closure claim in Washington

2005As the Bone-Club court acknowledged, its decision to apply the closure test used in the prior article I, section 10 decisions "mirror[ed]" the United States Supreme Court's decision in Waller v. Georgia, 467 U.S. 39, 45-47 , 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984). 128 Wash.2d at 259-60 , 906 P.2d 325 .

2005As the Bone-Club court acknowledged, its decision to apply the closure test used in the prior article I, section 10 decisions "mirror[ed]" the United States Supreme Court's decision in Waller v. Georgia, 467 U.S. 39, 45-47 , 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984). 128 Wash.2d at 259-60 , 906 P.2d 325 .

2012The questionnaires contained 13 “yes” or “no” questions about sexual misconduct and domestic violence. ¶51 Some two weeks after Nysta was convicted, the trial court filed and sealed the questionnaires without conducting a closure analysis as described in State v. Bone-Club, 128 Wn.2d 254 , 906 P.2d 325 (1995).

2007Bone-Club, 128 Wash.2d at 259 , 906 P.2d 325 (noting "the same closure standard for both the section 10 and section 22 rights"). ¶ 10 The five-part analysis includes both substantive and procedural requirements.

2023App. 2d 189, 200-01, 438 P.3d 148 (2019) (internal quotation marks omitted) (quoting Eastwood, 152 Wn.

2019Objective Worsening Long-standing case law requires the worker to prove aggravation by presenting medical testimony that establishes a causal connection "'between the injury and the subsequent disability' "based on "some objective medical evidence" that the injury "has worsened since the initial closure of the claim." Eastwood v. Dep't of Labor & Indus., 152 Wn.

2018Established case law requires the worker to present medical testimony of a causal connection based on "some objective medical evidence" that the injury "has 9 No. 75475-1-1/10 worsened since the initial closure of the claim."7 Tollycraft Yachts, 122 Wn.2d at 432 ;8 Phillips v. Dep't of Labor & Indus., 49 Wn.2d 195, 197 , 298 P.2d 1117 (1956); Lewis, 93 Wn.2d at 3 ("Medical evidence—based at least in part on objective symptoms—must show that an aggravation of the industrial injury resulted in increased disability."); Dinnis, 67 Wn.2d at 656 ("In an aggravation case, the burden of proving a clai

2018Established case law requires the worker to present medical testimony of a causal connection based on "some objective medical evidence" that the injury "has 9 No. 75475-1-1/10 worsened since the initial closure of the claim."7 Tollycraft Yachts, 122 Wn.2d at 432 ;8 Phillips v. Dep't of Labor & Indus., 49 Wn.2d 195, 197 , 298 P.2d 1117 (1956); Lewis, 93 Wn.2d at 3 ("Medical evidence—based at least in part on objective symptoms—must show that an aggravation of the industrial injury resulted in increased disability."); Dinnis, 67 Wn.2d at 656 ("In an aggravation case, the burden of proving a clai

2013Tieeson, 159 Wn.

2013Ticeson, 159 Wn.

2007Orange, 152 Wash.2d at 807 , 100 P.3d 291 .

2007Orange, 152 Wn.2d at 807 .

1995We hold a trial court must apply the closure test previously articulated by this court in Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 210 , 848 P.2d 1258 (1993) and related cases.

1995We hold a trial court must apply the closure test previously articulated by this court in Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 210 , 848 P.2d 1258 (1993) and related cases.

2025Id.

2023App. 2d 189, 200-01, 438 P.3d 148 (2019) (internal quotation marks omitted) (quoting Eastwood, 152 Wn.

2023If a proceeding was not one that the Washington Supreme Court has already recognized the public trial right attaches to, we “must apply the experience and logic test to determine whether the public trial right is implicated.” State v. Miller, 184 Wn.

2020We disagree. 4 No. 78708-0-I/5 Use of Initials as Judicial Comment on the Evidence Article 4, section 16 of the Washington Constitution provides that “[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.” This constitutional provision prohibits a judge “from ‘conveying to the jury his or her personal attitudes toward the merits of the case’ or instructing a jury that ‘matters of fact have been established as a matter of law.’” State v. Levy, 156 Wn.2d 709, 721 , 132 P.3d 1076 (2006) (quoting State v. Becker, 132 Wn.2d 54, 64 , 935 P.

2020We disagree. 4 No. 78708-0-I/5 Use of Initials as Judicial Comment on the Evidence Article 4, section 16 of the Washington Constitution provides that “[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.” This constitutional provision prohibits a judge “from ‘conveying to the jury his or her personal attitudes toward the merits of the case’ or instructing a jury that ‘matters of fact have been established as a matter of law.’” State v. Levy, 156 Wn.2d 709, 721 , 132 P.3d 1076 (2006) (quoting State v. Becker, 132 Wn.2d 54, 64 , 935 P.

2020We disagree. 4 No. 78708-0-I/5 Use of Initials as Judicial Comment on the Evidence Article 4, section 16 of the Washington Constitution provides that “[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.” This constitutional provision prohibits a judge “from ‘conveying to the jury his or her personal attitudes toward the merits of the case’ or instructing a jury that ‘matters of fact have been established as a matter of law.’” State v. Levy, 156 Wn.2d 709, 721 , 132 P.3d 1076 (2006) (quoting State v. Becker, 132 Wn.2d 54, 64 , 935 P.

2020We disagree. 4 No. 78708-0-I/5 Use of Initials as Judicial Comment on the Evidence Article 4, section 16 of the Washington Constitution provides that “[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.” This constitutional provision prohibits a judge “from ‘conveying to the jury his or her personal attitudes toward the merits of the case’ or instructing a jury that ‘matters of fact have been established as a matter of law.’” State v. Levy, 156 Wn.2d 709, 721 , 132 P.3d 1076 (2006) (quoting State v. Becker, 132 Wn.2d 54, 64 , 935 P.

2019App. 652,656-57 , 219 P.3d 711 (2009)(quoting Phillips v. Dep't of Labor & Indus., 49 Wn.2d 195, 197 , 298 P.2d 1117 (1956)); Tollvcroft Yachts, 122 Wn.2d at 432;9 see Hendrickson, 2 Wn.

2018Established case law requires the worker to present medical testimony of a causal connection based on "some objective medical evidence" that the injury "has 9 No. 75475-1-1/10 worsened since the initial closure of the claim."7 Tollycraft Yachts, 122 Wn.2d at 432 ;8 Phillips v. Dep't of Labor & Indus., 49 Wn.2d 195, 197 , 298 P.2d 1117 (1956); Lewis, 93 Wn.2d at 3 ("Medical evidence—based at least in part on objective symptoms—must show that an aggravation of the industrial injury resulted in increased disability."); Dinnis, 67 Wn.2d at 656 ("In an aggravation case, the burden of proving a clai

2018Established case law requires the worker to present medical testimony of a causal connection based on "some objective medical evidence" that the injury "has 9 No. 75475-1-1/10 worsened since the initial closure of the claim."7 Tollycraft Yachts, 122 Wn.2d at 432 ;8 Phillips v. Dep't of Labor & Indus., 49 Wn.2d 195, 197 , 298 P.2d 1117 (1956); Lewis, 93 Wn.2d at 3 ("Medical evidence—based at least in part on objective symptoms—must show that an aggravation of the industrial injury resulted in increased disability."); Dinnis, 67 Wn.2d at 656 ("In an aggravation case, the burden of proving a clai

2018Established case law requires the worker to present medical testimony of a causal connection based on "some objective medical evidence" that the injury "has 9 No. 75475-1-1/10 worsened since the initial closure of the claim."7 Tollycraft Yachts, 122 Wn.2d at 432 ;8 Phillips v. Dep't of Labor & Indus., 49 Wn.2d 195, 197 , 298 P.2d 1117 (1956); Lewis, 93 Wn.2d at 3 ("Medical evidence—based at least in part on objective symptoms—must show that an aggravation of the industrial injury resulted in increased disability."); Dinnis, 67 Wn.2d at 656 ("In an aggravation case, the burden of proving a clai

2018Established case law requires the worker to present medical testimony of a causal connection based on "some objective medical evidence" that the injury "has 9 No. 75475-1-1/10 worsened since the initial closure of the claim."7 Tollycraft Yachts, 122 Wn.2d at 432 ;8 Phillips v. Dep't of Labor & Indus., 49 Wn.2d 195, 197 , 298 P.2d 1117 (1956); Lewis, 93 Wn.2d at 3 ("Medical evidence—based at least in part on objective symptoms—must show that an aggravation of the industrial injury resulted in increased disability."); Dinnis, 67 Wn.2d at 656 ("In an aggravation case, the burden of proving a clai

2018Established case law requires the worker to present medical testimony of a causal connection based on "some objective medical evidence" that the injury "has 9 No. 75475-1-1/10 worsened since the initial closure of the claim."7 Tollycraft Yachts, 122 Wn.2d at 432 ;8 Phillips v. Dep't of Labor & Indus., 49 Wn.2d 195, 197 , 298 P.2d 1117 (1956); Lewis, 93 Wn.2d at 3 ("Medical evidence—based at least in part on objective symptoms—must show that an aggravation of the industrial injury resulted in increased disability."); Dinnis, 67 Wn.2d at 656 ("In an aggravation case, the burden of proving a clai

2018Established case law requires the worker to present medical testimony of a causal connection based on "some objective medical evidence" that the injury "has 9 No. 75475-1-1/10 worsened since the initial closure of the claim."7 Tollycraft Yachts, 122 Wn.2d at 432 ;8 Phillips v. Dep't of Labor & Indus., 49 Wn.2d 195, 197 , 298 P.2d 1117 (1956); Lewis, 93 Wn.2d at 3 ("Medical evidence—based at least in part on objective symptoms—must show that an aggravation of the industrial injury resulted in increased disability."); Dinnis, 67 Wn.2d at 656 ("In an aggravation case, the burden of proving a clai

2018Established case law requires the worker to present medical testimony of a causal connection based on "some objective medical evidence" that the injury "has 9 No. 75475-1-1/10 worsened since the initial closure of the claim."7 Tollycraft Yachts, 122 Wn.2d at 432 ;8 Phillips v. Dep't of Labor & Indus., 49 Wn.2d 195, 197 , 298 P.2d 1117 (1956); Lewis, 93 Wn.2d at 3 ("Medical evidence—based at least in part on objective symptoms—must show that an aggravation of the industrial injury resulted in increased disability."); Dinnis, 67 Wn.2d at 656 ("In an aggravation case, the burden of proving a clai

2018App. 908, 914 , 7 The requirement that the worker provide objective medical evidence does not apply "if the symptoms of a condition are exclusively subjective in nature." Felipe v. Dep't of Labor & Indus., 195 Wn.

2017Id.

2016As 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

2016As 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

2016App. 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.

2016App. 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.

2016As 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

2016App. 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.

2012Moreover, it makes sense to presume prejudice despite the lack of objection when an error is structural because by the time we have decided an error is structural, we have already determined that it is of such an egregious nature that it has rendered the underlying trial unfair and deprived the defendant of “ ‘basic protections’ ” without which “no criminal punishment may be regarded as fundamentally fair.” Neder, 527 U.S. at 8 -9 (quoting Rose, 478 U.S. at 577-78 ). ¶63 However, in my view, this case is different from our previous cases because the closure error here is not struc tural.

2012Moreover, it makes sense to presume prejudice despite the lack of objection when an error is structural because by the time we have decided an error is structural, we have already determined that it is of such an egregious nature that it has rendered the underlying trial unfair and deprived the defendant of “ ‘basic protections’ ” without which “no criminal punishment may be regarded as fundamentally fair.” Neder, 527 U.S. at 8 -9 (quoting Rose, 478 U.S. at 577-78 ). ¶63 However, in my view, this case is different from our previous cases because the closure error here is not struc tural.