Harry v. Buse Timber & Sales, Inc.

• Decision Date: 26 February 2009
• Docket Number: No. 79613-1.,79613-1.
• Citation: 166 Wn.2d 1,201 P.3d 1011
• Court: Washington Supreme Court
• Parties: Donald HARRY, Respondent, v. BUSE TIMBER & SALES, INC., and the Department of Labor and Industries, Petitioners.

201 P.3d 1011

166 Wn.2d 1

Donald HARRY, Respondent, v. BUSE TIMBER & SALES, INC., and the Department of Labor and Industries, Petitioners.

No. 79613-1.

Supreme Court of Washington, En Banc.

Argued January 22, 2008.

Decided February 26, 2009.

As Corrected March 10, 2009.

Anastasia R. Sandstrom, Attorney General's Office, Kathryn Kunkler, Keehn Kunkler PLLC, Seattle, WA, for Petitioners.

William D. Hochberg, Nicole Alys Hanousek, Amie Christine Peters, Law Office of William D. Hochberg, Edmonds, WA, for Respondent.

Terri Lynn Herring-Puz, Attorney at Law, Tacoma, WA, Amicus Curiae on behalf of Aerospace Machinists District Lodge 751, Teamsters Joint Council # 28, Washington State Building & Constructions Trade Council, and Washington State Labor Council.

Gilbert M. Stratton, Bernadette Marie Pratt, Marne J Horstman, Craig Jessup & Stratton PLLC, Tacoma, WA, Amicus Curiae on behalf of Washington Self-Insurers Association.

MADSEN, J.

¶ 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. (Buse) 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 ... [i]s 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 disabling" within the meaning of RCW 51.32.180(b) as of the date a worker was last exposed to hazardous occupational noise.

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 audiograms in compliance with a Washington Industrial Safety and Health Act of 1973 (chapter 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 Wash.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, 171 P.3d 1058.

¶ 6 Buse and the Department both filed petitions for review, which we granted. Harry v. Buse Timber & Sales, Inc., 161 Wash.2d 1014, 171 P.3d 1057 (2007).

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 Wash.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 Wash.2d 252, 256, 26 P.3d 903 (2001); Cockle v. Dep't of Labor & Indus., 142 Wash.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.¹ Clauson v. Dep't of Labor & Indus., 130 Wash.2d 580, 585, 925 P.2d 624 (1996); RCW 51.08.150. Cf. RCW 51.08.160 ("permanent total disability" prevents a worker from performing any work); RCW 51.32.090 (same for "temporary total disability"); RCW 51.32.090(4)(a) ("temporary total disability" interferes with a worker's normal job functions). A claimant is entitled to an award based on the percentage of functional loss of the affected body part, applying the schedule of benefits in effect on the date of injury. See RCW 51.32.080(2), (7). Thus, the amount of the award depends on two factors: the extent of the disability and the date the injury occurred.

¶ 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.² Boeing Co. v. Heidy, 147 Wash.2d 78, 51 P.3d 793 (2002); Weyerhaeuser Co. v. Tri, 117 Wash.2d 128, 130, 814 P.2d 629 (1991); Pollard v. Weyerhaeuser Co., 123 Wash.App. 506, 512, 98 P.3d 545 (2004); In re Brooks, No. 02 17331 (Wash. BIIA Aug. 1, 2003); cf. Rector v. Dep't of Labor & Indus., 61 Wash.App. 385, 810 P.2d 1363 (1991) (hearing loss resulting from head injury compensable as industrial injury). This is because noise-induced hearing loss results from cumulative trauma rather than a single traumatic event and thus lacks the time-definiteness of an industrial injury.

¶ 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.

¶ 13 The petitioners' interpretation of the statute is untenable. An "`[o]ccupational disease'" is "such disease or infection as arises naturally and proximately out of employment." RCW 51.08.140. Although we have described hearing loss as a "progressive condition," see Heidy, 147 Wash.2d at 88, 51 P.3d 793, hearing loss is not progressive in the sense that pneumonia or asbestosis is progressive. Id. Occupational hearing loss occurs simultaneously with exposure to injurious noise and does not progress after the exposure ends. Bath Iron Works Corp. v. Dir., Office of Workers' Comp. Programs, 506 U.S. 153, 162, 113 S.Ct. 692, 121 L.Ed.2d 619 (1993). The injury is complete when the worker is removed from a noisy environment. Id.; Pollard v. Weyerhaeuser, 123 Wash. App. 506, 512, 98 P.3d 545 (2004). Prior hearing loss contributes to successive hearing loss only in the sense the resulting disability is cumulative.

¶ 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...