IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
OLABAMIJI M. IDOWU, JR. (DEC’D), No. 87002-5-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON,
Respondents.
FELDMAN, J. — The estate of Olabamiji M. ldowu Jr. (the Estate) appeals
from the trial court’s order granting summary judgment in favor of the Department
of Labor and Industries (Department) regarding Idowu’s claim for industrial
insurance benefits under the Industrial Insurance Act (IIA), Title 51 RCW. Finding
no error, we affirm.
Because the parties are familiar with the facts, we recite them only as
necessary to explain our reasoning below. Idowu’s claim arises out of a 2018
incident when a coworker assaulted him by striking his back while he was working
at a childcare facility. He sought medical treatment and reported tenderness in the
dorsal lumbar area. Medical imaging taken after the incident did not show
evidence of an injury. ldowu was seen by multiple examiners and “ultimately No. 87002-5-I
underwent a rehabilitative program and had several independent examinations.”
The record reflects “he did not feel he could return to his job of injury and
apparently vocational services had been sought.” Consequently, Idowu filed a
claim with the Department for industrial insurance benefits.
In late 2021, while his claim still remained open, Idowu died when he was
stabbed on a public bus. Thereafter, Idowu’s claim has been litigated by the
Estate. 1 A few days after Idowu’s death, the Department accepted responsibility
for the conditions diagnosed as “lumbar contusion” and provided industrial
insurance benefits for temporary disability. Several months later, the Department
closed Idowu’s claim for permanent disability without an award noting, “it appears
Mr. Idowu was not totally permanently disabled and treatment was not concluded
to consider partial permanent impairment disability, therefore [the claim] is closed.”
The Estate appealed that decision to the Board of Industrial Appeals (Board),
which affirmed the Department’s decision, and then appealed the Board’s decision
to King County Superior Court, which affirmed the Board’s decision. This timely
appeal followed.
“In appeals under the IIA, we review the superior court’s decision and apply
the ordinary civil standards of review.” Peterson v. Dep’t of Labor & Indus., 17 Wn.
1 Addressing payment of an award where, as here, a claimant dies for reasons unrelated to the
industrial injury, RCW 51.32.040(2)(a) states: “If any worker suffers (i) a permanent partial injury and dies from some other cause than the accident which produced the injury before he or she receives payment of the award for the permanent partial injury or (ii) any other injury before he or she receives payment of any monthly installment covering any period of time before his or her death, the amount of the permanent partial disability award or the monthly payment, or both, shall be paid to the surviving spouse or the child or children if there is no surviving spouse. If there is no surviving spouse and no child or children, the award or the amount of the monthly payment shall be paid by the department or self-insurer and distributed consistent with the terms of the decedent’s will or, if the decedent dies intestate, consistent with the terms of RCW 11.04.015.”
-2- No. 87002-5-I
App. 2d 208, 217, 485 P.3d 338 (2021); RCW 51.52.140. Here, the trial court
granted summary judgment, which is governed by “‘a burden-shifting scheme.’”
Welch v. Brand Insulations, Inc., 27 Wn. App. 2d 110, 114, 531 P.3d 265 (2023)
(internal quotation marks omitted) (quoting Bucci v. Nw. Tr. Servs., Inc., 197 Wn.
App. 318, 326, 387 P.3d 1139 (2016)). “The moving party bears the initial burden
‘to prove by uncontroverted facts that there is no genuine issue of material fact.’”
Id. at 115 (quoting Jacobsen v. State, 89 Wn.2d 104, 108, 569 P.2d 1152 (1977)).
If the moving party meets this burden, then the burden shifts to the nonmoving
party to produce “‘specific facts evidencing a genuine issue of material fact for
trial.’” Id. (quoting Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995)).
“This court reviews a motion for summary judgment de novo, construing all facts
and reasonable inferences from those facts in the light most favorable to the
nonmoving party.” Blue Diamond Grp., Inc. v. KB Seattle 1, Inc., 163 Wn. App.
449, 453, 266 P.3d 881 (2011).
For “dorso-lumbar and lumbosacral impairments,” at issue here, WAC 296-
20-280 describes eight categories of impairment, where category 1 is least severe
and category 8 is most severe. Idowu claimed a category 2 impairment, which the
IIA defines as follows: “Mild low back impairment, with mild intermittent objective
clinical findings of such impairment but no significant X-ray findings and no
significant objective motor loss. Subjective complaints and/or sensory losses may
be present.” WAC 296-20-280(2) (emphasis added). As can be seen, a category
2 impairment requires “objective clinical findings.” Thus, when rating such
impairment, “reliance is primarily placed on objective physical or clinical findings
-3- No. 87002-5-I
that are independent of voluntary action by the worker and can be seen, felt or
consistently measured by examiners.” WAC 296-20-19030.
Our Supreme Court has explained the importance of the “objective clinical
findings” requirement in industrial injury cases:
The rule that an expert medical witness may not base his opinion upon subjective symptoms alone is designed to protect the industrial insurance fund against unfounded claims of aggravation. If such claims could be established by the testimony of a physician who based his opinion entirely upon what the claimant told him, it would open the door to fraudulent claims, as well as those mistakenly made in good faith. A claimant might honestly believe his subsequent condition arose out of his original injury, but this is a medical question and an opinion thereon must be derived from sources other than the claimant’s statement.
Kresoya v. Dep’t of Labor & Indus., 40 Wn.2d 40, 45, 240 P.2d 257 (1952).
Accordingly, where “[t]here is no evidence of even one objective symptom,” a claim
for industrial insurance benefits is properly dismissed. Cooper v. Dep’t of Lab. &
Indus., 20 Wn.2d 429, 433, 147 P.2d 522 (1944).
Applying these legal principles here, the Department plainly met its initial
burden of production on summary judgment. The Department argued there was
an absence of objective evidence supporting a disability award. 2 The Department
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
OLABAMIJI M. IDOWU, JR. (DEC’D), No. 87002-5-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON,
Respondents.
FELDMAN, J. — The estate of Olabamiji M. ldowu Jr. (the Estate) appeals
from the trial court’s order granting summary judgment in favor of the Department
of Labor and Industries (Department) regarding Idowu’s claim for industrial
insurance benefits under the Industrial Insurance Act (IIA), Title 51 RCW. Finding
no error, we affirm.
Because the parties are familiar with the facts, we recite them only as
necessary to explain our reasoning below. Idowu’s claim arises out of a 2018
incident when a coworker assaulted him by striking his back while he was working
at a childcare facility. He sought medical treatment and reported tenderness in the
dorsal lumbar area. Medical imaging taken after the incident did not show
evidence of an injury. ldowu was seen by multiple examiners and “ultimately No. 87002-5-I
underwent a rehabilitative program and had several independent examinations.”
The record reflects “he did not feel he could return to his job of injury and
apparently vocational services had been sought.” Consequently, Idowu filed a
claim with the Department for industrial insurance benefits.
In late 2021, while his claim still remained open, Idowu died when he was
stabbed on a public bus. Thereafter, Idowu’s claim has been litigated by the
Estate. 1 A few days after Idowu’s death, the Department accepted responsibility
for the conditions diagnosed as “lumbar contusion” and provided industrial
insurance benefits for temporary disability. Several months later, the Department
closed Idowu’s claim for permanent disability without an award noting, “it appears
Mr. Idowu was not totally permanently disabled and treatment was not concluded
to consider partial permanent impairment disability, therefore [the claim] is closed.”
The Estate appealed that decision to the Board of Industrial Appeals (Board),
which affirmed the Department’s decision, and then appealed the Board’s decision
to King County Superior Court, which affirmed the Board’s decision. This timely
appeal followed.
“In appeals under the IIA, we review the superior court’s decision and apply
the ordinary civil standards of review.” Peterson v. Dep’t of Labor & Indus., 17 Wn.
1 Addressing payment of an award where, as here, a claimant dies for reasons unrelated to the
industrial injury, RCW 51.32.040(2)(a) states: “If any worker suffers (i) a permanent partial injury and dies from some other cause than the accident which produced the injury before he or she receives payment of the award for the permanent partial injury or (ii) any other injury before he or she receives payment of any monthly installment covering any period of time before his or her death, the amount of the permanent partial disability award or the monthly payment, or both, shall be paid to the surviving spouse or the child or children if there is no surviving spouse. If there is no surviving spouse and no child or children, the award or the amount of the monthly payment shall be paid by the department or self-insurer and distributed consistent with the terms of the decedent’s will or, if the decedent dies intestate, consistent with the terms of RCW 11.04.015.”
-2- No. 87002-5-I
App. 2d 208, 217, 485 P.3d 338 (2021); RCW 51.52.140. Here, the trial court
granted summary judgment, which is governed by “‘a burden-shifting scheme.’”
Welch v. Brand Insulations, Inc., 27 Wn. App. 2d 110, 114, 531 P.3d 265 (2023)
(internal quotation marks omitted) (quoting Bucci v. Nw. Tr. Servs., Inc., 197 Wn.
App. 318, 326, 387 P.3d 1139 (2016)). “The moving party bears the initial burden
‘to prove by uncontroverted facts that there is no genuine issue of material fact.’”
Id. at 115 (quoting Jacobsen v. State, 89 Wn.2d 104, 108, 569 P.2d 1152 (1977)).
If the moving party meets this burden, then the burden shifts to the nonmoving
party to produce “‘specific facts evidencing a genuine issue of material fact for
trial.’” Id. (quoting Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995)).
“This court reviews a motion for summary judgment de novo, construing all facts
and reasonable inferences from those facts in the light most favorable to the
nonmoving party.” Blue Diamond Grp., Inc. v. KB Seattle 1, Inc., 163 Wn. App.
449, 453, 266 P.3d 881 (2011).
For “dorso-lumbar and lumbosacral impairments,” at issue here, WAC 296-
20-280 describes eight categories of impairment, where category 1 is least severe
and category 8 is most severe. Idowu claimed a category 2 impairment, which the
IIA defines as follows: “Mild low back impairment, with mild intermittent objective
clinical findings of such impairment but no significant X-ray findings and no
significant objective motor loss. Subjective complaints and/or sensory losses may
be present.” WAC 296-20-280(2) (emphasis added). As can be seen, a category
2 impairment requires “objective clinical findings.” Thus, when rating such
impairment, “reliance is primarily placed on objective physical or clinical findings
-3- No. 87002-5-I
that are independent of voluntary action by the worker and can be seen, felt or
consistently measured by examiners.” WAC 296-20-19030.
Our Supreme Court has explained the importance of the “objective clinical
findings” requirement in industrial injury cases:
The rule that an expert medical witness may not base his opinion upon subjective symptoms alone is designed to protect the industrial insurance fund against unfounded claims of aggravation. If such claims could be established by the testimony of a physician who based his opinion entirely upon what the claimant told him, it would open the door to fraudulent claims, as well as those mistakenly made in good faith. A claimant might honestly believe his subsequent condition arose out of his original injury, but this is a medical question and an opinion thereon must be derived from sources other than the claimant’s statement.
Kresoya v. Dep’t of Labor & Indus., 40 Wn.2d 40, 45, 240 P.2d 257 (1952).
Accordingly, where “[t]here is no evidence of even one objective symptom,” a claim
for industrial insurance benefits is properly dismissed. Cooper v. Dep’t of Lab. &
Indus., 20 Wn.2d 429, 433, 147 P.2d 522 (1944).
Applying these legal principles here, the Department plainly met its initial
burden of production on summary judgment. The Department argued there was
an absence of objective evidence supporting a disability award. 2 The Department
noted the Estate’s only medical expert, Dr. Thomas Degan, characterized the low-
back symptoms referenced in Idowu’s medical reports as “objective” merely
because Idowu told medical providers that he experienced “consistent tenderness
in the lower lumbar area” and “muscle tightness” “over a period of time” concluding,
2 The Department also argued the Estate had not established Idowu’s condition was “permanent”
because it had not reached “maximum medical improvement” before Idowu’s death and could therefore be denied on that basis as well. Because the lack of objective medical findings is sufficient to affirm the trial court’s ruling granting summary judgment in favor of the Department, we need not address the Department’s permanency argument.
-4- No. 87002-5-I
“I think . . . it can be characterized as an objective finding.” The Department further
noted that when Dr. Degan was cross-examined as to whether he relied on any
objective clinical findings of a category 2 impairment, as opposed to Idowu’s own
statements, he advanced none. This was sufficient to shift the burden of
production to the Estate.
Where, as here, the moving party satisfies their initial burden and the
burden of production shifts to the nonmoving party, that party “cannot rely on
‘speculation, argumentative assertions that unresolved factual issues remain, or in
having its affidavits considered at face value.’” M.E. v. City of Tacoma, 15 Wn.
App. 2d 21, 31-32, 471 P.3d 950 (2020) (quoting Seven Gables Corp. v. MGM/UA
Entm’t Co., 106 Wn. 2d 1, 13, 721 P.2d 1 (1986)). Despite this burden shifting
framework, the Estate’s brief in opposition to the Department’s summary judgment
motion is conclusory and unsupported by objective evidence. The Estate
attempted to recast the report of Idowu’s medical expert as more than mere
conjecture lacking a factual basis by pointing to Idowu’s complaint that he
experienced tenderness and “tightness over a prolonged period.” That is
insufficient to establish objective clinical findings, as required to establish a
category 2 impairment under the IIA.
The Estate’s opposition brief also asserted the testimony of the
Department’s medical expert, Dr. Darin Davidson, was “legally fallacious.”
Contrary to the Estate’s aspersion, a careful review of the record indicates
Dr. Davidson’s medical opinions are supported by the record and consistent with
applicable legal authority. Unlike Dr. Degan, who relied solely on medical records,
-5- No. 87002-5-I
Dr. Davidson examined Idowu when he was alive and his claim was open with the
Department. During the examination, Dr. Davidson noted Idowu exhibited “some
nonphysiologic or nonanatomic findings” and “atypical” reports of sensations
contrary to “what would be typical . . . if there was radiation and pain.”
Dr. Davidson explained these “nonanatomic” findings can occur where a patient
reports low back pain after, as here, a health care provider performs a leg muscle
test or applies “light compression on the top of the head,” which “should not elicit
any symptoms in the lower back.” He added that when there are multiple
nonanatomic findings during a patient exam, “as is the case in this instance,” other
“discrepancies,” and other “unusual reports,” such circumstances “all put together
indicate that . . . these symptoms do not have a specific cause in the low back, and
so other potential causes for the report of those symptoms become pertinent.”
Dr. Davidson thus concluded Idowu’s condition was a category 1 impairment,
which the IIA defines as, “No objective clinical findings. Subjective complaints
and/or sensory losses may be present or absent.” WAC 296-20-280(1).
Dr. Davidson’s report directly addressed the flaws in Dr. Degan’s
conclusions, explaining:
[T]enderness is not an objective finding, and even if a person consistently repeatedly over time reports that same objective finding, it does not make it an objective finding.
Objective finding, as it relates to a lumbar condition, would include . . . findings on imaging studies that are attributable to the claim to the injury that we’re evaluating.
[T]he fact that an individual, as may be the case in this situation, consistently and repeatedly reports the same symptoms or there’s the same objective finding on examination may very well be true.
-6- No. 87002-5-I
However, that is not objective evidence that would be considered within an impairment rating.
The Estate failed to rebut this testimony with specific facts and admissible
evidence establishing objective clinical findings of a category 2 impairment.
Lastly, the Estate claims the trial court failed to view the record in the light
most favorable to it. That is incorrect. As explained above, the Estate could not
avoid summary judgment by asserting that its experts treated Idowu’s self-reported
tenderness as “objective” in order to show a category 2 impairment. M.E., 15 Wn.
App. 2d at 31-32; Cooper, 20 Wn.2d at 433. Instead, the Estate was required to
produce expert testimony or other admissible evidence supporting Idowu’s claim
that was not based on speculation, conjecture, assumptions, or mere possibility.
Id. The Estate failed to produce such evidence, and the trial court correctly
concluded that his conclusory assertions about the “objective” nature of his pain
are insufficient to avoid summary judgment. 3
Affirmed.
WE CONCUR:
3 The Estate also requests that any “reverse and remand determination” by this court contain a
statement regarding recovery of attorney fees in the event it ultimately prevails in the litigation. Because we affirm the trial court’s summary judgment ruling in favor of the Department, the Estate is not entitled to the requested relief.
-7-