          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ANTHONY J. YUCHASZ,                               No. 70724-8-


                         Appellant,               DIVISION ONE




DEPARTMENT OF LABOR &                             PUBLISHED OPINION
INDUSTRIES OF THE STATE OF
WASHINGTON,

                         Respondent.              FILED: October 6, 2014

       Schindler, J. — Under the Washington Industrial Insurance Act, Title 51 RCW,

the calculation of time loss and loss of earning power benefits must include the

reasonable value of board, housing, fuel, or other consideration of like nature that is

critical to the worker's basic health or survival. Anthony J. Yuchasz claims the

Washington State Department of Labor and Industries erred in excluding the reasonable

value of the gasoline his employer paid at the time of his injury to use the company van

from the calculation of loss of earning power. Because the reasonable value of gasoline

for the company-provided vehicle is a fringe benefit that is not critical to the worker's

health or survival, we affirm.
No. 70724-8-1/2



                                           FACTS

       Anthony J. Yuchasz worked as an electrician for Computer Power and Service

Inc. Computer Power provided Yuchasz with a company van to carry tools and travel

between jobsites. Computer Power paid for the cost of gasoline for the van. Computer

Power did not allow Yuchasz to use the van for his personal use. Yuchasz kept the van

at his home at night, and in the morning, drove the van to the first jobsite.

       On February 22, 2011, Yuchasz injured his right rotator cuff at work while "lifting

cables overhead into a bin on the back of a truck." The Washington State Department

of Labor and Industries (Department) calculated Yuchasz's wages at the time of the

injury based on an eight-hour-a-day gross hourly rate plus health care benefits. From

March 1, 2011 to August 15, 2011, Yuchasz received time-loss compensation benefits

in the amount of $6,531.76 per month.

       After returning to work, a worker is entitled to loss of earning power benefits if his

work injury has caused his earning power to diminish by at least 5 percent compared to

his earning power at the time of the injury. RCW 51.32.090(3)(b). On August 16,

Yuchasz returned to Computer Power in a light-duty position. Because the company

van had been re-assigned to another full-time, regular duty employee, Yuchasz drove

his personal vehicle to and from work. Computer Power reimbursed Yuchasz for the

use of his vehicle, including the cost of gasoline, to travel between jobsites. Computer

Power did not reimburse Yuchasz for the cost of gasoline to drive to and from his home.

Yuchasz received loss of earning power benefits from the date he returned to work in a

light-duty position until April 3, 2012.
No. 70724-8-1/3


       On October 10, 2011, Yuchasz filed a request to include "the full expense of

driving his personal vehicle" as a part of the calculation of loss of earning power.

Specifically, Yuchasz asserted the calculation of loss of earning power benefits should

include the cost of gasoline to drive to and from his home. The Department denied

Yuchasz's request. On December 13, Yuchasz appealed the Department's decision to

the State of Washington Board of Industrial Insurance Appeals (BIIA).

       Yuchasz filed a motion for summary judgment, arguing the value of gasoline

Computer Power paid for use of the company van at the time of his injury should have

been included in the wage calculation of loss of earning power under RCW

51.08.178(1). In support, Yuchasz submitted a declaration stating that at the time of his

injury on February 22, 2011, he was "provided with the use of a company car. My

employer supplied the fuel for the car." Yuchasz states that after he returned to work on

August 16, 2011 in a "light duty position," the benefits he received "did not include the

cost of fuel that had been previously supplied by my employer at the time of my injury."

       Computer Power did not dispute that Yuchasz previously used a company van

and it paid for gasoline. The declaration of Computer Power Vice President Kelly Dwyer

states, in pertinent part:

       4.    Up through the date of the industrial injury, Anthony Yuchasz used a
             company vehicle to perform his regular job duties.
       5.    This company vehicle contained the tools that Mr. Yuchasz needed
             to perform his job duties for CPSI [(Computer Power and Service
             Inc.)].
       6.    At night, Mr. Yuchasz kept this vehicle at his home.
       7.    Mr. Yuchasz traveled from his home to the first job site of the day,
             and from the last job site of the day to his home, as well as to job
             sites in between, in this company vehicle.
       8.    The fuel for the vehicle was paid for by CPSI.

       11.   The company vehicle is not to be used for personal use.
No. 70724-8-1/4




        Dwyer also states that "[t]he company vehicle is merely a company tool that our

employees can use in the course of business to benefit" Computer Power and "use of

this company vehicle is not considered compensation."

        The industrial appeals judge (IAJ) issued a proposed decision and order. The

IAJ concluded that "[ujnder RCW 51.08.178(1), Mr. Yuchasz's wages included the

reasonable value of fuel for him to travel to and from his home for his work for Computer

Power & Services." The IAJ reversed the decision of the Department denying the

request to include the cost of gasoline for driving to and from work in calculating loss of

earning power.

        The BIIA reversed the IAJ and issued a "Tentative Significant Decision"1 affirming

the Department. The order sets forth the following undisputed findings:

        1.      On April 4, 2012, an industrial appeals judge certified that the
                parties agreed to include the Jurisdictional History in the [BIIA]
                record solely for jurisdictional purposes.

        2.      Anthony J. Yuchasz sustained an industrial injury during the course
                of his employment with Computer Power & Service, Inc., on
                February 22, 2011.

        3.      At the time of Mr. Yuchasz's injury, the employer provided him with
                a company vehicle and paid for the fuel. Mr. Yuchasz kept the
                vehicle at his home at night, and in the morning, he drove it to the
                first jobsite of the day. During the day, he drove the vehicle
                between jobsites, and at night, he drove it home from the last
                jobsite of the day.

        4.      After the injury, Mr. Yuchasz returned to work at light duty with
                Computer Power & Service, Inc. The employer no longer provided
                him with a vehicle but reimbursed him for the use of his personal
                vehicle to travel between jobsites. He was not reimbursed for travel
                between his home and his work.



        1A "significant decision" is a decision the BIIA "considers to have an analysis or decision of
substantial importance to the [BIIA] in carrying out its duties." WAC 263-12-195(1).
No. 70724-8-1/5



       5.     Mr. Yuchasz received loss of earning power benefits from August
              15, 2011, to April 3, 2012. The calculation of these benefits did not
              include the reasonable value of fuel that had previously been
              supplied by his employer at the time of injury for travel between his
              home and work.


       Relying on the Washington State Supreme Court decision in Cockle v.

Department of Labor & Industries, 142 Wn.2d 801, 16 P.3d 583 (2001), the BIIA

concluded that "unlike home utility fuel, transportation fuel used to commute to and from

work is not a core, non-fringe benefit critical to protecting the basic health and survival

of workers." Accordingly, the BIIA determined that "[t]he reasonable value of

transportation fuel provided by the employer at the time of injury for going to and from

work cannot be included in wages under RCW 51.08.178(1)."

       The BIIA decision also cites In re Brammer, No. 06 10641, 2007 WL 1413101

(Wash. Bd. of Indus. Ins. Appeals Feb. 7, 2007). In Brammer, the BIIA relied on Cockle

to conclude that under RCW 51.08.178(1), the value of an employer-provided vehicle

for personal use was not "consideration of like nature" to food, shelter, and fuel.

Brammer, 2007 WL 1413101, at *5.

       Yuchasz appealed the BIIA decision. Yuchasz and the Department filed cross

motions for summary judgment. The superior court granted the Department's motion for

summary judgment. The court ruled that "[t]he cost of transportation fuel provided to

Mr. Yuchasz by his employer at the time of injury for travel between his home and work

cannot be included as 'wages' under RCW 51.08.178(1)." Yuchasz appeals.
No. 70724-8-1/6



                                             ANALYSIS

       Yuchasz asserts the court erred in ruling the value of employer-provided gasoline

he received at the time of his injury to drive the company van to and from work cannot

be included in the calculation of wages under RCW 51.08.178(1).

       In an appeal from a BIIA decision, the superior court acts in an appellate

capacity, reviewing the decision de novo. Ruse v. Dep't of Labor & Indus., 138 Wn.2d

1, 5, 977 P.2d 570(1999).2 RCW 51.52.140 governs our review of the superior court

decision. RCW 51.52.140 states that an "[a]ppeal shall lie from the judgment of the

superior court as in other civil cases."

       We treat the undisputed facts as verities on appeal and review summary

judgment de novo. Roller v. Dep't of Labor & Indus., 128 Wn. App. 922, 927, 117 P.3d

385 (2005); Malanq v. Dep't of Labor & Indus., 139 Wn. App. 677, 683-84, 162 P.3d 450

(2007) (citing CR 56(c)). Statutory construction is also a question of law we review de

novo. Cockle, 142 Wn.2d at 807.

       Yuchasz claims that under RCW 51.08.178(1), the value of employer-provided

gasoline that he received at the time of his injury must be included as wages for

purposes of calculating loss of earning power benefits.

       When an injured worker is temporarily disabled, "wage replacement benefits may

be available under RCW 51.32.090." Hubbard v. Dep't of Labor & Indus., 140Wn.2d



       2 RCW 51.52.115 states, in pertinent part:
       The hearing in the superior court shall be de novo, but the court shall not receive
       evidence or testimony other than, or in addition to, that offered before the [BIIA] or
       included in the record filed by the [BIIA] in the superior court as provided in RCW
       51.52.110 .... In all court proceedings under or pursuant to this title the findings and
       decision of the [BIIA] shall be prima facie correct and the burden of proof shall be upon
       the party attacking the same. Ifthe court shall determine that the [BIIA] has acted within
       its power and has correctly construed the law and found the facts, the decision of the
       [BIIA] shall be confirmed.
No. 70724-8-1/7



35, 37 n.1, 992 P.2d 1002 (2000). Where, as here, the worker is able to return to work

but the worker's former earning power is only "partially restored," the worker is entitled

to "loss of earning power" benefits. RCW 51.32.090(3); Hubbard, 140 Wn.2d at 37 n.1.

The purpose of loss of earning power benefits "is to reflect a worker's lost earning

capacity." Double D Hop Ranch v. Sanchez, 133 Wn.2d 793, 798, 947 P.2d 727

(1997).

        Under the Washington Industrial Insurance Act (IIA), Title 51 RCW, the worker's

actual wages at the time of injury determine loss of earning power benefits. RCW

51.08.178; Cockle, 142 Wn.2d at 806; see also RCW 51.32.090(1), (3); RCW

51.32.060(1).

          RCW 51.08.178(1) sets forth how "wages" are calculated. RCW 51.08.178(1)

states, in pertinent part:

        For the purposes of this title, the monthly wages the worker was receiving
        from all employment at the time of injury shall be the basis upon which
        compensation is computed unless otherwise provided specifically in the
        statute concerned. In cases where the worker's wages are not fixed by
        the month, they shall be determined by multiplying the daily wage the
        worker was receiving at the time of the injury:

                The term "wages" shall include the reasonable value of board,
          housing, fuel, or other consideration of like nature received from the
          employer as part of the contract of hire, but shall not include overtime pay
          except in cases under subsection (2) of this section.131

        Yuchasz argues the plain and unambiguous meaning of the term "fuel" includes

the value of gasoline or vehicle fuel.4


          3 Emphasis added.
        4 Relying on a section of the 1911 IIA, Yuchasz also claims the legislative history of RCW
51.08.178 suggests the legislature "likely" intended "fuel" to include vehicle fuel. But the IIAdid not define
"wages" in 1911. In 1971, the legislature defined "wages" to include "the reasonable value of board,
housing, fuel, or other consideration of like nature received from the employer." Laws of 1971, 1st Ex.
Sess., ch. 289, § 14; Cockle. 142 Wn.2d at 810.
No. 70724-8-1/8



       " 'It is a fundamental rule of statutory construction that once a statute has been

construed by the highest court of the state, that construction operates as if it were

originally written into it.'" Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 506, 198

P.3d 1021 (2009) (quoting Johnson v. Morris, 87 Wn.2d 922, 927, 557 P.2d 1299

(1976)). Where the Supreme Court determines what a particular statute means, that

determination relates back to the time of the statute's enactment. Hale, 165 Wn.2d at

506.


       In Cockle, the Washington State Supreme Court interpreted the meaning of the

statutory language "board, housing, fuel, or other consideration of like nature" to

determine whether the value of employer-provided health care coverage should be used

to calculate compensation payments under RCW 51.08.178(1).

       Relying on the ejusdem generis rule of statutory construction, the Supreme Court

held that the phrase " 'board, housing, fuel, or other consideration of like nature'"

means "readily identifiable and reasonably calculable in-kind components of a worker's

lost earning capacity at the time of injury that are critical to protecting workers' basic

health and survival." Cockle, 142 Wn.2d at 822 (quoting RCW 51.08.178(1)).

       The court described the difference between core nonfringe benefits and fringe

benefits that are "not critical to protecting" a worker's "basic health and survival":

       Core, nonfringe benefits such as food, shelter, fuel, and health care all
       share that "like nature." By contrast, we do not believe injury-caused
       deprivation of the reasonable value of fringe benefits that are not critical to
       protecting workers' basic health and survival qualifies as the kind of
       "suffering" that Title 51 was legislatively designed to remedy. See RCW
       51.12.010.


Cockle, 142 Wn.2d at 822-23.5


       5 Emphasis in original.

                                              8
No. 70724-8-1/9


       The court states this is not a "subjective determination" and in determining

whether "[h]ealth care coverage is 'of like nature' to 'board, housing [and] fuel,'" the

court must decide whether the benefit "is objectively critical to protecting the basic

health and survival of virtually all workers." Cockle, 142 Wn.2d at 822-23 n.136 (quoting

RCW 51.08.178(1)). The court concluded that because health care premiums paid by

the injured worker's employer are critical to protecting a worker's basic health and

survival, the reasonable value of the health care coverage should have been included in

the calculation of worker's compensation benefits. Cockle, 142 Wn.2d at 823.

       Yuchasz asserts that because the term "fuel" as used in RCW 51.08.178(1)

includes gasoline, the value of the gasoline the employer paid for use of the company

vehicle is not subject to "the basic health and survival test" in Cockle. Yuchasz also

contends the language in Cockle stating "fuel" means "heat" is dicta. See Cockle, 142

Wn.2d at 821. We disagree.

       Under the rule of ejusdem generis, general terms appearing in a statute in

connection with specific terms are given meaning and effect only to the extent that the

general terms suggest similar items to those designated by the specific terms.

Silverstreak, Inc. v. Dep't of Labor & Indus., 159 Wn.2d 868, 882, 154 P.3d 891 (2007).

Accordingly, the Supreme Court in Cockle interpreted the specific terms "board,

housing, [and] fuel" in order to determine the meaning of the general term "other

consideration of like nature." RCW 51.08.178(1). The court concluded the common

shared attribute of the specific terms " 'board, housing, [and] fuel'" is that the terms are

all "readily identifiable and reasonably calculable in-kind components of a worker's lost



       6 Alteration in original.
No. 70724-8-1/10


earing capacity at the time of injury that are critical to protecting workers' basic health

and survival." Cockle, 142Wn.2d at 822 (quoting RCW 51.08.178(1)).

       The Supreme Court also concluded the Court of Appeals properly rejected the

argument that" 'any and all forms of consideration'" paid by the employer should be

included in the calculation of wages under RCW 51.08.178(1). Cockle, 142 Wn.2d at

821 (quoting Rose v. Dep't of Labor & Indus., 57 Wn. App. 751, 758, 790 P.2d 201

(1990)). The Supreme Court agreed that "fuel" means heating fuel because heat is

critical to protecting a worker's basic health and survival, and cited with approval the

determination of the Court of Appeals that" '[i]t is not hard to discern why the legislature

provided that [food, shelter, and heat] shall count as 'wages.'. . . Each is a necessity of

life, without which the injured worker cannot survive a period of even temporary

disability.'" Cockle, 142 Wn.2d at 8217 (quoting Cockle v. Dep't of Labor & Indus., 96

Wn. App. 69, 74, 977 P.2d 668 (1999)).

       In Gallo v. Department of Labor & Industries, 155 Wn.2d 470, 120 P.3d 564

(2005), the Supreme Court reiterated that in order to qualify as a benefit "critical to the

'basic health and survival' of the injured worker at the time of injury," the benefit must be

funded by the employer at the time of the injury, immediately available to the injured

worker, and necessary to maintain the worker's health or ensure his survival during

even temporary periods of disability. Gallo, 155 Wn.2d at 491-92. Applying the Cockle

test, the court concluded that employer contributions to retirement, life insurance,

disability, and apprenticeship training trust funds are "not consideration of like nature to

board, housing, fuel and health benefits" because they "are not critical to the basic

health and survival of the injured worker at the time of injury." Gallo, 155 Wn.2d at 493;

       7 Some alteration in original, footnote omitted.

                                                    10
No. 70724-8-1/11


see also Erakovic v. Dep't of Labor & Indus., 132 Wn. App. 762, 772-75, 134 P.3d 234

(2006) (Social Security, Medicare, and Industrial Insurance benefits are not "in-kind

consideration" because the benefits are not "so critical to workers' health or survival that


workers would be required to replace them during even temporary periods of disability").

        Yuchasz also relies on an out-of-state case, Motheral v. Workers' Compensation

Appeals Board, 199 Cal. App. 4th 148, 130 Cal. Rptr. 3d 677 (2011), to argue other

states have interpreted the term "fuel" for purposes of a wage benefit to mean vehicle

fuel. But as the court states in Cockle, because our worker's compensation statutes

differ from those in other states," '[t]o seek authority in the decisions of other states is

useless.'" Cockle, 142 Wn.2d at 8158 (quoting Stertz v. Indus. Ins. Comm'n of Wash.,

91 Wash. 588, 604, 158 P. 256 (1916)).9

        We hold that under Cockle, the reasonable value of the employer-provided

gasoline for use in the company van is a fringe benefit that is not critical to the basic

health and survival of the worker at the time of injury. We reject the argument that

excluding the reasonable value of employer-provided gasoline for use in the company

van is contrary to the intent of the IIA to reduce the suffering and economic loss "arising

from injuries and/or death occurring in the course of employment." RCW 51.12.010. As

the Supreme Court concluded In Cockle, "we do not believe injury-caused deprivation of

the reasonable value of fringe benefits that are not critical to protecting workers' basic




        8 Alteration in original.
        9 In any event, Motheral is distinguishable. In Motheral, as part of an employment contract, the
employer agreed to pay the worker a certain amount each month " 'for use of [his] vehicle for business.'"
Motheral, 199 Cal. App. 4th at 150 (alteration in original). Because the vehicle allowance "was to be paid
regardless of how much or even whether [the worker] drove," the California court concluded the
allowance "constituted remuneration" and should have been included in calculating weekly earnings.
Motheral. 199 Cal. App. 4th at 156.

                                                    11
No. 70724-8-1/12


health and survival qualifies as the kind of 'suffering' that Title 51 was legislatively

designed to remedy." Cockle, 142 Wn.2d at 82310 (citing RCW 51.12.010).

       We affirm summary judgment and the decision of the BIIA.




                                                     rQj^Q.^
WE CONCUR:




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       10 Emphasis in original.

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