Harry v. Buse Timber & Sales, Inc.
Harry v. Buse Timber & Sales, Inc.
Opinion of the Court
¶1 Noise-related hearing loss is not a progressive disease, yet it has been referred to as “progressive” in workers’ compensation case law.
¶2 Donald Harry was exposed to loud noise as part of his job at Buse Timber & Sales, Inc. Beginning in the mid-1960s, Buse regularly tested him for hearing loss with industrial audiograms. Harry was told each time that his hearing “looked about the same,” and as often happens with slow, incremental hearing loss, he did not notice it until late in the 1990s. In 2001, after his retirement, Harry finally saw a doctor, who told him he had substantial hearing loss in both ears. Most of the loss was noise-induced, the result of prolonged exposure to noise at Buse. Harry applied for permanent partial disability benefits for his hearing loss.
¶4 We reverse because a tiered schedule of benefits is the only way to treat workers with noise-related hearing loss the same as workers with other occupational diseases and injuries as required by the Industrial Insurance Act, Title 51 RCW.
¶5 Harry worked for Buse for 33 years, from 1968 until 2001. During that time, he was routinely exposed to loud noise. In the mid-1960s, Buse began administering yearly industrial audiograms to its employees. Harry’s first audio-gram, taken in 1974, showed a compensable hearing loss in the left ear. Subsequent audiograms revealed additional damage, and by 1986, his right ear showed significant hearing loss also. Although Harry received copies of the audiogram results, they were technical and never were explained to him. He was told after each test that his hearing looked “about the same”; he was not told to consult a doctor, and he was not provided with hearing protection until 1985. In the late 1990s, a Buse supervisor advised Harry to see a doctor about his hearing. Harry began to
¶6 Harry filed a claim with the Department for permanent partial disability in 2001. His claim was accepted by the Department, and Buse, a self-insured employer, was ordered to pay Harry according to the 2001 schedule of benefits for hearing loss compensation. That schedule set the award for complete hearing loss in both ears
¶7 Harry appealed to the Board, arguing that either (1) the Buse audiograms were not a valid basis to establish hearing loss disability or (2) if valid, each additional compensable hearing loss shown by the audiograms constituted a separate disease and should be compensated according to the schedule in effect on the date of each such audiogram. Harry was unsuccessful at the Department, Board, and superior court levels. He now appeals, conceding the validity of the audiograms but arguing adoption of his tiered award theory.
¶9 Noise-related hearing loss is categorized as an occupational disease.
¶10 Classification of an industrial condition as an injury or a disease is more than academic; it can affect how much money the worker receives. Compensation for permanent partial disability is in a fixed dollar amount based on a schedule that assigns value to the particular body part or function lost.
¶11 Medically, hearing loss becomes “partially disabling” “when the average loss exceeds 25 decibels across the frequencies specified in the American Medical Association Guides.”
¶12 There is another problem with classifying noise-induced hearing loss as a disease: RCW 51.32.180(b) assumes that only one disease exists for each claim filed. Each increase in noise-induced hearing loss, however, is separate and independent of prior losses.
¶13 Buse and the Department argue that (1) RCW 51.32.180(b) is unambiguous, (2) hearing loss is one progressive condition, and (3) the earliest documented hearing loss establishes the applicable schedule because that is the date when the condition became “partially disabling.”
¶14 Their position is not supportable in light of Pollard v. Department of Labor & Industries.
¶15 But Pollard did not address the “partially disabling” language in RCW 51.32.180(b). If there is a significant time lapse between the date a worker becomes disabled and the date he seeks medical treatment, the statute requires the Department to fix benefits according to the earlier date. Yet the Pollard court applied the schedule of benefits in effect when Pollard first sought medical treatment for the post-1982 hearing loss, even though intervening audiograms established that some of Pollard’s post-1982 hearing loss occurred earlier than 1994 and some occurred after 1994.
¶16 We decline to strictly apply Pollard. To do so would conflict with RCW 51.32.180(b) because Harry did experience some partially disabling hearing loss in 1974, long before he first sought medical treatment for that condition. Use of the 2001 schedule would provide a windfall for Harry because some of his hearing damage occurred long ago when benefits were lower. On the other hand, to apply the 1974 schedule ignores the fact that Harry suffered most of his hearing loss after that year, resulting in a windfall for his employer.
¶17 Harry proposes a solution to the problem: a tiered award by which each compensable hearing loss is treated as partially disabling on the date it is documented by audio-gram as verified by medical testimony. Workers would then be paid for that percentage of hearing loss according to the schedule in effect on the date of each such audiogram.
The Department of Labor and Industries and the claimant argue that noise-induced hearing loss is not a single disease but is multiple diseases. Accordingly, a separate schedule of benefits should be used for each incremental increase in hearing loss to reflect the compensation in effect at the time the loss is experienced. While this concept has a certain logic, we are unable to find any support for it in either the Industrial Insurance Act or accompanying case law. It is an imaginative proposal that appears to be outside the province of the Board of Industrial Insurance Appeals.[35]
¶19 The existing system is highly inequitable, frequently to the worker and sometimes to the employer. It is not practical to require claims to be filed each time testing reveals a compensable hearing loss, particularly where, as here, the worker is unaware of that choice. With a tiered award system, the Department must simply do a little more math.
¶20 The Department next argues that a tiered award system would treat hearing loss differently from other types of occupational diseases, contrary to Supreme Court precedent. In Boeing Co. v. Heidy,
¶21 But Heidy erroneously describes noise-induced hearing loss as a progressive disease and does not address the underlying problem in this area of the law: unlike any other occupational disease, hearing loss can be partially disabling long before the disease actually has any noticeable deleterious effect on the worker or has been diagnosed by a doctor. Strict application of RCW 51.32.180(b), as the Board correctly pointed out in Heidy, actually does treat workers with noise-induced hearing loss differently from workers with other occupational diseases or injuries.
¶22 A tiered award system is the most efficient way to treat similar claims similarly, but the Department contends that it is legally flawed because under Pollard, noise-related hearing loss can only constitute separate diseases if the worker files separate industrial insurance claims. It is true that in Pollard, the court treated the 1982-1999 hearing loss as one disease even though there were intervening audiograms showing a continuous decline in Pollard’s hearing.
¶23 We reject the “single claim, single disease” approach as illogical and inequitable. Medically speaking, whether a person has one or more diseases cannot possibly turn on whether one or more industrial insurance claims are filed.
¶24 In contrast, a tiered award system solves the problems presented by this case. It prevents either the employer or the worker from receiving a windfall. It encourages employers to administer regular audiograms, disclose the results, provide hearing protection, and tell the worker to see a doctor before the condition worsens. At the same time, it does not require the worker to file a claim for each tiny, incremental loss in hearing, which would flood the Department with claims for negligible amounts of money.
¶25 Application of the 1974 schedule of benefits to Harry’s entire hearing loss was improper. This case is remanded to the Department for additional fact finding to establish the proper dates of hearing loss to be paid according to a tiered schedule. The date of each audiogram which established a compensable amount of hearing loss, as verified by medical testimony, establishes the rate of benefits for the percentage of hearing loss that the audiogram documented.
Attorney Fees
¶26 Harry requests attorney fees under RCW 51-.52.130. The Industrial Insurance Act grants attorney fees on appeal to a worker who obtains reversal or modification of a board order.
¶27 Reversed and remanded.
Motions for reconsideration granted and opinion modified October 5, 2006.
See, e.g., Boeing Co. v. Heidy, 147 Wn.2d 78, 51 P.3d 793 (2002).
This “average” percentage of hearing loss in both ears is referred to as “binaural” hearing loss.
Under ROW 51.32.180(b), the applicable schedule is the one in effect when the disease first becomes partially disabling or when the worker seeks medical treatment, whichever comes first.
Title 51 RCW.
McIndoe v. Dep’t of Labor & Indus., 144 Wn.2d 252, 256-57, 26 P.3d 903 (2001).
RCW 51.08.150.
RCW 51.08.100.
RCW 51.32.080(l)(a).
RCW 51.08.140.
See Kilpatrick v. Dep’t of Labor & Indus., 125 Wn.2d 222, 227, 883 P.2d 1370, 915 P.2d 519 (1994).
Heidy, 147 Wn.2d at 88; Pollard v. Weyerhaeuser, 123 Wn. App. 506, 508, 98 P.3d 545 (2004), review denied, 154 Wn.2d 1014 (2005).
The damage occurs gradually, as opposed to hearing loss resulting from sudden head injury. See Rector v. Dep’t of Labor & Indus., 61 Wn. App. 385, 810 P.2d 1363 (1991); In re Williams, No. 95 3780, 1998 WA Wrk. Comp. LEXIS 8 (Wash. Bd. of Indus. Ins. Appeals Mar. 2, 1998).
RCW 51.32.080(l)(a) includes hearing loss among other scheduled injuries such as amputation. The United States Supreme Court has also affirmed that noise-related hearing loss is a “scheduled injury” and not a disease in the context of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950.
Bath Iron, 506 U.S. at 165. By analogy, imagine a worker who bumps his head at work every day for 10 years and gradually loses his hearing as a result. Although the daily head bump may cause an impairment over time rather than all at once, one would hardly call the worker’s condition a “disease.”
Bath Iron, 506 U.S. at 164-65.
Pollard, 123 Wn. App. at 512.
Heidy, 147 Wn.2d at 89.
RCW 51.32.080. For example, a worker who loses his foot currently receives $66,596.60.
RCW 51.32.080(l)(b)(ii).
Kilpatrick, 125 Wn.2d at 231.
RCW 51.32.180(b). “Partially disabled” is not defined in chapter 51.08 RCW.
WAC 296-14-350(3).
Heidy, 147 Wn.2d at 83.
In the context of hearing loss claims, the definition of “partially disabling” is different from the common legal definition of that term. Black’s Law Dictionary defines “partial disability” as “[a] worker’s inability to perform all the duties that he or she could do before an accident or illness, even though the worker can still engage in some gainful activity on the job.” Black’s Law Dictionary 494 (8th ed. 2004). But a 25 decibel hearing loss would not be noticed by most workers, let alone hinder them in their jobs. The Board tried to remedy this problem by requiring that the worker be aware of his hearing loss. Heidy, 147 Wn.2d at 88. The Supreme Court properly rejected this attempt to amend the statute by administrative rule. Heidy, 147 Wn.2d at 89. However, we note that according to the legal definition of “partially disabling” as it applies to other worker’s compensation claims, no worker could be unaware of his disability because it would need to be noticed enough to interfere with his work.
Bath Iron, 506 U.S. at 165.
Pollard, 123 Wn. App. at 512.
See Pollard, 123 Wn. App. at 512.
No Washington court has held that such a claim is time barred, even if it is filed long after the damage took place. Also, in 2004 the legislature set the time limit for filing occupational hearing loss claims at two years from the date of the last injurious exposure. RCW 51.28.055(2)(a).
123 Wn. App. 506, 98 P.3d 545 (2004), review denied, 154 Wn.2d 1014 (2005).
Pollard, 123 Wn. App. at 508.
Pollard, 123 Wn. App. at 509.
Pollard, 123 Wn. App. at 513.
Pollard, 123 Wn. App. at 514.
Pollard, 123 Wn. App. at 512.
35 In re Williams, 1998 WA Wrk. Comp. LEXIS 8.
147 Wn.2d 78, 51 P.3d 793 (2002).
Heidy, 147 Wn.2d at 83.
Heidy, 147 Wn.2d at 88.
Pollard, 123 Wn. App. at 512.
In re Woodard, No. 03 22924, 2004 WA Wrk. Comp. LEXIS 371, at *6 (Wash. Bd. of Indus. Ins. Appeals Nov. 18, 2004).
RCW 51.52.130.
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