Zbigniew Laskowski v. Washington State Labor And Industries ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
September 24, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
ZBIGNIEW LASKOWSKI, No. 53067-8-II
Appellant,
v.
WASHINGTON STATE DEPARTMENT OF UNPUBLISHED OPINION
LABOR AND INDUSTRIES,
Respondent.
LEE, A.C.J. — Zbigniew Laskowski appeals the superior court’s order affirming the Board
of Industrial Insurance Appeals order closing Laskowski’s claim and awarding him partial
permanent disability benefits. Because Laskowski entered into an agreement with the Department
of Labor & Industries for a binding medical examination and the results of the binding medical
examination resolve Laskowski’s claims, we affirm the superior court’s order.
FACTS
In 2006, Laskowski suffered a work-related back injury. The Department allowed
Laskowski’s claim and provided him with benefits. In 2008, the Department closed Laskowski’s
claim with a partial permanent disability award. However, in 2010, the Department reopened
Laskowski’s claim. In February 2015, the Department ended Laskowski’s time loss compensation.
In May 2015, the Department again closed Laskowski’s claim because treatment was no longer
No. 53067-8-II
necessary. The Department did not increase Laskowski’s partial permanent disability award,
which was set at a category III (3). Laskowski appealed the Department’s 2015 orders.
At a conference before the Board of Industrial Appeals judge, the parties agreed that Dr.
Diana Kraemer would perform a binding medical examination to resolve the disputed factual
issues on appeal and that they would be bound by Dr. Kraemer’s opinions in the binding medical
examination. The parties also agreed that they would provide complete records that have been
reviewed by Laskowski to Dr. Kraemer and that Dr. Kraemer’s medical examination would resolve
the following issues:
(1) does Mr. Laskowski’s industrial injury condition(s) need medical treatment; (2)
did his industrial injury prevent him from working between May 12, 2015, and May
15, 2015, on a temporary basis; (3) is Mr. Laskowski permanently precluded by the
industrial injury from working as of May 15, 2015; and alternatively (4) what
degree of permanent partial disability best describe the claimant’s residual
impairment from his industrial injury?
Administrative Record (AR) at 50. The parties further agreed that after completing a review of
medical records and performing a medical examination, Dr. Kraemer would provide a written
report and include in the report answers to the following questions relating to Laskowski’s
industrial injury:
1. State your diagnosis of the conditions found on examination.
2. Of those conditions found, which of them, if any, are related to the
claimant’s January 5, 2006 industrial injury?
3. Do any conditions related to the industrial injury require further medical
treatment as of May 15, 2015? If this is the case, what treatment
recommendations do you have?
4. Did the residual impairment from the January 5, 2006 industrial injury
temporarily prevent M[r]. Laskowski from obtaining and performing work
on a full-time basis during the period between May 12, 2015, and May 15,
2015?
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5. Did the residual impairment from the January 5, 2006 industrial injury
permanently prevent M[r]. Laskowski from obtaining and performing work
on a full-time basis as of May 15, 2015, and thereafter?
6. If Mr. Laskowski’s industrial injury conditions do not require further
medical treatment, what degree of permanent partial disability best
described his residual impairment from the industrial injury?
AR at 50-51 (boldface omitted).
After completing the binding medical examination, Dr. Kraemer determined that there was
no additional recommended treatment for conditions related to Laskowski’s industrial injury. Dr.
Kraemer also determined that Laskowski’s partial permanent disability was a Category IV (4).
Based on the parties’ agreement, the Board of Industrial Insurance Appeals issued an order
on agreement of parties. The Board affirmed the Department’s order closing Laskowski’s claim
because no further treatment was necessary. The Board’s order also reversed the Department’s
order declining to increase Laskowski’s permanent partial disability award and remanded for the
Department to award permanent partial disability benefits consistent with Category IV (4).
Laskowski appealed the Board’s order to the superior court. The superior court entered
findings of fact and conclusions of law, concluding that the order on the agreement of parties was
correct. Accordingly, the superior court affirmed the Board’s order.
Laskowski appeals.
ANALYSIS
A. STANDARD OF REVIEW
Our review of the superior court decision is governed by the Industrial Insurance Act (IIA);
specifically, our review is governed by RCW 51.52.140, which states that an “[a]ppeal shall lie
from the judgment of the superior court as in other civil cases.” This results in a different role for
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this court than is typical for appeals from other administrative decisions. Rogers v. Dep’t of Labor
& Indus., 151 Wn. App. 174, 180, 210 P.3d 355, review denied, 167 Wn.2d 1015 (2009). Thus,
under the IIA, we review only “‘whether substantial evidence supports the trial court's factual
findings and then review, de novo, whether the trial court's conclusions of law flow from the
findings.’” Rogers, 151 Wn. App. at 180 (quoting Watson v. Dep't of Labor & Indus., 133 Wn.
App. 903, 909, 138 P.3d 177 (2006)).
B. AGREEMENT TO A BINDING MEDICAL EXAMINATION
Laskowski argues that his agreement to enter into a binding medical examination was an
improper waiver of his right to compensation under the IIA. Laskowski also challenges the
contents of the Board’s order on agreement of parties, which adopted the findings of the binding
medical examination.
Entering into an agreement for a binding medical examination is not an improper evasion
of benefits. Therefore, Laskowski’s agreement for a binding medical examination was proper and
Laskowski has no grounds for challenging the Board’s order based on that binding medical
examination. And because Laskowski agreed to resolve the factual disputes relating to his
industrial injury through a binding medical examination, he cannot now dispute Dr. Kraemer’s
factual findings and conclusions.
WAC 263-12-093(1) provides that “If an agreement concerning final disposition of any
appeal is reached by all the parties present or represented at a conference, an order shall be issued
in conformity with their agreement, providing the board finds the agreement is in accordance with
the law and the facts.” Parties may also agree to a medical examination to resolve their dispute:
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The parties present at a conference may agree to a vocational evaluation or a further
medical examination of a worker or crime victim, including further evaluative or
diagnostic tests, except such as require hospitalization, by medical or vocational
experts acceptable to them, or to be selected by the industrial appeals judge. In the
event the parties agree that an order on agreement of parties may be issued based
on the report of vocational evaluation or medical examination, the industrial
appeals judge may arrange for evaluation or examination and the board will pay
reasonable and necessary expenses involved. Upon receipt by the board, copies of
the report of such examination or evaluation will be distributed to all parties
represented at the conference and further appropriate proceedings will be scheduled
or an order on agreement of parties issued. If the worker or crime victim fails to
appear at the evaluation or examination, the party or their representative may be
required to reimburse the board for any fee charged for their failure to attend.
WAC 263-12-093(4).
Here, the Board’s report of proceedings shows that the parties agreed to a binding medical
examination to be performed by Dr. Kraemer. The purpose of the binding examination was to
resolve the underlying factual disputes regarding the appeal; specifically, whether Laskowski was
able to work during the time-loss compensation period, whether further treatment was warranted
(to justify closing the claim), and whether the current category of permanent partial disability was
correct. Because the parties agreed to a binding medical examination with the express purpose of
resolving the factual disputes underlying the appeal, it was proper under WAC 263-12-093(1) and
WAC 263-12-093(4) for the Board to enter an order on agreement of the parties consistent with
the findings in the binding medical examination.
Laskowski argues that the Board’s order was improper because the agreement to a binding
medical examination violates RCW 51.04.060, which provides that “[n]o employer or worker shall
exempt himself or herself from the burden or waive the benefits of this title by any contract,
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agreement, rule or regulation, and any such contract, agreement, rule or regulation shall be pro
tanto void.” Laskowski’s argument fails.
In Solven v. Dep’t of Labor & Industries, the court held that an agreement to resolve an
appeal by agreed examinations is not void under RCW 51.04.060. 101 Wn. App 189, 195, 2 P.3d
492, review denied, 142 Wn.2d 1012 (2000). The court explained, “[t]he agreement merely
stipulates to a method of finding facts; it does not prevent the employee from demanding all
compensation to which he is entitled.” Id. The court also noted that the plain language of the
statute demonstrates that it was meant to prevent employers from exploiting employees by urging
them to contract away benefits under the IIA. Id.The same is true here. Laskowski did not enter into an agreement to waive any of the
benefits to which he was entitled under the IIA. Instead, Laskowski entered into an agreement
stipulating to a specific method of determining the facts necessary to resolving his appeal.
Therefore, the agreement to a binding medical examination is not void under RCW 51.04.060.
Solven, 101 Wn. App. at 195.
Because the parties’ agreement to a binding medical examination was not void or improper,
the superior court properly concluded that the agreement was proper and binding. Accordingly,
we affirm the superior court.
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B. LASKOWSKI’S OTHER ARGUMENTS
Laskowski makes several other arguments challenging the validity of the report generated
after the binding medical examination and the Board’s order. However, most of these are related
to Laskowski’s disagreement with Dr. Kraemer’s findings and conclusions. We do not consider
these arguments.1
None of Laskowski’s challenges to the Dr. Kraemer’s findings and the Board’s order are
challenges to the findings of fact or conclusions of law that were made by the superior court. In
IIA appeals, we review the superior court’s findings of fact and conclusions of law. RCW
51.52.140; Rogers, 151 Wn. App. at 180. Because Laskowski fails to challenge the superior
court’s findings of fact, they are verities on appeal. Mid Mountain Contractors, Inc. v. Dep't of
Labor & Indus., 136 Wn. App. 1, 4, 146 P.3d 1212 (2006). Those findings of fact, in turn, support
the superior court’s conclusions that the Board’s order is correct.
1
Laskowski also argues that his condition has a much greater negative impact on him and that a
“correctly rated impairment would reflect that” and relies on several medical records created after
the date of the Dr. Kraemer’s report and the Board’s order on agreement of parties. Br. of App. at
23. Because Laskowski’s argument relies on records that were created after the date of Dr.
Kraemer’s report, the Board’s order on agreement of parties, and the superior court’s findings of
fact and conclusions of law, we do not consider his argument.
Laskowski also appears to argue that the Board’s order was incorrect because the Industrial
Appeals Judge stated that he would issue the order. However, the Report of Proceedings
memorializing the parties’ agreement states that after the binding medical examination is
completed, the appeal will be resolved by an order on agreement of the parties issued by the Board,
which is exactly what occurred. Therefore, the Industrial Appeals Judge’s misstatement is not an
irregularity that undermines the parties’ agreement to a binding medical examination. To the
extent that it is actually challenged, we affirm the superior court’s finding on this point.
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Moreover, by agreeing to a binding medical examination, Laskowski (and the Department)
agreed to accept the medical findings contained in the examination report. See WAC 263-12-093.
Laskowski cannot now challenge the underlying factual findings contained in the examination
report and conclusions resulting from those findings because he disagrees with them.
We affirm the superior court’s order.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, A.C.J.
We concur:
Worswick, J.
Cruser, J.
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