Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON BRYAN S. OSTBYE, No. 88584-7-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION NORTHWEST REGION DEPARMTENT OF TRANSPORTATION, and THE DEPARTMENT OF LABOR & INDUSTRIES OF THE STATE OF WASHINGTON, Respondents. DÍAZ, J. — The Board of Industrial Insurance Appeals (Board or BIIA) denied Bryan S. Ostbye’s claim for entitlement to loss of earning power (LEP) benefits. A superior court agreed and granted the Department of Labor and Industries’ motion for partial summary judgment, holding that Ostbye had not provided the expert testimony needed for such a claim. We affirm. I. BACKGROUND In 2019, Ostbye suffered a left wrist injury while working as a heavy equipment mechanic for the Department of Transportation. The Department of Labor and Industries (hereafter, the Department) allowed Ostbye’s workers’ No. 88584-7-I/2 compensation claim for a wrist sprain and degenerative joint disease. However, the Department denied responsibility for a triangular fibrocartilage complex (TFCC) tear of the left wrist and hand and later closed the claim with a permanent partial disability of 4 percent for his left arm. Ostbye appealed both orders and sought—among other things—back pay for his LEP during the time he was injured. An industrial appeals judge issued a proposed decision and order and found that Ostbye was entitled to back LEP benefits from January 18, 2023, through August 14, 2023. The Department filed a petition for review from that decision to the Board. The Board granted review and issued a decision and order, which overturned this determination and concluded that Ostbye was not entitled to LEP benefits. Ostbye appealed to the superior court. The Department moved for partial summary judgment. The court granted partial summary judgment on the issue of LEP benefits. The remaining issue proceeded to jury trial in October 2025. Ostbye lost, and the court awarded approximately $1,300 in costs to the Department. Ostbye timely appeals the partial summary judgment order on the issue of his entitlement to LEP benefits. 1 II. ANALYSIS Ostbye contends that he has provided evidence that established a rebuttable presumption of his entitlement to LEP benefits as outlined under the 1 Ostbye does not otherwise appeal the Department’s determination of his permanent partial disability award and maximum medical improvement rating, or the jury determination that his TFCC tear was not proximately caused by his industrial injury. 2 No. 88584-7-I/3 Board’s “significant decision” In re Dyer, No. 15, 763 (Wash. Bd. of Indus. Ins. Appeals Dec. 27, 1962), https://biia.wa.gov/SDPDF/15763.pdf. The Department counters that Ostbye failed to make a prima facie case for entitlement to LEP benefits because he failed to prove he suffered a reduction in earning power that was proximately caused by his work injury. The Department relies on a different significant decision, In re Heitt, No. 87 1100 (Wash. Bd. of Indus. Ins. Appeals Mar. 23, 1989), https://biia.wa.gov/SDPDF/871100.pdf, for this proposition. We hold that Heitt controls and Ostbye needed to show factors 2 and 3 as outlined under Heitt. A. Standard of Review “When a party appeals from a BIIA decision, and the superior court grants summary judgment affirming that decision, the appellate court’s inquiry is the same as that of the superior court.” Bennerstrom v. Dep’t of Lab. & Indus., 120 Wn. App. 853, 858, 86 P.3d 194 (2004) (footnote omitted). “Appellate review is based solely on the evidence and testimony presented to the BIIA.” Id. (footnote omitted). “We may substitute our own judgment for that of the agency regarding issues of law, but we give great weight to the agency’s interpretation of the law it administers.” Id. (footnote omitted). “Summary judgment is properly granted when the pleadings, affidavits, depositions, and admissions on file demonstrate there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. (footnote omitted). “We review questions of law de novo.” Id. (footnote omitted). B. Overview of the Industrial Insurance Act and LEP Benefits 3 No. 88584-7-I/4 The Industrial Insurance Act (IIA), Title 51 RCW, “provides various benefits to injured workers depending on the particular circumstances of each case and is the exclusive remedy for workers who are injured during the course of their employment.” Dep’t of Labor & Indus. v. Ortiz, 194 Wn. App. 146, 150, 374 P.3d 258 (2016). “When a worker suffers an injury at work, the injury may prevent him from working for a period of time, prevent him from ever working again, or temporarily prevent him from all work and permanently prevent him from some work.” Id. In the instances “[w]hen an injured worker is temporarily disabled, ‘wage replacement benefits may be available under RCW 51.32.090.’” Yuchasz v. Dept’ of Labor & Indus., 183 Wn. App. 879, 887, 335 P.3d 998 (2014) (quoting Hubbard v. Dep’t of Labor & Indus., 140 Wn.2d 35, 37 n.1, 992 P.2d 1002 (2000)). If a worker is “able to return to work but the worker’s former earning power is only ‘partially restored,’ the worker is entitled to [LEP] benefits.” Id. (citing RCW 51.32.090(3); Hubbard, 140 Wn.2d at 37 n.1). Under RCW 51.32.090(3)(b), the difference between the former earning power and the current earning power must exceed 5 percent. “The purpose of [LEP] benefits ‘is to reflect a worker’s lost earning capacity.’” Yuchasz, 183 Wn. App. at 887 (quoting Double D Hop Ranch v. Sanchez, 133 Wn.2d 793, 798, 947 P.2d 727 (1997)). The BIIA has explored a worker’s entitlement to LEP benefits in two relevant “significant decisions.”2 2 Generally, administrative decisions are not binding on this court. Clark County v. Maphet, 10 Wn. App. 2d 420, 441, 451 P.3d 713 (2019). However, “significant decisions,” defined as a decision of “substantial importance to the [B]oard in 4 No. 88584-7-I/5 In the first, relied on by Ostbye, the Board held that, although it is “undoubtedly true that the fact that post-injury earnings are less than pre-injury earnings is not conclusive evidence of loss of earning power,” that fact “is sufficient to create a presumption of loss of earning power, which may be rebutted by evidence explaining away the post-injury earnings as an unreliable basis for estimating capacity.” Dyer, No. 15, 763, at 4. There, the claimant had established a prima facie case of LEP benefits because (a) the record indicated that he had developed a condition as a result of an exposure to an irritant at his job of injury, (b) his doctor’s orders transferred him to a different job to reduce exposure, and (c) his condition was such that he could not return to his job of injury while his condition improved and that he received less pay as a result of this transfer. Id. at 2. In the second more recent significant decision, relied on by the Department, the Board elaborated that under RCW 51.32.090(3), “[t]o prove entitlement to loss of earning power benefits,” a worker “must present the following: (1) lay or expert testimony establishing pre-injury earning capacity; (2) expert testimony establishing post-injury earning capacity; (3) expert testimony establishing that a reduction, if any, in post-injury earning capacity is causally related to residuals of the industrial injury.” Heitt, No. 87 1100 at 2. The relevant evidence presented in Heitt included only testimony from the claimant that she worked at a different job than her job of injury and that she made substantially less due to this change. Id. carrying out its duties,” are persuasive authority in interpreting the act. WAC 263- 12-195(1). 5 No. 88584-7-I/6 An orthopedic surgeon testified to the type of injury the claimant had sustained and that “in his opinion claimant could no longer return to work as a physical therapist ‘as he understood it,’ though he admitted he didn’t understand the specifics” of the job of injury. Id. at 3. The claimant also called a vocational counselor to testify. Id. The counselor discussed the level of compensation for the former job, but she also “indicated that she didn’t ascertain claimant’s pre- and post-injury restrictions or physical limitations and gave no testimony as to claimant’s pre- or post-injury earning capacity.” Id. The Board denied the worker’s claim for LEP benefits. Id. at 7. In denying the claim, the court explained that merely proving that the amount of post-injury income was less than pre-injury income is insufficient to establish an entitlement to LEP benefits without proof that the reduced income “is due to physical restrictions imposed by the industrial injury.” Id. at 3. Under that standard, the testimony from the orthopedic surgeon that the claimant could not return to her former position was “insufficient to establish she suffered a loss of earning power due to the industrial injury.” Id. Instead, “[t]here must be a causal relationship established between the reduced income and [the] industrial injury,” which “is accomplished through expert testimony.” Id. As a reviewing court, “we give substantial weight to the Board’s interpretation of the statutes it administers.” Dep’t of Labor & Indus. v. Higgings, 21 Wn. App. 2d 268, 273, 505 P.3d 579 (2022). Thus, on this issue, we give due deference to the Board’s interpretation of RCW 51.32.090(3) and the requirements 6 No. 88584-7-I/7 to prove entitlement to LEP benefits it established, as announced in Heitt. 3 We also are persuaded by Heitt because the decision is consistent with a long line of cases that generally require expert testimony to prove the proximate cause of the industrial injury. Jacobson v. Dep’t of Labor & Indus., 37 Wn.2d 444, 450-51, 224 P.2d 338 (1950) (reasoning that “in order for a claimant to recover under the terms of the workmen’s compensation act, he must establish a causal connection between an industrial injury and a subsequent physical condition with at least some degree of probability); Loushin v. ITT Rayonier, 84 Wn. App. 113, 122, 924 P.2d 953 (1996) (quoting Zipp v. Seattle Sch. Dist. No.1, 36 Wn. App. 598, 601, 675 P.2d 538 (1984) (holding that to prove causation to reopen a case based on aggravation of injury, “the claimant’s medical experts must establish that it is ‘more probable than not that the industrial injury caused the subsequent disability.’”); Street v. Weyerhaeuser Co., 189 Wn.2d 187, 194, 399 P.3d 1156 (2017) (alteration in original) (internal quotation marks omitted) (quoting Dennis v. Dep’t of Labor & Indus., 109 Wn.2d 467, 475, 745 P.2d 1295 (1987) (holding that to prove an occupational disease that “arises proximately” out of employment “means that employment conditions ‘must be the proximate cause of the disease . . . so that the disease would not have been contracted but for the [employment] condition.’”). 3 Although not a significant decision, the Board’s decision In re Olarte confirms this understanding. No. 99 20262, 2001 WL 1328426, at *1 (Wash. Bd. of Indus. Ins. Appeals Aug. 16, 2001). There, the Board discussed both Dyer and Heitt and relied on the three requirements outlined in Heitt to conclude the claimant proved entitlement to LEP benefits. Id. at *3. The claimant provided—among other things—expert testimony establishing she could not return to her job of injury due to her conditions. Id. 7 No. 88584-7-I/8 Applying Heitt’s three-factor standard to the following relevant evidence presented to the Board, we are compelled to affirm the court’s order. From January to August 2023, when Ostbye sought LEP benefits, Ostbye worked at a job different from his job of injury. He testified that the job paid less than his job of injury. Melissa Kinder, a licensed physician, performed an independent medical exam to determine Ostbye’s ability to work, “as well as reviewing the job analysis,” “determining if he was at maximum medical improvement,” and determining if there was an “impairment rating as a result of the injury.” Kinder opined that Ostbye could return to his job of injury without any restrictions during her exam in September 2022. Gregory Gutke, an occupational medicine physician and Ostbye’s treating physician, opined that during the time that LEP benefits were sought, he believed that Ostbye required modified duty. When asked why Gutke released Ostbye to full duty in August 2023, he stated: “Best I could recall, he wanted to return back to his job of injury because, I believe, the pay and benefits were better. That’s just what I’m remembering, but I’m not sure if that was correct or not.” The Department contended that summary judgment was appropriate because Ostbye failed to provide expert testimony, under factor (2), establishing post-injury earning capacity and, under factor (3), that any reduction in earning capacity is casually related to residuals of the industrial injury. That is correct. While Ostbye provided testimony about his post-injury earnings and Gutke testified he issued restrictions that prevented Ostbye from returning to his job of injury, Gutke did not offer an opinion to connect the restrictions he assigned to Ostbye’s 8 No. 88584-7-I/9 lower post-injury earnings. Like the insufficient testimony in Heitt, merely proving that the amount of post-injury income was less than pre-injury income or that a worker cannot return to their job of injury is insufficient to establish an entitlement to LEP benefits. The evidence must support a determination that there has been a loss of earning capacity exceeding 5 percent or more, not just a difference in rates pre- and post- injury. RCW 51.32.090 (3)(b). Relatedly, Ostbye also failed to show that the injury was the proximate cause of his reduced post-injury earnings. Although Gutke discussed restrictions, he did not explain what those restrictions were, what Ostbye was permitted to do, or how either of those restrictions or abilities related to the alternative job Ostbye worked from January to August 2023. Kinder similarly did not provide testimony that could create the needed causal relationship. In sum, the evidence shows no genuine issue of material facts as to factors 2 and 3 under Heitt, and the superior court did not err in granting the Department’s motion for summary judgment. In response, Ostbye contends that, because the Board has not delisted Dyer from its website as a significant decision, it remains persuasive authority for this court to consider and provides him with a rebuttable presumption he has sustained a LEP. This argument is unpersuasive. He offers no authority suggesting the presence or absence of a decision on a website provides a decision extra persuasive authority. “Where no authorities are cited in support of a proposition, the court is not required to search out authorities, but may assume that counsel, after diligent search, has found none.” DeHeer v. Seattle Post- 9 No. 88584-7-I/10 Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)). Moreover, we need not choose between Heitt and Dyer, as Ostbye implicitly suggests. There is no obvious inconsistency between the two, as the latter merely established similar requirements at a higher level of generality and was silent as to the plaintiff’s burden on meeting those requirements. 4 III. CONCLUSION We affirm. WE CONCUR: 4 Ostbye requests fees under RCW 51.52.130. This statute permits an award of attorney fees on appeal when a worker’s right to relief is sustained. RCW 51.52.130. Because we affirm summary judgment in favor of the Department, we deny his request for fees. 10