                                                                           FILED
                                                                        JULY 28, 2016
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division Ill

            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

LEON VALDEZ,                                  )
                                              )         No. 33261-6-111
                     Appellant,               )
                                              )
       V.                                     )
                                              )
DEPARTMENTOFLABORAND                          )         UNPUBLISHED OPINION
INDUSTRIES OF THE STATE OF                    )
WASHINGTON,                                   )
                                              )
                     Respondent.              )

       SIDDOWAY, J. - Leon Valdez appeals the superior court's summary judgment

affirming a Board of Industrial Appeals decision that he ceased to be temporarily totally

disabled on and after July 10, 2012.

       One of the Department of Labor and Industries' (Department) arguments on

appeal is that an employer's affiliate was used to rationalize an E-Verify 1 check on Mr.

Valdez that was discriminatorily based on his workplace injury. The employer raises a

novel issue of whether an employer of injury may claim benefits provided by RCW

51.32.090(4) by making an offer of special work through an affiliate. But the appeal can

be resolved on the simple basis relied on by the board: Mr. Valdez failed to present


       1
          E-Verify is an Internet-based program, operated by the United States
government, that employers may use to determine whether an employee is eligible to
work in the United States. See 8 U.S.C. § 1324a(d)(4) (authorizing employment
eligibility pilot projects).
No. 33261-6-III
Valdez v. Dep 't ofLabor & Indus.


evidence that he was unable to perform or obtain gainful light-duty employment on a

reasonably continuous basis in the time frame contested benefits were paid. We affirm.

                    FACTS AND PROCEDURAL BACKGROUND

       Cascade View Fruit and Cold Storage (Cascade), located in Selah, hired Leon

Valdez in June 2010 as an apple thinner.

       That August 6, Mr. Valdez fell from a ladder while working, and suffered a

contusion of his back and sprains of his left knee, right shoulder, thoracic region, lumbar

region, and neck. 2 He was unable to work for three days. Although he visited a

physician and obtained a letter requesting light-duty work, Cascade told him no such

work was available. He continued working as an apple thinner for a few more months

until, in November, he returned to California, where he had lived before taking the job

with Cascade. According to Department records, a lawyer for Mr. Valdez made contact

with the Department on November 12, 2010, and Mr. Valdez began receiving time-loss

compensation benefits effective November 7.

       In May 2011, Matson Fruit Company (Matson), a Washington company affiliated

with Cascade, contacted Mr. Valdez and offered him what it termed a "transitional"

stamper assistant/conveyor monitor job that met restrictions stated on his medical



       2
         Later diagnoses attributed tears of the medial and lateral left knee meniscus and
cartilage damage from the fall. Sometime after September 2012, Mr. Valdez underwent a
meniscectomy surgery of his left knee.

                                             2
No. 33261-6-III
Valdez v. Dep 't of Labor & Indus.


provider's release. Clerk's Papers (CP) at 151. It said that if interested, Mr. Valdez

should report to work at Matson on June 13, and notified him that his refusal to accept the

position "may affect your time loss benefits." Id. When his attending physician in

California cleared him to perform the job, Mr. Valdez accepted it and returned to

Washington.

          When Mr. Valdez reported to work, Matson required that he provide proof of

eligibility to work in the United States. Matson's human resource manager, Dianna

Gutierrez, attempted to verify the Social Security number Mr. Valdez provided, which

proved invalid. Ms. Gutierrez notified Mr. Valdez that he had two months to provide a

valid Social Security number; otherwise, his employment would terminate.

          Mr. Valdez continued working at Matson as a conveyor monitor until he was

notified on August 12 that because he had not furnished a valid Social Security number,

he was "no longer eligible for an alternative duty assignment." CP at 155. The letter also

stated:

                 The Department of Labor & Industries asks us to inform workers
          when they have been released for alternative duty that such work is
          generally available, but they are ineligible for that benefit due to lack of or
          expired work authorization documents. (In other words, if not for your
          invalid [S]ocial [S]ecurity number, you could have been working
          alternative duty with regular pay/benefits.)

Id. It continued, "It may seem strange for us to be telling you all this," but "we want you

to understand why potential time loss benefits are being affected and want to make sure



                                                 3
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I    No. 33261-6-III
     Valdez v. Dep 't of Labor & Indus.
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~
!I
     [the Department] understands it is not to be issuing any time loss checks for dates after

I    August 12, 2011." Id. It copied the Department on the letter. Mr. Valdez's employment

I    with Matson ended.
i'
i
!           Despite Matson's attempted message to the Department through a copy of its

!    August 2011 letter, on July 10 of the following year, the Department awarded time-loss
I
I    compensation to Mr. Valdez for the period of August 15, 2011-following his
i
     termination of employment with Matson-through July 9, 2012. No protest or appeal

     was received by the Department, with the result that the July 10, 2012 order became final.
I
II   RCW 51.52.050, .060.
I


            The Department thereafter issued biweekly orders by which it awarded Mr. Valdez
I
I
     a total of $2,376.08 more in time-loss compensation through September 3, 2012.

I    Cascade timely protested these payment orders.

            The Department reversed the award of post-July 10 time-loss compensation,
II
     explaining, "the worker was able to work effective 7/10/12." CP at 47. It demanded that

I    Mr. Valdez repay the $2,376.08. Mr. Valdez requested reconsideration, which was

     denied. Mr. Valdez then filed a protest that the Board of Industrial Insurance accepted as

     an appeal.

           The only witnesses called to testify at the hearing before the board were Mr.

     Valdez and Ms. Guitierrez. The industrial appeals judge (IAJ) also admitted and

     published the perpetuation deposition of Dr. Larry Lefors, Mr. Valdez's Washington

                                                  4
No. 33261-6-III
Valdez v. Dep 't of Labor & Indus.


physician. Both Mr. Valdez and Dr. Lefors testified that Mr. Valdez had been able to

perform the work required by the conveyor monitor position he had held at Matson.

       The IAJ found that Mr. Valdez's position ended for reasons unrelated to the

August 6, 2010 industrial injury: it ended because he did not provide a valid Social

Security number. It also found that Mr. Valdez was "able to perform the light duty job of

conveyor monitor from July 10, 2012, through September 3, 2012," and that he "was able

to perform and obtain gainful employment on a reasonably continuous basis from July

10, 2012, through September 3, 2012." CP at 44-45.

       Based on its findings, the IAJ concluded Mr. Valdez was not a temporarily, totally

disabled worker during the time frame in which contested time-loss compensation was

paid, and affirmed the Department's order. The IAJ also determined, "[b]ecause

claimant raised issues related to the relationship of [Matson] Fruit and Cascade View,"

that Matson was not the employer of injury but was "closely affiliated" with Cascade and

that Matson could claim the benefits of offering a job under RCW 51.32.090( 4 )(b )3


       3
         To incentivize employers to keep injured workers working, RCW 51.32.090(4)
provides certain benefits to an "employer of injury" who offers "available work other
than [the worker's] usual work," that "the worker is physically able to perform." If a
worker fails to accept such an offer, his or her time-loss compensation will cease as long
as the work remains available. If the worker accepts the offer, the employer will be
eligible for certain subsidies. If a light-duty job ceases to be available before the injured
worker is recovered enough to return to the job of injury, then the worker will again
receive benefits. RCW 51.32.090(4)(b). If the employee is fired from the light-duty job
for cause unrelated to the industrial injury (and provided that the same action would have
been taken against other similarly-situated workers), then the employee's benefits will

                                              5
No. 33261-6-III
Valdez v. Dep 't of Labor & Indus.


because

       [i]t would be an absurd result to preclude a non-employer of injury from
       offering a light duty job that an injured worker can perform, particularly
       when the purpose of the statute is to return an injured worker as soon as a
       worker is able.

CP at 42-43.

       Mr. Valdez petitioned the board for review, which was granted. Rather than adopt

the IAJ's proposed decision, the board issued its own final decision and order. See RCW

51.52.106. Among its findings were that following his fall, Mr. Valdez was off work for

three days, "but then continued to work until November 2010"; that in the position of

conveyor monitor "Mr. Valdez was able to sit and stand as needed and did not have any

physical difficulties performing the position", and ultimately, that he was able to perform

the light-duty job of conveyor monitor during the time frame contested benefits were

paid. CP at 9-10. The board concluded that Mr. Valdez was not a temporarily totally

disabled worker during the time frame contested benefits were paid, but did not adopt the

IAJ's conclusion that an affiliate's offer of a light-duty job was a substitute for such an

offer from the employer of injury under RCW 51.32.090(4)(b).

       Mr. Valdez appealed the board's decision to the superior court. He, Cascade, and

the Department then filed cross motions for summary judgment.


not be reinstated-the job remains "available" within the meaning ofRCW 51.32.090(4)
but for the actions of the worker. O'Keefe v. Dep't of Labor & Indus., 126 Wn. App.
760, 766-67, 109 P.3d 484 (2005).

                                              6
No. 33261-6-111
Valdez v. Dep 't of Labor & Indus.


       The court granted summary judgment in favor of the Department and affirmed its

order assessing the overpayment. Mr. Valdez appeals.

                                       ANALYSIS

       Confusion exists over the nature of the superior court's decision and our review.

Mr. Valdez characterizes the superior court as having held "a bench trial" on January 26,

2015, following which it entered "findings of fact, conclusions of law, and a judgment."

Br. of Appellant at 2. His only assignments of error are to three board findings adopted

by the superior court in its own judgment, which he challenges as unsupported by

substantial evidence.

       Yet it was the parties' cross motions for summary judgment that the superior court

recognized as before it at the January 27 hearing.· Report of Proceedings (RP) at 1 ("This

afternoon we have a summary judgment and cross-motion for summary judgment.").

And in entering judgment, the superior court determined that "[ n ]o genuine issue of

material fact exists," and "[t]he Defendant, Department is entitled to judgment as a matter

oflaw." CP at 433.

       Unfortunately, the superior court's judgment goes on to say that "[a]

preponderance of evidence supports the Board's Findings of Fact," and it "adopts as its

Findings of Fact, and incorporates by this reference, the Board's Findings of Facts Nos. 1

through 11 of the April 29, 2014, Decision and Order." CP at 433.

      "[F]indings of fact on summary judgment are not proper, are superfluous, and are

                                            7
No. 33261-6-III
Valdez v. Dep 't ofLabor & Indus.


not considered by the appellate court." Hemenway v. Miller, 116 Wn.2d 725, 731, 807

P .2d 863 ( 1991 ). And a finding that "a preponderance of evidence" supported the

board's findings would not support summary judgment.

        Since the record is clear that the case was decided on summary judgment, the

appeal must be resolved on that basis. If summary judgment was improperly granted,

then we would remand the case to the superior court for its de novo review of the board's

decision on the merits. Any party losing on the merits could then appeal and challenge

the sufficiency of evidence to support the superior court's findings. 4 Cf Spring v. Dep 't

of Labor & Indus., (Spring II) 39 Wn. App. 751, 753, 695 P.2d 612 (1985) (addressing a

second appeal, after reversal of summary judgment in the first resulted in remand to the

trial court).



        4
         Unlike the nature ofthis court's review in most appeals of administrative
decisions, our review on appeal in workers' compensation cases is of the superior court's
decision, not the board's. Rogers v. Dep 't ofLabor & Indus., 151 Wn. App. 174, 179-81,
210 P.3d 355 (2009). The superior court's task on appeal is to review the board's
decision de novo, basing its decision solely on the evidence and testimony presented to
the board. Stelter v. Dep 't ofLabor & Indus., 147 Wn.2d 702, 707, 57 P.3d 248 (2002).
Accordingly, when the superior court reweighs the evidence, we review its findings and
conclusions.
        Where a superior court grants summary judgment affirming a board decision,
however, "the appellate court's inquiry is the same as that of the superior court." Id.
(citing Our Lady ofLourdes Hosp. v. Franklin County, 120 Wn.2d 439,451, 842 P.2d
956 (1993)). In other words, where summary judgment is granted, both the superior court
and this court ask the same question: has the moving party demonstrated that the
evidence presented to the board presented no genuine issue of material fact, such that the
moving party is entitled to judgment as a matter of law? See id.

                                             8
No. 33261-6-III
Valdez v. Dep 't of Labor & Indus.


       We therefore review only whether undisputed evidence supports the superior

court's judgment in favor of the Department and Cascade. We will treat Mr. Valdez's

assignments of error as identifying matters that he contends were factually disputed or, if

undisputed, supported judgment in his favor.

                  Matters That Mr. Valdez Claims to Have Demonstrated
                                    Before the Board

       Thus construed, Mr. Valdez contends the following matters were disputed or, if

undisputed, supported judgment in his favor: ( 1) whether he was unable to perform and

obtain gainful employment on a reasonably continuous basis during the time frame

contested benefits were paid; (2) whether, during that period, light-duty work as a

conveyor monitor was generally available in the labor market, or, alternatively, whether

special work in that position had been validly offered by Matson; 5 and (3) whether the

Department correctly assessed an overpayment of $2,376.08 for that time period. Br. of

Appellant at 3.

       The simplest basis on which to resolve the appeal is that relied on by the board:

Mr. Valdez failed to present evidence that he was unable to perform or obtain light-duty



       5
        While Mr. Valdez's second assignment of error speaks only of whether "Mr.
Valdez was able to perform the light-duty job of conveyor monitor" during the relevant
time frame, it is clear from his briefing that he disputes whether the conveyor monitor job
was generally available, or, if not, whether Matson's offer of the position complied with
RCW 51.32.090(4)(b) and thereby excused Cascade from further liability if Matson
terminated his employment for cause unrelated to his industrial injury.

                                             9
~


I1
i
I

I
!
I
     No. 33261-6-III
     Valdez v. Dep 't of Labor & Indus.
II
II   work on a reasonably continuous basis. We therefore do not reach the parties' disputes
I    over whether Cascade could claim the benefits afforded an "employer of injury" under
I    RCW 51.32.090( 4 )(b) by making an offer of special work through an affiliate, or whether
I    Title 51 RCW forbids an employer from discriminatorily conducting immigration checks

     of injured employees.

                        Entitlement to Time-Loss Compensation upon Total
                                       Temporary Disability

            Under Washington's Industrial Insurance Act, Title 51 RCW, a worker disabled in

     the course of employment is entitled to workers' compensation benefits. RCW

     51.32.010. '" Temporary total disability' is a condition that temporarily incapacitates a

     worker from performing any work at any gainful employment." Hubbard v. Dep 't of

     Labor & Indus., 140 Wn.2d 35, 43, 992 P.2d 1002 (2000). It "differs from permanent

     total disability in duration, not character." 0 'Keefe, 126 Wn. App. at 768.

            "[T]otal disability does not mean that the worker must have become physically or

     mentally helpless." 6A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

     INSTRUCTIONS: CIVIL 155.07, at 148 (6th ed. 2012) (WPI) (approved by Leeper V.

     Department ofLabor & Industries, 123 Wn.2d 803,806, 872 P.2d 507 (1994)). Instead,

     it is "the loss of all reasonable wage-earning capacity." WPI 155.07. A worker is not

     totally disabled solely because he is unable to return to his former occupation. Hunter v.

     Bethel Sch. Dist., 71 Wn. App. 501, 507, 859 P.2d 652 (1993). Instead, a worker is



                                                 10
No. 33261-6-III
Valdez v. Dep 't of Labor & Indus.


totally disabled if he or she is not capable of reasonably continuous employment at any

kind of generally available work. Id. "General work means even light or sedentary work,

if it is reasonably continuous, within the range of the claimant's capabilities, training, and

experience, and generally available on the competitive labor market." Young v. Dep 't of

Labor & Indus., 81 Wn. App. 123, 131, 913 P.2d 402 (1996).

       "The ultimate goal [of time-loss compensation] is to provide temporary financial

support until the injured worker is able to return to work." Kaiser Aluminum & Chem.

Corp. v. Overdorf!, 57 Wn. App. 291, 296, 788 P.2d 8 (1990). Consistent with that goal,

time-loss compensation terminates as soon as the worker's condition becomes fixed and

stable, or as soon as the worker is able to perform any kind of work. Hunter, 71 Wn.

App. at 507; RCW 51.32.090(3)(a).

       If a worker is able to do light work of a general nature but is unable to find work,

the presumption is that fluctuations in the labor market rather than consequences of the

workplace injury are to blame. Leeper, 123 Wn.2d at 814 (citing Spring v. Dep 't of

Labor & Indus., 96 Wn.2d 914,921,640 P.2d 1 (1982) (Dolliver, J., dissenting)). The

burden is on the worker to show there is no work he can obtain.

       Even where the worker has proved that he or she cannot perform or obtain general

work, an employer may avoid liability for time-loss compensation by proving that the

worker can both perform and obtain "special work." Graham v. Weyerhauser Co., 71

Wn. App. 55, 62-63, 856 P.2d 717 (1993), overruled on other grounds by Leeper, 123

                                             11
No. 33261-6-111
Valdez v. Dep 't of Labor & Indus.


Wn.2d at 818. This employer response on the issue of employability-often referred to

as the "odd lot" doctrine-was adopted by Washington courts in 1942. Fochtman v.

Dep't ofLabor & Indus., 7 Wn. App. 286,292,499 P.2d 255 (1972) (citing Kuhnle v.

Dep 't ofLabor & Indus., 12 Wn.2d 191, 120 P .2d 1003 ( 1942)). In Graham, the Court

of Appeals characterized the odd lot doctrine as "operat[ing] like an affirmative defense;

when successfully invoked by the employer, it precludes a finding of total disability, even

though the worker may have proved that he or she cannot perform general work." 71

Wn. App. at 62-63. Washington decisions recognize that assertion of the odd lot doctrine

shifts the burden of persuasion to the Department or the employer-but not until the

worker has made out a prima facie case of disability. Leeper, 123 Wn.2d at 815.

       Testimony as to "light-duty" work is key in this appeal. Light-duty work may or

may not be special, or odd lot, work. Here, as elsewhere, whether light-duty work is

special work dictates the burden of proof. The worker bears the burden of proving that

he or she "is incapable of performing light or sedentary work of a general nature."

Spring, 96 Wn.2d at 919. If, however, the worker can no longer perform light or

sedentary work of a general nature and "' is fitted only to perform "odd jobs" or special

work, not generally available,'" then "' the burden is on the [D]epartment,'" or the

employer, "' to show that there is special work that he can in fact obtain.'" Id. (quoting

Kuhnle, 12 Wn.2d at 198-99).




                                            12
No. 33261-6-III
Valdez v. Dep 't of Labor & Indus.


                                     Summary Judgment

       The decisive issue on appeal is whether Mr. Valdez met his burden of producing

evidence that he was unable to perform or obtain gainful employment (including light-

duty employment) on a reasonably continuous basis as a result of the injury incurred

while working for Cascade.

       A defendant may move for summary judgment by showing that there is an absence

of evidence to support the nonmoving party's case. Young v. Key Pharm., 112 Wn.2d

216,225 n.1, 770 P.2d 182 (1989), overruled on other grounds by 130 Wn.2d 160,990

P.2d 59 (1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317,325, 106 S. Ct. 2548, 91 L.

Ed. 2d 265 (1986)). Once this showing is made, the burden shifts to the plaintiff, and if

the plaintiff fails to make a showing sufficient to establish the existence of an element

essential to its case, on which it will bear the burden of proof at trial, then the court

should grant the motion. Id. at 225 (citing Celotex, 477 U.S. at 322).

       "In a claim for workers' compensation benefits, the injured worker bears the

burden of proving that he is entitled to benefits. If this burden cannot be met as a matter

of law, summary judgment for the Department is proper." Knight v. Dep 't ofLabor &

Indus., 181 Wn. App. 788, 795-96, 321 P.3d 1275 (2014) (footnote omitted).

       Washington cases recognize three types of evidence historically offered by

workers to show they are unable to perform and obtain gainful employment on a

reasonably continuous basis: testimony from the worker or his coworkers, testimony of a

                                              13
No. 33261-6-111
Valdez v. Dep 't of Labor & Indus.


vocational expert, or testimony of a medical expert.

       Evidence that the worker has attempted but been unable to find employment,

coupled with evidence of injury and a causal relation between the injury and the inability

to obtain work, will support this essential element of a worker's claim. Proof that the

injury caused the inability to obtain work "comes not only from the circumstances of the

claimant's attempts to seek employment, but also from the reasonable inferences arising

from the medical and vocational evidence." Leeper, 123 Wn.2d at 815 (emphasis added).

At the hearing before the board, Mr. Valdez offered no evidence that he had attempted,

unsuccessfully, to find work. 6

       Testimony of a medical expert can address the general availability of jobs the

worker can perform, although Washington cases have increasingly recognized that

testimony from a vocational expert is the better and more common method for proving

employability. In 1972, this court observed that



       6
         The proposed decision of the IAJ fairly summarizes Mr. Valdez's testimony at
the hearing as recapping events related to his Cascade and Matson employment in the
period from June 2010 through September 2012 and as describii:ig his life changes after
the industrial injury. It fairly summarizes his testimony as to the life changes as follows:
       He used to play basketball and walk a lot; however he is no longer able to
       play basketball and has difficulty walking. He is unable to get up quickly
       from a chair and has to lower himself into it slowly, using the arms of the
       chair to support himself. He has difficulty going up or down stairs and
       must go slowly. His knee hurts a lot whether he is sitting, standing, or
       lying down.
CP at 39.

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No. 33261-6-III
Valdez v. Dep 't of Labor & Indus.


              Traditionally, total disability cases have been proved by lay
       testimony of the injured workman and fellow employees, together with
       medical testimony as to the facts of loss of function and disability as well as
       the doctor's conclusion that the injured workman is totally permanently
       disabled.

Fochtman, 7 Wn. App. at 295. While not disagreeing with that method of proof, the

Fochtman court stated, "[W]e do question whether most doctors are familiar with

intricacies of the labor market." Id. It held that in connection with "the ultimate

determination of whether the injured workman can maintain gainful employment in the

labor market with reasonable continuity we find the testimony of a vocational or

employment expert both relevant and admissible." Id.

       In 1982, in Spring, our Supreme Court observed that, "the use of vocational expert

testimony in disability cases has become increasingly prevalent over the last decade and

should be encouraged." 96 Wn.2d at 920. "Vocational experts can often offer a more

realistic appraisal of the overall ability and motivation of an injured worker, as their

testimony is more likely to include an economic as well as a medical analysis." Id.

       In 1994, in Leeper, our Supreme Court characterized the practice of "using

vocational experts to assess a claimant's disability, or, as the Fochtman court named it,

the worker's 'employability'" as a "now universal practice." 123 Wn.2d at 812 (quoting

Fochtman, 7 Wn. App. at 288).

       At the hearing before the IAJ, Mr. Valdez did not offer the testimony of a

vocational expert. He cites Young for its holding that the testimony of a vocational

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No. 33261-6-111
Valdez v. Dep 't of Labor & Indus.


expert, while relevant, is not necessary to establish total disability. Br. of Appellant at 9

(citing Young, 81 Wn. App. at 132). But in Young, the treating physician (who declined

to express an opinion on employability because he was not a vocational expert) testified

that a "'very real factor'" in Ms. Young's ability to find work would be "that she may be

able to work four hours one day and only one or two hours the next day." 81 Wn. App. at

126. The court held that these and Ms. Young's other significant physical limitations,7

coupled with her limited employment skills, supported the "common sense" conclusion

that she would be unable to find or retain reasonably continuous gainful employment. Id.

at 132.

          The only testimony that directly addressed Mr. Valdez's employability was that of

Dr. Lefors. Mr. Valdez contends the doctor provided the essential evidence that he was

incapable of gainful employment on a reasonably continuous basis in work generally

available in his labor market. But Mr. Valdez overlooks the fact-not overlooked by the

board-that in eliciting Dr. Lefors' opinion, Mr. Valdez's lawyer explicitly excluded

light-duty work. And he specifically excluded the light-duty work as a conveyor monitor



          7
         Her physician testified that Ms. Young could "sit for only one-half hour at a
time, for a total of three hours in an eight-hour day; stand for 15 minutes, for a total of
one hour a day; and walk for 15 minutes, for a total of one-half hour a day. . . . She could
not squat, crawl, climb ladders or stairs, and she could only bend or kneel occasionally.
Her only unobstructed movements were fine manipulation, such as that used with hand
controls." Young, 81 Wn. App. at 126. Mr. Valdez had fewer and lesser limitations. See
CP at 9 (finding of fact no.4, describing limitations).

                                              16
No. 33261-6-111
Valdez v. Dep 't ofLabor & Indus.


that Mr. Valdez had been cleared to perform and had actually performed between June

and August 2012. Dr. Lefors testified:

      [Q.] Do you have an opinion as to whether or not Mr. Valdez would have
      been capable of gainful employment on a reasonably continuous basis in
      work generally available in his labor market aside from a light-duty type of
      a job, like a conveyor monitor, during the time period July 10, 2012,
      through September 3, 2012?

      A.       I don't believe he would have.

CP at 183 (emphasis added).

      Elsewhere in his deposition, Dr. Lefors testified that in December 2012, he

reviewed an analysis of the "light-duty job of conveyor monitor," discussed the job with

Mr. Valdez, and concluded that Mr. Valdez could do the job. CP at 182.

      In addition to Dr. Lefors' testimony, Ms. Gutierrez testified at the hearing that had

Mr. Valdez presented a valid Social Security number, the job of conveyor monitor would

have been available to him during the time frame contested benefits were paid.

      And as found by the board, Mr. Valdez continued to work thinning trees for

several months despite his injury and had no physical difficulty performing the conveyor

monitor job.

      It is Mr. Valdez's position on appeal that he could legitimately carve out "light-

duty jobs" in eliciting Dr. Lefors' opinion and was not required to concern himself with

evidence that the conveyor monitor job was an available job that he could perform

because the job was special work-an odd lot position, not generally available in the

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No. 33261-6-III
Valdez v. Dep 't of Labor & Indus.


labor market. As evidence of this, he points to Matson's own characterization of the job

as being a "new position," a "transitional job" and a "modified position." Appellant's

Reply Br. at 9. He argues that given Matson's characterizations of the position offered,

"[i]t should ... be no surprise that there was not a [single] witness asked" whether

conveyor monitor work or other light-duty work he was capable of performing was

generally available in the labor market. Id. at 10. He argues that the Department or

Cascade bore the burden of proving that such special work was available.

       Language from this court's decisions in Hunter and Herr v. Department ofLabor

& Industries, 74 Wn. App. 632, 634, 875 P.2d 11 (1994), lends support to an argument

that if Matson offered the conveyor monitor job under RCW 51.32.090(4), it is evidence

that Matson, at least, might have believed the conveyor monitor job was special work.

Both Hunter and Herr involved a different issue: whether 1975 changes to RCW

51.32.090( 4) provided that a worker would remain temporarily totally disabled and

entitled to time-loss compensation until able to return to his or her "usual work." The

workers based their argument on the fact that the 197 5 changes provided a method by

which an employer can offer a worker "available work other than his or her usual work."

RCW 51.32.090(4)(b) (emphasis added).

       In rejecting the argument, this court pointed out that subsection (4) applies only

when an employer is making an offer to a "worker who is entitled to temporary total

disability under this chapter":

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No. 33261-6-111
Valdez v. Dep 't of Labor & Indus.


       We interpret this phrase as making subsection (4) applicable to claimants
       who are incapable of reasonably continuous employment in work that is
       generally available on the open job market. Where a claimant is otherwise
       temporarily totally disabled, subsection (4) structures the conditions under
       which employers may employ them in specially created jobs.

Hunter, 71 Wn. App. at 509. In other words, RCW 51.32.090(4) offers are necessarily of

special work.

       We assume without deciding that an employer who offers work under RCW

51.32.090( 4) does not thereby admit that the work offered is special work, 8 since there

are reasons an employer would accept a Department finding that a worker was totally

temporarily disabled and offer a light-duty, generally available position, even if it

believed the Department's finding was wrong. At most, Matson's offer of the conveyor

monitor job under RCW 51.32.090(4) suggests Matson might have viewed the position as

special work as of May 2011. But Mr. Valdez never asked Ms. Guttierez if that was

Matson's view. And even if it had that view, it might have been wrong. Neither Ms.

Guttierez nor any other witness at the board hearing testified that conveyor monitor or

other similar light-duty work was not available in the labor market.

       Also, Mr. Valdez was required to present evidence that he was unable to perform

and obtain gainful employment on a reasonably continuous basis between July 10, 2012

and September 3, 2012-more than a year after Matson's May 2011 offer.



       8
           The parties did not address this issue in their briefing. See RAP 12.l(a).

                                               19
No. 33261-6-III
Valdez v. Dep 't of Labor & Indus.


       "Time loss is by definition ... temporary." In re Billings, No. 70,883, 1986 WL

31854, at *3 (Wash. Bd. of Indus. Ins. Appeals July 30, 1986). In Billings, the board

determined that the claimant failed to present a prima facie case of entitlement to time-

loss compensation when he relied entirely on an inference to be drawn from final and

binding time-loss compensation awards in his favor for periods before and after the

contested benefit period. The Department, which chose not to present any evidence,

prevailed. As explained by the board:

      There is no presumption that a temporary disability will continue into the
      future or that it has existed for a period into the past. A presumption of
      continued disability does exist in cases in which a worker has been
      determined permanently and totally disabled. See Department of Labor
      and Industries v. Moser, 35 Wn App. 204 (1983); See also Ma/land v.
      Retirement Systems, 103 Wn 2d. 484, 488 (1985). No such legal
      presumption can arise, however, where the determination is limited to a
      finding of temporary disability for a particular period of time.

Id.

       By the same reasoning, even ifMatson's offer could be viewed as some evidence

that it viewed the conveyor monitor job as special work, not generally available in May

2011, it is not evidence that Mr. Valdez was unable to perform or obtain gainful

employment on a reasonably consistent basis over a year later.

       Viewed in the light most favorable to Mr. Valdez, evidence before the board

established only that he was incapable of some employment in the general labor market:

employment "aside from a light-duty type of a job, like conveyor monitor." CP at 183


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No. 33261-6-111
Valdez v. Dep 't ofLabor & Indus.


(emphasis added). But again, "[g]eneral work means even light or sedentary work."

Young, 81 Wn. App. at 131. Since Mr. Valdez failed to present evidence in support ofan

essential element on which he bore the burden of proof, the Department and Matson were

entitled to summary judgment.

                                        Attorney fees

       Mr. Valdez requests attorney fees and costs pursuant to RCW 51.52.130 and RAP

18.1. RAP 18.1 provides an appellant the right to recover reasonable attorney fees if

applicable law so provides. RCW 51.52.130 provides a claimant the right to recover

reasonable attorney's fees if, on appeal to the superior court or the court of appeals, the

Department's order is reversed or modified to grant additional relief to the claimant.

Since we affirm the Department's order, the request for fees is denied.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                    ':??ddav~ ,~.
                                                  Siddoway, J.

WE CONCUR:




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