* Reymundo Felipe, Appellant V. Department Of Labor And Industries Of The State Of Wa, Respondent

NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
REYMUNDO FELIPE,
Appellant,
v.
DEPARTMENT OF LABOR AND
INDUSTRIES OF THE STATE OF
WASHINGTON,
NO. 75232-4-
DIVISION ONE
PUBLISHED OPINION
'S><
Appellant. CO 	(
FILED: 	September 12, 2016 	^
r\3
Leach, J. — Reymundo Felipe appeals an adverse trial court judgmfgt
3
that denied his request to reopen a worker's compensation claim for additional
medical treatment. 	Felipe challenges a trial court jury instruction requiring him to
support 	his 	aggravation 	claim 	with 	evidence 	of 	objective 	medical 	findings.
Because the 	nature of Felipe's injury excuses any requirement for 	objective
findings and the court's instruction prevented Felipe from arguing his theory of
the case, we reverse and remand for proceedings consistent with this opinion.
As neither party has yet prevailed, we deny Felipe's request for an award of
attorney fees under RCW 51.52.130(1) as premature.
FACTS
Felipe suffered a closed head injury when he fell off a ladder in April 2011
while working. 	He does not know what caused the fall. 	He first remembers
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 75232-4-1 / 2
waking up in a hospital with head pain. 	His doctors read two CAT (computed
axial tomography) scans, performed on April 19 and April 25, as normal. 	He
developed 	headaches 	that 	his 	neurologist 	thought 	were 	consistent 	with
postconcussive syndrome. 	He experienced depression in May 2011. 	Felipe
applied to the Department of Labor and Industries (Department) for industrial
insurance benefits. 	The Department allowed the claim and provided benefits to
Felipe.
Felipe 	treated 	with 	several 	providers. 	He 	began 	seeing 	Dr. 	Jon
Sukachevin 	in November 2011. 	Felipe's headaches had 	improved 	but then
became worse two months before this visit. 	Sukachevin diagnosed Felipe with
several 	conditions, 	including 	major 	depression, 	headache, 	and 	concussion.
Felipe's headaches improved at the end of 2011 with the help of medication.
The 	Department 	closed 	his 	claim 	on 	May 	9, 	2012. 	As 	of 	that 	date, 	he
experienced some headaches that resolved with pain medication.
Sukachevin continued to see Felipe for his ongoing conditions, including
other industrial injuries. 	Sukachevin referred Felipe to a 	psychologist for his
depression, who, in turn, 	referred Felipe to a brain injury specialist because he
thought 	Felipe 	suffered 	from 	a 	traumatic 	brain 	injury. 	Industrial 	insurance
covered only one visit to the psychologist. 	The Department denied the referral to
a brain injury specialist.
-2-
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 75232-4-1 / 3
On 	October 	24, 	2012, 	Sukachevin 	saw 	Felipe 	for 	newly 	developed
headaches. 	At the visit, Felipe reported that these headaches began a month
earlier and described them as similar to the headaches he experienced after his
April 2011 fall. 	He had at least four headaches per day with a pain level of nine
out of ten, up from four out of ten. 	Felipe also experienced associated vertigo
and light-headedness. 	Sukachevin diagnosed Felipe with "[tjraumatic brain injury
[secondary to 	his April 	2011 	injury], 	new 	problem, 	uncontrolled; 	and 	major
depression, uncontrolled." 	Sukachevin later described Felipe's diagnosis more
specifically as a "closed head injury."
After seeing 	Felipe 	in October 	2012 	for 	headaches, 	Dr. 	Sukachevin
assisted Felipe in applying to the Department to reopen his claim based on his
worsening condition. 	On the November 6, 2012, application, Sukachevin listed
Felipe's 	symptoms: 	headaches, 	dizziness, 	memory problems, fatigue, and
depression. 	He described 	Felipe's headaches as "worse." 	He proposed a
treatment plan: 	"refer him to the neurologist and—and a traumatic brain injury
specialist, refer for MRI [magnetic resonance imaging] of the brain and to follow
up with the psychologist." 	Felipe had an MRI on November 17. The radiologist's
report stated that the 	MRI 	revealed "'punctate blooming artifacts, subcortical
white 	matter, 	white 	frontal 	lobe, 	suspicious 	for 	an 	area 	of 	remote 	small
hemorrhage.'"
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 75232-4-1/4
In January 2013, neurologist Dr. William Stump examined Felipe at the
Department's request. 	Stump performed a general physical examination and a
neurological exam. 	He also reviewed Felipe's medical records and MRI report.
Felipe reported to Dr. Stump painful headaches, dizziness, depression, anxiety,
and sleeping difficulties. 	Stump diagnosed Felipe with a closed head injury due
to his April 2011 fall, concluding that he most likely suffered from a concussive
syndrome as a result but that it had resolved. 	The State agrees that Dr. Stump
based his closed head injury diagnosis on subjective findings alone.1
The 	Department denied 	Felipe's application to 	reopen 	his 	claim. 	On
reconsideration, the Department affirmed its earlier order. 	Felipe appealed to the
Board of Industrial Insurance Appeals (Board).
The Board received each party's medical testimony through deposition.
Sukachevin opined that Felipe experienced an aggravation of his April 2011
injury. 	He based this opinion on the fact that Felipe had passed out in March
2013 and that he reported that the intensity of his headaches had worsened. 	He
also opined that the MRI report "showed evidence that patient may have had a
hemorrhage in the brain" and that this was related to his accident because of a
lack 	of 	any 	other episodes 	of 	head 	trauma 	since 	Felipe's fall. 	On 	cross-
examination, Sukachevin testified that the November 17 MRI findings were the
1 The State acknowledged this at oral argument.
-4-
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 75232-4-1 / 5
only objective medical evidence of Felipe's worsening condition. 	He testified that
he doesn't read MRI films, so he based his interpretation on the radiologist's
report. 	He also testified about the possibility that the CAT scan missed this
abnormality in April 2011.
Stump testified that Felipe's condition had not objectively worsened after
May 9, 2012. 	He disagreed that the MRI report showed that Felipe suffered from
a hemorrhage. 	He concluded that Felipe "had persistent pain in the top of his
head" but concluded that this was not a result of the April 2011 injury because
the changes that would have developed at the time of Felipe's injury would have
healed within three to six months—before the time the new headaches began.
The 	Board 	affirmed 	the 	Department's 	order. 	Felipe appealed 	to 	the
superior court.
At the superior court trial, counsel read to the jury the testimony given to
the Board. 	The trial court instructed the jury that proof of Felipe's claimed
aggravation must be supported by medical testimony based in part on one or
more objective findings.
Aggravation 	of 	Reymundo 	Felipe's 	industrially 	related
condition and the extent of Reymundo Felipe's increased disability
on the date of claimed aggravation must be supported by medical
testimony 	based 	at 	least 	in part 	upon 	one 	or 	more 	objective
findings.
Statements of complaints by the worker made to a physician
are called subjective complaints. 	Findings of disability that can be
-5-
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 75232-4-1 / 6
seen, 	felt, 	or 	measured 	by 	an 	examining 	physician 	are 	called
objective findings.
In determining whether aggravation 	has occurred and the
extent of any resulting increased disability, a physician cannot rely
solely upon complaints, but must have some objective basis for his
or her opinion. 	On the other hand, a physician need not rely solely
upon objective findings. 	If there are objective findings, then the
physician may also consider subjective complaints.
Felipe objected to the court's instruction. 	He argued that the nature of his injury
excused 	him 	from 	presenting 	objective 	evidence 	of 	aggravation. 	The 	jury
returned a defense verdict. 	Felipe appeals.
STANDARD OF REVIEW
An appellate court reviews jury instructions de novo and reverses the trial
court only when an instruction contains an error of law that prejudices a party.2
"'Jury instructions are sufficient if they allow the parties to argue their theories of
the case, do not mislead the jury and, when taken as a whole, properly inform the
jury of the law to be applied.'"3 	We review de 	novo a party's entitlement to
statutory fees.4
ANALYSIS
Felipe claims that the trial court should not have required him to prove his
aggravation 	claim 	with expert testimony 	based 	at 	least 	in part on 	objective
2 Joyce v. Dep'tofCorr., 155 Wn.2d 306, 323, 119 P.3d 825 (2005).
3 Joyce, 	155 Wn.2d at 323 (quoting 	Hue v. 	Farmbov Spray Co., 	127
Wn.2d 67, 92, 896 P.2d 682 (1995)).
4 Sacred Heart Med. Ctr. v. Knapp, 172 Wn. App. 26, 28, 288 P.3d 675
(2012).
-6-
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 75232-4-1 / 7
findings. 	He contends that expert testimony based on subjective findings is
sufficient.
As the Industrial Insurance Act (MA)5 is remedial in nature, courts liberally
construe it in favor of the worker.6 The MA permits an injured worker to reopen a
claim upon showing that an 	aggravation of a disability occurred within seven
years after the Department closed that claim.7 	The aggravation need not be the
result of the work injury but can be a worsening produced by daily life.8 	Though
not required by statute, some case law requires the worker to support a request
to reopen with some objective medical evidence, verified by a physician, that the
injury has worsened since the closure of the claim.9
Objective findings of disability 	are 	those 	that 	can 	be 	seen, 	felt, 	or
measured by a physician.10 	Subjective findings are those based on the patient's
report to the 	physician 	about symptoms 	perceived 	only by the 	senses 	and
feelings of the patient.11
5 Title 51 RCW.
6 Wilber v. Dep't of Labor & Indus., 61 Wn.2d 439, 446, 378 P.2d 684
(1963).
7 RCW 51.32.160(1)(a); Dep't of Labor & Indus, v. Slaugh, 177 Wn. App.
439, 446, 312 P.3d 676 (2013), review denied, 180 Wn.2d 1007 (2014).
8 Tollvcraft Yachts Corp. v. McCoy, 122 Wn.2d 426, 432, 858 P.2d 503
(1993).
9 Tollvcraft Yachts Corp., 122 Wn.2d at 432; Wilber, 61 Wn.2d at 446.
10 Wilber, 61 Wn.2d at 445 (quoting Hinds v. Johnson, 55 Wn.2d 325, 327,
347 P.2d 828 (1959)).
11 Wilber, 61 Wn.2d at 445 (quoting Hinds, 55 Wn.2d at 327).
-7-
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 75232-4-1 / 8
In 	Price 	v. 	Department 	of 	Labor 	& Industries,12 the 	Supreme 	Court
eliminated the objective finding 	requirement for psychiatric disabilities. 	Felipe
argues that the 	rationale for this 	decision 	applies 	equally to 	his 	injury and
resulting symptoms. 	The Department disagrees, claiming Felipe's claim involves
only physical conditions.
Price 	applied 	to 	reopen 	her 	worker's 	compensation 	claim 	based 	on
increased neck and low back pain.13 	She presented expert testimony that the
pain she felt was real, though perhaps partly of psychological origin, and affected
her ability to work just as if she had objective symptoms that fully explained her
pain.14 	The Department presented expert testimony that because Price's pain
was caused largely by psychological factors, she would be able to work if she
were denied benefits because this would make her feel the urgency of work.15
Price lost before the Department,16 the Board,17 and the superior court.18
On appeal, Price challenged a jury instruction nearly the same as the one
Felipe challenges. 	She argued that the instruction was inappropriate when a
worker claims a psychological or psychiatric disability.19 	The instruction, taken
2 101 Wn.2d 520, 529, 682 P.2d 307 (1984).
3 Price, 101 Wn.2d at 522.
4 Price, 101 Wn.2d at 523.
5 Price. 101 Wn.2d at 523.
6 Price, 101 Wn.2d at 522.
7 Price, 101 Wn.2d at 523.
8 Price, 101 Wn.2d at 524.
9 Price, 101 Wn.2dat524.
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 75232-4-1 / 9
almost verbatim from former pattern jury instruction 155.09,20 told the jury that
Price had to prove her alleged increase in disability with medical testimony based
in part on objective medical findings:
"The extent of any alleged increase in plaintiff's permanent
disability . . . must be established by medical testimony based at
least in part upon one or more objective findings. 	In evaluating
such increased disability, if any, a physician cannot rely solely upon
complaints but must have some objective basis for his opinion."[21]
The Supreme Court agreed with Price. 	It quoted the note on use for the
challenged former pattern instruction: 	"This instruction may not be proper in
instances of mental, emotional, post concussion syndrome, loss of hearing and
loss of sight cases, because these conditions may not have objective findings
present.'"22
The court provided two rationales for its decision. 	It first stated that it had
not departed from a line of decisions that began with Peterson v. Department of
Labor & Industries.23 	In Peterson, 	the court reversed 	a 	trial 	court decision
denying the aggravation claim of a worker with a large number of subjective
symptoms with no organic explanation.24
20 6 	Washington Practice: Washington Pattern Jury Instructions:
Civil 155.09, at 464 (2d ed. 1980) (WPI).
21 Price, 101 Wn.2d at 523 (alteration in original).
22 	Price, 	101 Wn.2d 	at 525 	(quoting WPI 155.09 note on use at 464
(1980)).
23 178 Wash. 15, 33 P. 2d 650 (1934).
24 Peterson, 178 Wash, at 21-22.
-9-
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 75232-4-1/10
The court then discussed two cases that followed 	Peterson: 	Husa v.
Department of Labor & Industries25 and Anderson v. 	Department of Labor &
Industries.26 	It noted that in Husa it affirmed 	a worker's compensation award
even 	though 	the 	physicians 	examining 	the 	worker 	could 	find 	no 	physical
condition explaining his symptoms.27 	The court stated that the 	Department's
view 	requiring 	objective 	findings 	to 	compensate 	the 	worker 	for 	his 	mental
condition "'is merely to quarrel with the decision in Peterson.'"28
The court described its holding in Anderson: 	"This court upheld the award
of compensation 	for 	the 	neurasthenic 	condition, 	rejecting 	the 	Department's
contention that there must be objective symptoms to support any compensation
award."29 	It stated 	that the Anderson 	decision 	acknowledged 	the 	objective
finding 	rule 	but 	declined 	to 	apply 	it because 	that 	would 	exclude 	traumatic
neurasthenia from the category of compensable injuries and effectively overrule
Peterson and Husa.30
The court then noted its decision in Gakovich v. Department of Labor &
Industries,31 which 	it described as "inexplicably" ignoring 	Peterson, Husa, and
25 20 Wn.2d 114, 146 P.2d 191 (1944).
26 23 Wn.2d 76, 159 P.2d 397 (1945).
27 Price, 101 Wn.2dat525.
28 Price, 101 Wn.2d at 525 (quoting Husa, 20 Wn.2d at 120-21).
29 Price, 101 Wn.2d at 526 (citing Anderson, 23 Wn.2d at 78-79).
30 Price. 101 Wn.2d at 527 (quoting Anderson, 23 Wn.2d at 79).
3129Wn.2d1,4, 184 P.2d 830 (1947).
-10-
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 75232-4-1/11
Anderson.32 	The court overruled Gakovich insofar as it was inconsistent with the
court's opinion.33
The court provided a second 	rationale for its decision. 	The objective
finding 	rule existed to address two concerns: 	(1) the distinction 	between a
treating and nontreating physician for purposes of the hearsay rule and (2) the
fear of fictitious and feigned claims.34 The court stated that both of these reasons
had been eliminated.35
The court found the challenged instruction prejudicial in part because the
Department's counsel argued to the jury that Price's claim failed because her
experts based their opinions on her subjective complaints.36
Felipe analogizes his headache pain, depression, and memory problems
stemming from his postconcussive syndrome to a psychological or psychiatric
disability because 	his 	symptoms 	cannot 	be 	measured, 	felt, 	or 	seen 	by a
physician. 	For this reason, he contends that Price controls and the objective
finding requirement should not apply to his claim. The Department responds that
32 Price, 101 Wn.2d at 527.
33 Price, 101 Wn.2d at 528.
34 Price, 101 Wn.2dat527.
35 Price, 101 Wn.2d at 527-28.
36 Price, 101 Wn.2d at 529.
-11-
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 75232-4-1 /12
Price 	applies 	only 	to 	claims 	involving 	psychological 	conditions 	and 	Felipe
suffered a physical injury.37
Price 	teaches 	that 	if the 	symptoms 	of 	a 	condition 	are 	exclusively
subjective 	in 	nature, 	an 	instruction 	on 	objective-subjective 	evidence 	is
improper.38 The Department's attempt to distinguish Price by noting that Felipe's
injury began with physical trauma to the head fails. 	The court's approving quote
of its observation in Husa and 	Peterson defeats this argument: 	""The fact,
however, 	that physical 	manifestations of appellant's injury have disappeared,
makes his condition and suffering none the less real. 	39
A recent Board decision confirms our reading of Price:
The requirement for objective medical findings 	in applications to
reopen 	is excused 	for those 	conditions that 	are 	not subject to
objective measurement. 	The rigid requirement that there must be
objective medical findings to support allowance of a condition—as
contended 	by 	the 	Department—comes 	from 	conflating 	the
requirement for objective findings 	in reopening 	claims 	and 	the
requirement 	for 	objective 	findings 	supporting 	entitlement 	to
permanent 	partial 	disability. 	Contrary 	to 	the 	Department's
argument, 	there 	is no statutory or judicial requirement requiring
objective medical findings to support allowance of a claim.[40]
37 While Felipe claims depression to be one of his symptoms and bases
his claim for reopening in part on this, he presented no evidence to the trial court
to show that his depression worsened 	between May 9, 2012, and August 7,
2013, and thus we conclude that he may not make that claim to this court.
38 Price, 101 Wn.2dat528.
39 Price, 	101 	Wn.2d at 526 (quoting 	Husa, 20 Wn.2d at 121 	(quoting
Peterson, 178 Wash, at 19)).
40 In re 	Bover, 	No. 	13 19364, 2014 WL 7649068, at *6 (Wash. 	Bd. of
Indus. Ins. Appeals Dec. 2, 2014) (footnotes omitted).
-12-
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 75232-4-1/13
We also observe that after the Price decision, the note on use for former
WPI 	155.09, 	relied 	on 	by the court in its opinion, 	has 	been 	modified 	more
emphatically to 	limit its use: 	"This instruction should 	be given in cases of
physical disability but should not be given in cases involving mental or emotional
disability, loss of hearing or sight, or postconcussion syndrome."41
The symptoms of Felipe's claimed aggravation are subjective in nature.
Neither party has suggested that the frequency or severity of Felipe's headaches
can be seen, felt, or measured by a physician. 	The Department conceded at oral
argument that its expert forensic 	neurologist based 	his diagnosis of Felipe's
original condition and his recovery on subjective symptoms. 	Similarly, Felipe's
treating 	physician 	relied on 	subjective 	findings to 	support 	his diagnosis 	of
aggravated headaches.
The trial court erred by instructing the jury that Felipe had to support his
claimed aggravation with expert medical testimony based in part on one or more
objective findings. 	This error prejudiced 	Felipe. 	The 	instruction forced 	his
counsel to claim futilely that an 	MRI 	artifact 	provided 	objective evidence of
aggravation. 	It permitted the Department's counsel to argue forcefully, as he did,
that Felipe's claim failed due to the absence of objective findings without the jury
needing to consider if Felipe's disability had worsened.
41 6A Washington Practice: Washington Pattern Jury Instructions:
Civil 155.09 note on use at 157 (6th ed. 2012).
-13-
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 75232-4-1 /14
Felipe requests an 	attorney fee 	award if this court remands and 	he is
successful below, citing RCW 51.52.130. 	That statute requires an 	award 	of
attorney fees to a worker where a "decision and order is reversed or modified
and additional relief is granted."42 	In a worker's appeal from the decision of the
Board, the litigation must affect the accident fund or medical aid fund to support a
fee award.43 	The accident fund 	pays 	benefits to 	injured 	workers, 	while the
medical aid fund provides medical treatment benefits to those workers.44 	The
Department argues that this case does not affect the medical aid or accident
funds because "a direct and immediate impact on funds" is necessary. 	Thus, it
argues, Felipe is not entitled to attorney fees under the statute.
When an appellate court remands a case for retrial, as we do here, that
court cannot properly award fees because the prevailing party has not yet been
determined.45 	Thus, at this time a fee award is premature, but the trial court may
award appellate attorney fees after retrial, if appropriate.46
42 RCW 51.52.130(1).
43 RCW 51.52.130; Tobin v. Dep't of Labor & Indus., 169 Wn.2d 396, 406,
239 P.3d 544 (2010).
44 WR Enters.. Inc. v. Dep't of Labor & Indus., 147 Wn.2d 213, 216-17, 53
P.3d 504 (2002).
45 Clark County v. McManus, 	188 Wn. 	App. 	228, 	245, 	354 P.3d 868
(2015), rev'd on other grounds. 185 Wn.2d 466, 372 P.3d 764 (2016).
46 See McManus, 188 Wn. App. at 245.
-14-
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 75232-4-1/15
CONCLUSION
Felipe based his aggravation claim on worsened headaches produced by
a closed head injury, which do not require objective evidence for diagnosis. 	The
trial court erred when it instructed the jury that Felipe had to prove his claim with
expert medical testimony based at least in part on objective findings. 	This error
prevented Felipe from arguing his theory of the case. 	We reverse and remand
the 	case for 	a 	new trial. 	We 	decline 	to 	award 	attorney fees 	under 	RCW
51.52.130(1) because neither party has yet prevailed.
WE CONCUR:
j/Jf^g //N/\/!~ U *
-15-