Brandon Foster v. Frito Lay, Inc., 49475-2

Background

In 2010 Brandon Foster injured his left eye at work and filed a workers’ compensation claim; the Department closed benefits in Feb 2014 and denied a permanent partial award, leading to appeals to the Board and later to superior court.
The Board considered (1) temporary total disability Jan 30–May 5, 2014, (2) degree of permanent partial disability, and (3) whether Foster was permanently totally disabled as of May 5, 2014.
Medical testimony conflicted: Foster’s witnesses (an optometrist and a vocational counselor) described diplopia, intermittent exotropia, photophobia, and limitations; Frito‑Lay’s ophthalmologists questioned visual acuity test effort and opined Foster could perform some jobs, including pallet jack work and office work.
Video surveillance showed Foster driving, loading/unloading heavy items, and not using protective eyewear; he retained an unrestricted driver’s license—evidence the employer used to challenge Foster’s credibility and functional limitations.
The Board awarded a 20% permanent partial disability and found Foster not temporarily or permanently totally disabled; superior court denied Foster’s directed‑verdict motions after a jury affirmed the Board. Foster appeals denial of directed verdicts and seeks attorney fees on appeal.

Issues

Issue	Plaintiff's Argument (Foster)	Defendant's Argument (Frito‑Lay)	Held
Whether Foster was permanently totally disabled as of May 5, 2014	Foster argued his eye impairments (diplopia, exotropia, reduced acuity) made him unable to perform or obtain any gainful employment and thus established prima facie total disability, shifting burden to employer under the odd‑lot doctrine	Frito‑Lay argued record shows disputed medical opinions, transferable skills, and surveillance undermining Foster’s credibility; Foster did not prove inability to perform general light/sedentary work so burden did not shift	Court held Foster did not make a prima facie showing under the odd‑lot doctrine; substantial evidence supported denial of directed verdict and jury verdict for employer
Whether the odd‑lot doctrine shifted burden to employer to prove availability of special/odd‑lot work	Foster contended once he proved disability evidence, employer had to show specific labor‑market evidence that work was available	Frito‑Lay maintained claimant must first prove inability to perform general light/sedentary work; only then does burden shift per established precedent	Court held established Leeper/Kuhnle framework controls; burden did not shift because factual disputes existed about ability to perform general work
Whether the pallet jack order filler job should be excluded as not generally available (partial directed verdict)	Foster argued vocational testimony showed pallet jack work is commonly paired with driving and thus unavailable to him given visual limits; Martin’s testimony purportedly unrebutted that the role is not a standalone, generally available job	Frito‑Lay presented evidence Foster could drive (license, surveillance) and its expert opined Foster could perform pallet jack work	Court held substantial evidence supported permitting the pallet jack position to the jury; denial of partial directed verdict affirmed
Entitlement to attorney fees on appeal under RCW 51.52.130	Foster sought fees because he appealed adverse rulings	Frito‑Lay opposed	Court denied fees because Foster did not prevail on appeal

Key Cases Cited

Leeper v. Dep’t of Labor & Indus., 123 Wn.2d 803 (whole‑person/odd‑lot framework for total disability)
Kuhnle v. Dep’t of Labor & Indus., 12 Wn.2d 191 (odd‑lot doctrine burden‑shifting distinction)
Spring v. Dep’t of Labor & Indus., 96 Wn.2d 914 (claimant’s burden to show inability to obtain general light/sedentary work)
Chaney v. Providence Health Care, 176 Wn.2d 727 (standard of review for directed verdict/JMOL)
Joy v. Dep’t of Labor & Indus., 170 Wn. App. 614 (de novo review of motions for judgment as a matter of law)