Cowlitz Stud Co. v. Clevenger

• Decision Date: 22 March 2005
• Docket Number: No. 30085-1-II.,30085-1-II.
• Citation: 127 Wash. App. 542,112 P.3d 516
• Court: Washington Court of Appeals
• Parties: COWLITZ STUD COMPANY, Respondent, v. Dana CLEVENGER and Department of Labor and Industries, Appellants.

112 P.3d 516

127 Wash. App. 542

COWLITZ STUD COMPANY, Respondent, v. Dana CLEVENGER and Department of Labor and Industries, Appellants.

No. 30085-1-II.

Court of Appeals of Washington, Division 2.

March 22, 2005.

Publication Ordered May 24, 2005.

Steve Vinyard, Attorney at Law, Olympia, WA, Robert Rees Hall, Attorney at Law, Longview, WA, for Appellants.

Craig Alan Staples, Attorney at Law, Vancouver, WA, for Respondent.

HOUGHTON, J.

¶ 1 In 1997, Dana Clevenger sustained an industrial injury while employed by Cowlitz Stud Company, a lumber mill. Cowlitz paid her medical benefits and closed her claim. In 2000, while employed by Hampton Lumber Company, Clevenger reopened her 1997 claim. The Department of Labor and Industries (L & I) ordered Cowlitz to pay her time loss compensation. But the superior court reversed because reasonable minds could not differ that Clevenger's 1997 injury had worsened while she worked at Hampton and the "last injurious exposure rule" applied rendering Hampton and not Cowlitz responsible for these benefits. Both Clevenger and L & I raise issues on appeal. We affirm.

FACTS

¶ 2 From 1995 through May 1999, Clevenger worked at Cowlitz, a self-insured employer.¹ On May 2, 1997, she injured her back and on July 2, Cowlitz paid her medical benefits and closed her claim.²

¶ 3 In November 1999, shortly after the lumber mill changed owners, Clevenger began working for Hampton, the new owner. From November 1999 through May 2000, she experienced pain and sensory problems radiating down both legs.³ As a result, on July 7, 2000, she applied to reopen her 1997 L & I claim. L & I denied the application. She requested reconsideration and on December 20, 2000, L & I reopened her claim effective May 30, 2000.⁴

¶ 4 On January 8, 2001, per L & I's order, Cowlitz paid Clevenger time loss benefits for July 5 through July 6, July 10 through July 16, and August 1 through August 14, 2000. Cowlitz did not appeal this order.

¶ 5 On April 5, 2001, L & I directed Cowlitz to pay Clevenger time loss compensation for the period January 16 through April 4, 2001. L & I also directed Cowlitz to address Clevenger's employability as determined by a vocational consultant. On April 25, 2001, Cowlitz filed a protest and requested reconsideration. L & I affirmed its order.

¶ 6 Cowlitz appealed L & I's order. Cowlitz also requested that Clevenger file a claim with Hampton because she developed increased low back problems while working at Hampton's mill. Clevenger declined to do so.

¶ 7 After a hearing on Cowlitz's appeal, an industrial appeals judge (IAJ) entered a proposed decision affirming L & I's order.⁵ Cowlitz sought review before the Board of Industrial Appeals (Board), arguing that, under the last injurious exposure rule, the responsibility for Clevenger's condition should be shifted to Hampton. L & I did not respond to the petition.

¶ 8 The Board affirmed the IAJ's proposed order. Cowlitz appealed to the superior court. Cowlitz moved for summary judgment, arguing lack of material fact and application of the last injurious exposure rule. L & I did not participate in the proceeding.

¶ 9 The trial court granted Cowlitz's motion because (1) the last injurious exposure rule applied and, (2) based on the record, reasonable minds could not differ that Clevenger's Hampton employment proximately caused her worsened back condition.

ANALYSIS

Standard of Review

¶ 10 When reviewing an order for summary judgment, we engage in the same inquiry as the trial court. Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125 Wash.2d 337, 341, 883 P.2d 1383 (1994) (citing Syrovy v. Alpine Resources, Inc., 122 Wash.2d 544, 548-49 n. 3, 859 P.2d 51 (1993)). We affirm summary judgment if no genuine issue of any material fact exists, entitling the moving party to judgment as a matter of law. CR 56(c); Dep't of Labor & Indus. v. Fankhauser, 121 Wash.2d 304, 308, 849 P.2d 1209 (1993). We consider all facts and reasonable inferences in the light most favorable to the nonmoving party, and we review all questions of law de novo. Mountain Park, 125 Wash.2d at 341, 883 P.2d 1383.

The Last Injurious Exposure Rule⁶

The Rule's Applicability to an Industrial Injury Case

¶ 11 Clevenger and L & I contend that the last injurious exposure rule applies only to occupational disability claims, not to industrial injury claims.⁷ We disagree. We previously held to the contrary in Champion Int'l, Inc. v. Dep't of Labor & Indus., 50 Wash.App. 91, 746 P.2d 1244 (1987), where we applied the last injurious exposure rule in an industrial injury case.⁸

¶ 12 Clevenger cites Weyerhaeuser Co. v. Tri, 117 Wash.2d 128, 814 P.2d 629 (1991),⁹ and argues that our Supreme Court declined to expand the rule's application from occupational disability to industrial injury cases. Again we disagree. The Tri court cited with approval our industrial injury holding in Champion:

The Court of Appeals has also adopted the last injurious exposure rule. In Champion, a worker suffered two on-the-job injuries. One occurred while the employer was state insured, and the other while the employer was self-insured. In holding the employer liable for the full cost of vocational retraining, the court rejected apportionment and applied the last injurious exposure rule.

Tri, 117 Wash.2d at 138-39, 814 P.2d 629 (citation omitted). Clevenger and L & I's argument fail.¹⁰

The Rule's Applicability to Self-Insured Employers

¶ 13 Clevenger contends that the last injurious exposure rule does not apply where the claims involve two self-insurers. Instead, according to Clevenger, the rule applies only when a determination must be made whether a claim should be paid under the state fund or by a self-insurer.

¶ 14 In Champion we held: "When an employee sustains a subsequent industrial injury ... the insurer at risk at the time of the second injury is liable." 50 Wash.App. at 93, 746 P.2d 1244 (emphasis added). Likewise, in Tri, our Supreme Court held: "The last injurious exposure rule ... arbitrarily assign[es] responsibility to the insurer at risk during the last exposure." 117 Wash.2d at 136, 814 P.2d 629 (emphasis added). Nothing in the language of these cases implies that the last injurious exposure rule is limited to the disputes between state insurance and self-insured employees. The term "insurer at risk," as used in both cases, means an insurer who employed the injured employee at the time of his or her injury. Clevenger's argument fails.

The Rule's Applicability Where no "New" Injury Occurred

¶ 15 Clevenger and L & I further contend that the last injurious exposure rule applies only if an employee sustains a "new" injury while working for the last employer. L & I argues that, because Clevenger did not sustain a new injury while working at Hampton, the last injurious exposure rule does not apply.

¶ 16 In Champion, we applied the rule when a logger sustained two injuries: one to his back and one to his elbow. 50 Wash.App. at 92, 746 P.2d 1244. We held that the employer on the open second claim was responsible for paying the full cost of the vocational services provided to the worker, even though his disability resulted from both injuries. Champion, 50 Wash.App. at 93, 746 P.2d 1244.

¶ 17 In Tri, however, each employee sustained one occupational disability—loss of hearing. 117 Wash.2d at 130, 814 P.2d 629. A portion of the disability occurred while the employees were insured by the state, and a portion developed when the employer became self-insured. Tri, 117 Wash.2d at 130, 814 P.2d 629. Our Supreme Court acknowledged that it would be difficult to assign proportionate responsibility to the state and to the employer and applied the last injurious exposure rule to arbitrarily assign responsibility to the last insurer at risk. Tri, 117 Wash.2d at 135-36, 814 P.2d 629.

¶ 18 The present case is more like Tri, although Champion provides insight. In 1997, while working at Cowlitz, Clevenger sustained a back injury, for which she received benefits. In 2000, while working at Hampton, she reopened her 1997 claim due to increased back pain. Thus, she did not sustain a "new" injury while working for Hampton.

¶ 19 Neither Champion nor Tri limit the applicability of the last injurious exposure rule to instances where an employee suffers a "new" injury. According to Tri, it is sufficient that the last exposure bears a "causal relationship" to an employee's condition. 117 Wash.2d at 136, 814 P.2d 629. As we discuss below, Clevenger's Hampton employment bore a similar causal relationship to her increased back pain. Accordingly, Clevenger's argument fails.

Clevenger's Hampton Employment

¶ 20 L & I contends that a genuine issue of material fact exists on whether Clevenger's Hampton employment contributed to her disability.¹¹ L & I asserts that while at Hampton, Clevenger did not perform strenuous work that contributed to her back injury. We disagree.

¶ 21 The evidence shows that Clevenger resumed her back treatments, reopened her claim, and ultimately stopped working after she began working for Hampton. Also, she testified that during her Hampton employment, her back pain increased substantially, and she experienced pain radiating down both legs. She stated that she worked as a sorter stacker operator, requiring her to stand on a metal floor while running the buttons and pedals of the stacking equipment. At the end of her shift, she also had to lift varying sizes of wet lumber that had fallen from a conveyor belt. And she testified that standing all day and bending over to pick up lumber caused her pain.¹²

¶ 22 Dr. Cooper also testified that Clevenger's Hampton employment aggravated her back problems. He analyzed a sawmill stacker job description and determined she was incapable of performing the work: "I didn't feel she was capable of going on cat walks [sic] or conveyor, stairs, capable of using some of the tools they would require in a safe manner." Clerk's Papers at 263. And Cooper...