Ashenbrenner v. Department of Labor and Industries, 36643

• Decision Date: 18 April 1963
• Docket Number: No. 36643,36643
• Citation: 380 P.2d 730,62 Wn.2d 22
• Parties: Helen K. ASHENBRENNER, Appellant, v. The DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent.
• Court: Washington Supreme Court

Page 22

62 Wn.2d 22

380 P.2d 730

Helen K. ASHENBRENNER, Appellant, v. The DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent.

No. 36643.

Supreme Court of Washington, Department 2.

April 18, 1963.

Cartano, Botzer & Chapman, Robert A. O'Neill, Seattle, for appellant.

John J. O'Connell, Atty. Gen., Andrew J. Young, Asst. Atty. Gen., Seattle, for respondent.

RYAN, Judge.

This is an appeal from a judgment of the Superior Court for King County, dismissing with prejudice an appeal from an order of the Board of Industrial Insurance Appeals.

There is no dispute as to the facts, and the only question before this court is one of law concerned with construction of the applicable statute, which is RCW 51.32.060, as amended by Laws of 1951, chapter 115, § 2, p. 284, and as further amended by Laws of 1957, chapter 70, § 31, p. 285.

The appellant was injured, in the course of her employment for the Chehalis Packing Company, on July 2, 1955. The claim for this injury was allowed, treatment was provided, and it was thereafter closed on November 10, 1955.

On October 14, 1957, the claimant filed an application to reopen the claim for aggravation of condition. The department reopened the claim, and the reopening was sustained on an appeal by the employer to the Board of Industrial Insurance Appeals. Thereafter, by order of the Supervisor of Industrial Insurance, dated December 15, 1958, the claimant was declared to be permanently and totally disabled, and was placed on the pension rolls, effective December 14, 1958.

The claimant is a married woman with a husband who is not an invalid. This has been her marital status at all times since the date of her injury on July 2, 1955. At the time of placing her on the pension rolls, in December of 1958, the department was under the impression that she was a single woman and, therefore, established her pension at $100 per month, which was the statutory rate in effect, at the time of her injury, for a single woman. Later, however, it was discovered, in the spring of 1961, that she was married, with a husband who was not an invalid, and, accordingly, her pension was reduced to $75 per month, in accordance with the schedule in effect at the time of her injury.

The claimant then secured counsel, and demanded of the department that her pension be established at $155 per month, effective as of the date she was originally declared to be permanently, totally disabled. The department rejected this demand on October 11, 1961, following which the claimant filed the instant appeal to the Board of Industrial Insurance Appeals, contending that the amount of her pension in controlled by RCW 51.32.060, as amended by Laws of 1957, chapter 70, § 31, p. 285, providing for $155 per month to a claimant with a husband. The Board of Industrial Insurance Appeals sustained the decision of the Department of Labor and Industries, and the claimant appealed to the superior court.

The appellant assigns error to the court's entering judgment for the respondent, and dismissing the action with prejudice.

RCW 51.32.060 (Laws of 1951, chapter 115, § 2, p. 284) provides as follows:

'When permanent total disability results from the injury, the workman shall receive monthly during the period of such disability:

'(a) If unmarried at the time of the injury, the sum of one hundred dollars.

'(b) If the workman has a wife or invalid husband, but no child, the sum of one hundred twenty-five dollars. If the husband is not an invalid the monthly payment of one hundred twenty-five dollars shall be reduced to seventy-five dollars as long as they are living together as husband and wife. * * *'

This section was amended by Laws of 1957, chapter 70, § 31, p. 285, to read as follows:

'When the supervisor of industrial insurance shall determine that permanent total disability results from the injury, the workman shall receive monthly during the period of such disability:

'(1) If unmarried at the time of the injury, the sum of one hundred twenty-five dollars.

'(2) If the workman has a wife or husband, but no child, the sum of one hundred fifty-five dollars. * * *'

In support of her position, the appellant urges that the 1957 statute should govern, and that her compensation should be fixed in accordance with its provisions. She contends that this statute is clear and unambiguous, and can only be construed as providing that her compensation be fixed as of the time her claim was allowed, rather than as of the time of her injury. She argues that the 1957 statute, which inserts 'the supervisor of industrial insurance shall determine that' between the words 'When' and 'permanent,' was intended by the legislature to amend the 1951 statute to fix the time of the determination of permanent, total disability as controlling.

It has been firmly established in this state, by a consistent series of decisions of this court, that the rights of claimants under the Workmen's Compensation Act are controlled by the law in force at the time of the person's injury, rather than by a law which becomes effective subsequently. Thorpe v. Department of Labor & Industries, 145 Wash. 498, 261 P. 85 (1927); Foster v. Department of Labor & Industries, 161 Wash. 54, 296 P. 148, 73 A.L.R. 1012 (1931); Sheldon v. Department of Labor & Industries, 168 Wash. 571, 12 P.2d 751 (1932); Lynch v. Department of Labor & Industries, 19 Wash.2d 802, 145 P.2d 265 (1944); Barlia v. Department of Labor & Industries, 23 Wash.2d 126, 160 P.2d 503 (1945); Bodine v. Department of Labor & Industries, 29 Wash.2d 879, 190 P.2d 89 (1948).

In the case of Lynch v. Department of Labor & Industries, supra, this court said [19 Wash.2d p. 807, 145 P.2d p. 267]:

'It is a fundamental rule in this state that a statute will be presumed to operate prospectively only, and that it will not be held to apply retrospectively in the absence of language clearly indicating such legislative intent. [Citing cases.]

'It is also the general rule in this state that awards payable under the Workmen's Compensation Act are governed by the law in effect at the time the injury to the workman occurred. [Citing cases.]'

The Lynch case was followed and relied upon by the later cases of Bodine v. Department of Labor & Industries, supra, and Barlia v. Department of Labor & Industries, supra, as stating the controlling rule of law.

Keeping in mind the above-stated basic rules, we must then...