not to be proper and necessary treatment under the IIA and that an injured worker has a right to an individual determination as to whether such treatment is proper and necessary by proving by a preponderance of evidence that the presumption of non-coverage does not apply. Alaska Airlines argues that the trial court incorrectly concluded that the instruction both amounted to an improper comment on the evidence and could potentially confuse the jury as to which party has the burden of proof. Alaska Airlines also argues that by refusing the instruction, the trial court prevented Alaska Airlines from arguing its theory of the case to the jury. We address each of these arguments in turn.9
Alaska Airlines first asserts that the trial court erred when it denied its proposed instruction on the basis that it was an improper comment on the evidence.
“Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.”
In the instant case, we agree with Alaska Airlines to the extent that the language of the rejected instruction does not constitute an improper comment on the evidence. The language of the proposed instruction is worth repeating here:
The department or self-insurer will not allow nor pay for treatment measures of an unusual, controversial, obsolete, or experimental nature. Services that are controversial, obsolete, investigational or experimental are presumed not to be proper and necessary. An injured worker however
has a right to an individual determination as to whether that particular medical treatment is proper and necessary treatment and can prove by a preponderance of evidence that the presumption of [non-]coverage does not apply and that the proposed treatment was reasonable and necessary.
However, the improper comment rule does not pertain to the interplay between the instruction and the evidence before the jury. Rather, the rule is concerned with whether the actual language of the instruction presents a subjective interpretation of, or conclusion on, the evidence. As opposed to instructions that merely state the law, “jury instructions that essentially resolve factual issues are improper comments on the evidence.” State v. Yishmael, 195 Wn.2d 155, 175, 456 P.3d 1172 (2020).
Here, the language of the instruction neither stated that the SI joint fusion surgery was controversial or experimental nor did it imply that the court believed the surgery to be controversial or experimental. Rather, the proposed instruction, as written, allowed the jury to decide if the surgery was controversial or experimental and if so, whether it was nonetheless proper and necessary. Thus, to the extent the trial court ruled that the instruction was a comment on the evidence we disagree.
Nonetheless, the trial court expressed another basis to reject the proposed instruction. “In reviewing for abuse of discretion, ‘we may affirm the trial court on any basis that the record supports.‘” Roemmich v. 3M Co., 21 Wn. App. 2d 939, 957, 509 P.3d 306 (2022) (quoting State v. Arndt, 194 Wn.2d 784, 799, 453 P.3d 696 (2019)). The trial court also stated, “I‘m not giving it on the basis of I think it confuses the jury as to what their role is in applying the burden of proof.” We agree.
In their considerable discretion in selecting jury instructions, courts may reject proposed jury instructions that are potentially misleading or confusing. State v. Vanderburgh, 18 Wn. App. 2d 15, 23-24, 489 P.3d 272 (2021).
As we state above, at the superior court level, the Board‘s findings are presumed correct. Gorre, 184 Wn.2d at 36 (citing
In the present case, it was Alaska Airlines’ sole burden to establish for the jury that Spanjer‘s SI joint fusion surgery was not a proper and necessary treatment for her condition. But the proposed instruction not only set forth the presumption that controversial or experimental treatment is not proper and necessary, it instructed the jury that it was the worker who carried the burden to establish by a preponderance of the evidence that the presumption did not apply. The language of the instruction thus implied that Spanjer must “prove” to the jury that the “presumption of [non-]coverage did not apply and that the proposed treatment was reasonable and necessary.”10 But
Spanjer already convinced the Board that the SI joint fusion surgery was proper and necessary care for her injury. She thus had no burden at all before the superior court. For the proposed instruction to suggest otherwise is both incorrect and confusing. See Crossen v. Skagit County, 100 Wn.2d 355, 360, 669 P.2d 1244 (1983) (stating that a trial court need not “give a requested instruction that is erroneous in any respect“) (quoting Vogel v. Alaska S.S. Co., 69 Wn.2d 497, 503, 419 P.2d 141 (1966)).
Alaska Airlines agreed below that the instruction was “confusing” in consideration of the challenging party‘s burden of proof under
Finally, Alaska Airlines contends that the trial court‘s rejection of the proposed instruction prevented Alaska Airlines from arguing its theory of the case to the jury. “Jury instructions are proper when, read as a whole, they permit parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of the applicable law.” Spivey v. City of Bellevue, 187 Wn.2d 716, 738, 389 P.3d 504 (2017). Further, “[w]e presume that juries follow lawful instructions.” Id. Alaska Airlines does not assign error to any of the instructions that the trial court gave. Rather, Alaska Airlines argues that the lack of its rejected instruction rendered its expert testimony meaningless. We disagree.
Here, the jury was given Instruction 12, which stated that a worker is entitled to proper and necessary care for a condition proximately caused by an industrial injury. The instruction further stated that proper and necessary services may be curative or rehabilitative, and defined these terms.
The record plainly shows that in accordance with this given instruction, Alaska Airlines argued its theory of the case to the jury—that the SI joint fusion surgery was not proper and necessary care under the Medicaid Aid Rules.
At opening, Alaska Airlines’ counsel told the jury it would hear from witnesses about “whether a [SI] joint fusion [surgery] was reasonable and necessary,” “about how the procedure doesn‘t meet guidelines, national standards,” and that “[i]t‘s controversial.”
Alaska Airlines presented to the jury testimony it elicited from doctors Curcin, Bays, and Boone regarding its theory that the surgery was not proper and necessary, including that it was controversial or experimental.
Dr. Curcin testified he had never performed an SI joint fusion surgery because the procedure is not accepted in the “mainstream orthopedic spinal surgery community” and has “not been demonstrated to perform reliable, consistent results.” Dr. Curcin opined that this is true not only nationally, but internationally.
Dr. Bays testified on cross that he was not sure if the Department would cover the SI joint fusion surgery, but that he knew there were ways to get “special permission” to get a procedure covered that is normally not covered. Alaska Airlines’ counsel asked Dr. Bays if he was referring to the procedure to obtain approval for controversial and experimental treatments under
Dr. Boone testified on cross that the “vast majority” of his patients get denied for SI joint fusion surgeries and that he told Spanjer the Department would not cover the procedure. He continued that this, “[d]oesn‘t mean it‘s not medically necessary or indicated. It just means [the Department] has decided they don‘t want to pay for it.”
Alaska Airlines referenced this testimony at closing. Referring to Instruction 12, Alaska Airlines’ counsel said to the jury, “You also were provided an instruction regarding treatment; treatment that is curative or rehabilitative. That‘s what‘s covered. Do
The record thus does not support Alaska Airlines’ assertion that it was prevented from presenting its theory of the case.
Attorney Fees
Spanjer requests attorney fees under
We affirm.
Coburn, J.
WE CONCUR:
Díaz, J.
Birk, J.