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Judd v. Department of Labor and Industries12/3/1991
F--> (1965).
Here, the record does not reflect the instruction prevented the parties from arguing their theories of the case. Nor was the instruction misleading. The rationale for the "attending physician" instruction expressed in Spalding, at 128-29 applies to the facts here: an attending health care provider is better qualified to give an opinion than a health care provider who has seen the patient on only one occasion.
The instruction given did not instruct the jury to give special consideration to the DLI psychiatrist, Dr. Baxley, who had seen Mr. Judd on only one occasion, nor to disregard the testimony of his attending psychiatrist, Dr. Allan. Rather, it permitted the jury to give special consideration to the opinion of Mr. Judd's attending doctor; thus it included both the attending psychologist, Dr. Green, and the attending psychiatrist, Dr. Allan. It also informed the jury it was not bound by those opinions. The jury was free to disregard the opinions of one or all of the doctors.
The instructions when read as a whole properly instructed the jury on the applicable law governed by the facts of the case. The substitution of the word "doctor" for the word "physician" in the "attending physician" instruction was logical, reasonable, within the facts proven and a proper exercise of judicial discretion; it gave Mr. Judd the benefit of the extensive testimony presented by both of his attending mental health care providers.
The judgment affirming the Board's final order is affirmed.
Disposition
Holding that the testimony of a treating nonphysician could be entitled to the special consideration given to the testimony of a treating physician under the facts of the case and that the jury was properly instructed as to such testimony, the court affirms the judgment and the administrative decision.
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