                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                           October 3, 2017




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    BRANDON FOSTER,                                                 No. 49475-2-II

                               Appellant,                     UNPUBLISHED OPINION

         v.

    FRITO-LAY INC.,

                               Respondent.

        BJORGEN, C.J. — Brandon Foster appeals the superior court order affirming the

Board of Industrial Insurance Appeal’s (Board) determination that he was not totally and

permanently disabled.1 Foster argues that the superior court erred in denying his motions

(1) for a directed verdict determining that he was a permanently and totally disabled

individual and (2) for a partial directed verdict determining that he was not capable of

performing and obtaining work as a pallet jack order filler. He also requests attorney fees

on appeal. For the reasons below, we hold that the superior court did not err in either



1
  Foster also appeals the superior court’s denial of his summary judgment motion. In his reply
brief, however, Foster states, “Whether or not this Court can review the denial of summary
judgment may have academic import, but has no practical effect on the outcome of this appeal.”
Reply Br. of Appellant at 17-18. Because Foster concedes that reviewing the summary judgment
motion separately will have no practical effect on the outcome of this appeal, we decline to
address this issue.
No. 49475-2-II


determination, and we deny Foster’s request for an award of attorney fees. Accordingly,

we affirm.

                                              FACTS

                                           I. BACKGROUND

       On April 20, 2010, Foster suffered a left eye injury while working as a driver for his

employer, Frito-Lay Inc. He subsequently opened a claim for workers’ compensation benefits

with the Department of Labor and Industries (Department).

       On February 7, 2014, the Department closed the claim with time loss compensation paid

to Foster through January 29, 2014. The Department also found that he no longer needed

medical treatment and that he was not entitled to a permanent partial disability award. Foster

protested the February 17 order. On May 5, the Department affirmed its order. On May 16,

Foster appealed that order to the Board.

                            II. EVIDENCE PRESENTED TO THE BOARD

       The Board outlined the three issues before it, each dealing with the effects of Foster’s

2010 injury: (1) whether Foster was a totally and temporarily disabled worker during the period

January 30, 2014 through May 5, 2014, (2) what degree of permanent partial disability best

described Foster’s residual impairment, and (3) whether Foster was a totally and permanently

disabled worker as of May 5, 2014.2

       At the Board hearing, Foster presented evidence through the deposition of Dr. Bruce

Wojciechowski, an optometrist, the testimony of Todd Martin, a vocational rehabilitation


2
 The parties also agreed that one of the issues was whether Foster required further proper and
necessary medical treatment. However, Foster later withdrew this issue.


                                                 2
No. 49475-2-II


counselor, and the testimony of Foster himself. To aid in determining what, if any jobs, Foster

could reasonably carry out, he also submitted exhibits outlining five positions: construction

laborer, bulk order picker/restocker, materials handler-belt picker, materials handler-belt loader,

pallet jack order filler.3

          Wojciechowski concluded that Foster’s industrial injury caused him to have

photophobia,4 diminished visual acuity of 20/40 to 20/80 in his left eye, diplopia,5 and

exotropia.6 He also stated that these eye-related disabilities impeded Foster’s ability to succeed

at each of the five occupations.

          Martin testified that, assuming Foster’s diplopia and exotropia diagnoses were accurate,

he would not be capable of performing all the requirements of the five occupations. As to the

pallet jack order filler position specifically, Martin testified:

          Pallet Jack operation is very different than forklift operation. That’s a manual jack
          that is pushed around a floor. It’s possible he might be able to do that.
                   However . . . pallet jack operation it’s not something that’s commonly found
          in the labor market where that’s all that individual is doing. Typically, pallet jack
          operation you see a lot of times is with distributing companies where someone like
          Pepsi is bringing their product out to a store. The driver is unloading it via a pallet
          jack and then transporting it into the store.
                   That’s more likely where you see pallet jacks used. So, it would entail more
          driving positions.

Certified Appeals Board Record (CABR) at 29 (emphasis added).



3
 Unless otherwise indicated, these five positions will be collectively referred to as the “five
occupations.”
4
    Photophobia refers to sensitivity to light.
5
    Diplopia refers to double vision.
6
    Exotropia refers to eye drifting.

                                                    3
No. 49475-2-II


        In response to counsel’s follow-up question about Foster’s ability to drive a vehicle

in light of his vision difficulties, Martin testified:

        I would say that question would need to be posed to a treating physician for them
        to opine if he would be able to do that.
                My concern would be, being a courier or light delivery driver, it’s not
        uncommon to have to drive different times of the day in different weather
        conditions. . . . If he has difficulties with driving in days when its sunny, or driving
        at night due to headlights, he likely would not be able to do that job. In addition, I
        would anticipate that employers would have a significant concern about employing
        an individual who has double vision such as Mr. Foster due to liability issues,
        insurance issues.

CABR at 30. Martin also testified that Foster had the transferable skills to perform other jobs,

such as an auto courier, roofer, carpenter, route sales driver, merchandiser, and a laborer on a

road crew.

        Foster testified consistently with Martin’s and Wojciechowski’s conclusions. He also

admitted that he still drives his vehicle, though the weather can make it difficult to drive with his

visual disabilities. On cross-examination, Frito-Lay elicited from Foster that he had no

restrictions on his driver’s license.

        After Foster rested his case, Frito-Lay presented evidence through the depositions of Dr.

William Shults and Dr. William Baer, ophthalmologists. After performing two medical

examinations on Foster, Shults concluded that Foster likely had intermittent exotropia and

diplopia, as well as moderate depth perception problems. Shults also opined that Foster’s

claimed diminished visual acuity was called into question by the result of the cross cylinder test.

Shults explained that this test is administered with both eyes open so that patients cannot tell

which eye is being tested. Shults opined that through this test, the examiner can

        determine whether the patient is telling the truth. And in this case on a day when
        he was claiming to be able to see no better than 20/60 he was, in fact, able to see at

                                                     4
No. 49475-2-II


       a 20/30 level, and so that tells you that he’s not giving his best effort in providing
       the visual acuity data in his left eye.

CABR (Shults Deposition) (Sept, 17. 2014) at 21-22.

       Baer also examined Foster twice. After the second examination, Baer opined that Foster

had intermittent exotropia, but that it was probably pre-existing, as well as a “[h]istory of visual

field defect, anomalous in nature.” CABR (Baer Deposition) at 19. Baer further opined that

even with his intermittent exotropia he was likely able to be employed in one of the five

occupations. Baer also believed that Foster could do office work, such as on a computer. On

cross examination, Foster’s attorney elicited from Baer that Foster’s depth perception issues may

interfere with his ability to perform jobs.

       Frito-Lay also admitted the deposition of James Ellis, a private investigator, and

accompanying video surveillance footage7 that he had recorded. In general, the video

surveillance shows Foster on multiple occasions after the time of his injury driving his vehicle to

and from various locations with little to no problems. The video surveillance also showed Foster

loading and unloading large pieces of wood from a truck and delivering them to his friend’s

business. The video surveillance further showed that Foster was not wearing any kind of

protective eye wear or a visor to protect his eyes, which would purportedly help someone with

photophobia.




7
  In his opening brief, Foster stated that the surveillance videos were not part of the appellate
record. However, this is incorrect.


                                                  5
No. 49475-2-II


                                  III. THE BOARD’S DECISION

       The Board issued a decision and order with the following pertinent findings of fact and

conclusions of law:

                                    FINDINGS OF FACT
       ....
       4.     Brandon Foster had no physical restrictions caused by the industrial injury,
              from January 30, 2014, through May 5, 2014, and as of May 5, 2014.

       5.     Brandon Foster was and is able to perform the [five occupations] from
              January 30, 2014, through May 5, 2014, and as of May 5, 2014.

       6.     Brandon Foster was able to perform and obtain gainful employment on a
              reasonably continuous basis from January 30, 2014, through May 5, 2014,
              and as of May 5, 2014.

       7.     As of May 5, 2014, Brandon Foster's condition(s) proximately caused by
              the industrial injury were fixed and stable.

       8.     Medical findings of 20/25-2 diminution of the left eye visual acuity with
              intermittent exotropia and diplopia support a permanent partial disability
              award.

       9.     On May 5, 2014, Brandon Foster had a permanent partial disability
              proximately caused by the industrial injury equal to 20 percent of total
              bodily impairment.

                                  CONCLUSIONS OF LAW

       ....
       2.     Brandon Foster was not a temporarily totally disabled worker within the
              meaning of RCW 51.32.090 from January 30, 2014, through May 5, 2014.

       3.     Brandon Foster was not a permanently totally disabled worker within the
              meaning of RCW 51.08.160, as of May 5, 2014.

       4.     On May 5, 2014, Brandon Foster had a permanent partial disability, within
              the meaning of RCW 51.32.080, proximately caused by the industrial
              injury.

       5.     The Department order dated May 5, 2014, is incorrect and is reversed. This
              matter is remanded to the Department to issue an order finding that the

                                               6
No. 49475-2-II


                claimant was not entitled to time-loss compensation benefits from January
                30, 2014, through May 5, 2014. Brandon Foster was not a permanently and
                totally disabled worker within the meaning of RCW 51.08.160, as of May
                5, 2014. The self-insured employer is ordered to pay a permanent partial
                disability award equal to 20 percent of total bodily impairment, less prior
                awards, if any, and to close the claim.

CABR at 54-55.

        Both Foster and Frito-Lay filed a petition for review of this order. On April 27, 2015, the

Board denied review.

                                  IV. SUPERIOR COURT LITIGATION

        Both parties appealed to the superior court and stipulated to consolidate their appeals.

Foster moved for summary judgment, arguing that there was no genuine issue of material fact

that he was a permanently totally disabled worker. Frito-Lay opposed the motion, contending

that were genuine issues of material fact and a reasonable person could conclude that Foster was

not totally permanently disabled. The trial court denied Foster’s summary judgment motion,

stating in its written order that there are

        genuine material issues of fact concerning plaintiff’s credibility which is the
        foundation for the opinions of plaintiff’s expert witnesses and plaintiff’s ability to
        obtain and perform gainful employment.

Clerk’s Papers (CP) at 57.

        Frito-Lay subsequently stipulated to dismiss its appeal, which had contested the Board’s

determination that Foster was entitled to a 20 percent partial permanent disability award. Foster

and Frito-Lay proceeded to a jury trial.

        The CABR, as already detailed in Part II above, was read to the jury and exhibits

contained therein were admitted. At the end of this evidence, Foster moved for a directed verdict

and a partial directed verdict.

                                                  7
No. 49475-2-II


       In his directed verdict motion, Foster argued that there was not substantial evidence to

show that he could obtain work in light of his eye-related disabilities. The superior court

disagreed, primarily on the basis of the video surveillance footage showing Foster’s ability to do

work as a “handyman,” and denied his motion for a directed verdict. CABR (Transcripts) at 56-

57.

       As to the motion for a partial directed verdict, Foster argued that no evidence supported

the Board’s finding that he could work as a pallet jack filler picker.8 Foster pointed out that

Martin’s testimony was unrebutted “that this is not a complete job in the labor market . . . [and]

is . . . paired with other job duties that involve driving.” CABR (Transcripts) at 47. The superior

court denied the motion “because a reasonable juror could conclude that Mr. Foster was capable

of obtaining and performing work as a Pallet Jack Operator,”9 and allowed the jury to consider

that position in its deliberations. CP at 89-90.



8
  In its motion for partial directed verdict, Foster had also argued that the Board’s order was
silent as to Foster’s ability to work as an over-the-road “bin driver and . . . forklift operator,” and
Frito-Lay did not challenge this omission. CABR (Transcripts) at 32. The superior court agreed
and excluded these jobs from the jury’s consideration. This determination is not challenged on
appeal.
         Foster also argued that the evidence did not support him working as maintenance
mechanic. The superior court granted the motion as to maintenance mechanic because the only
evidence presented, by way of Martin, “concluded he did not possess the skills, education,
knowledge or experience to obtain such employment.” CP at 89. The court thus excluded the
maintenance mechanic position from the jury’s consideration. This determination is not
challenged on appeal.
         Finally, the superior court also informed the jury that Foster had a restriction related to
his inability to obtain a commercial drivers’ license. This determination is not challenged on
appeal.
9
 This position is also apparently called a “pallet jack order filler.” CP at 89-90. Neither party
argues that there is a difference between a pallet jack operator and a pallet jack order filler.


                                                   8
No. 49475-2-II


       The jury determined that the Board was correct in deciding that the industrial injury did

not make (1) Foster temporarily totally disabled between January 30 and May 5, 2014 or (2)

permanently totally disabled as of May 5, 2014. The jury also determined that the Board was

correct in deciding that Foster had a permanent partial disability equal to 20 percent of total

bodily impairment as of May 5, 2014. Based on the jury’s verdicts, the superior court affirmed

the Board’s order.

       Foster appeals the superior court’s denial of his motions for a directed verdict and partial

directed verdict and its subsequent order affirming the Board.

                                            ANALYSIS

                                     I. STANDARD OF REVIEW

       In all court proceedings under or pursuant to the Industrial Insurance Act (IIA), Title 51

RCW, “the findings and decision of the board shall be prima facie correct and the burden of

proof shall be upon the party attacking the same.” RCW 51.52.115. Further, in an industrial

insurance appeal, “the practice in civil cases shall apply to appeals. . . . Appeal shall lie from the

judgment of the superior court as in other civil cases.” RCW 51.52.140. We thus review the

superior court’s ruling under the standard applicable rules governing a directed verdict on

appellate review. See Joy v. Dep’t of Labor & Indus., 170 Wn. App. 614, 619, 285 P.3d 187

(2012).10

       “We review motions for judgment as a matter of law de novo.” Joy, 170 Wn. App. at

619. Under CR 50(a)(1),



 Joy refers to a directed verdict as a “motion[] for judgment as a matter of law.” Joy, 170 Wn.
10

App. at 619.

                                                  9
No. 49475-2-II


       [i]f, during a trial by jury, a party has been fully heard with respect to an issue and
       there is no legally sufficient evidentiary basis for a reasonable jury to find or have
       found for that party with respect to that issue, the court may grant a motion for
       judgment as a matter of law against the party on any claim, counterclaim, cross
       claim, or third party claim that cannot under the controlling law be maintained
       without a favorable finding on that issue.

       “On review of a ruling on a motion for a directed verdict, the appellate court applies the

same standard as the trial court.” Chaney v. Providence Health Care, 176 Wn.2d 727, 732, 295

P.3d 728 (2013). “A directed verdict is appropriate if, as a matter of law, there is no substantial

evidence or reasonable inference to sustain a verdict for the nonmoving party.” Id. “Substantial

evidence is the quantum of evidence sufficient to persuade a rational, fair-minded person the

premise is true.” Joy, 170 Wn. App. at 619 (internal quotation marks omitted). A directed

verdict “‘can be granted only when it can be said, as a matter of law, that there is no competent

and substantial evidence upon which the verdict can rest.’” Guijosa v. Wal-Mart Stores, Inc.,

144 Wn.2d 907, 915, 32 P.3d 250 (2001) (quoting State v. Hall, 74 Wn.2d 726, 727, 446 P.2d

323 (1968)).

                    II. DIRECTED VERDICT – PERMANENT TOTAL DISABILITY

       Foster argues that once he made a prima facie case that he had a permanent total

disability, the burden of proof shifted to Frito-Lay to show that he was capable of both

performing and obtaining employment in light of his vision-related impairments. We disagree.

A.     Legal Principles

       “‘Permanent total disability’ means loss of both legs, or arms, or one leg and one arm,

total loss of eyesight, paralysis or other condition permanently incapacitating the worker from

performing any work at any gainful occupation.” RCW 51.08.160. In interpreting this

definition, the case law recognizes that “the purpose of workers’ compensation, and the principle

                                                 10
No. 49475-2-II


which animates it, is to insure against the loss of wage earning capacity. Adherence to this

principle focuses disability hearings on the particular claimant’s ability to work in the

competitive labor market.” Leeper v. Dep’t of Labor & Indus., 123 Wn.2d 803, 814, 872 P.2d

507 (1994). The definition of “total disability” thus has a medical aspect, i.e., the extent of

physical impairment, and an economic aspect, i.e., the effect on wage earning capacity. Adams

v. Dep’t of Labor & Indus., 128 Wn.2d 224, 230, 905 P.2d 1220 (1995) (citing Leeper, 123

Wn.2d at 812.) These two aspects have been combined in a previously approved jury instruction

that states: “‘[A] worker is totally disabled if unable to perform or obtain regular gainful

employment[.]’” Adams, 128 Wn.2d at 230 (quoting former WASHINGTON PRACTICE (WPI),

155.07 (3d ed. 1989)) (approved by Leeper).11

       In Fochtman v. Department of Labor and Industries, 7 Wn. App. 286, 294, 499 P.2d 255

(1972)), we characterized total disability as

       a hybrid quasi-medical concept in which there are intermingled in various
       combinations, the medical [f]act of loss of function and disability, together with the
       inability to perform and the inability to obtain work as a result of his industrial
       injury.

       Citing Fochtman, our Supreme Court in Leeper, 123 Wn.2d at 814-15 set out a “whole

person” approach to determine the degree and extent of an individual’s disability:

       the appropriate measure of disability requires a study of the whole person-
       weaknesses and strengths, age, education, training and experience, reaction to the
       injury, loss of function, and other factors relevant to whether the worker is, as a
       result of the injury, disqualified from employment generally available in the labor
       market. See Fochtman, 7 Wn. App. at 295. . . . The trier of fact must determine


11
  The language of WPI 155.07 has been updated since Leeper and Adams to state, “Total
disability is an impairment of mind or body that renders a worker unable to perform or obtain a
gainful occupation with a reasonable degree of success and continuity.” (Emphasis added.)


                                                 11
No. 49475-2-II


       from all relevant evidence whether an injury has left the worker totally disabled.

Relevant evidence as to whether an injury has resulted in permanent total disability includes

testimony from a vocational expert regarding the worker’s inability to obtain work in the labor

market due to his injury. Fochtman, 7 Wn. App. at 295; Leeper, 123 Wn.2d at 813.

       In discussing how a claimant proves permanent total disability, Kuhnle v. Department of

Labor and Industries, 12 Wn.2d 191, 199, 120 P.2d 1003 (1942), drew a distinction between an

injured employee who “‘can do light work of a general nature’” and one who “‘is only fitted to

do ‘odd’ jobs, or special work, not generally available’”:

       “In the former, the burden is on the petitioner; the presumption being that his
       inability to obtain employment is due to the fluctuations in the labor market and not
       to the consequences of the accident. In the latter, the burden is on the employer to
       show that such special work is available to the petitioner.”

(quoting White v. Tennessee Consol. Coal Co., 162 Tenn. 380, 385, 36 S.W.2d 902 (1931)).

       In Leeper, the Washington Supreme Court restated this rule from Kuhnle, referred

to as the “odd lot doctrine,” in the following terms:

       Under this rule, a claimant must prove he or she is incapable of performing light or
       sedentary work of a general nature. If the claimant proves this, the burden of proof
       shifts to the Department, and it must show odd jobs or special work exist in the
       local labor market that the claimant could obtain. Kuhnle, 12 Wn.2d at 199.

Leeper, 123 Wn.2d at 815 (emphasis omitted). To shift the burden to the Department under the

odd lot doctrine, the claimant must make a prima facie case of disability. Id. Leeper is

consistent with the court’s prior decision in Spring v. Department of Labor and Industries, 96

Wn.2d 914, 919, 640 P.2d 1 (1982) (emphasis omitted), which held that

       Spring met the burden of proving that he could not obtain and maintain employment
       of a general light and/or sedentary nature. The burden then shifted to the employer
       to prove that odd lot or special work of a nongeneral nature was available to Spring.


                                                12
No. 49475-2-II


       In short, the burden remains with the claimant to show total permanent disability, unless

he makes a prima facie showing under the odd lot doctrine that he cannot maintain employment

of a general light/and or sedentary nature. If the claimant shows this, the burden shifts to the

employer to show that special work of a nongeneral nature would be available to him. The case

law Foster presents does not call this approach into question.12 13

B.     Application of the Odd Lot Doctrine

       Foster argues that he met his prima facie case to show total disability through the

testimony of Wojciechowski and Martin that his intermittent exotropia, diplopia, and diminished

visual acuity in his left eye prevented him from being employed in one of the five occupations.



12
   In his reply brief, Foster argues that Graham v. Weyerhaeuser Co., 71 Wn. App. 55, 60, 856
P.2d 717 (1993), overruled in part by Leeper, 123 Wn.2d 803, “clearly required labor market
evidence to prove employability.” Reply Br. of Appellant at 2. The cited portion of Graham
states:
         Whether work is general or special depends on whether it is generally available
         on the competitive labor market. General work is work, including light or
         sedentary work that is reasonably continuous within the range of the worker's
         capabilities, training, education and experience and generally available on the
         competitive labor market
(Emphasis omitted.) This standard indicates that whether work is available on the labor market
is relevant, but it does not state that it is the employer’s burden to prove availability beyond that
set out in the odd lot doctrine.
13
   Foster also argues that under the third prong of Leeper, Frito-Lay must present evidence that
he can obtain work in the labor market. The third prong, which is more akin to a conclusion,
states:
        Third, our opinions require a claimant to show the workplace injury, not
        fluctuations in the labor market alone, caused the inability to obtain work. If the
        claimant shows the injury in some part caused the inability to obtain work, then the
        failure to obtain work is relevant evidence of total disability.
The third conclusion in Leeper reflects that it is the claimant’s burden to show that an injury
impairs his ability to obtain work. It does not shift the burden to the employer to prove the
availability of jobs beyond that established in the odd-lot doctrine approved by Leeper.


                                                  13
No. 49475-2-II


Foster also points out that Baer, Frito-Lay’s expert, stated that a job involving use of depth

perception may be difficult to accomplish for Foster. Thus, Foster contends, the burden shifted

to Frito-Lay to provide substantial evidence that he could obtain work in light of his work

restrictions.

        Under the odd lot doctrine, however, only if Foster had shown that he could not obtain

and maintain employment of a general light and/or sedentary nature would Frito-Lay have been

required to show special work of a nongeneral nature that was available to him. Chaney, 176

Wn.2d at 732; Leeper, 123 Wn.2d at 815; Spring, 96 Wn.2d at 919. The record discloses

multiple issues of fact as to whether Foster made this showing.

        First, even if we assume that the five occupations were examples of light or sedentary

work of a general nature, whether Foster’s disabilities prevented him from performing these jobs

was plainly disputed. Baer testified that even with his intermittent exotropia, Foster could still

work in any of the five occupations. Martin, on the other hand, testified that Foster would be

unable to perform any of the five occupations, assuming that Wojciechowski’s conclusion

regarding Foster’s disabilities was true. The parties’ experts also disagreed as to whether Foster

could do office work, such as using a computer. Common sense would dictate that an office job

would fall into the category of a general light and/or sedentary nature. See Young v. Dep’t of

Labor & Indus., 81 Wn. App. 123, 132, 913 P.2d 402 (1996).

        Perhaps more to the point, Martin, Foster’s expert, testified that Foster had the

transferable skills to perform jobs other than the five occupations, such as auto courier, roofer,

carpenter, route sales driver, merchandiser, and a laborer on a road crew. Taking that at face




                                                 14
No. 49475-2-II


value, Foster has not shown that he is unable to perform light or sedentary work under the odd

lot doctrine.

        Further, as Frito-Lay argues, both Martin’s and Wojciechowski’s opinions were grounded

on the veracity of Foster’s representation of his condition. Although it was undisputed that

Foster had some disability, Frito-Lay presented a case that consistently undermined Foster’s

credibility. Shults testified that the cross cylinder test showed that he had exaggerated his visual

impairment. The videos of Foster showed that he was driving to different locations and

performing tasks without eye protection, which would have purportedly helped with his

photophobia. Because both Martin’s and Wojciechowski’s opinions were based on Foster’s

credibility, those opinions were compromised by the questions raised about Foster’s credibility.

Foster has failed to present a prima facie case sufficient to shift the burden of persuasion under

the odd lot doctrine.

        Foster also argues that even if he did not meet his burden as a matter of law under the odd

lot doctrine, the standards governing permanent total disability should be modified. Specifically,

he argues that because it was undisputed that he had some work restrictions, the employer was

required to put evidence on that he could obtain work in light of those work restrictions.

        Foster cites to former RCW 51.32.095 (2008) for the proposition that his employer was

required to present a “specific vocational opinion . . . that there are sufficient employers willing

and able to hire workers similar to the injured worker.” Br. of Appellant at 20-21. Former RCW

51.32.095, however, dealt with the priority of vocational rehabilitation services that should be

provided to an injured worker when such services are necessary and likely to enable the injured

worker to become employable. WAC 296-19A-020; see also Winchell’s Donuts v. Quintana, 65


                                                 15
No. 49475-2-II


Wn. App. 525, 526-27, 828 P.2d 1166 (1992). Nothing in former RCW 51.32.095 indicated that

an employer is required to put on labor market evidence to rebut permanent and total disability.

       Foster also cites to several Department regulations, WAC 296-19A-065, -070, and -140,

as further supporting the view that the employer carries the burden to show that Foster can

achieve gainful employment in the market. These rules are related to former RCW 51.32.095.

They set forth how vocational rehabilitation providers may complete assessment reports, WAC

296-19A-070(2), which require “labor market” information, WAC 296-19A-140, in order for an

employer to determine whether an injured worker should receive vocational rehabilitation

services, WAC 296-19A-065. However, the relevancy of labor market information to the

determination whether vocational rehabilitation services are needed does not imply that an

employer must present labor market information when an injured worker is claiming a

permanent total disability.

       Foster’s arguments from these statutes and rules do not warrant our spurning the odd lot

doctrine and crafting a standard contrary to well-established opinions such as Leeper. We

decline the invitation.

C.     Conclusion

       Foster appeals the trial court's denial of his motion for a directed verdict. As noted, “[a]

directed verdict is appropriate if, as a matter of law, there is no substantial evidence or

reasonable inference to sustain a verdict for the nonmoving party.” Chaney, 176 Wn.2d at 732.

Foster argues this standard is met because the burden of persuasion shifted to Frito-Lay under the

odd lot doctrine and Frito-Lay presented no evidence that work was available to Foster.




                                                  16
No. 49475-2-II


       With the evidence that Foster was able to perform jobs other than the five listed

occupations, the conflicting evidence whether he was able to perform the five occupations and

office work, and the expert opinion that Foster had exaggerated his visual impairment during

testing, we cannot say that Foster made a prima facie showing that he was incapable of

performing light or sedentary work of a general nature. Therefore, the burden of persuasion did

not shift to Frito-Lay under Leeper and the odd lot doctrine. With that, the record summarized

above contains evidence from which a jury could reasonably reach a verdict for the employer,

and the trial court properly denied Foster’s motion for a directed verdict.

                 III. PARTIAL DIRECTED VERDICT – PALLET JACK ORDER FILLER

       Foster argues that the superior court erred in failing to grant his motion for a partial

directed verdict and in allowing the jury to consider the position of pallet jack order filler. In

support, Foster cites to Martin’s testimony that “pallet jack operation [is] not something that’s

commonly found in the labor market where that’s all that individual is doing.” CABR

(Transcripts) at 29. According to Martin, pallet jack operation usually occurs in tandem with a

driving position where the employee distributes products to stores.

       Taking this evidence in the light most favorable to the nonmoving party, Martin’s

testimony shows that a pallet jack order filler position exists, but that it commonly requires an

individual to be able to drive a vehicle. Frito-Lay does not appear to argue that this position does

not typically require driving.

       Foster argues that the record lacks evidence showing that he could drive a non-

commercial vehicle, which often would be required of a pallet jack order filler. We disagree.




                                                 17
No. 49475-2-II


       On one hand, Martin, among others, testified that Foster’s vision defects would make it

difficult to carry out driving needed for any job. However, Frito-Lay presented evidence that

Foster had an unrestricted driver’s license and that he did not have trouble driving in the video

surveillance footage. Foster also contends that Martin’s statement that it was “possible” for him

to be a pallet jack order filler was not enough to submit the matter to the jury because “‘possible’

does not meet our standard of proof requiring opinions based upon probability.” Br. of

Appellant at 25. However, Baer testified that Foster could be a pallet jack order filler. Thus,

regardless of Martin’s opinion, Baer’s testimony supplied substantial evidence to show that

Foster could perform the duties of a pallet jack order filler.

       For these reasons, this record does supply substantial evidence or reasonable inferences

from that evidence to sustain a verdict for the nonmoving party, Frito Lay. Chaney, 176 Wn.2d

at 732. Thus, the trial court properly denied Foster's motion for a partial directed verdict.14

                                        IV. ATTORNEY FEES

       Foster also requests reasonable attorney fees and costs pursuant to RCW 51.52.130.

RCW 51.52.130(1) provides:

       If, on appeal to the superior or appellate court from the decision and order of the
       board, said decision and order is reversed or modified and additional relief is
       granted to a worker or beneficiary, or in cases where a party other than the worker
       or beneficiary is the appealing party and the worker’s or beneficiary’s right to relief
       is sustained, a reasonable fee for the services of the worker’s or beneficiary’s
       attorney shall be fixed by the court. . .



14
  Foster further contends that no doctor was allowed to comment upon his ability to drive a non-
commercial vehicle, and even if he could drive his own vehicle, this does not support an
inference that he could drive a company vehicle. However, the evidence showed that he had an
unrestricted license and was able to drive to some extent. Thus, a juror could have inferred that
Foster could drive well enough to be a pallet jack order filler.

                                                  18
No. 49475-2-II


Because Foster does not prevail, we do not award attorney fees and costs under RCW 51.52.130.

                                          CONCLUSION

        We affirm the superior court and deny Foster’s request for attorney fees on appeal.

        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.



                                                      BJORGEN, C.J.
 We concur:



 MELNICK, J.




 SUTTON, J.




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