Washington Supreme Court Affirms Rule Giving Attending Physicians “Special Consideration”

Earlier this year, the case of Clark County vs. McManus went before the Washington State Supreme Court, ultimately raising the question of whether the “special consideration” jury instruction be treated as discretionary or mandatory. The “special consideration” instruction requires that testimony from injured workers’attending physicians be given careful thought or special consideration by the fact finder be that the Department, a judge, or a jury.

The case surrounds Patrick McManus, a Clark County street sweeper who, after working between 1999 and 2011, had to quit due to a degenerative spinal disease affecting his lower back. The Department of Labor and Industries (L&I) originally allowed his claim and awarded him benefits. His employer, Clark County, appealed this decision to the Board of Industrial Insurance Appeals. At the hearing before an Industrial Appeals Judge, Mr. McManus presented the testimony of his attending physician, Dr. Won, who opined Mr. McManus’s condition was work related. The County presented opinions from two forensic medical experts, one who had examined Mr. Mc Manus only once and one who had only reviewed his medical records. Both doctors presented opinions contrary to Dr. Won’s. When the Board upheld L&I’s decision to allow the claim, Clark County then appealed to the Superior Court, where the case was heard before a jury.

At trial, although the court instructed the jury that the Board’s decision was presumed to be correct and it was the County’s burden to prove it incorrect, it refused to instruct the jury that the opinion of the worker’s attending physician was entitled to “special consideration.” The jurors found the Board was incorrect in allowing the claim and reversed its ruling.

McManus appealed to the Court of Appeals and was granted a new trial on a separate issue, but the Court of Appeals determined the Superior Court did not err in refusing to give the “special consideration” instruction. Mr. McManus appealed again, this time to the Washington State Supreme Court.

The Supreme Court unanimously found that the special consideration instruction for attending physicians must be given; it is mandatory, not discretionary. The Court further reasoned as follows:

“Importantly, the Board itself recognizes and applies the special consideration rule. The Department applies the special consideration rule in adjudicating claims. Because self-insured employers are bound to comply with Department claims handling processes, they must also apply the special consideration rule. Special consideration should be given to the opinion of an attending physician unless specific reasons for not accepting the attending physician’s opinion are articulated.”

Reaction from Christine Foster:

“The McManus decision is significantly beneficial to Washington State’s injured workers with respect to a more fair administration of their claims.  It holds that the worker’s attending physician is typically in the best position to provide the most credible medical opinion by virtue of the physician-patient relationship whereby the attending physician is more familiar with the worker and his/her symptoms and limitations, unlike one-time medical examiners hired by the Department or self-insured employers.  To this end, the McManus decision recognizes the lack of credibility and bias of many “independent medical examinations” which are too often just purchased defense medical opinions for the purpose of terminating or limiting a worker’s entitlement to benefits. “

Christine Foster, Esq.

A copy of the decision is available