Pape v. Department of Labor & Industries
| Decision Date | 27 November 1953 |
| Docket Number | No. 32367,32367 |
| Court | Washington Supreme Court |
| Parties | PAPE, v. DEPARTMENT OF LABOR & INDUSTRIES. |
John W. Brisky, Harwood Bannister, Mount Vernon, Foster & Foster, Olympia, William A. Stiles, Jr., Sedro Woolley, for appellant.
Don Eastvold, Atty. Gen., Bernard A. Johnson, Asst. Atty. Gen., for respondent.
This is an appeal from a judgment of dismissal of an appeal from an order of the Board of Industrial Insurance Appeals denying an application by appellant to reopen his claim because of claimed aggravation.
April 22, 1946, J. W. Pape sustained an industrial injury while in the course of his employment. June 28, 1946, his claim was allowed by the Department and was closed. January 9, 1952 (five and one-half years after the establishment and termination of his compensation), he filed an application to reopen his claim because of aggravation. The application was denied by the supervisor for the reason that more than five years had elapsed since his claim had been closed, basing the ruling upon § 5, chapter 115, Laws of 1951, RCW 51.32.160. Successive appeals from this ruling were made to the Board of Industrial Appeals, the Superior Court for Skagit county, and to this court.
Appellant makes three assignments of error, but they are all based upon the trial court's finding and conclusion that § 5, chapter 115, Laws of 1951, is controlling (it having superseded chapter 219, Laws of 1949), and that, the application to reopen the claim for aggravation not having been made within five years, the cause of action was barred.
The original Workmen's Compensation Act was enacted by chapter 74, Laws of 1911. Section 5(h) provided:
'If aggravation, diminution, or termination of disability takes place or be discovered after the rate of compensation shall have been established or compensation terminated in any case the department may, upon the application of the beneficiary or upon its own motion, readjust for future application the rate of compensation in accordance with the rules in this section provided for the same, or in a proper case terminate the payments.'
Although various sections of the act were amended from time to time, the section regarding aggravation remained unchanged until 1927.
Chapter 310, Laws of 1927, again amended certain sections of § 6604, which at that time had been codified as Rem.Comp.Stat., § 7679. Section 4 of Chapter 310 read as follows:
'That section 4 of chapter 131 of the Laws of 1919, page 355, as amended by section 2 of chapter 136 of the Laws of 1923, page 387 (section 7679 of Remington's Compiled Statutes) be amended to read as follows:' (It should be noted that each amendatory act stated that the prior act 'be amended to read as follows'.)
Section 4(h) provided:
'If aggravation, diminution, or termination of disability takes place or be discovered after the rate of compensation shall have been established or compensation terminated, in any case the director of labor and industries, through and by means of the division of industrial insurance, may, upon the application of the beneficiary, made within three years after the establishment or termination of such compensation, or upon his own motion, readjust for further application 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, Any such applicant whose compensation has heretofore been established or terminated shall have three years from the taking effect of this act within which to apply for such readjustment.'
There was no provision in the original act of 1911 placing any limitation upon the time within which a claim for aggravation of the original injury might be made. However, under the provisions of the 1927 amendment, workmen becoming injured after its effective date, and whose injuries became aggravated after the establishment or termination of compensation, were required to make application within three years thereafter. Under the proviso, workmen whose compensation had theretofore been established or terminated, were given three years from the effective date of the act within which to apply for readjustment.
The act was again amended by Section 1 chapter 209, Laws of 1941. By this amendment, the wording of the section remained the same except that the word 'five' was substituted for the word 'three'.
Similar amendments were enacted by Section 1(h), chapter 246, Laws of 1947, and by Section 1(h), chapter 219, Laws of 1949. No change was made in the wording of Section 1(h).
We now come to chapter 115, Laws or 1951. Section 5 provides:
'Section 51.32.160, R.C.W., as derived from section 1, chapter 219, Laws of 1949, is amended to read as follows:
'If aggravation, diminution, or termination of disability takes place or be discovered after the rate of compensation shall have been established or compensation terminated, in any case the director, through and by means of the division of industrial insurance, may, upon the application of the beneficiary, made within five years after the establishment or termination of such compensation, or upon his own motion, readjust for further application the rate of compensation in accordance with the rules in this section provided for the same, or in a proper case terminate the payment.'
It will be seen that no material change was made in section 1, chapter 219, Laws of 1949, except that the proviso was eliminated.
In Lane v. Department of Labor and Industries, 21 Wash.2d 420, 151 P.2d 440, we considered the effect of the 1941 amendment which substituted the word 'five' for the word 'three'. At the time the 1941 amendment became effective, the claims under consideration by us were barred by the three-year limitation. We held that the 1941 amendment, increasing from three to five years the period within which injured workmen whose compensation had been established or terminated could make claim for aggravation, applied to claims which, at the time the act became effective, were barred by the three-year limitation, thus allowing such injured workmen five years instead of three years from the effective date of the 1941 amendment, within which to file claims for aggravation. This ruling was adhered to in Donati v. Department of Labor and Industries, 35 Wash.2d 151, 211 P.2d 503.
Laws may operate either prospectively or retrospectively, or both. A prospective law is one which is to operate in the future--that is, is applicable only to cases arising after its enactment. A retrospective law is one which is made to operate upon some subject, contract, or crime which existed before the passage of the law. 2 Bouvier's Law Dictionary, Rawle's Third Revision, pages 2754 and 2950. A retrospective law, in the legal sense, is one which takes away or impairs vested rights acquired in the existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. 50 Am.Jur. 492, Statutes, § 476. The question whether a statute operates retrospectively, or prospectively, only, is one of legislative intent. In determining such intent, the courts have evolved a strict rule of construction against a retrospective operation, and indulge in the presumption that the legislature intended statutes or amendments thereto to operate prospectively only. 50 Am.Jur. 495, Statutes, § 478. It is not necessary, however, that the statute expressly state that it shall operate retrospectively, if such intention can be obtained from the purpose and method of its enactment.
This general rule of construction, that the legislature intended an act to operate prospectively only, is not applied when the statute relates to remedies only, and does not affect vested rights. In the absence of language showing a contrary intent, a new law changing a remedy is generally regarded as applicable to all remedies--those which have accrued and those which will accrue in the future. Nelson v. Department of Labor and Industries, 9 Wash.2d 621, 115 P.2d 1014.
We are of the opinion that § 5, chapter 115, Laws of 1951, RCW 51.32.160, was intended to, and does, act prospectively as to the beneficiaries who may claim for aggravation subsequent to the effective date of the act, and retrospectively as to beneficiaries who had not filed claims for aggravation prior to its effective date. As to the latter, there was a right to make application within five years after the establishment or termination of their compensation, but, by the elimination of the proviso, the right to make application at any time within five years from the effective date of the new act was lost.
In enacting Section 5 the legislature was clearly dealing with a matter of remedy. The state government, through its legislative branch, has the sole power to determine when and under what conditions an application such as the one under consideration can be made. A claimant has no vested right or substantial right prior to filing his claim, to make application for adjustment on the ground of aggravation, except such right as the legislature gives to him. See Nelson v. Department of Labor and Industries, supra.
Furthermore, there can be no question as to the legislative intent. Since 1927, when the first proviso was added to the section covering claims for aggravation, under our decisions interpreting these amendments, the beneficiaries have had two rights under the statute. Under its main provision they could file for aggravation within either three or five years (depending upon the amendment in effect at the time) after the establishment or termination of compensation. Under the proviso they could file for aggravation within either three or five years from the effective date of the amendatory act. The legislature recognized this and decided to take away the additional remedial...
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...a new duty, or attaches a new disability, in respect to transactions or considerations already past." Pape v. Dep't of Labor & Indus., 43 Wash.2d 736, 740-41, 264 P.2d 241 (1953) (citing 50 AM.JUR. 492, Statutes § 476 (1944)). As Justice Stevens A statute does not operate "retrospectively" ......
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