IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

ZBIGNIEW LASKOWSKI, No. 53067-8-II

Appellant,

v.

WASHINGTON STATE DEPARTMENT OF 

LABOR AND INDUSTRIES,

UNPUBLISHED OPINION

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 

Filed

Washington State

Court of Appeals

Division Two

September 24, 2019
No. 53067-8-II

2

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. 
No. 53067-8-II

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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.