Hubbard v. Department of Labor & Industries

• Decision Date: 03 February 2000
• Docket Number: No. 67632-1.,67632-1.
• Citation: 992 P.2d 1002,140 Wash.2d 35
• Court: Washington Supreme Court
• Parties: Allen HUBBARD, Respondent, v. DEPARTMENT OF LABOR & INDUSTRIES OF the STATE OF WASHINGTON, Petitioner.

992 P.2d 1002

140 Wash.2d 35

Allen HUBBARD, Respondent, v. DEPARTMENT OF LABOR & INDUSTRIES OF the STATE OF WASHINGTON, Petitioner.

No. 67632-1.

Supreme Court of Washington, En Banc.

Argued September 21, 1999.

Decided February 3, 2000.

Christine Gregoire, Attorney General, John Wasberg, Asst. Attorney General, Seattle, for Petitioner.

Delay, Curran & Thompson, Michael Walker, Spokane, for Respondent.

IRELAND, J.

In this industrial insurance case, we are asked to interpret former RCW 51.32.090(3) (1979) and decide the proper basis for calculating temporary loss of earning power (LEP) benefits when a worker's previous injury is aggravated and his or her claim is reopened following a permanent partial disability (PPD) award.¹ We do not reach this issue because we find that such a worker must make a threshold showing that he or she experienced a temporary total disability or an actual loss of earning power as a proximate result of the injury's aggravation. Because the injured worker here has not made the necessary threshold showing, he is not entitled to LEP benefits. Thus, we reverse the Court of Appeals.

FACTS

Allen Hubbard sustained an industrial injury in 1980 and was unable to return to his former occupation as a taxidermist.² After retraining, Hubbard obtained a job as a photo lab technician. The Department of Labor and Industries closed Hubbard's claim in 1990 with a PPD award.

After Hubbard experienced an objective worsening of his previous injury, the Department ordered Hubbard's claim reopened effective May 4, 1992. Pursuant to former RCW 51.32.090(3), Hubbard sought LEP benefits from May 4,1992 through December 31, 1995, although Hubbard continued to work as a photo lab technician and suffered no additional loss in earning power after the closure of his claim in 1990. The Department denied such benefits.

Hubbard appealed to the Board of Industrial Insurance Appeals contending that pursuant to former RCW 51.32.090(3) his present earning power should have been compared to his earning power when he sustained his injury in 1980 rather than his earning power when the Department closed his claim 10 years later. The Board affirmed the Department's denial of LEP benefits relying on Davis v. Bendix Corp., 82 Wash.App. 267, 274, 917 P.2d 586, review denied, 130 Wash.2d 1004, 925 P.2d 989 (1996)³ and the doctrine of stare decisis.

Upon appeal to superior court, the court granted the Department's motion for summary judgment. Division Three of the Court of Appeals reversed rejecting Davis as precedent and finding that LEP benefits are determined by comparing earning capacity following the reopening of a claim to that existing at the time of the original injury. Hubbard v. Department of Labor & Indus., 92 Wash.App. 941, 948, 965 P.2d 1136 (1998),review granted, 137 Wash.2d 1032, 980 P.2d 1283 (1999).

ISSUE

When an injured worker's industrial insurance claim is reopened based upon an objective worsening of a prior injury, is the worker entitled to LEP benefits pursuant to RCW 51.32.090(3) if the worker continued to work at the same earning level throughout the aggravation period? We hold that such a worker is not entitled to LEP benefits unless the worker makes a threshold showing that he or she suffered a temporary total loss of wages and/or a decrease in earning power proximately resulting from the injury's aggravation.

ANALYSIS

The Department acknowledges that legislative policy favors "treatment" for injured workers and, thus, a worker who experiences an "objective worsening" of an industrial injury can easily obtain an order reopening a claim for medical benefits. The Department contends, however, that: (1) PPD awards compensate recipients for future lost earning power; (2) the Industrial Insurance Act's (Title 51 RCW) benefits structure implicitly prohibits the "double recovery" of wage replacement benefits; and therefore (3) absent a decrease in Hubbard's earning power since his PPD award, the recovery of LEP benefits would constitute an impermissible double recovery.

Hubbard asserts that whenever a claim is in "open status," whether before an initial claim closure or after a claim is reopened, the claimant is entitled to LEP benefits "`while' and until such time as the earning power isfully restored to that existing at the time of the industrial injury." Resp't's Supplemental Br. at 7. Relying upon the Act's purpose of providing "sure and certain relief" to injured workers and the plain language of RCW 51.32.090(3), Hubbard contends that the Department must base the amount of LEP benefits upon the relationship between present earning power and earning power when the industrial injury occurred. He further claims that PPD awards do not compensate for future loss of earning power because the amount of such awards are determined solely by loss of bodily function.

Hubbard's arguments rest on the assumption that once an injured worker's disability classification is changed from permanent to temporary, the worker is automatically entitled to temporary wage replacement benefits regardless of whether the worker has demonstrated a total loss of wages or a decrease in earning power proximately resulting from the injury's aggravation as opposed to the original injury. Thus, for Hubbard, the only question is how the amount of such benefits is to be calculated. We disagree with Hubbard's underlying assumption.

To determine what benefits the Act provides to workers whose claims are reopened based upon an aggravation of a prior injury, we look first to the aggravation statute, which provides in pertinent part:

(1)(a) If aggravation, diminution, or termination of disability takes place, the director may, upon the application of the beneficiary, made within seven years from the date the first closing order becomes final, or at any time upon his or her own motion, readjust the rate of compensation in accordance with the rules in this section provided for the same, or in a proper case terminate the payment: PROVIDED, That the director may, upon application of the worker made at any time, provide proper and necessary medical and surgical services as authorized under RCW 51.36.010.

RCW 51.32.160 (emphasis added).

The aggravation statute clearly entitles such workers to "proper and necessary medical and surgical services." The statute does not, however, explicitly indicate the nature of benefits available to an aggravation claimant who makes a timely application. Rather, it provides only that the director "may ... readjust the rate of compensation in accordance with the rules in this section...."

By stating that the rate of compensation "may," and not "shall," be readjusted, the aggravation statute implies that the Department must look to other provisions of the Act to determine whether a particular claimant is entitled to any further wage replacement compensation. See Clauson v. Department of Labor & Indus., 130 Wash.2d 580, 584, 925 P.2d 624 (1996) (right to workers' compensation benefits is statutory; courts will look to Act's provisions to determine a particular worker's entitlement to compensation).

However, it is unclear from the plain language of RCW 51.32.160 whether the Legislature intended that an aggravation claimant could obtain temporary wage replacement benefits pursuant to RCW 51.32.090, an adjustment to a PPD award, a pension pursuant to RCW 51.32.060, or some combination of these benefits.

In the absence of clear legislative intent regarding an aggravation claimant's entitlement to benefits, we look to the underlying purpose of the Act, which is to ensure against loss of wage-earning capacity and to provide "sure and certain relief" to injured workers regardless of fault. Dennis v. Department of Labor & Indus., 109 Wash.2d 467, 470, 745 P.2d 1295 (1987); Hunter v. Bethel Sch. Dist. & Educ. Serv. Dist. No.121, 71 Wash.App. 501, 507, 859 P.2d 652 (1993); RCW 51.04.010. To these ends, the guiding principle in construing provisions of the Act is that it is remedial in nature and is to be liberally construed to achieve its purpose of providing compensation to all covered employees injured in their employment, with doubts resolved in favor of the worker. Clauson, 130 Wash.2d at 584, 925 P.2d 624; Dennis, 109 Wash.2d at 470, 745 P.2d 1295; RCW 51.12.010.

In view of the Act's underlying purpose and the requirement of liberal construction, we find that, in a proper case, an aggravation claimant may be entitled to temporary wage replacement benefits while his or her claim is in "open" status following a PPD award. But, the aggravation claimant must show that the temporary wage replacement statute, RCW 51.32.090, applies to his or her particular circumstances. See Ruse v. Department of Labor & Indus., 90 Wash.App. 448, 453, 966 P.2d 909 (1998) (claimant had burden of producing evidence to support claim that he was disabled by an occupational disease and, thus, entitled to benefits), aff'd, 138 Wash.2d 1, 977 P.2d 570 (1999).

Thus, we turn to the language of former RCW 51.32.090 (1979) in effect when Hubbard sustained his industrial injury. See Ashenbrenner v. Department of Labor & Indus., 62 Wash.2d 22, 25, 380 P.2d 730 (1963) (rights of claimants to disability compensation is determined according to law in force when claimant was injured rather than by a law that becomes effective subsequently).

Former RCW 51.32.090⁴ provided in relevant part:

(1) When the total disability is only temporary, the schedule of payments contained in subdivision (1) through (13) of RCW 51.32.060 as amended shall apply, so long as the total disability continues.

....

(3) As soon as recovery is so complete that the present earning power of the worker, at any kind of work, is restored to that existing at the time of the occurrence of the injury, the payments shall cease. If and so long as the present earning power is only partially restored, the payments shall continue in the proportion which the new earning power

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