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Yuchasz v. Dep't of Labor & Indus.

Court of Appeals of Washington, Division 1

October 6, 2014

Anthony J. Yuchasz, Appellant ,
v.
The Department of Labor and Industries, Respondent

Oral Argument June 5, 2014

Appeal from King County Superior Court. Docket No: 13-2-15305-0. Judge signing: Honorable Michael C Hayden. Judgment or order under review. Date filed: 07/29/2013.

William D. Hochberg (of Law Office of William D. Hochberg PLLC ); and Sara R. Smith, for appellant.

Robert W. Ferguson, Attorney General, and Paul M. Weideman, Assistant, for respondent.

Authored by Ann Schindler. Concurring: James Verellen, Marlin Appelwick.

OPINION

Page 999

[183 Wn.App. 882] Schindler, J.

¶ 1 Under the Washington Industrial Insurance Act, Title 51 RCW, the calculation of time loss and loss of earning power benefits must include the reasonable value of board, housing, fuel, or other consideration of like nature that is critical to the worker's basic health or survival. Anthony J. Yuchasz claims the Washington State Department of Labor and Industries erred in excluding the reasonable value of the gasoline his employer paid at the time of his injury to use the company van from the calculation of loss of earning power. Because the reasonable value of gasoline for the company-provided vehicle is a fringe benefit that is not critical to the worker's health or survival, we affirm.

FACTS

¶ 2 Anthony J. Yuchasz worked as an electrician for Computer Power and Service Inc. Computer Power provided Yuchasz with a company van to carry tools and travel between jobsites. Computer Power paid for the cost of gasoline for the van. Computer Power did not allow Yuchasz to use the van for his personal use. Yuchasz kept the van at his home at night and, in the morning, drove the van to the first jobsite.

¶ 3 On February 22, 2011, Yuchasz injured his right rotator cuff at work while " lifting cables overhead into a bin on the back of a truck." The Washington State Department of Labor and Industries (Department) calculated Yuchasz's wages at the time of the injury based on an eight-hour-a-day gross hourly rate plus health care benefits. From [183 Wn.App. 883] March 1, 2011 to August 15, 2011, Yuchasz received time-loss compensation benefits in the amount of $6,531.76 per month.

¶ 4 After returning to work, a worker is entitled to loss of earning power benefits if his work injury has caused his earning power to diminish by at least 5 percent compared to his earning power at the time of the injury. RCW 51.32.090(3)(b). On August 16, Yuchasz returned to Computer Power in a light-duty position. Because the company van had been reassigned to another full-time, regular duty employee, Yuchasz drove his personal vehicle to and from work. Computer Power reimbursed Yuchasz for the use of his vehicle, including the cost of gasoline, to travel between jobsites. Computer Power did not reimburse Yuchasz for the cost of gasoline to drive to and from his home. Yuchasz received loss of earning power benefits from the date he returned to work in a light-duty position until April 3, 2012.

¶ 5 On October 10, 2011, Yuchasz filed a request to include " the full expense of driving his personal vehicle" as a part of the calculation of loss of earning power. Specifically, Yuchasz asserted the calculation of loss of earning power benefits should include the cost of gasoline to drive to and from his home. The Department denied Yuchasz's request. On December 13, Yuchasz appealed the Department's decision to the State of Washington Board of Industrial Insurance Appeals (BIIA).

¶ 6 Yuchasz filed a motion for summary judgment, arguing the value of gasoline Computer Power paid for use of the company van at the time of his injury should have been included in the wage calculation of loss of earning power under RCW 51.08.178(1). In support, Yuchasz submitted a declaration stating that at the time of his injury on February 22, 2011, he was " provided with the use of a company car. My employer supplied the fuel for the car." Yuchasz states that after he returned to work on August 16, 2011 in a " light duty position," the benefits he received " did not include the cost of fuel that had been previously supplied by my employer at the time of my injury."

Page 1000

¶ 7 [183 Wn.App. 884] Computer Power did not dispute that Yuchasz previously used a company van and it paid for gasoline. The declaration of Computer Power Vice President Kelly Dwyer states, in pertinent part:

4. Up through the date of the industrial injury, Anthony Yuchasz used a company vehicle to perform his regular job duties.
5. This company vehicle contained the tools that Mr. Yuchasz needed to perform his job duties for CPSI [(Computer Power and Service Inc.)].
6. At night, Mr. Yuchasz kept this vehicle at his home.
7. Mr. Yuchasz traveled from his home to the first job site of the day, and from the last job site of the day to his home, as well as to job ...

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