The opinion
Filed
Washington State
Court of Appeals
Division Two
May 14, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
RODOLFO M. APOSTOL, No. 58072-1-II
Appellant,
v.
WASHINGTON STATE DEPARTMENT OF UNPUBLISHED OPINION
LABOR AND INDUSTRIES,
Respondent.
CRUSER, C.J. — Rodolfo Apostol suffered a workplace injury while breaking concrete with
a sledgehammer in 2005. The Department of Labor and Industries closed Apostol’s industrial
injury claim in 2006. Apostol appealed and sought to reopen his claim. The Department’s decision
to close Apostol’s claim was affirmed by an industrial appeals judge (IAJ) and later by the Board
of Industrial Insurance Appeals (the Board). Apostol appealed to the superior court and his case
was heard by a jury in 2023. Apostol now appeals from the jury’s finding that each of the Board’s
determinations were correct. Apostol is appearing pro se and argues that the trial court erred in
declining to give a number of his proposed jury instructions. However, Apostol did not provide
the transcript from the 2023 trial. Because of the insufficient record, without knowing the trial
court’s reasoning and whether sufficient evidence supported it, and without knowing the objections
made below, we are unable to reach the merits of Apostol’s claims. Moreover, Apostol has failed
to show that he was prejudiced by the jury instructions. Accordingly, we affirm.
No. 58072-1-II
FACTS
I. BACKGROUND
This worker’s compensation appeal follows an industrial injury from August 2005, in
which Apostol injured his wrist while working as a maintenance technician at the Ronald
Wastewater District.1 The injury occurred while Apostol was breaking concrete with a
sledgehammer. Dr. David Kim treated Apostol for a stress fracture in his left wrist in January 2006.
In October 2006, the Department allowed Apostol’s claim for his industrial injury and
found that he was “entitled to receive medical treatment and other benefits.” Sealed Administrative
Record at 1155. In the same month, the Department closed the claim, finding that medical
treatment was no longer necessary and no permanent partial disability existed.
Apostol applied to reopen his claim in February 2017, asking the Department to accept
responsibility for his depression, posttraumatic stress disorder (PTSD), and neck sprain, among a
variety of other new physical and psychological conditions. After his application to reopen his
claim was denied, Apostol appealed the Department’s decision to the Board in 2017. The Board
reversed and remanded the claim to the Department for further consideration and investigation.
The Department again ordered the claim to remain closed, after finding that the conditions caused
by the industrial injury had not worsened after the final claim closure, based on the medical record.
Apostol appealed again and the Board granted review in August 2018, sending the case to an IAJ.
1
Separate from the industrial injury claim regarding his wrist fracture, Apostol filed a different
worker’s compensation claim in September 2005 regarding stress and anxiety caused by his
employment. Apostol argues that his psychiatric conditions and symptoms were aggravated and
proximately caused by the wrist fracture, meaning that the industrial injury caused permanent
disability.
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No. 58072-1-II
The first hearing in front of the IAJ was in January 2019. The purpose of this hearing was
to address Apostol’s argument that the closure of his claim never became final under RCW
51.32.160 because the closing order was not communicated to his treating provider at the time that
the claim closed in 2006.2 The case remained with the IAJ from January 2019 through June 2020.
In March 2019, a hearing was held to address whether Apostol’s condition that was proximately
caused by his industrial injury objectively worsened between the closure of his claim in October
2006 and the Department’s order affirming its denial of Apostol’s application to reopen in July
2018. Five related hearings were held from April 2019 to March 2020, for the parties to present
additional evidence and testimony.
In June 2020, the IAJ affirmed the Department’s denial of Apostol’s request to reopen the
claim. The judge found that the conditions caused by Apostol’s wrist injury had not worsened in
the time between the closure of the claim in 2006 and the Department’s decision in July 2018 for
the claim to remain closed. Moreover, the judge found that the psychological symptoms that
Apostol attributed to his wrist injury, including PTSD, depression, insomnia, and anxiety, among
others, “were not the result of a natural progression of his initial injury or its residuals.” Id. at 150.
Apostol again appealed to the Board, which granted review but ultimately affirmed the
Department’s decision.
2
While Apostol contends that his treating provider never received notice of the closure of his claim
because Dr. Kenneth Mayeda (his primary care physician), never received it, notice of the
Department’s decision was sent to the orthopedic surgery unit at the Virginia Mason Medical
Center (where Apostol was treated by Dr. Kim for his wrist condition).
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No. 58072-1-II
II. JURY TRIAL & PROPOSED INSTRUCTIONS
Apostol appealed to the superior court and his case went to trial in 2023. The jury agreed
with the Board regarding every determination at issue in the case. The jury found that (1) the Board
communicated the closure of Apostol’s claim to his treating physician; (2) when the Department
closed Apostol’s claim in 2006, he “had no objective findings proximately caused by his industrial
injury;” (3) the same was true in 2018 when the Department denied Apostol’s application to
reopen; (4) Apostol’s other diagnoses and psychological symptoms were not “proximately caused
or aggravated by his industrial injury,” and; (5) Apostol’s wrist injury did not objectively worsen
between the closure of his claim and the Department’s denial of his application to reopen his claim
in 2018. Clerk’s Papers (CP) at 504-05.
At issue in this appeal are a number of Apostol’s proposed jury instructions which the trial
court declined to give to the jury. The first instruction was about “lighting up of [a] pre-existing
asymptomatic condition.” Id. at 33. The proposed instruction stated that if the jury found that
Apostol “had a mental condition that was not disabling or required treatment” prior to injuring his
wrist, and that his injury caused his mental condition to “light[ ] up or [become] active,” then
Apostol would be eligible for benefits. Id.
The second instruction would have told the jury that definitive medical findings were
unnecessary in order to find that his psychological condition worsened. This proposed instruction
stated that the jury may consider lay testimony in evaluating Apostol’s disability, and that medical
testimony containing words and phrases such as “ ‘probably,’ ” “ ‘causally-related,’ ” “ ‘attributed
to,’ ” and “ ‘likelihood,’ ” were “acceptable in lieu of aggravation or worsening of a condition
from the statute.” Id. at 64.
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No. 58072-1-II
While Apostol’s arguments and assignments of error lack clarity, it appears that he
challenges the trial court’s failure to give a third proposed jury instruction, stating that objective
medical findings are unnecessary to establish psychological injuries. This proposed instruction
read: “[a]n expert’s opinion regarding a worker’s claim for compensation for psychological
injuries may be based solely on the worker’s subjective complaints; objective medical findings
need not be the basis for any portion of the expert’s opinion.” Id. at 62.
Apostol appeals the superior court’s judgment. Apostol did not provide this court with a
transcript of the trial. Although Apostol initially filed a statement of arrangements in this court
indicating that he ordered a verbatim report of proceedings, he canceled his order six weeks later.
In his reply brief Apostol states that the cost of producing the transcript was prohibitive. Apostol
makes no mention of having attempted to procure either a narrative report of proceedings pursuant
to RAP 9.3 or an agreed report of proceedings pursuant to RAP 9.4.
ANALYSIS
Apostol argues that the trial court erred in failing to give his proposed instructions outlined
above because it prevented the jury from finding that his industrial injury proximately caused his
psychiatric conditions, resulting in a permanent disability. Additionally, Apostol argues, the trial
court erred in failing to apprise the jury that definitive and objective medical testimony is not
necessary to establish existence, aggravation, and worsening of psychological conditions.3
3
To the extent that Apostol argues that his industrial injury claim never became final because the
Department sent notice of the claim closure to the clinic where Apostol was treated for his wrist
injury rather than notifying his primary care physician, he does so in his reply brief. Because he
does not clearly assign error or argument to this claim in his opening brief, we do not consider this
issue. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
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No. 58072-1-II
The Department responds that the record is inadequate to review Apostol’s arguments
regarding jury instructions. In the alternative, the Department argues that the trial court properly
denied Apostol’s proposed jury instruction regarding the lighting up of a pre-existing condition
because the record lacked sufficient evidence to establish that he had a pre-existing condition. The
Department also contends that because the court asked the jury “whether the worker had
psychiatric conditions that were proximately caused by the injury,” it was unnecessary to “instruct
the jury that objective evidence is not needed to show a worsening of a psychiatric condition.” Br.
of Resp’t at 22.
We agree with the Department and conclude that this court is unable to reach Apostol’s
claims regarding jury instructions with the inadequate record we have been provided on review.
We further hold that Apostol fails to demonstrate that he was prejudiced by the trial court’s failure
to give his proposed jury instructions. Accordingly, we affirm.
A. Legal Principles
1. Responsibility to Provide Record on Review
It is the responsibility of the appellant in an appeal to provide the appellate court with an
adequate record on review so that the appellate court can consider the appellant’s assignments of
error. RAP 9.2(b); State v. Sisouvanh, 175 Wn.2d 607, 619, 290 P.3d 942 (2012). There are several
ways in which an appellant can provide this court with a record for review, including with a
verbatim report of proceedings pursuant to RAP 9.2, a narrative report of proceedings pursuant to
RAP 9.3, and an agreed report of proceedings pursuant to RAP 9.4. Furthermore, “[a] litigant
appearing pro se is bound by the same rules of procedure and substantive law as his or her attorney
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No. 58072-1-II
would have been had the litigant chosen to be represented by counsel.” Patterson v. Superintendent
of Pub. Instruction, 76 Wn. App. 666, 671, 887 P.2d 411 (1994).
2. Review of Jury Instructions
In industrial insurance cases, we review the superior court’s decision, not the Board’s
order. RCW 51.52.140; Dillon v. Dep’t of Lab. & Indus., 186 Wn. App. 1, 6, 344 P.3d 1216 (2014).
We review the superior court’s decision in the same way we review other civil cases. RCW
51.52.140. We review the content of jury instructions de novo for legal accuracy. Gerlach v. Cove
Apartments, LLC, 196 Wn.2d 111, 127, 471 P.3d 181 (2020); Joyce v. Dep’t of Corr., 155 Wn.2d
306, 323, 119 P.3d 825 (2005). On the other hand, we review the decision to give a particular
instruction, if based on a matter of fact, for abuse of discretion. Lake Hills Invs., LLC v. Rushforth
Constr. Co., Inc., 198 Wn.2d 209, 215-16, 494 P.3d 410 (2021). “A court abuses its discretion
when its decision is manifestly unreasonable, or exercised on untenable grounds or for untenable
reasons.” Gildon v. Simon Prop. Grp., Inc., 158 Wn.2d 483, 494, 145 P.3d 1196 (2006). “An abuse
of discretion is found if the trial court relies on unsupported facts, takes a view that no reasonable
person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of
the law.” Id.
An erroneous jury instruction is reversible if it prejudices a party. Joyce, 155 Wn.2d at 323.
“ ‘Prejudice is presumed if the instruction contains a clear misstatement of law[. However,]
prejudice must be demonstrated if the instruction is merely misleading.” Lake Hills Invs., 198
Wn.2d at 216 (alteration in original) (internal quotation marks omitted) (quoting Paetsch v.
Spokane Dermatology Clinic, PS, 182 Wn.2d 842, 849, 348 P.3d 389 (2015)). When an instruction
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No. 58072-1-II
misstates the law, the presumption of prejudice can be rebutted only by showing that the error was
harmless. Id.
3. Sufficient Record
We may decline to address an issue because the appellate record is inadequate. State v.
Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993). RAP 9.2 outlines the role of verbatim reports of
proceedings in the appellate process. In relevant part, RAP 9.2 reads:
(b) Content. A party should arrange for the transcription of all those portions of the
verbatim report of proceedings necessary to present the issues raised on review. . .
. If the party seeking review intends to urge that the court erred in giving or failing
to give an instruction, the party should include in the record all of the instructions
given, the relevant instructions proposed, the party’s objections to the instructions
given, and the court’s ruling on the objections.
(Boldface omitted.)
The supreme court addressed the application of RAP 9.2(b) in State v. Wade, 138 Wn.2d
460, 465, 979 P.2d 850 (1999). The court explained that when a case that comes before the court
of appeals is lacking an adequate record, the court may order supplementation of the record or
decline to reach the issue. 138 Wn.2d at 465. “Although RAP 9.10 gives the appellate court the
authority to order supplementation of the record, it plainly does not impose ‘a mandatory
obligation’ to do so.” Id. (quoting Heilman v. Wentworth, 18 Wn. App. 751, 754, 571 P.2d 963
(1977). “An appellate court may decline to address a claimed error when faced with a material
omission in the record.” Id.
An adequate record on review is necessary because an appellant must provide “argument
in support of the issues presented for review, together with citations to legal authority and
references to relevant parts of the record.” RAP 10.3(a)(6) (emphasis added); Holland v. City of
Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998). Additionally, “[p]assing treatment of an
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No. 58072-1-II
issue or lack of reasoned argument is insufficient to merit judicial consideration.” Holland, 90 Wn.
App. at 538.
B. Application
The record is insufficient for this court to reach Apostol’s arguments regarding jury
instructions. First, without reviewing the transcripts from trial, this court is unable to answer
whether Apostol took exception to the trial court’s failure to give his proposed jury instructions or
objected to any of the jury instructions that the trial court chose to give which could have negated
the arguments advanced on appeal. RAP 9.2(b) requires that parties provide transcriptions of the
record, in part, for this very purpose. In general, we decline to review errors that an appellant raises
for the first time on appeal. See RAP 2.5. Counsel may not “ ‘remain silent at trial as to claimed
errors and later, if the verdict is adverse, urge trial objections for the first time in a motion for new
trial or appeal.’ ” State v. Kendrick, 47 Wn. App. 620, 636, 736 P.2d 1079 (1987), aff’d, 108 Wn.2d
515 (1987) (quoting State v. Bebb, 44 Wn. App. 803, 806, 723 P.2d 512 (1986)). Without the
record, we are unable to confirm that Apostol preserved his arguments for appeal.
Second, in reviewing a trial court’s decisions regarding jury instructions, we must look to
the trial court’s reasoning behind those decisions in order to determine whether the trial court
erred. Jury instructions are proper if they adequately state the law, do not mislead the jury, and
allow each party to argue its theory of the case. Fergen v. Sestero, 182 Wn.2d 794, 803, 346 P.3d
708 (2015). The decision of whether to give a specific jury instruction is within the discretion of
the trial court, and as such, is reviewed for abuse of discretion. Taylor v. Intuitive Surgical, Inc.,
187 Wn.2d 743, 767, 389 P.3d 517 (2017). In determining whether to give a specific instruction,
the trial court “ ‘must merely decide whether the record contains the kind of facts to which the
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No. 58072-1-II
doctrine applies.’ ” Id. (quoting Kappelman v. Lutz, 167 Wn.2d 1, 6, 217 P.3d 286 (2009)). It
follows that in order to review a trial court’s decision on whether to give an instruction, we must
look to the trial court’s reasoning and to evaluate whether the trial court relied on substantial
evidence from the record in making the decision. Apostol cannot show that the trial court erred in
declining to adopt his proposed jury instructions without support from the trial record.
Additionally, Apostol fails to establish that the trial court abused its discretion or provided
legally inaccurate instructions to the jury that resulted in prejudice to him. An error from a jury
instruction is only “reversible where it prejudices a party.” Joyce, 155 Wn.2d at 323. “An error is
prejudicial if it affects the outcome of the trial.” Stiley v. Block, 130 Wn.2d 486, 499, 925 P.2d 194
(1996).
While Apostol generally argues that the court’s jury instructions prejudiced him and
prevented him from arguing his case to the jury, his arguments lack clarity and are untethered from
his assignments of error. For instance, Apostol takes issue with jury instruction 8, claiming that
the instruction prejudiced him and prevented him from arguing his case to the jury because it
included the Board’s findings of fact. But Apostol did not assign error to the trial court’s decision
to give this jury instruction. “The appellant's brief is required to provide a ‘separate concise
statement of each error’ alleged and this court ‘will only review a claimed error which is included
in an assignment of error.’ ” Headworks Hand Crafted Ales, Inc. v. Wash. State Liquor & Cannabis
Bd., 29 Wn. App. 2d 460, 467, 540 P.3d 863, review denied, No. 102773-7 (Wash. May 8, 2024)
(quoting RAP 10.3(a)(4), 10.3(g)).
Moreover, instruction 8 simply informs the jury of the Board’s findings of facts, and then
explicitly states that “[b]y informing you of these findings the court does not intend to express any
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No. 58072-1-II
opinion on the correctness or incorrectness of the Board’s findings.” CP at 496. Apostol does not
claim, much less show, that the court abused its discretion by giving this instruction or that the
instruction was not legally accurate. We generally will not review an issue that is unsupported by
authority or persuasive argument. State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992).
Apostol makes additional arguments that are untethered from his assignments of error or
the applicable standard of review, asking us to answer questions that are not at issue for review.
For example, he asks us to determine whether his present condition qualifies as a total disability,
whether he is eligible to receive time-loss benefits, and whether Dr. Mayeda falls under the
category of “any person” as defined in RCW 51.32.160. Br. of Appellant at 35. Giving his
assignments of error the most generous reading we can employ, they only address the court’s
decision not to give his proposed jury instructions, and the court’s final judgment in which it
affirmed the Board’s decision.
CONCLUSION
We are unable to reach the merits of Apostol’s assignments of error in the absence of an
adequate record to review. Additionally, Apostol fails to establish that the trial court abused its
discretion or provided legally inaccurate instructions to the jury that resulted in prejudice. As such,
we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
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No. 58072-1-II
CRUSER, C.J.
We concur:
MAXA, J.
PRICE, J.
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