IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DALISAY L. BAYNA,

Respondent,

v.

CATHOLIC HEALTH INITIATIVES

FRANCISCAN HEALTH SYSTEM,

Appellant.

 No. 81732-9-I

 DIVISION ONE

 UNPUBLISHED OPINION

SMITH, J. — Dalisay Bayna appeals the superior court’s order affirming the 

Board of Industrial Insurance Appeal’s decision that ended her time loss benefits 

as of August 17, 2017, and closed her claim as of May 18, 2018, without an 

award of permanent partial disability. Bayna claims she was unable to secure 

and maintain gainful employment between August 18, 2017, and March 15, 

2018, was in need of further medical treatment as of May 18, 2018, and was 

partially permanently disabled when the Department of Labor and Industries 

(Department) closed her claim. Bayna also challenges the superior court’s ruling 

on a pretrial procedural motion. For the reasons that follow, we affirm.

FACTS

On October 9, 2015, Dalisay Bayna was working as a nurse in an 

Intensive Care Unit (ICU) at Catholic Health Initiatives Franciscan Health System 

(CHI), formerly Highline Medical Center. She injured her neck and right shoulder 

while attempting to rotate a patient. She opened a claim for workers’ 
No. 81732-9-I/2

2

compensation benefits with the Department. On May 18, 2018, the Department 

closed the claim, with time loss compensation paid to Bayna through August 17, 

2017. The Department concluded that as of May 18, 2018, Bayna needed no 

further medical treatment for her workplace injury and she was not entitled to a 

permanent partial disability award. Bayna appealed. 

The issues before the industrial appeals judge (IAJ) on appeal were (1) 

whether Bayna had the ability to obtain and maintain gainful employment 

between August 18, 2017, and March 15, 2018, (2) whether Bayna’s condition 

was fixed and stable and she was in need of no further treatment as of May 18, 

2018, (3) whether Bayna sustained new injuries to her wrist and back that 

required treatment and were related to the 2015 work injury, and (4) whether 

Bayna was permanently partially disabled and therefore entitled to a partial 

disability award. 

At the hearing before the IAJ, Bayna and her spouse testified in person. 

She also presented the deposition testimony of two treating physicians, Dr. Alvin 

Nayan, an occupational medicine specialist, and Dr. Keith Fujisaki, an orthopedic 

surgeon. CHI presented the deposition testimony of two orthopedic surgeons, 

Dr. Louis Kretschmer and Dr. James Dupree. CHI also presented the live 

testimony of Cheryl McDonald, a vocational counselor.

Dr. Nayan first saw Bayna a few days after her injury. Based on her 

symptoms and presentation, he believed that she had a “[r]ight-shoulder and 

cervical strain.” Dr. Nayan ordered X-rays, prescribed anti-inflammatories and 

muscle relaxants, and ordered massage therapy. Dr. Nayan also imposed 
No. 81732-9-I/3

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numerous injury-related work restrictions, including restrictions on lifting weight, 

lifting arms above the shoulder, power gripping and fine manipulation. CHI was 

unable to accommodate the restrictions. 

Soon after, Dr. Nayan ordered magnetic resonance imaging (MRI). Based 

on those results, Dr. Nayan referred Bayna to Dr. Fujisaki. 

Bayna first saw Dr. Fujisaki two months after the injury. He diagnosed her 

with rotator cuff strain of her shoulder and impingement syndrome. Dr. Fujisaki

initially treated Bayna with subacromial cortisone injections and physical therapy. 

But after her symptoms persisted for nearly a year, Dr. Fujisaki recommended 

shoulder surgery.

In the meantime, Dr. Nayan referred Bayna for a functional evaluation. 

According to that evaluation, Bayna could tolerate “medium level” full-time work 

for eight hours per day. Also, approximately a year after the injury, Dr. 

Kretschmer performed an independent medical exam (IME). Dr. Kretschmer 

diagnosed Bayna with right shoulder tendonitis related to her injury and adhesive 

capsulitis, or “frozen shoulder.” He determined that further treatment was

“appropriate.” 

CHI also arranged for a vocational counselor to perform an assessment. 

The counselor determined that Bayna could not return to work as an ICU nurse

because of the physical demands, but she had “excellent” transferrable skills. 

The counselor concluded that Bayna is employable in a variety of health care 

settings and positions. She identified the nurse case manager as a position that 

was significantly less physical than her prior position and corresponded to 
No. 81732-9-I/4

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Bayna’s preferences. The vocational counselor also evaluated the labor market 

and concluded there was adequate job availability in Bayna’s area. 

The Department approved surgery, and in March 2017, Dr. Fujisaki 

performed an arthroscopic procedure to repair a labral tear and subacromial 

decompression. Afterwards, Bayna engaged in physical therapy. Three months 

postsurgery, Dr. Fujisaki believed that Bayna could return to work, with some 

modification of her physical duties. In August 2016, five months after surgery, 

Dr. Fujisaki noted that Bayna had surpassed her presurgery condition. He still 

recommended that she continue physical therapy and participate in work 

conditioning. 

Both Drs. Nayan and Fujisaki approved Bayna’s release for work as a 

nurse case manager, a sedentary position, as of August 15, 2017. In the fall of 

2017, Bayna experienced pain in her right wrist and low back while participating 

in a work conditioning program. She reported complaints to Drs. Nayan and 

Fujisaki and ceased that program. Dr. Nayan saw Bayna for the last time on 

March 15, 2018. 

Dr. Dupree performed a second IME on February 2018. He reported that 

Bayna’s chief complaints at that time were lingering shoulder pain, right wrist 

pain, and some fatigue with overhead lifting. His examination revealed that 

Bayna’s shoulder range of motion and strength were within the normal range. 

Dr. Dupree determined that when he saw her, Bayna had the ability to perform 

the duties of a nurse case manager and, based on the records, agreed with the 

treating physicians’ decision to release her to work in that capacity in August 
No. 81732-9-I/5

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2017. Dr. Dupree concluded that Bayna’s wrist and back conditions were not 

related to her 2015 workplace injury. 

Following the hearing, the IAJ issued a proposed decision and order 

affirming the Department’s order. The Board of Industrial Insurance Appeals 

(Board) denied Bayna’s petition for review and adopted the IAJ’s proposed 

decision and order. 

Bayna appealed to superior court. After considering the parties’ briefing 

and oral arguments at a bench trial, the superior court issued a written decision 

upholding the Board’s order. The superior court made the following relevant 

findings and conclusions that largely mirror the findings of the Board.1

I. FINDINGS OF FACT

1. Ms. Dalisay Bayna sustained an industrial injury on October 9, 2015,

when she injured her neck and right shoulder while attempting to rotate 

a 575-pound patient.

. . . . 

3. Ms. Bayna has work restrictions that include restrictions on her ability 

to push, pull, and lift. Ms. Bayna also has restrictions concerning her 

ability to reach or work above her shoulders. Ms. Bayna was also 

restricted from power gripping and any fine manipulation in regards to 

her right upper extremity.

4. Ms. Bayna was able to perform and obtain gainful employment on a 

reasonably continuous basis from August 18, 2017, through March 15, 

2018.

5. As of May 18, 2018, Ms. Bayna’s conditions proximately caused by the 

industrial injury were fixed and stable and did not need further proper 

and necessary treatment.

 

1 The only material difference is that the superior court’s final conclusion of 

law affirmed the Board’s October 8, 2019, order, whereas the Board’s decision 

affirmed the Department’s May 18, 2018, order. 
No. 81732-9-I/6

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6. On May 18, 2018, Ms. Bayna did not have a permanent partial disability 

proximately caused by the October 9, 2015, industrial injury.

7. Ms. Bayna’s conditions identified as right wrist pain and low back pain 

were not proximately caused or aggravated by her industrial injury.

II. CONCLUSIONS OF LAW

. . . .

2. Ms. Dalisay Bayna was not a temporarily totally disabled worker within 

the meaning of RCW 51.32.090 from August 18, 2017, through March 

15, 2018.

3. Ms. Bayna’s conditions proximately caused by the industrial injury were 

fixed and stable as of May 18, 2018, and she is not entitled to further 

treatment per RCW 51.36.010. 

4. On May 18, 2018, Ms. Bayna did not have a permanent partial 

disability, within the meaning of RCW 51.32.080, proximately caused 

by the industrial injury.

5. The Board of Industrial Insurance Appeals order of October 8, 

2019, is correct and is affirmed.

The court denied Bayna’s motion for reconsideration. Bayna appeals.

ANALYSIS

Standard of Review

Reviewing workers’ compensation determinations under the Industrial 

Insurance Act (IIA), Title 51 RCW, the superior court reviews the Board’s 

decision de novo, relying solely on the evidence contained in the Board’s certified 

record. RCW 51.52.115; Malang v. Dep’t of Labor & Indus., 139 Wn. App. 677, 

683, 162 P.3d 450 (2007); Rogers v. Dep’t of Labor & Indus., 151 Wn. App. 174, 

179-81, 210 P.3d 355 (2009); McDonald v. Dep’t of Labor & Indus., 104 Wn. 

App. 617, 621-22, 17 P.3d 1195 (2001). The superior court considers the 

Board’s findings and decisions prima facie correct. Ruse v. Dep’t of Labor & 
No. 81732-9-I/7

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Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999); RCW 51.52.115. The party 

challenging the Board’s findings and decisions has the burden to prove otherwise 

by a preponderance of evidence. Ruse, 138 Wn.2d at 5. 

We review the superior court’s decision, not the Board’s order. Birgen v. 

Dep’t of Labor & Indus., 186 Wn. App. 851, 856, 347 P.3d 503 (2015). We 

review the record to determine “‘whether substantial evidence supports the 

findings made after the superior court’s de novo review, and whether the court’s 

conclusions of law flow from the findings.’” Ruse, 138 Wn.2d at 5-6 (quoting 

Young v. Dep’t of Labor & Indus., 81 Wn. App. 123, 128, 913 P.2d 402 (1996)). 

Substantial evidence is enough evidence to persuade a fair-minded, rational 

person of the truth of the declared premise. Mowat Constr. Co. v. Dep’t of Labor 

& Indus., 148 Wn. App. 920, 925, 201 P.3d 407 (2009). We review the record in 

the light most favorable to the party that prevailed in superior court and do not 

reweigh or rebalance competing testimony and inferences. Stone v. Dep’t of 

Labor & Indus., 172 Wn. App. 256, 260, 289 P.3d 720 (2012). 

Workers’ Compensation Benefits

Under the IIA, a worker injured in the course of employment is entitled to 

compensation. RCW 51.32.010; Tobin v. Dep’t of Labor & Indus., 145 Wn. App. 

607, 613, 187 P.3d 780 (2008), aff’d, 169 Wn.2d 396, 239 P.3d 544 (2010). 

After an industrial injury, a worker covered by industrial insurance is 

entitled to necessary and proper medical and surgical services during the period 

of disability caused by the injury. RCW 51.36.010(2)(a). And a worker with a 

“[t]emporary total disability” receives “time loss” benefits as a wage replacement 
No. 81732-9-I/8

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benefit while the worker is temporarily incapacitated from performing work at 

gainful employment. RCW 51.32.090(1); Hubbard v. Dep’t of Labor & Indus., 

140 Wn.2d 35, 43, 992 P.2d 1002 (2000). A “‘[t]emporary total disability’” is a 

condition that “temporarily incapacitates a worker from performing any work at 

any gainful employment.” Hubbard, 140 Wn.2d at 43. 

If a claimant's condition has stabilized so that it cannot be improved with 

further treatment, the condition is “fixed” for purposes of closing the temporary 

total disability claim and determining the permanent disability award, if any. 

Pybus Steel Co. v. Dep’t of Labor & Indus., 12 Wn. App. 436, 438-39, 530 P.2d 

350 (1975); see also Franks v. Dep’t of Labor & Indus., 35 Wn.2d 763, 766-67, 

215 P.2d 416 (1950). In other words, temporary total disability ends when the 

claimant’s condition has become “fixed and stable” or as soon as “the claimant is 

able to perform any kind of work.” Hunter v. Bethel Sch. Dist., 71 Wn. App. 501, 

507, 859 P.2d 652 (1993); see also Shafer v. Dep’t of Labor & Indus., 166 Wn.2d 

710, 716-17, 213 P.3d 591 (2009). A worker with a “permanent partial disability” 

receives a one-time award of benefits based on the loss of function. RCW 

51.32.080; Boeing Co. v. Doss, 183 Wn.2d 54, 60, 347 P.3d 1083 (2015).

Cessation of Time Loss Benefits on August 17, 2017

Bayna contends that in the period between August 18, 2017, and March 

15, 2018, she was totally temporarily disabled and unable to obtain or maintain 

employment.2 She maintains that, in finding otherwise, the court failed to 

 

2 CHI argues that we must treat the superior court’s findings as verities on 

appeal because Bayna does not sufficiently identify the findings she challenges.

See In re Contested Election of Schoessler, 140 Wn.2d 368, 385, 998 P.2d 818 
No. 81732-9-I/9

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consider the following facts: (1) her medical providers did not approve her return 

to her prior position as an ICU nurse, (2) her employer was unable to offer 

modified or light duty work during that period, (3) she continued to undergo 

treatment for her shoulder injury during that period, and (4) she sustained 

additional injuries to her wrist and low back during treatment that were 

attributable to her original injury. Bayna also asserts that the trial court 

misapplied the law because, as the trier of fact, it failed to give special 

consideration to the opinions of her attending physicians in accordance with

Hamilton v. Dep’t of Labor & Indus., 111 Wn.2d 569, 571, 761 P.2d 618 (1988)

(stating a “long-standing rule of law in workers’ compensation cases that special 

consideration should be given to the opinion of a claimant’s attending physician”).

Bayna’s inability to return to her prior position as an ICU nurse and CHI’s 

failure to offer her a light duty position do not mean that Bayna was not 

reasonably employable. Likewise, Bayna’s entitlement to medical benefits and 

continued medical treatment during the period in question are separate issues 

and not determinative of whether she could maintain employment during that 

period. Both treating physicians Drs. Nayan and Fujisaki approved Bayna’s 

release to work as a nurse case manager, a “sedentary” position, on August 15, 

2017. CHI’s expert witnesses also testified that as of August 2017, Bayna was 

able to work as a nurse case manager. Thus, all four medical providers and the 

 

(2000) (unchallenged findings are verities on appeal). But although Bayna does 

not refer to the court’s findings by number, she sufficiently describes the findings 

and it is clear that she challenges findings of fact 4 through 7.
No. 81732-9-I/10

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vocational counselor agreed that Bayna was capable of performing the job of a 

nurse case manager between August 18, 2017, and March 15, 2018. 

None of the evidence, including the testimony of Drs. Nayan or Fujisaki, 

suggested that any condition related her right wrist or low back rendered Bayna 

unable to perform necessary functions of a nurse case manager. Thus, even 

with “careful thought” to the opinions of Bayna’s attending physicians, the record 

supports the superior court’s finding that Bayna could “perform and obtain gainful 

employment.” See Hamilton, 111 Wn.2d at 572 (special consideration does not 

mean the trier of fact must give more weight or credibility to the attending 

physician’s testimony, only that it should give the testimony “careful thought”). 

The evidence also does not support the premise that work conditioning 

caused Bayna’s claimed new injuries. Bayna reported low back discomfort 

during therapy exercises to Dr. Fujisaki when she last saw him in September 

2017. But she did not report a specific injury, and he concluded that her back 

pain was unrelated to the shoulder work-related injury. Around this time, Dr. 

Nayan observed some minor limitations of movement in the low back but testified 

that a lumbar X-ray indicated only “degenerative disk disease.” Both of CHI’s 

expert witnesses agreed with Dr. Fujisaki’s assessment that any low back pain 

was unrelated to the original neck and shoulder injury. Dr. Kretschmer 

specifically concluded that Bayna’s condition was attributable to genetics and 

aging, not industrial injury. 

As to Bayna’s right wrist, according to a September 2017 physical therapy 

note, Bayna experienced pain, which she described as “four out of ten,” during 
No. 81732-9-I/11

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two different therapy exercises. Bayna subsequently told Dr. Nayan that her

wrist pain was “aggravated” by the work conditioning program and, on his 

recommendation, she stopped participating in the program. Dr. Nayan examined 

Bayna in September and November of 2017 and noted some swelling, soreness, 

and “minor limitation of movements.” Dr. Nayan ordered a wrist X-ray, which did 

not indicate any abnormalities of the bone or soft tissue. The Department denied 

Dr. Nayan’s request for an MRI. 

Dr. Nayan noted a “temporal” relationship between Bayna’s work 

conditioning and her symptoms, and suggested her wrist injury “should at least 

be looked at,” but also expressly declined to offer an opinion as to whether 

Bayna’s wrist injury should be included in her claim for benefits based on her 

2015 injury. Dr. Kretschmer testified that based on his review of the physical 

therapy notes, diagnostic tests, and examination reports, there was no evidence 

of abnormality or injury to Bayna’s wrist. And Dr. Dupree’s February 2018

examination revealed no deficiencies as to range or strength and concluded that 

any issue related to her wrist was not connected to the shoulder injury. 

Substantial evidence in the record supports the determination that Bayna 

was able to obtain and maintain employment between August 18, 2017, and May 

18, 2018. That finding, in turn, supports the court’s conclusion that she was not a 

totally disabled worker during that time period. 
No. 81732-9-I/12

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Claim Closure on May 18, 2018

Bayna challenges the trial court’s finding that, as of May 18, 2018, her 

condition related to her work-related injury was “fixed and stable” and she 

required no “further proper and necessary treatment.” 

Here, too, Bayna’s argument is based on the injuries she claims to have 

sustained during therapy prescribed to treat her shoulder and argues that she 

was entitled to additional medical benefits. Washington recognizes the rule, 

referred to as the compensable consequences doctrine, which establishes that if 

treatment performed for an industrial injury causes complications or aggravates 

the injury, the claim covers the resulting treatment. Clark County v. Maphet, 10 

Wn. App. 2d 420, 438, 451 P.3d 713 (2019). 

Nevertheless, as explained above, the facts before the Board did not 

establish that Bayna sustained injuries to her low back and wrist during work 

conditioning. While Dr. Nayan observed a temporal relationship, he only said 

that “if” Bayan injured her wrist and back during work conditioning, the 

Department “should at least try” to expand the claim. But he did not opine that 

Bayna’s conditions were caused or exacerbated by the therapeutic treatment for 

her shoulder. The other three physicians expressly agreed that this was not the 

case. And even if the evidence showed that Bayna’s treatment caused new 

injuries, there was no evidence indicating that she needed medical treatment for 

those conditions as of May 2018. It appears from the record that Dr. Dupree 

conducted the last examination of Bayna on February 15, 2018, and found 

nothing to suggest that she required treatment for her wrist or low back. And, 
No. 81732-9-I/13

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none of the medical providers testified that Bayna needed further medical 

treatment for her shoulder as of May 18, 2018. Bayna does not argue otherwise. 

Permanent Partial Disability Award

Even if her condition was “fixed” warranting closure of her claim, Bayna 

challenges the evidence supporting the court’s finding that she had no 

“permanent partial disability proximately caused by the October 9, 2015 injury.” 

Dr. Nayan concurred with the results and conclusions of Dr. Dupree’s IME, 

except as to the conclusion that she was not entitled to a partial permanent 

disability award. He suggested that the Department review the physical therapy 

notes and recalculate the impairment rating, because he believed the rating 

should be based on both strength and range of motion deficits. 

But there is no evidence in the record of impairment that would warrant 

such an award. As noted, Dr. Dupree’s February 2018 examination revealed 

normal range of motion and strength levels in both shoulders and upper and 

lower extremities. Bayna argues that Dr. Nayan examined her on March 15, 

2018, the date he last saw her, and made contrary objective clinical findings of 

strength deficits that were the basis of his recommendation to reevaluate the 

impairment rating. See WAC 296-20-19000 (“Industrial Insurance Act requires 

that permanent partial disability be established primarily by objective physical or 

clinical findings establishing a loss of function.”). But, in fact, Dr. Nayan did not 

testify that he examined Bayna on that date or testify about any clinical findings 

in 2018. 
No. 81732-9-I/14

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Even considering Dr. Nayan’s misgivings about Bayna’s impairment 

rating, substantial evidence in the record supports the court’s finding about the 

lack of a permanent partial disability proximately caused by her 2015 injury. 

Motion To Transfer Case Assignment

Finally, Bayna raises a procedural issue related to her appeal to superior 

court. The ordinary civil standards of review, rules of evidence, and rules of civil 

procedure govern appeals from superior court decisions in IIA cases. 

RCW 51.52.140.

On March 5, 2020, almost five months after she filed her notice of appeal 

and without having filed her opening brief on appeal that was due on February 

28, Bayna filed a “Motion to Transfer Case Assignment Area Designation” in 

superior court. Bayna sought to redesignate the type of case, from 

“Administrative Law Review (ALR 2)” to a more specific designation, “Board of 

Industrial Insurance Appeals – Workers Comp (ALRLI 2).” Bayna’s motion 

asserted that she “correctly filled out the papers,” but the court did not properly 

designate the case or issue the appropriate case schedule. She cited King 

County Superior Court Local Civil Rule (KCLCR) 82, a rule that governs case 

assignment areas, as the basis for her motion. In her request for relief, Bayna 

asked the court to change the “Case Assignment Designation,” not the area 

designation, and to issue a new case schedule. 

CHI opposed the motion and asserted that it was prepared to proceed to 

the bench trial set for April 17, 2020.3 CHI pointed out that KCLCR 82 authorized 

 

3 The bench trial did not occur until several months later, on July 10, 2020.
No. 81732-9-I/15

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only a transfer of the case area designation from Kent to Seattle, which Bayna 

was not seeking.4 CHI pointed out that the plaintiff herself chose the ALR 2 

designation because she had not used the most current case information cover 

sheet, which includes the specific workers compensation category. CHI also 

posited that, based on an e-mail Bayna’s counsel’s assistant sent to the bailiff, it 

appeared that Bayna was trying to obtain a new case schedule in order to 

remedy the failure to file a jury demand. 

After reviewing the motion, response, and the court file, the superior court 

denied the motion. 

Bayna now claims the court erred in denying her motion because by doing 

so, the court violated her right to a jury trial under RCW 51.52.115 (On appeal of 

a Board decision to superior court, “either party shall be entitled to a trial by jury 

upon demand.”). 

But while CR 38 preserves the right of trial by jury in civil cases, it requires 

a party to exercise the right through specific acts. CR 38(b) required Bayna to 

serve a jury trial demand on the other party, file the demand with the court clerk, 

 

4 KCLCR 82(e)(4)(D) states: 

Motions By Party to Transfer. Motions to transfer court 

proceedings from one case assignment area to another shall be 

presented to the Respective Chief Judge. Such motions shall be 

made in writing as required by LCR 7; shall be ruled on by the 

Court without oral argument; and shall be noted for consideration 

no later than 14 days after the date for filing the Confirmation of 

Joinder of Parties, Claims, and Defenses in civil cases, as 

required in LCR 4.2(a), or the date for filing of the Confirmation of 

Issues in domestic cases, as required by LFLR 4(c). All cases 

shall proceed in the original case assignment area until an order 

of transfer is entered. Proceedings in the assigned area shall not 

preclude the timely filing of a motion to transfer.
No. 81732-9-I/16

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and pay a jury fee. She did none of these things. Under CR 38(d), this failure 

constitutes waiver of the right to a jury trial. She did not mention her right to a 

jury trial or the jury demand deadline or ask the court to exercise its discretion to 

extend the deadline for filing a jury demand. See Sackett v. Santilli, 101 Wn. 

App. 128, 134, 5 P.3d 11 (2000) (Even where a party fails to demand a jury trial 

according to court rules, the trial court may exercise its discretion to grant a jury 

trial.), aff’d, 146 Wn.2d 498, 47 P.3d 948 (2002). Instead, she filed a motion 

under KCLCR 82, which authorized the court only to change the case area 

designation, which was clearly different from the relief she sought. 

Although Bayna claims that the court’s ruling on her motion led to a 

“devastating result,” she provides no authority to support her claim that, based on 

the materials before it, the court erred or abused its discretion.

5

 

Finally, Bayna requests attorney fees on appeal under RCW 51.52.130. 

Because we affirm the superior court’s decision upholding the decision of the 

Board, we deny the request. 

Affirmed.

WE CONCUR:

 

5 Bayna does not address the standard of review, but our conclusion is the 

same whether we apply a de novo or abuse of discretion standard.