6A WAPRAC WPI 155.31Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 155.31 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
July 2019 Update
Part XI. Workers' Compensation
Chapter 155. Workers' Compensation
WPI 155.31 Treatment—Definition
A worker who [sustains an industrial injury] [has an occupational disease] is entitled to receive proper and necessary health care services for the diagnosis and treatment of any condition proximately caused by the [injury] [occupational disease]. 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.
[A worker is entitled to proper and necessary health care services until the condition reaches [and maintains] a state of maximum medical improvement.] Maximum medical improvement occurs when no fundamental or marked change in the condition can be expected, with or without treatment. [The term “maximum medical improvement” is equivalent to “fixed and stable.”]]
NOTE ON USE
Use this instruction when there are issues of the scope of allowable treatment.
Use bracketed language as appropriate.
This instruction was first published in the 2017–2018 Supplement to 6 Washington Practice, Washington Pattern Jury Instructions: Civil (6th ed.).
For the most part, the language in this instruction is taken directly from RCW 51.36.010 and WAC 296-20-01002. Although these sources have not been quoted in their entirety, it is the intent of the WPI Committee to convey their central propositions that will most often be necessary. It is anticipated that, depending on the facts and issues in a particular case, additional language from these sources may need to be added as well as language from case law interpreting them. Some additional clarification may also be seen as helpful.
While RCW 51.36.010 uses the term “proper and necessary medical and surgical services,” WAC 296-20-01002 uses the term “proper and necessary health care services.” The WPI Committee has used the latter term in the belief that this is consistent with the law. No substantive change from the statute is intended.
In distinguishing curative and rehabilitative treatment from merely palliative treatment, WAC 296-20-01002 states “[c]urative and rehabilitative care produce long-term changes.” The WPI Committee has modified this language to clarify that it is the intention to produce such changes rather than their actual production that is in issue.
To the extent that application of such terms as “clinical effects” and “functional activity” are in issue, the court and counsel should work to draft helpful clarifying instructions.
In a case involving issues of whether or not the claimant has reached a state of maximum medical improvement, it may be necessary to provide the jury with further definition. Reference should be made to the WAC definition of the term.
Maximum medical improvement occurs when no fundamental or marked change in the accepted condition can be expected, with or without treatment. Maximum medical improvement may be present though there may be fluctuations in levels of pain and function. A worker's condition may have reached maximum medical improvement though it might be expected to improve or deteriorate with the passage of time. Once a worker's condition has reached maximum medical improvement, treatment that results only in temporary or transient changes is not proper and necessary.
The term “maximum medical improvement” is the equivalent of the formerly-used term “fixed and stable.” WAC 296-20-01002. If, as often still happens, medical testimony has used the term “fixed and stable,” it may be helpful to include the language explaining the equivalence of the old and new terms. Both terms anticipate the possibility of some fluctuation in a worker's condition. As the Court of Appeals has observed:
Thus, the term “fixed” does not mean “static.” It is clear that where a claimant's condition is deteriorating or further medical treatment is contemplated, the condition is not “fixed” and the claim remains open so that treatment can be provided. However, if a claimant's condition has stabilized to the point where no further medical treatment is required, the condition is “fixed” for purposes of closing the claim and determining the disability award.
Pybus Steel Company v. Dep't of Labor & Indus., 12 Wn.App. 436, 439, 530 P.2d 350 (1975).
Per WAC 296-20-03002(4), appropriate treatment does not include “[c]ontinued treatment beyond stabilization of the industrial condition(s), i.e., maintenance care ….” The WPI Committee is not recommending use of this language in the pattern instruction for two reasons. First, it is generally an unnecessary negative statement following the positive statement as to what is includable. Second, it could lead to jury confusion as to a distinction between “rehabilitative care” (authorized) and “maintenance care” (not authorized). Review of Board decisions suggests that certain cases could call for the drafting of further clarifying instructions to assist the jury when this distinction is in issue.
[Current as of November 2016.]
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