Ravsten v. Department of Labor and Industries
| Decision Date | 07 May 1987 |
| Docket Number | No. 52217-1,52217-1 |
| Citation | 736 P.2d 265,108 Wn.2d 143 |
| Parties | Kevin RAVSTEN, Respondent, v. DEPARTMENT OF LABOR AND INDUSTRIES, Appellant. |
| Court | Washington Supreme Court |
Kenneth O. Eikenberry, Atty. Gen., Charles R. Bush, Asst. Atty. Gen., Seattle, for appellant.
Walthew, Warner, Keefe, Arron, Costello & Thompson, Eugene Aaron, Robert H. Thompson, Seattle, for respondent.
This case involves the extent of the responsibility of the Department of Labor and Industries to a permanently and totally disabled worker for payment of attorney's fees in a structured settlement. The workman was injured on the job on February 17, 1977 by third parties. RCW 51.24.010, then in effect (now repealed), which governed third party actions read in pertinent part:
If the injury to a workman is due to negligence or wrong of another not in the same employ, the injured workman ... shall elect whether to take under this title or seek a remedy against such other, such election to be in advance of any suit under this section and, if he takes under this title, the cause of action against such other shall be assigned to the department ... if [he seeks a remedy against the third party], ... the department ... shall contribute only the deficiency, if any, between the amount of recovery against such third person actually collected and the compensation provided or estimated by this title ... PROVIDED, That the injured workman * * *
electing to seek a remedy against such other person, shall receive benefits payable under this title as if such election had not been made, and the department ... to the extent of such payments having been made by the department ... to the injured workman ... shall be subrogated to the rights of such person or persons against the recovery had from such third party and shall have a lien thereupon....
In any action brought under this section wherein recovery is made by compromise and settlement or otherwise, the department ... to the extent of the benefits paid or payable under this title, shall bear its proportionate share of attorney's fees and costs incurred by the injured workman ... and the court shall approve the amount of attorney's fees.
(Italics ours.) The Board of Industrial Insurance Appeals stated its duty to be the determination of the monetary contribution of the Department towards attorney's fees incurred by the claimant in securing a recovery in the third party action. For purposes of determining the Department's responsibility, the Board based its calculations on (1) a reduction of the benefits payable by the amount of social security disability payments, (2) a lack of evidence of the need of attendant care benefits, and (3) the use of the present value of the total structured settlement for the determination of attorney's fees. These determinations were reversed by the Superior Court. The State has appealed.
We proceed subject to the provisions of RCW 51.52.115 which states:
Upon appeals to the superior court only such issues of law or fact may be raised as were properly included in the notice of appeal to the board, or in the complete record of the proceedings before the board. The hearing in the superior court shall be de novo, but the court shall not receive evidence or testimony other than, or in addition to, that offered before the board or included in the record filed by the board in the superior court as provided in RCW 51.52.110: ... The proceedings in every such appeal shall be informal and summary, but full Under the provisions of the statute, the findings and decisions of the Board are prima facie correct and the burden of proof is on the party attacking them. Scott Paper Co. v. Department of Labor & Indus., 73 Wash.2d 840, 440 P.2d 818 (1968); Sayler v. Department of Labor & Indus., 69 Wash.2d 893, 421 P.2d 362 (1966). It is the burden of the claimant here to establish that the Board's findings are incorrect by a preponderance of the evidence. Chalmers v. Department of Labor & Indus., 72 Wash.2d 595, 434 P.2d 720 (1967). On an appeal from the Board, there is a new trial with the superior court reviewing, reconsidering and pondering anew the evidence in the record before the court. Bayliner Marine Corp. v. Perrigoue, 40 Wash.App. 110, 697 P.2d 277 (1985). On appeal from the superior court, the appellate court must ascertain whether there was substantial evidence to support the findings of the trial court. Groff v. Department of Labor & Indus., 65 Wash.2d 35, 41, 395 P.2d 633 (1964). As observed in Goehring v. Department of Labor & Indus., 40 Wash.2d 701, 246 P.2d 462 (1952), quoting at page 703 from McLaren v. Department of Labor & Indus., 6 Wash.2d 164, 168, 107 P.2d 230 (1940):
The issues presented are:
1. When a claimant suffers from "permanent, total disability" as defined by RCW 51.08.160, does RCW 51.32.220 require that his future monthly industrial insurance payments 2. When a claimant is totally and permanently disabled as defined by RCW 51.08.160 and is entitled to "receive monthly during the period of such disability" a pension under RCW 51.32.060, what evidence is required to establish the future date of entitlement to attendant services as described in RCW 51.32.060(14) which provides:
be reduced by the amount of his Social Security disability benefits?
In case of permanent total disability, if the character of the injury is such as to render the worker so physically helpless as to require the hiring of the services of an attendant, the department shall make monthly payments to such attendant for such services as long as such requirement continues, ...?
3. When a totally and permanently disabled claimant has entered into a retainer agreement which has provided for the "law firm to receive 33 1/3 percent of any gross recovery" and the total award to the claimant is to be paid over a guaranteed period in the claimant's life rather than in a lump sum, is the Department's share of attorney's fees to be computed (a) upon the total monies to be paid the claimant over his life time, or (b) upon the present value of such total award?
On February 17, 1977, while in the course of his employment for Western Foam Pack, Inc., Ravsten was severely injured due to the negligence of third parties. He timely filed an accident report with the Department of Labor and Industries and, eventually was classified as permanently and totally disabled by the Department. His claim was allowed and benefits paid.
The claimant, Ravsten, brought a third party cause of action for his personal injury under RCW 51.24.010 while receiving industrial insurance compensation and benefits. He agreed to pay his attorneys a third of his gross recovery. The action against the third parties was concluded in June of 1981 for a structured settlement which totaled $1,370,000 in guaranteed future dollars or $1,100,113.05 in present dollars. The claimant has stipulated that the lower value is On January 12, 1982, the Department issued an order computing the Department's proportionate share of the attorney's fees and costs incurred by the claimant in the third party settlement, and reserved a net lien in the sum of $15,030.86 against the claimant's third party recovery. The Department demanded reimbursement and the claimant appealed to the Board of Industrial Insurance Appeals.
the present cash value as of January 12, 1982 of the guaranteed recovery settlement.
The Board of Industrial Insurance Appeals computed that the present value of the claimant's future pension payments payable by the Department was $204,885.60. As of January 12, 1982, this sum was arrived at as the product of Ravsten's monthly pension payment entitlement from workers' compensation funds of $309 (established by deducting from the $705.10 base and supplemental pension, the social security offset of $396.10) multiplied by 12 months, which figure was then multiplied by 37 years (until the claimant reaches age 62) and adding thereto the product of $705.10 and 96 months, the claimant's life expectancy.
The $204,885.60 added to $117,238.85 for benefits already paid, and $100,000 for future medical costs comprised the total benefits paid and payable to the claimant under the workers' compensation act, to-wit: $422,124.45. The Board found that Ravsten had not shown that he was so physically helpless that he was in need of a personal attendant's care as of January 12, 1982, or that he will require an attendant 15 years hence at age 40. The Board made no provision for attendant care.
We turn to the first issue which inquires whether RCW 51.32.220 requires that the claimant who is permanently and totally disabled under RCW 51.08.160 must have his future monthly payments reduced by the amount of his Social Security disability benefits.
RCW 51.32.220 calls for the state compensation It is the purpose of the statutory scheme to see that a disabled person is fully compensated for his disability, but not permitted to collected overlapping awards. In Herzog v. Department of Labor & Indus., 40 Wash.App. 20, 21-22, 696 P.2d 1247 (1985), the interrelationship of the two statutes is well expressed as follows:
received under RCW 51.32 by a...To continue reading
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