### FILED JULY 28, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE LEONVALDEZ, Appellant, V. DEPARTMENTOFLABORAND INDUSTRIES OF THE STA TE OF WASHINGTON, Respondent. 

### ) ) ) ) ) ) ) ) ) ) ) No. 33261-6-111

UNPUBLISHED OPINION

SIDDOWAY, J.

- LeonValdez appeals the superior court's summaryjudgment affirming a Board ofIndustrial Appeals decision that he ceasedto be temporarily totally disabled on and afterJuly 10, 2012. One ofthe Department ofLabor and Industries' (Department) arguments on appeal is that an employer's affiliate was usedto rationalize an E-Verify1check on Mr. Valdez that was discriminatorily based onhis workplace injury. The employerraises a novel issue ofwhether an employer ofinjury may claim benefits providedby RCW 51.32.090(4) by making an offer ofspecial workthrough an affiliate. Butthe appeal can be resolved on the simple basis relied onbythe board: Mr. Valdez failed to present

1E-Verify is an Internet-basedprogram, operatedby the United States government, that employers may use to determine whether an employee is eligible to work inthe United States. 

### See 8 U.S.C. 

### § 1324a(d)(4) (authorizing employment eligibility pilotprojects).No. 33261-6-III Valdez v. Dep 't of Labor &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. ThatAugust 6, Mr. Valdez fell from a ladder while working, and suffered a contusion ofhis back and sprains ofhis leftknee, 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 letterrequesting 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 thejob with Cascade. Accordingto Departmentrecords, a lawyer for Mr. Valdez made contact with the Department onNovember 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 monitorjob that met restrictions stated onhis medical

2 Later diagnoses attributed tears ofthe medial and lateral left knee meniscus and cartilage damage from the fall. Sometime after September 2012, Mr. Valdez underwent a meniscectomy surgery ofhis left knee. 2No. 33261-6-III Valdez v. Dep 'tof Labor & Indus. provider's release. Clerk's Papers (CP) at 151. It said that ifinterested, Mr. Valdez should report to work atMatson onJune 13, and notified him that his refusal to accept the position "may affect yourtime loss benefits." Id. When his attending physician in California cleared him to perform thejob, Mr. Valdez accepted it and returned to Washington. When Mr. Valdez reported to work, Matson required that he provide proofof 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. Gutierreznotified Mr. Valdezthathe hadtwo months to provide a valid Social Security number; otherwise, his employmentwould 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 ofLabor & 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 ofor expired work authorization documents. (In otherwords, ifnot for your invalid [S]ocial [S]ecurity number, you could have been working alternative duty with regularpay/benefits.) Id. Itcontinued, "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 wantto make sure

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### &Indus. [the Department] understands it is not to be issuing any time loss checks for dates after August 12, 2011." Id. Itcopied the Department on the letter. Mr. Valdez's employment with Matson ended. Despite Matson's attempted message to the Department through a copy ofits August 2011 letter, onJuly 10 ofthe following year, the Department awardedtime-loss compensation to Mr. Valdez for the period ofAugust 15, 2011-followinghis termination ofemploymentwith Matson-throughJuly 9, 2012. No protest or appeal

was received by the Department, with the result thatthe July 10, 2012 orderbecame final. RCW 51.52.050, .060. The Departmentthereafter issued biweekly orders by which it awarded Mr. Valdez

a total of$2,376.08 more in time-loss compensationthrough September 3, 2012. Cascade timely protested these payment orders. The Departmentreversed the award ofpost-July 10 time-loss compensation, explaining, "the workerwas able to work effective 7/10/12." CP at 47. Itdemandedthat Mr. Valdez repay the $2,376.08. Mr. Valdez requested reconsideration, which was denied. Mr. Valdez then filed a protestthat the Board ofIndustrial 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 appealsjudge (IAJ) also admitted and published the perpetuation deposition ofDr. Larry Lefors, Mr. Valdez's Washington 4No. 33261-6-III Valdez v. Dep 'tof Labor &Indus. physician. Both Mr. Valdez and Dr. Lefors testified that Mr. Valdez had been able to perform the work required by the conveyor monitorposition 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 dutyjob of conveyor monitor from July 10, 2012, through September 3, 2012," and thathe "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 claimantraised issues related to the relationship of [Matson] Fruit and Cascade View," that Matson was not the employer ofinjury butwas "closely affiliated" with Cascade and that Matson could claimthe benefits ofoffering ajobunder 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 ofinjury" who offers "available work other than [the worker's] usual work," that "the worker is physically able to perform." Ifa worker fails to accept such an offer, his orher time-loss compensationwill cease as long as the work remains available. Ifthe worker accepts the offer, the employer will be eligible for certain subsidies. Ifa light-dutyjob ceases to be available before the injured worker is recovered enough to return to thejob ofinjury, then the workerwill again receive benefits. RCW 51.32.090(4)(b). Ifthe employee is fired from the light-dutyjob for cause unrelated to the industrial injury (andprovided that the same action wouldhave been taken against other similarly-situated workers), then the employee's benefits will 5No. 33261-6-III Valdez v. Dep 't of Labor & Indus.

because [i]t would be an absurd result to preclude a non-employer ofinjury from offering a light dutyjobthat an injured worker canperform, particularly when the purpose ofthe 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. Ratherthan adopt the IAJ'sproposed 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 offwork for three days, "butthen continuedto 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 performingthe position", and ultimately, that he was able to perform the light-dutyjob ofconveyor 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 ofa light-dutyjobwas a substitute for such an offer from the employer ofinjury under RCW 51.32.090(4)(b). Mr. Valdez appealed the board's decision to the superior court. He, Cascade, and the Departmentthen filed cross motions for summaryjudgment.

not be reinstated-thejob remains "available" within the meaning ofRCW 51.32.090(4) but for the actions ofthe worker. O'Keefe v. Dep'tof Labor & Indus., 126 Wn. App. 760, 766-67, 109 P.3d 484 (2005). 6No. 33261-6-111 Valdez 

### v. Dep 'tof Labor &Indus.

The court granted summaryjudgmentin favor ofthe Department and affirmed its order assessing the overpayment. Mr. Valdez appeals. ANALYSIS Confusion exists overthe nature ofthe superior court's decision and ourreview. Mr. Valdez characterizes the superior court as having held "abench trial" onJanuary 26, 2015, following which it entered "findings offact, conclusions oflaw, and ajudgment." Br. ofAppellant at 2. His only assignments oferror are to three board findings adopted by the superior court in its ownjudgment, which he challenges as unsupported by substantial evidence. Yet it was the parties' cross motions for summaryjudgmentthat the superior court recognized as before it at the January 27 hearing.· Report ofProceedings (RP) at 1 ("This afternoon we have a summaryjudgment and cross-motion for summaryjudgment."). And in enteringjudgment, the superior court determined that "[n]o genuine issue of material fact exists," and "[t]heDefendant, Department is entitled tojudgmentas a matter oflaw." CP at 433. Unfortunately, the superior court'sjudgment goes on to say that "[a] preponderance ofevidence supports the Board's Findings ofFact," and it "adopts as its Findings ofFact, and incorporates by this reference, the Board's Findings ofFacts Nos. 1 through 11 ofthe April 29, 2014, Decision and Order." CP at433. "[F]indings offact on summaryjudgment are notproper, are superfluous, and are 7No. 33261-6-III Valdez v. Dep 't of Labor & Indus.

not consideredbythe appellate court." Hemenway v. Miller, 116 Wn.2d 725, 731, 807 P.2d 863 (1991). And a finding that "apreponderance ofevidence" supported the board's findings would not support summaryjudgment. Since the record is clearthat the case was decided on summaryjudgment, the appeal must be resolved on that basis. Ifsummaryjudgmentwas improperly granted, then we would remand the case to the superior court for its de novo review ofthe board's decision on the merits. Any party losing onthe merits couldthen appeal and challenge the sufficiency ofevidence to supportthe superior court's findings. 4 CfSpring v. Dep 't of Labor & Indus., (Spring II) 39 Wn. App. 751, 753, 695 P.2d 612 (1985) (addressing a second appeal, after reversal ofsummaryjudgmentin the first resulted in remandto the trial court).

4 Unlike the nature ofthis court's review in most appeals ofadministrative decisions, ourreview on appeal in workers' compensation cases is ofthe superior court's decision, not the board's. Rogers v. Dep 't of Labor & 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 andtestimony presentedto the board. Stelter v. Dep 't of Labor & 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 ofthe superior court." Id. (citing OurLady of LourdesHosp. v. Franklin County, 120 Wn.2d 439,451, 842 P.2d 956 (1993)). In other words, where summaryjudgmentis granted, both the superior court and this court ask the same question: has the moving party demonstrated that the evidence presented to the boardpresented no genuine issue ofmaterial fact, suchthat the moving party is entitledtojudgment as a matter oflaw? See id. 8No. 33261-6-III Valdez v. Dep 't of Labor & Indus.

We therefore review only whether undisputedevidence supports the superior court'sjudgment in favor ofthe Department and Cascade. We will treat Mr. Valdez's assignments oferror as identifying matters thathe contends were factually disputed or, if undisputed, supportedjudgment in his favor. Matters ThatMr. Valdez Claims to Have Demonstrated Before the Board Thus construed, Mr. Valdez contends the following matters were disputed or, if undisputed, supportedjudgment 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, duringthatperiod, light-duty work as a conveyor monitor was generally available in the labor market, or, alternatively, whether special work in that position had beenvalidly offered by Matson;5 and (3) whetherthe Department correctly assessed an overpayment of$2,376.08 for thattime period. Br. of Appellant at 3. The simplest basis on whichto resolve the appeal is that relied on by the board: Mr. Valdez failed to present evidence that he was unable toperform or obtain light-duty

5 While Mr. Valdez's second assignment oferror speaks only ofwhether "Mr. Valdezwas able to perform the light-dutyjob ofconveyor monitor" during the relevant time frame, it is clear from his briefingthat he disputes whetherthe conveyor monitorjob was generally available, or, ifnot, whether Matson's offer ofthe position complied with RCW 51.32.090(4)(b) and thereby excused Cascade from further liability ifMatson terminated his employment for cause unrelated to his industrial injury. 9**~** 

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### work on a reasonably continuous basis. We therefore do not reach the parties' disputes

over whether Cascade could claim the benefits afforded an "employer ofinjury" under RCW 51.32.090(4)(b) by making an offer ofspecial work through an affiliate, or whether Title 51 RCW forbids an employer from discriminatorily conducting immigration checks ofinjured 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 ofemployment 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." Hubbardv. 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 of Labor & Industries, 

### 123 Wn.2d 803,806, 872 P.2d 507 (1994)). Instead, it is "the loss ofall 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. BethelSch. Dist., 

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

10No. 33261-6-III Valdez v. Dep 't of Labor & Indus. totally disabled ifhe or she is not capable ofreasonably continuous employment at any kind ofgenerally available work. Id. "General work means even light or sedentary work, ifit is reasonably continuous, within the range ofthe 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 [oftime-loss compensation] is to provide temporary financial support until the injured worker is able to return to work." KaiserAluminum & 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 ofwork. Hunter, 71 Wn. App. at 507; RCW 51.32.090(3)(a). Ifa worker is able to do light work ofa general nature but is unable to find work, the presumption is that fluctuations in the labor marketrather than consequences ofthe 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 workerto showthere is no workhe can obtain. Even where the workerhas proved that he or she cannotperform or obtain general work, an employermay avoid liability for time-loss compensation by provingthat the worker can both perform and obtain "special work." Graham v. Weyerhauser Co., 71 Wn. App. 55, 62-63, 856 P.2d 717 (1993), overruledon othergrounds byLeeper, 123 11

### No. 33261-6-111 Valdez 

### v. Dep 't of Labor & Indus.



### Wn.2d at 818. This employerresponse on the issue ofemployability-oftenreferred to

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

### v. Dep'tof Labor & Indus., 

### 7 Wn. App. 286,292,499 P.2d 255 (1972) (citing Kuhnle 

### v. Dep 't of Labor & Indus., 

### 12 Wn.2d 191, 120 P.2d 1003 (1942)). In Graham, 

### the Court ofAppeals characterizedthe odd lot doctrine as "operat[ing] like an affirmative defense; when successfully invoked by the employer, it precludes a finding oftotal disability, even though the worker may have proved that he or she cannotperform general work." 71 Wn. App. at 62-63. Washington decisions recognize that assertion ofthe odd lot doctrine shifts the burden ofpersuasionto the Department orthe employer-butnot until the worker has made out a prima facie case ofdisability. 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 ofproof. The worker

### bears the burden ofproving that he or she "is incapable ofperforming light or sedentary work ofageneral

### nature." Spring, 

### 96 Wn.2d at 919. If, however, the worker can no longerperform light or sedentary work ofa general nature and "'is fitted only to perform "oddjobs" 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).

12No. 33261-6-III Valdez v. Dep 't of Labor & Indus. SummaryJudgment The decisive issue on appeal is whetherMr. Valdez met his burden ofproducing evidence that he was unable to perform or obtain gainful employment (including lightduty employment) on a reasonably continuous basis as a result ofthe injury incurred while working for Cascade. A defendant may move for summaryjudgmentby showing that there is an absence ofevidence to supportthe nonmoving party's case. Young v. Key Pharm., 112 Wn.2d 216,225 n.1, 770 P.2d 182 (1989), overruledon othergrounds 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 plaintifffails to make a showing sufficientto establish the existence ofan element essential to its case, on which it will bearthe burden ofproofat 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 ofproving that he is entitledto benefits. Ifthis burden cannot be met as a matter oflaw, summaryjudgmentfor the Department is proper." Knight v. Dep 't of Labor & Indus., 181 Wn. App. 788, 795-96, 321 P.3d 1275 (2014) (footnote omitted). Washington cases recognize three types ofevidence historically offered by workers to showthey are unable to perform and obtain gainful employment on a reasonably continuous basis: testimony from the worker orhis coworkers, testimony ofa 13No. 33261-6-111 Valdez v. Dep 't of Labor & Indus.

vocational expert, or testimony ofa medical expert. Evidence thatthe worker has attempted butbeen unable to find employment, coupled with evidence ofinjury and a causal relation between the injury andthe inability to obtain work, will supportthis essential element ofa worker's claim. Proofthat the injury causedthe inability to obtainwork "comes not only from the circumstances of the claimant's attempts to seekemployment, but also from the reasonable inferences arising from the medical and vocational evidence." Leeper, 123 Wn.2d at 815 (emphasis added). Atthe hearing before the board, Mr. Valdez offered no evidence that he had attempted, unsuccessfully, to find work.6 Testimony ofa medical expert can address the general availability of jobsthe worker can perform, although Washington cases have increasingly recognizedthat 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 ofthe 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 toplay basketball and walk a lot; howeverhe 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 himselfinto it slowly, using the arms ofthe chairto supporthimself. 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. 14

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

### &Indus. 

### Traditionally, total disability cases have beenproved by lay testimony ofthe injured workman and fellow employees, together with medical testimony as to the facts ofloss offunction 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 ofproof, the Fochtman 

### court stated, "[W]e do question whether most doctors are familiar with intricacies ofthe labor market." Id. 

### It held that in connection with "theultimate determination ofwhether the injured workman can maintain gainful employment in the labor market with reasonable continuity we find the testimony ofa vocational or employment expertbothrelevant and admissible." Id. 

### In 1982, in Spring, 

### our Supreme Court observed that, "the use ofvocational expert testimony in disability cases has become increasingly prevalent overthe last decade and should be encouraged." 96 Wn.2d at 920. "Vocational experts can often offer a more realistic appraisal ofthe overall ability and motivation ofan 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 characterizedthe practice of"using vocational experts to assess a claimant's disability, or, as the Fochtman 

### court named it, the worker's 'employability'" as a "nowuniversal practice." 123 Wn.2d at 812 (quoting Fochtman, 

### 7 Wn. App. at 288). Atthe hearing before the IAJ, 

### Mr. Valdez did not offer the testimony ofa vocational expert. He cites Young 

### for its holding that the testimony ofa vocational 15

### No. 33261-6-111 Valdez v. Dep 'tof Labor & Indus. expert, while relevant, is not necessary to establish total disability. Br. ofAppellant 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 "'veryreal 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 ortwo hours the next day." 81 Wn. App. at 

### 126. The court held that these and Ms. Young's other significantphysical limitations,7 coupled with her limited employment skills, supportedthe "common sense" conclusion that she would be unable to find orretain 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 ofgainful employment on a reasonably continuous basis in work generally available in his labor market. ButMr. 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 conveyormonitor

7Herphysician testified that Ms. Young could "sit for only one-halfhour at a time, for a total ofthree 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 ofone-halfhour 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 offact no.4, describing limitations). 

### 16No. 33261-6-111 

### Valdez v. Dep 't of Labor &Indus.

that Mr. Valdez had been cleared to perform and had actually performedbetweenJune and August 2012. Dr. Lefors testified: [Q.] Do you have an opinion as to whether ornot Mr. Valdez would have been capable ofgainful employment on a reasonably continuous basis in work generally available in his labor market 

### asidefrom a light-duty type of ajob, like a conveyor monitor, during the timeperiodJuly 10, 2012, through September 3, 2012? A. I don'tbelieve he would have. CP at 183 (emphasis added). Elsewhere in his deposition, Dr. Lefors testified that in December 2012, he reviewed an analysis ofthe "light-dutyjob ofconveyor monitor," discussed thejob with Mr. Valdez, and concluded thatMr. Valdez could do thejob. CP at 182. In addition to Dr. Lefors' testimony, Ms. Gutierrez testified at the hearingthat had Mr. Valdez presented a valid Social Security number, thejob ofconveyor monitorwould have been available to him during the time frame contested benefits were paid. And as found by the board, Mr. Valdez continued to workthinning trees for several months despite his injury and had no physical difficulty performingthe conveyor monitorjob. It is Mr. Valdez's position on appeal that he could legitimately carve out "lightdutyjobs" in eliciting Dr. Lefors' opinion and was notrequired to concern himselfwith evidence thatthe conveyor monitorjob was an availablejob that he could perform because thejobwas 

### specialwork-an odd lot position, not generally available in the 17

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### labor market. As evidence ofthis, he points to Matson's own characterization ofthejob

as being a "newposition," a "transitionaljob" and a "modified position." Appellant's Reply Br. at 9. He argues that given Matson's characterizations ofthe 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 ofperforming was generally available in the labor market. Id. 

### at 10. He argues that the Department or Cascade bore the burden ofproving that such special work was available. Language from this court's decisions in Hunter 

### and Herr v. Departmentof Labor & Industries, 

### 74 Wn. App. 632, 634, 875 P.2d 11 (1994), lends supportto an argument that ifMatson offered the conveyor monitorjobunder RCW 51.32.090(4), it is evidence that Matson, at least, might

### have believed the conveyor monitorjobwas special work. BothHunter 

### and Herr 

### involved a different issue: whether 1975 changes to RCW 51.32.090(4) provided that a workerwould remain temporarily totally disabled and entitled to time-loss compensation until able to return to his orher "usual work." The workers based their argument on the fact that the 1975 changes provided a method by which an employer can offer a worker "available work other than his or her usualwork." 

### 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 "workerwho is entitled to temporary total disability under this chapter": 18No. 33261-6-111 Valdez v. Dep 'tof Labor &Indus.

We interpret this phrase as making subsection (4) applicable to claimants who are incapable ofreasonably continuous employment in work that is generally available on the openjob market. Where a claimant is otherwise temporarily totally disabled, subsection (4) structures the conditions under which employers may employ them in specially createdjobs. Hunter, 71 Wn. App. at 509. In otherwords, RCW 51.32.090(4) offers are necessarily of special work. We assume without deciding that an employerwho offers workunder RCW 51.32.090(4) does not thereby admitthat the work offered is special work,8 since there

are reasons an employerwould accept a Department finding that a worker was totally temporarily disabled and offer a light-duty, generally available position, even ifit believed the Department's finding was wrong. At most, Matson's offer ofthe conveyor monitorjobunder RCW 51.32.090(4) suggests Matson might have viewedthe position as special work as ofMay 2011. ButMr. Valdez never asked Ms. Guttierez ifthat was Matson's view. And even ifit had that view, it might have been wrong. NeitherMs. Guttierez nor any other witness at the board hearing testified that conveyor monitor or other similar light-duty workwas 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). 19No. 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. ofIndus. Ins. Appeals July 30, 1986). In 

### Billings, the board determined that the claimant failed to present a prima facie case ofentitlementto timeloss 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 benefitperiod. The Department, which chose not to present any evidence, prevailed. As explained by the board:

Id. There is no presumptionthat a temporary disability will continue into the future or that it has existed for a period into thepast. A presumption of continued disability does exist in cases in which a worker has been determined permanently and totally disabled. 

### See Department of Labor andIndustries v. Moser, 35 Wn App. 204 (1983); 

### See also Ma/landv. RetirementSystems, 103 Wn 2d. 484, 488 (1985). No such legal presumption can arise, however, where the determination is limited to a finding oftemporary disability for a particularperiod oftime.

By the same reasoning, even ifMatson's offer could be viewed as some evidence that it viewed the conveyor monitorjob 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 thathe was incapable of

### some employment in the general labor market: employment 

### "asidefrom a light-duty type of ajob, like conveyor monitor." CP at 183

20No. 33261-6-111 Valdez v. Dep 'tof Labor &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 ofproof, the Department and Matson were entitled to summaryjudgment. Attorney fees Mr. Valdez requests attorney fees and costs pursuantto RCW 51.52.130 and RAP 18.1. RAP 18.1 provides an appellant the rightto recover reasonable attorney fees if applicable law so provides. RCW 51.52.130 provides a claimantthe right to recover reasonable attorney's fees if, on appeal to the superior court orthe court ofappeals, the Department's order is reversed or modified to grant additional reliefto the claimant. Since we affirm the Department's order, the request for fees is denied. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. 

# ':??ddav~,~. Siddoway, J. WE CONCUR:

21 

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