                                                                                                  Filed
                                                                                            Washington State
                                                                                            Court of Appeals
                                                                                             Division Two

                                                                                               April 7, 2020
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
 ZBIGNIEW LASKOWSKI,                                                    No. 53067-8-II

                                 Appellant,

         v.
                                                                   ORDER GRANTING
 WASHINGTON STATE DEPARTMENT OF                                   MOTION TO PUBLISH
 LABOR AND INDUSTRIES,

                                 Respondent.

        Respondent, Washington State Department of Labor and Industries, filed a motion to

publish this court’s opinion filed on September 24, 2019. After consideration, the court grants the

motion. Accordingly, it is

        ORDERED that the final paragraph in the opinion which reads “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 pursuant to RCW 2.06.040, it is so ordered.” is deleted. It is further

        ORDERED that the opinion will now be published.

        FOR THE COURT

        PANEL: Jj. Worswick, Lee, Cruser



                                                      Lee, C.J.
 We concur:


 Worswick, J.


 Cruser, J.
                                                                                         Filed
                                                                                   Washington State
                                                                                   Court of Appeals
                                                                                    Division Two

                                                                                  September 24, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION II

 ZBIGNIEW LASKOWSKI,                                             No. 53067-8-II

                              Appellant,

        v.

 WASHINGTON STATE DEPARTMENT OF                            UNPUBLISHED OPINION
 LABOR AND INDUSTRIES,

                              Respondent.

       LEE, A.C.J. — Zbigniew Laskowski appeals the superior court’s order affirming the Board

of Industrial Insurance Appeals order closing Laskowski’s claim and awarding him partial

permanent disability benefits. Because Laskowski entered into an agreement with the Department

of Labor & Industries for a binding medical examination and the results of the binding medical

examination resolve Laskowski’s claims, we affirm the superior court’s order.

                                            FACTS

       In 2006, Laskowski suffered a work-related back injury.        The Department allowed

Laskowski’s claim and provided him with benefits. In 2008, the Department closed Laskowski’s

claim with a partial permanent disability award. However, in 2010, the Department reopened

Laskowski’s claim. In February 2015, the Department ended Laskowski’s time loss compensation.

In May 2015, the Department again closed Laskowski’s claim because treatment was no longer
No. 53067-8-II



necessary. The Department did not increase Laskowski’s partial permanent disability award,

which was set at a category III (3). Laskowski appealed the Department’s 2015 orders.

        At a conference before the Board of Industrial Appeals judge, the parties agreed that Dr.

Diana Kraemer would perform a binding medical examination to resolve the disputed factual

issues on appeal and that they would be bound by Dr. Kraemer’s opinions in the binding medical

examination. The parties also agreed that they would provide complete records that have been

reviewed by Laskowski to Dr. Kraemer and that Dr. Kraemer’s medical examination would resolve

the following issues:

        (1) does Mr. Laskowski’s industrial injury condition(s) need medical treatment; (2)
        did his industrial injury prevent him from working between May 12, 2015, and May
        15, 2015, on a temporary basis; (3) is Mr. Laskowski permanently precluded by the
        industrial injury from working as of May 15, 2015; and alternatively (4) what
        degree of permanent partial disability best describe the claimant’s residual
        impairment from his industrial injury?

Administrative Record (AR) at 50. The parties further agreed that after completing a review of

medical records and performing a medical examination, Dr. Kraemer would provide a written

report and include in the report answers to the following questions relating to Laskowski’s

industrial injury:

        1.      State your diagnosis of the conditions found on examination.
        2.      Of those conditions found, which of them, if any, are related to the
                claimant’s January 5, 2006 industrial injury?
        3.      Do any conditions related to the industrial injury require further medical
                treatment as of May 15, 2015? If this is the case, what treatment
                recommendations do you have?
        4.      Did the residual impairment from the January 5, 2006 industrial injury
                temporarily prevent M[r]. Laskowski from obtaining and performing work
                on a full-time basis during the period between May 12, 2015, and May 15,
                2015?




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No. 53067-8-II



       5.      Did the residual impairment from the January 5, 2006 industrial injury
               permanently prevent M[r]. Laskowski from obtaining and performing work
               on a full-time basis as of May 15, 2015, and thereafter?
       6.      If Mr. Laskowski’s industrial injury conditions do not require further
               medical treatment, what degree of permanent partial disability best
               described his residual impairment from the industrial injury?

AR at 50-51 (boldface omitted).

       After completing the binding medical examination, Dr. Kraemer determined that there was

no additional recommended treatment for conditions related to Laskowski’s industrial injury. Dr.

Kraemer also determined that Laskowski’s partial permanent disability was a Category IV (4).

       Based on the parties’ agreement, the Board of Industrial Insurance Appeals issued an order

on agreement of parties. The Board affirmed the Department’s order closing Laskowski’s claim

because no further treatment was necessary. The Board’s order also reversed the Department’s

order declining to increase Laskowski’s permanent partial disability award and remanded for the

Department to award permanent partial disability benefits consistent with Category IV (4).

       Laskowski appealed the Board’s order to the superior court. The superior court entered

findings of fact and conclusions of law, concluding that the order on the agreement of parties was

correct. Accordingly, the superior court affirmed the Board’s order.

       Laskowski appeals.

                                            ANALYSIS

A.     STANDARD OF REVIEW

        Our review of the superior court decision is governed by the Industrial Insurance Act (IIA);

specifically, our review is governed by RCW 51.52.140, which states that an “[a]ppeal shall lie

from the judgment of the superior court as in other civil cases.” This results in a different role for



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No. 53067-8-II



this court than is typical for appeals from other administrative decisions. Rogers v. Dep’t of Labor

& Indus., 151 Wn. App. 174, 180, 210 P.3d 355, review denied, 167 Wn.2d 1015 (2009). Thus,

under the IIA, we review only “‘whether substantial evidence supports the trial court's factual

findings and then review, de novo, whether the trial court's conclusions of law flow from the

findings.’” Rogers, 151 Wn. App. at 180 (quoting Watson v. Dep't of Labor & Indus., 133 Wn.

App. 903, 909, 138 P.3d 177 (2006)).

B.     AGREEMENT TO A BINDING MEDICAL EXAMINATION

       Laskowski argues that his agreement to enter into a binding medical examination was an

improper waiver of his right to compensation under the IIA. Laskowski also challenges the

contents of the Board’s order on agreement of parties, which adopted the findings of the binding

medical examination.

       Entering into an agreement for a binding medical examination is not an improper evasion

of benefits. Therefore, Laskowski’s agreement for a binding medical examination was proper and

Laskowski has no grounds for challenging the Board’s order based on that binding medical

examination. And because Laskowski agreed to resolve the factual disputes relating to his

industrial injury through a binding medical examination, he cannot now dispute Dr. Kraemer’s

factual findings and conclusions.

       WAC 263-12-093(1) provides that “If an agreement concerning final disposition of any

appeal is reached by all the parties present or represented at a conference, an order shall be issued

in conformity with their agreement, providing the board finds the agreement is in accordance with

the law and the facts.” Parties may also agree to a medical examination to resolve their dispute:




                                                 4
No. 53067-8-II



       The parties present at a conference may agree to a vocational evaluation or a further
       medical examination of a worker or crime victim, including further evaluative or
       diagnostic tests, except such as require hospitalization, by medical or vocational
       experts acceptable to them, or to be selected by the industrial appeals judge. In the
       event the parties agree that an order on agreement of parties may be issued based
       on the report of vocational evaluation or medical examination, the industrial
       appeals judge may arrange for evaluation or examination and the board will pay
       reasonable and necessary expenses involved. Upon receipt by the board, copies of
       the report of such examination or evaluation will be distributed to all parties
       represented at the conference and further appropriate proceedings will be scheduled
       or an order on agreement of parties issued. If the worker or crime victim fails to
       appear at the evaluation or examination, the party or their representative may be
       required to reimburse the board for any fee charged for their failure to attend.

WAC 263-12-093(4).

       Here, the Board’s report of proceedings shows that the parties agreed to a binding medical

examination to be performed by Dr. Kraemer. The purpose of the binding examination was to

resolve the underlying factual disputes regarding the appeal; specifically, whether Laskowski was

able to work during the time-loss compensation period, whether further treatment was warranted

(to justify closing the claim), and whether the current category of permanent partial disability was

correct. Because the parties agreed to a binding medical examination with the express purpose of

resolving the factual disputes underlying the appeal, it was proper under WAC 263-12-093(1) and

WAC 263-12-093(4) for the Board to enter an order on agreement of the parties consistent with

the findings in the binding medical examination.

       Laskowski argues that the Board’s order was improper because the agreement to a binding

medical examination violates RCW 51.04.060, which provides that “[n]o employer or worker shall

exempt himself or herself from the burden or waive the benefits of this title by any contract,




                                                 5
No. 53067-8-II



agreement, rule or regulation, and any such contract, agreement, rule or regulation shall be pro

tanto void.” Laskowski’s argument fails.

       In Solven v. Dep’t of Labor & Industries, the court held that an agreement to resolve an

appeal by agreed examinations is not void under RCW 51.04.060. 101 Wn. App 189, 195, 2 P.3d

492, review denied, 142 Wn.2d 1012 (2000). The court explained, “[t]he agreement merely

stipulates to a method of finding facts; it does not prevent the employee from demanding all

compensation to which he is entitled.” Id. The court also noted that the plain language of the

statute demonstrates that it was meant to prevent employers from exploiting employees by urging

them to contract away benefits under the IIA. Id.

       The same is true here. Laskowski did not enter into an agreement to waive any of the

benefits to which he was entitled under the IIA. Instead, Laskowski entered into an agreement

stipulating to a specific method of determining the facts necessary to resolving his appeal.

Therefore, the agreement to a binding medical examination is not void under RCW 51.04.060.

Solven, 101 Wn. App. at 195.

       Because the parties’ agreement to a binding medical examination was not void or improper,

the superior court properly concluded that the agreement was proper and binding. Accordingly,

we affirm the superior court.




                                               6
No. 53067-8-II



B.     LASKOWSKI’S OTHER ARGUMENTS

       Laskowski makes several other arguments challenging the validity of the report generated

after the binding medical examination and the Board’s order. However, most of these are related

to Laskowski’s disagreement with Dr. Kraemer’s findings and conclusions. We do not consider

these arguments.1

       None of Laskowski’s challenges to the Dr. Kraemer’s findings and the Board’s order are

challenges to the findings of fact or conclusions of law that were made by the superior court. In

IIA appeals, we review the superior court’s findings of fact and conclusions of law. RCW

51.52.140; Rogers, 151 Wn. App. at 180. Because Laskowski fails to challenge the superior

court’s findings of fact, they are verities on appeal. Mid Mountain Contractors, Inc. v. Dep't of

Labor & Indus., 136 Wn. App. 1, 4, 146 P.3d 1212 (2006). Those findings of fact, in turn, support

the superior court’s conclusions that the Board’s order is correct.




1
  Laskowski also argues that his condition has a much greater negative impact on him and that a
“correctly rated impairment would reflect that” and relies on several medical records created after
the date of the Dr. Kraemer’s report and the Board’s order on agreement of parties. Br. of App. at
23. Because Laskowski’s argument relies on records that were created after the date of Dr.
Kraemer’s report, the Board’s order on agreement of parties, and the superior court’s findings of
fact and conclusions of law, we do not consider his argument.

        Laskowski also appears to argue that the Board’s order was incorrect because the Industrial
Appeals Judge stated that he would issue the order. However, the Report of Proceedings
memorializing the parties’ agreement states that after the binding medical examination is
completed, the appeal will be resolved by an order on agreement of the parties issued by the Board,
which is exactly what occurred. Therefore, the Industrial Appeals Judge’s misstatement is not an
irregularity that undermines the parties’ agreement to a binding medical examination. To the
extent that it is actually challenged, we affirm the superior court’s finding on this point.


                                                 7
No. 53067-8-II



        Moreover, by agreeing to a binding medical examination, Laskowski (and the Department)

agreed to accept the medical findings contained in the examination report. See WAC 263-12-093.

Laskowski cannot now challenge the underlying factual findings contained in the examination

report and conclusions resulting from those findings because he disagrees with them.

        We affirm the superior court’s order.

        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.




                                                    Lee, A.C.J.
 We concur:



 Worswick, J.




 Cruser, J.




                                                8
