Harry v. Buse Timber & Sales, Inc.
Harry v. Buse Timber & Sales, Inc.
Opinion of the Court
¶1 — This case requires us to determine when occupational hearing loss becomes “partially disabling” for the purpose of determining the appropriate rate of compensation for a permanent partial disability award. Petitioners Buse Timber and Sales, Inc., and Department of Labor and Industries (Department) contend Donald Harry’s 2001 claim for 38.13 percent binaural hearing loss is compensable according to the benefit levels in effect in 1974, when he experienced a 5.6 percent unilateral hearing loss. The Court of Appeals disagreed, holding that Harry’s occupational hearing loss became “partially disabling” on multiple dates, entitling him to compensation according to the schedule of benefits in effect on the date of each documented incremental loss.
¶2 We conclude that the Department erred in calculating Harry’s permanent partial disability award according to the 1974 schedule of benefits. RCW 51.32.180(b) is ambiguous as to whether “the date the disease [is] totally or partially disabling” refers to the first date any compensable hearing loss first occurred, or the last date hazardous workplace noise contributed to the disability for which a worker seeks compensation. Applying the liberal construal mandate, we hold occupational hearing loss is “partially
FACTS
¶3 Donald Harry worked for Buse from 1968 until his retirement in 2001. He was exposed to loud noise throughout his employment. Buse administered annual audio-grams in compliance with a Washington Industrial Safety and Health Act of 1973 (ch. 49.17 RCW) regulation. An audiogram performed in 1974 showed that Harry suffered a compensable hearing loss in his left ear. Successive audiograms document a gradual worsening of Harry’s condition. By 1986, Harry’s hearing loss had progressed to both ears. However, it was not until his retirement, in 2001, that he consulted a doctor. His doctor informed him he had a binaural (both ears) hearing loss of 38.13 percent.
¶4 Harry filed a permanent partial disability claim for occupational hearing loss. The Department accepted the claim and ordered Buse to compensate Harry for 38.13 percent binaural hearing loss, according to the schedule of benefits in effect in 2001. Buse protested the order. It argued Harry’s permanent partial disability award should be calculated according to the 1974 schedule of benefits, when he first experienced a compensable hearing loss in his left ear. The Department agreed and revised its order based on the schedule of benefits in effect in 1974.
¶5 The Board of Industrial Insurance Appeals (BIIA) and the superior court affirmed the Department’s order. The Court of Appeals reversed. Harry v. Buse Timber & Sales, Inc., 134 Wn. App. 739, 171 P.3d 1058 (2006). It reasoned that occupational hearing loss is appropriately analyzed as multiple diseases rather than a single disease, with compensation determined according to the schedule of benefits in effect at the time of each documented incremental loss. Id. at 746.
ANALYSIS
¶7 The Industrial Insurance Act (IIA), Title 51 RCW, was designed to provide “sure and certain relief” to injured workers while limiting employer liability for industrial injuries. RCW 51.04.010; Dennis v. Dep’t of Labor & Indus., 109 Wn.2d 467, 470, 745 P.2d 1295 (1987). Any doubts and ambiguities in the language of the IIA must be resolved in favor of the injured worker in order to minimize “the suffering and economic loss” that may result from work-related injuries. RCW 51.12.010; McIndoe v. Dep’t of Labor & Indus., 144 Wn.2d 252, 256, 26 P.3d 903 (2001); Cockle v. Dep’t of Labor & Indus., 142 Wn.2d 801, 811, 16 P.3d 583 (2001) (“[W]here reasonable minds can differ over what Title 51 RCW provisions mean . . ., the benefit of the doubt belongs to the injured worker.”).
¶8 Occupational hearing loss is compensable as a permanent partial disability according to a fixed schedule of benefits. RCW 51.32.080(1)(a). Unlike the other disability classifications, a “permanent partial disability” is defined as a loss of bodily function rather than inability to perform one’s job functions.
¶9 It is undisputed Harry is entitled to a permanent partial disability award for 38.13 percent binaural hearing loss, resulting from continuous exposure to workplace noise from 1968 until his retirement in 2001. The only disputed issue is whether his occupational hearing loss is compensable according to the schedule of benefits in effect on the first date occupational noise resulted in a ratable loss of hearing or on the last date it contributed to his compensable disability.
¶10 Occupational hearing loss may result from either an industrial accident or continuous exposure to hazardous levels of noise. Noise-induced hearing loss is classified as an occupational disease.
¶11 Accordingly, RCW 51.32.180(b) controls the applicable schedule of benefits. RCW 51.32.180(b) was enacted in 1988 as an amendment to RCW 51.32.180 to address the applicable date for determining the appropriate rate of compensation for occupational diseases. Laws of 1988, ch. 161, § 5. RCW 51.32.180 provides:
Every worker who suffers disability from an occupational disease in the course of employment. . . shall receive the same compensation benefits ... as would be paid and provided for a worker injured or killed in employment under this title, except as follows: . . . (b). . . the rate of compensation for occupational diseases shall be established as of the date the disease requires medical treatment or becomes totally or partially disabling, whichever occurs first, and without regard to the date of the contraction of the disease or the date of filing the claim.
(Emphasis added.)
¶12 Petitioners argue the statutory language, “the date the disease . . . becomes totally or partially disabling,” plainly means the date any compensable hearing loss first occurs, even if most of the claimant’s compensable disability resulted from subsequent exposure to hazardous workplace noise. Accordingly, petitioners claim that Harry’s 38.13 percent binaural hearing loss is compensable according to the schedule of benefits in effect in 1974, when an industrial audiogram revealed the existence of a 5.6 percent unilateral hearing loss.
¶14 Thus, if “partially disabling” refers to the first compensable hearing loss a worker experiences, as petitioners contend, any hearing loss that arises subsequently could not constitute the same “disease” referred to in RCW 51.32.180(b). This is because increased hearing loss cannot occur before a worker’s subsequent exposure to injurious occupational noise. And it follows that an occupational disease cannot become “partially disabling” within the meaning of RCW 51.32.180(b) before the occurrence of the workplace conditions that caused the compensable loss at issue.
¶15 If the phrase “the date the disease . . . becomes totally or partially disabling” refers to the date a compensable loss first occurs, we would, like the Court of Appeals, agree with Harry that RCW 51.32.180(b) requires the Department to apply multiple schedules of benefits to
¶16 Considering the purpose of the IIA, the liberal construal mandate, the definition of occupational disease, and the nature of occupational hearing loss, we interpret “the date the disease . . . becomes totally or partially disabling,” RCW 51.32.180(b), as referring to the date the aggregate compensable disability occurred, not the date a compensable loss first occurred. Accordingly, we hold the date of last injurious exposure is the date occupational hearing loss is “partially disabling” within the meaning of RCW 51.32.180(b).
¶17 Harry declined to advance this reading of the statute because he assumed it was foreclosed by our decision. Dep’t of Labor & Indus. v. Landon, 117 Wn.2d 122, 127, 814 P.2d 626 (1991); see Suppl. Br. of Resp’t, Donald Harry at 7-8 n.1 (“RCW 51.32.180 . . . specifically prohibits the establishment of the rate of compensation as of the date of last exposure.” (citing Landon, 117 Wn.2d at 127)).
¶18 In Landon, we explained that in adopting the 1988 amendment to RCW 51.32.180(b), the legislature rejected the last injurious exposure rule in favor of the date of manifestation rule as applied to long-latency diseases such as asbestosis and silicosis. Under the date of manifestation rule, the date the disease actually requires medical treatment or interferes with a worker’s job performance, not the date of contraction, controls the schedule of benefits. See, e.g., Puckett v. Johns-Manville Corp., 169 Cal. App. 3d 1010, 215 Cal. Rptr. 726 (1985); Zurich Gen. Accident & Liab. Ins. Co. v. Indus. Comm’n, 203 Wis. 135, 233 N.W. 772 (1930)
¶19 Landon held the date of manifestation rule applies as well to claims filed before the effective date of the 1988 amendment: “ [W]orkers’ compensation benefits should be calculated as of the date the disease manifests itself, not the date the worker suffered the last injurious exposure to the harmful material.” Landon, 117 Wn.2d at 128. Landon is factually distinguishable because it involves a long-latency disease, not a cumulative trauma disease.
¶20 The legislative history of RCW 51.32.180(b) and our case law support the conclusion an occupational disease may be compensable according to the date of last injurious exposure when that date coincides with the date of manifestation, as in the case of cumulative trauma injuries like occupational hearing loss.
¶21 Before 1988, the legislature provided merely that disabilities resulting from occupational diseases are compensable in the same manner as those resulting from injuries. See former RCW 51.32.180 (1988); RCW 51.16.040. The first occupational diseases covered by the IIA were gradual onset injuries caused by cumulative trauma. Laws of 1937, ch. 212, § 1(19), at 1033 (allowing compensation for disabling joint inflammation that results from “continuous rubbing, pressure or vibration of the parts affected”); Dennis v. Dep’t of Labor & Indus., 44 Wn. App. 423, 722 P.2d 1317 (1986), aff’d, 109 Wn.2d 467, 745 P.2d 1295 (1987). The
¶22 When an occupational disease involves a gradual onset disability resulting from cumulative trauma, fixing compensation according to the last day worked or the last day of injurious exposure usually compensates disabilities resulting from occupational disease comparably to disabilities resulting from industrial injuries. This is because an occupational disease resulting from cumulative trauma is similar to an industrial injury in that the timing of the disability generally coincides with the timing of the injury-causing event.
¶23 In the case of a long-latency occupational disease, however, the last injurious exposure rule does not fulfill the statutory purpose of compensating diseases and injuries equally but results in application of an outdated schedule of benefits. London, 117 Wn.2d at 127.
¶24 In order to remedy the inequity, many jurisdictions adopted the date of manifestation rule in place of the last injurious exposure rule for identifying the date of occurrence for disability resulting from long-latency diseases. See 3 Arthur Larson, Larson’s Workers’ Compensation Law (2007) § 53.05 (overwhelming majority of states reject last injurious exposure rule in favor of date of disability, knowledge, or manifestation for determining applicable schedule of benefits in occupational disease claims).
¶25 Our board of industrial insurance appeals adopted the date of manifestation rule. In re Wilcox, No. 69,954 (Wash. BIIA May 30, 1986); In re Weil, No. 86 2814, at 4
¶26 We decline to interpret RCW 51.32.180(b) in a manner that leads to the absurd result of compensating an injured worker according to benefit levels in effect before the injurious exposure that caused the disability at issue. The purpose of the 1988 amendment to RCW 51.32.180(b) was to compensate workers appropriately for disabilities that arise after the date of last injurious exposure. The 1988 amendment cures the inequity that results when there is a long delay between injurious cause and injurious effect by requiring compensation to be determined according to the time a worker experiences the actual disabling effects of an occupational disease. However, the legislature did not intend to reduce benefits for workers whose compensable disability coincides with the date of last injurious exposure,
¶27 Other jurisdictions that reject the last injurious exposure rule as applied to long-latency diseases continue to apply it in determining compensation for cumulative trauma disabilities, including occupational hearing loss.
¶28 In Bath Iron Works, the Supreme Court found it “quite proper” and not inconsistent with congressional intent to determine the time of injury in occupational hearing loss cases as the time of last injurious exposure, considering the nature of the disease process:
The injury, loss of hearing, occurs simultaneously with the exposure to excessive noise. Moreover, the injury is complete when the exposure ceases. Under those circumstances, we think it quite proper to say that the date of last exposure — the date upon which the injury is complete — is the relevant time of injury for calculating a retiree’s benefits for occupational hearing loss.
¶29 RCW 51.16.040 requires that occupational diseases are compensable “in the same manner” as injuries. Compensating occupational hearing loss according to the date of last injurious exposure better fulfills this statutory mandate. In the case of successive injuries to the same body part, whether the worker is entitled to a new schedule of benefits for the aggravation of a prior injury depends on whether the aggravation was proximately caused by subsequent workplace conditions. See In re Tracy, No. 88 1695 (Wash. BIIA Feb. 2, 1990). When an aggravation is not caused by subsequent conditions, the original schedule of benefits applies. But if subsequent workplace conditions contributed to the successive injury, the worker is entitled to a new schedule of benefits.
¶30 Because new hearing loss arises from a worker’s exposure to injurious noise, some portion of Harry’s compensable loss is attributable to his last exposure to hazardous workplace noise. Fixing compensation for his aggregate hearing loss according to the date a compensable disability first occurred would undercompensate him for his post-1974 disability. Considering the liberal construal mandate, we must resolve the case in favor of the injured worker.
¶32 The Court of Appeals reasoned that compensating Harry according to the present value of his entire disability would amount to a “windfall.” We disagree. This is not a case where a worker negligently or deliberately failed to file a claim. There is no evidence in the record that Harry received notice from a healthcare provider that he had a compensable disability, which would have triggered the statute of limitations for his occupational hearing loss. See RCW 51.28.055 (occupational disease claim timely only if filed within two years after receiving notice from a healthcare provider of the existence of a compensable loss; additionally, a claimant filing more than two years after the date of last injurious exposure is entitled only to medical benefits, not a permanent partial disability award, for occupational hearing loss). Therefore, Harry is entitled to compensation for his entire disability. Cf. In re Lovell, No. 69,823 (Wash. BIIA Nov. 25, 1986) (worker precluded from claiming benefits for preexisting hearing loss that occurred before statute of limitations ran on claim); In re Burrill, No. 47, 766 (Wash. BIIA Dec. 13, 1977) (allowing claim for hearing loss arising after the date the statute of limitations ran on preexisting hearing loss).
¶34 A core purpose of the IIA is to allocate the cost of workplace injuries to the industry that produces them, thereby motivating employers to make workplaces safer. This purpose is not well served by applying a schedule of benefits in effect long before the injurious workplace exposure occurred. Thus, in addition to being grossly unfair to injured workers like Harry, the Department’s handling of occupational hearing loss claims undermines a primary purpose of the IIA because the compensation awards do not accurately reflect the cost of workplace injuries. The legislature never intended this inequitable, illogical, and absurd result when it amended RCW 51.32.180.
¶35 According to the record, Donald Harry was exposed to injurious noise throughout his employment, yet his occupational hearing loss did not require medical treatment before retirement. He is entitled to compensation for his permanent partial disability according to the schedule of benefits in effect on the date of his retirement.
¶36 We affirm the Court of Appeals’ reversal of the Department’s order applying the 1974 schedule of benefits to Harry’s 2001 permanent partial disability claim for occupational hearing loss. Occupational hearing loss that does not require medical treatment before retirement is compensable according to the schedule of benefits in effect on the date occupational noise last contributed to the disability for which a worker seeks compensation. We reverse the Court of Appeals holding that Harry is not entitled to compensation for his entire disability and remand for further proceedings consistent with this opinion. Because he has prevailed here, Harry is entitled to reasonable attorney fees, per RCW 51.52.130.
RCW 51.08.150 provides, “ ‘Permanent partial disability' means the loss of either one foot, one leg, one hand, one arm, one eye, one or more fingers, one or more toes, any dislocation where ligaments were severed where repair is not complete, or any other injury known in surgery to be permanent partial disability.”
The Court of Appeals criticized this court’s characterization of occupational hearing loss as a “disease” rather than an “injury,” finding it counterintuitive considering the condition results from cumulative trauma. Harry, 134 Wn. App. at 745 n.14. Occupational hearing loss may be compensable either under a “repeated impact theory” of injury or as an “occupational disease.” 3 Arthur Larson, Larson’s Workers’ Compensation Law § 52.05 (2007) (collecting cases). Although occupational hearing loss is unlike long-latency diseases resulting from exposure to toxic substances, such as silicosis, it is similar to other gradual-onset diseases caused by repeated impacts, e.g., bursitis and carpel tunnel syndrome. The majority of jurisdictions classify hearing loss as a disease because it lacks the time-definiteness of an industrial injury and is similar to other cumulative trauma disabilities arising from repetitive trauma. See Miller v. Amalgamated Sugar Co., 105 Idaho 725, 728, 672 P.2d 1055 (1983) (hearing loss is a disease, not an injury) (collecting cases); Marie v. Standard Steel Works, 319 S.W.2d 871, 878 (Mo. 1959) (classifying hearing loss as a disease, while stating, “ “We attempt no scientifically exact discrimination between accident and disease, or between disease and injury. None perhaps is possible, for the two concepts are not always exclusive, the one or the other, but often overlap.’ ” (quoting Connelly v. Hunt Furniture Co., 240 N.Y. 83, 147 N.E. 366, 367-68 (1925))); Travelers Ins. Co. v. Cardillo, 225 F.2d 137 (2d Cir. 1955) (hearing loss determined to be occupational disease under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901); 3 Larson, supra, § 52.05. Occupational hearing loss is unusual in that it is a permanent condition, and the extent of disability is readily ascertainable by audiogram. In this respect, it is unlike most injuries as well as most diseases.
In any event, the distinction between injury and disease is no longer relevant for purposes of providing compensation and benefits. RCW 51.16.040 (“The compensation and benefits provided for occupational diseases shall be paid and in the same manner as compensation and benefits for injuries under this title.”); see
RCW 51.32.080(1)(a) lends support to our conclusion. Under that provision, unilateral hearing loss is statutorily defined as a distinct permanent partial disability from binaural hearing loss. See RCW 51.32.080(1)(a). Thus, Harry’s 1974 unilateral hearing loss could not constitute the date his binaural hearing loss became partially disabling. See In re Lovell, No. 03 16736 (Wash. BIIA Feb. 23, 2005) (the date a unilateral hearing loss occurs is not the date binaural hearing loss becomes partially disabling).
Nor is the result here controlled by Heidy, 147 Wn.2d 78. In Heidy, this court held, “a worker’s knowledge of his or her disabling condition does not affect when the rate of compensation is established. Rather, the rate of compensation is established when ‘the disease requires medical treatment or becomes totally or partially disabling, whichever occurs first.’ ” Id. at 88-89 (quoting RCW 51.32.180(b) and citing Landon, 117 Wn.2d at 124). This court’s holding that the knowledge requirement is unsupported by the statute does not compel the conclusion occupational hearing loss is “disabling” for purposes of RCW 51.32.180(b) upon the first occurrence of some ratable disability. The board’s knowledge requirement did not affect the rate of compensation in Heidy. See 147 Wn.2d at 83 (noting the schedule of benefits was the same, with or without a knowledge requirement). To the extent Heidy suggests occupational hearing loss is compensable according to the first rather than the last date hazardous noise contributed to the compensable disability, we disapprove it.
Other jurisdictions calculate benefits for occupational hearing loss according to the “last day of work,” the date of “incapacitation,” or the date of “disablement.” The parties have drawn our attention to no case, and our research reveals none, where the date of injury for purposes of a permanent partial disability award is established as of the date any compensable hearing loss first occurs. Instead, most jurisdictions deem the date of occurrence as the date the injury is complete, i.e., the date of last injurious exposure.
This case does not involve, and therefore we do not address, the circumstances under which a worker’s prior permanent partial disability may be segregated based on reliable medical evidence. See RCW 51.32.080(5) (formerly RCW 51-.32.080(3) (1988)); Heidy, 147 Wn.2d at 86 (absent reliable medical evidence, age-related hearing loss may not be segregated from noise-related hearing loss; employers must “bear the burden of an imperfect science”); cf. Miller v. Dep’t of Labor & Indus., 200 Wash. 674, 684, 94 P.2d 764 (1939) (segregation applies when a worker “already is, in fact, permanently partially disabled” but does not apply when the preexisting condition was not a compensable disability (emphasis omitted)).
The Court of Appeals dismissed the Department’s concern a tiered compensation remedy would unduly complicate the adjudication of a hearing loss claim,
Dissenting Opinion
¶37 (dissenting) — The legislature has provided an unambiguous mechanism for establishing compensation benefits for claims resulting from progressive hearing loss. While that scheme may not be optimal, the legislature has made its decision about which schedule of benefits will be used. The majority, however, claims the statutory prescriptions are ambiguous and has fashioned its own new rule without statutory authority and contrary to case law. Because this attempt to remedy a perceived inequity usurps the role of the legislature and is strained, I respectfully dissent.
¶38 Benefits to workers injured on the job are statutorily governed by Title 51 RCW, the Industrial Insurance Act (IIA). For occupational diseases, the plain language of RCW 51.32.180(b) clearly states how to calculate benefits: “the rate of compensation for occupational diseases shall be established as of the date the disease requires medical treatment or becomes totally or partially disabling, which
¶39 When construing a statute, we first look to the plain meaning of the statute. “The ‘plain meaning' of a statutory provision is to be discerned from the ordinary meaning of the language at issue, as well as from the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.” State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005) (quoting Wash. Pub. Ports Ass’n v. Dep’t of Revenue, 148 Wn.2d 637, 645, 62 P.3d 462 (2003); Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 10-11, 43 P.3d 4 (2002)). If not otherwise defined by statute, the ordinary meaning includes the dictionary definition. Campbell & Gwinn, 146 Wn.2d at 9, 11; Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 11 P.3d 762, 27 P.3d 608 (2000). If a statutory provision is subject to more than one reasonable interpretation, it is ambiguous. Jacobs, 154 Wn.2d at 601. Any ambiguity in the language of the IIA must be resolved in favor of the injured worker. RCW 51.12.010; Cockle v. Dep’t of Labor & Indus., 142 Wn.2d 801, 811, 16 P.3d 583 (2001).
¶40 There is no disagreement in this case over the operative portion of the statute — when the disease becomes partially disabling. “[B]ecome” is defined as:
1 a obs (1): come (2): go ... b (1): to come to exist or occur (2) : to emerge as an entity : grow to manifest a certain essence, nature, development, or significance . . . c archaic : to come to experience — used with an infinitive 2 a : to pass from a previous state or condition and come to be: grow or change into being through taking on a new character or characteristic . . . b : to take on a new role, essence, or nature and come to be . . . c : to come to be — used as an auxiliary in passive constructions ...3a: happen.
Webster’s Third New International Dictionary 195 (2002). While the term “partially disabling” is not defined by statute, RCW 51.08.150 defines “ ‘[permanent partial disability." as “the loss of either one foot, one leg, one hand, one arm, one eye, one or more fingers, one or more toes, any
¶41 At the time of Donald Harry’s first audiogram in 1974, he had a 5.6 percent monaural loss of his hearing and had a permanent partial disability. Harry’s occupational disease first came to be because of that test, and thus, his rate of compensation should be based on the schedule in effect on that date. The plain meaning of the statute dictates that the rate of compensation for Harry’s occupational monaural hearing loss is 1974, when Harry first lost his hearing.
¶43 The majority argues that the interpretation proposed by petitioners would lead to absurd results. Id. at 15. This court has held that if a literal interpretation of a statute is absurd, the statute is ambiguous and the court will move on to examine the legislative history and use judicial canons of statutory interpretation. State v. Taylor, 97 Wn.2d 724, 729-30, 649 P.2d 633 (1982); In re Det. of Martin, 163 Wn.2d 501, 509-13, 182 P.3d 951 (2008).
¶44 In addition to creating this rule on its own and going against the plain meaning of the statute, the majority relies upon case law that does not support its conclusion. Regarding Washington cases, the majority discusses Landon, 117 Wn.2d at 127, in explaining its interpretation of RCW 51.32.180(b). In Landon, we held that for claims resulting from asbestosis filed before the 1988 amendments to RCW 51.32.180(b), the date of manifestation rule should apply because the last injurious rule would not fulfill the then-existing statutory purpose of compensating diseases and injuries equally. Landon, 117 Wn.2d at 124-26. With regard
¶45 Similarly, the majority’s citation to several cases from foreign jurisdictions that have applied the last injurious exposure rule is misleading. In none of those cases was the court interpreting a statute remotely similar to RCW 51.32.180(b). In Discher v. Industrial Commission, 10 Wis. 2d 637, 103 N.W.2d 519 (1960); Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 885 P.2d 1261 (1994); Railco Multi-Construction Co. v. Gardner, 564 A.2d 1167 (D.C. App. 1989); John Deere Dubuque Works of Deere & Co. v. Weyant, 442 N.W.2d 101 (Iowa 1989); and Green Bay Drop Forge Co. v. Industrial Commission, 265 Wis. 38, 60 N.W.2d 409 (1953), all the courts were interpreting statutes that based compensation on the terms “date of injury” or “date of accident.” In Ciavarro v. Despatch Shops, Inc., 22 A.D.2d 312, 314, 255 N.Y.S.2d 48 (1964), the court was interpreting a statutory scheme that explicitly explained that compensation for occupational hearing loss became due and payable six months after separation from work and the last day of work shall be the date of disablement. In Barker v. Home-Crest Corp., 805 S.W.2d 373 (Tenn. 1991),
¶46 Finally, while the majority contends that employing the date of manifestation rule would be absurd, its own analysis belies the argument. In response to the argument that compensating Harry according to the present value of his entire disability would amount to a “ ‘windfall,’ ” the majority contends that Harry did not deliberately fail to file the claim, act negligently, or receive notice that he had a compensable disability. Majority at 18-19. While all of those facts are true, those facts go toward Harry’s motives in filing the compensation claim and the calculation of the running of the statute of limitations. Harry’s motives do not matter for purposes of determining which compensation schedule to use, and the statute of limitations provision has different wording. In a footnote, the majority notes that it is possible to segregate the compensation rate of a prior permanent partial disability based on reliable medical evidence. Id. at 18 n.6. Noticing that the compensation rate could be adjusted based upon an earlier schedule, the majority at least implicitly notes the policy concern of a windfall. Thus, while it is not dispositive to determining the plain meaning of a statute, the majority recognizes it is possible that the legislature drafted RCW 51.32.180(b) as it did to protect companies from having to pay a windfall to workers. There may be better ways to protect companies
¶47 Occupational hearing loss is, indeed, a factually unique affliction that may not comport perfectly with existing statutory remedies and, as such, may not compensate all victims equitably. Such a determination rightfully belongs to the legislature, and this court should not infringe on the rightful territory of our coordinate branch. Because the manner in which the majority reaches its conclusion is in opposition to existing law and usurps the role of the legislature, I dissent.
After modification, further reconsideration denied May 18, 2009.
It may be that Harry suffered from two different kinds of disease — monaural and binaural hearing loss — and, thus, has two separate compensation schedules. The first schedule would be compensation for monaural hearing loss that existed in 1974 and went to 1986. The second schedule would compensate Harry for the binaural hearing loss that existed from 1986 to present. However, because Harry never raised this argument below and made only one compensation request for occupational hearing loss, it is not appropriate for this court to step in and bifurcate Harry’s compensation.
Under the majority’s reasoning, claimants with medically untreatable partial disabilities are advantaged as compared to those with diseases that are medically treatable. The claimants with medically untreatable partial disabilities can now wait to file their claim for benefits for the highest possible rate while the claimants with treatable disabilities will still be subject to the earlier schedule of benefits. I do not believe that the plain meaning of the statute accords such disparate treatment.
Pollard v. Weyerhaeuser Co., 123 Wn. App. 506, 98 P.3d 545 (2004), does not aid Harry. In Pollard, the Court of Appeals held that if a person files subsequent claims for further occupational hearing loss, then the rate of compensation is based on when the person filed the previous claim. Id. at 514. Here, as Harry filed only one claim for occupational hearing loss, he cannot benefit from the holding in Pollard.
This analytical framework makes sense given that our justification for avoiding absurd results is that we presume the legislature was rational and did not intend absurd results in drafting the statute. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (quoting State v. Delgado, 148 Wn.2d 723, 733, 63 P.3d 792 (2003) (Madsen, J., dissenting)). It is also why we have described the standard as avoiding “unlikely, absurd, or strained consequences.” Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 239, 59 P.3d 655 (2002). For instance, in Tingey v. Haisch, 159 Wn.2d 652, 664, 152 P.3d 1020 (2007), this court noted that while the plain meaning of the term “account receivable” in a statute led to a substantial effect on the ability to collect business debt, it was not tantamount to an absurd result. The operative effect of the statute was not absurd because all of the related statutes could still be given effect and because it was clear the legislature had considered such impacts in its drafting of the statute. Id. In holding that the operative effect of a narrower definition of “account receivable” would lead to absurd results, we noted that such an interpretation would be standardless and affect other statutory schemes. Id. at 665. Thus, while courts look to the operative effect of a literal meaning of the statute, they are not to depart from that plain meaning unless the legislature could not have rationally intended the results. Simply because the court does not like the policy consequences of a literal interpretation does not mean that the legislature could not have rationally intended those results.
Reference
- Full Case Name
- Donald Harry v. Buse Timber & Sales, Inc.
- Cited By
- 21 cases
- Status
- Published