Weyerhaeuser Co. v. Tri

Decision Date27 June 1991
Docket NumberNo. 57698-0,57698-0
Citation117 Wn.2d 128,814 P.2d 629
PartiesWEYERHAEUSER COMPANY, Appellant, v. Donald G. TRI; Luigi R. Pirone; Donald R. Olson; Kenneth R. Logstrom; Leo B. Davenport; Charles M. Tuengel; Jack H. Blair; Lester H. Renfro; and the Department of Labor and Industries of the State of Washington, Respondents.
CourtWashington Supreme Court

Roberts, Reinisch, MacKenzie, Healey & Wilson, P.C., Craig A. Staples, Portland, Or., for appellant.

Kenneth O. Eikenberry, Atty. Gen., A. Craig McDonald, Asst. Atty. Gen., Yakima, for respondents.

Elizabeth K. Reeve, Seattle, amicus curiae for appellant on behalf of the Washington Self-insurers' Ass'n.

UTTER, Justice.

Eight Weyerhaeuser employees suffered hearing loss as a result of occupational noise. Upon retirement, each filed a claim pursuant to the Washington Industrial Insurance Act 1 (hereinafter the Act). The Department of Labor and Industries (hereinafter the Department) determined that each worker was permanently partially disabled, and ordered Weyerhaeuser to pay the full cost of each disability. In each case, however, a portion of the employee's hearing loss occurred while the State insured Weyerhaeuser's workers' compensation program, and a portion of the hearing loss occurred after the company became a self-insurer. Weyerhaeuser argues, therefore, that the State should pay a proportionate share of the disability award.

We affirm the Department's order and hold that Weyerhaeuser, as the insurer covering the risk during the most recent exposure bearing a causal relationship to the disability, is liable for the entire amount of the award. In so holding, we follow the majority of other states and adopt the last injurious exposure rule. 2

Donald Tri worked for Weyerhaeuser from 1950 through 1984 3. When Tri began his employment, the State insured Weyerhaeuser's workers' compensation program. On January 1, 1972, Weyerhaeuser became a self-insurer pursuant to RCW 51.14. During the course of his employment, Tri suffered 43.13 percent hearing loss from both ears. Of the total hearing loss, 29.69 percent occurred during the time the State insured the workers, and 13.44 percent occurred during the time the Company 4 was a self-insurer.

Tri filed a claim for occupational hearing loss in 1985. The Department issued an order allowing the claim and directing the Company to pay the total permanent partial disability award. The Board of Industrial Insurance Appeals affirmed the Department's order. The Board applied the last injurious exposure rule, and held that the insurer "on the risk" on the date of compensable disability bears the entire cost of the disability. In an appeal from this decision, the Snohomish County Superior Court affirmed the Department's order. The Company appealed to the Court of Appeals, which certified the case to this court pursuant to RCW 2.06.030.

Weyerhaeuser does not contest either the appropriateness or the amount of the award. It only challenges the holding that it is solely liable for the full amount of that award.

In each of the cases presently on appeal the Board continued its consistent policy of applying the last injurious exposure rule in occupational disease cases. 5 Weyerhaeuser maintains, however, that apportionment among insurers is the more appropriate rule. Under apportionment, each insurer is responsible for the portion of the disability that occurred during its coverage of the employee. Weyerhaeuser asserts three arguments in support of its position. First, it argues the segregation provisions of the Act authorize apportionment. Second, it asserts the last injurious exposure rule is incompatible with the Act. Third, it maintains that equity requires that the State be held responsible for the percentage of the disability that occurred when it provided coverage to Weyerhaeuser employees.


Washington statutes allow for segregation of prior disabilities in determining the amount of compensation due an injured worker. RCW 51.32.080(3) provides:

Should a worker receive an injury to a member or part of his or her body already ... permanently partially disabled, resulting in the amputation thereof or in an aggravation or increase in such permanent partial disability but not resulting in the permanent total disability of such worker, his or her compensation for such partial disability shall be adjudged with regard to the previous disability of the injured member or part and the degree or extent of the aggravation or increase of disability thereof.

That provision directs the Department to consider and segregate the extent of the previous disability when fixing the amount of the compensation due for the second injury. Beyer v. Department of Labor & Indus., 17 Wash.2d 29, 31, 134 P.2d 948, 137 P.2d 1016 (1943); Corak v. Department of Labor & Indus., 2 Wash.App. 792, 801, 469 P.2d 957 (1970).

RCW 51.32.100 provides:

If it is determined that an injured worker had, at the time of his or her injury, a preexisting disease and that such disease delays or prevents complete recovery from such injury, it shall be ascertained ... the period over which the injury would have caused disability were it not for the diseased condition and the extent of permanent partial disability which the injury would have caused were it not for the disease, and compensation shall be awarded only therefor.

On its face RCW 51.32.100 relates only to setting the amount of compensation. Neither it nor RCW 51.32.080(3) explicitly addresses the question of who is liable for that compensation. Furthermore, each statute deals only with injuries; neither addresses occupational diseases.

Nonetheless, Weyerhaeuser contends that the above statutes indicate a legislative preference for apportionment. The Company interprets the segregation statutes as a type of apportionment, since those statutes "apportion" the amount of compensation based on the cause of the disability. Weyerhaeuser then points to the RCW 51.16.040 requirement that

[t]he compensation and benefits provided for occupational diseases shall be paid and in the same manner as compensation and benefits for injuries under this title.

The Company reasons that RCW 51.16.040, read in conjunction with the segregation statutes, requires apportionment in these cases. However, RCW 51.16.040 mandates only that the amount of benefits paid be the same regardless of whether the underlying cause of disability is an injury or an occupational disease. The statute does not address apportionment of responsibility for payment of the compensation.

We disagree with Weyerhaeuser's argument that the segregation provisions authorize apportionment. Those provisions only address the computation of the amount of the award. Furthermore, they could be read as indicating a legislative intent not to require apportionment of responsibility in occupational disease cases. Two rules of statutory construction lead to this conclusion.

First, each provision of the statute should be read in relation to the other provisions, and the statute should be construed as a whole. State v. Sommerville, 111 Wash.2d 524, 531, 760 P.2d 932 (1988). Second, when a statute specifies the class of things upon which it operates, it can be inferred that the Legislature intended to exclude any omitted class. State v. Williams, 94 Wash.2d 531, 537, 617 P.2d 1012 (1980). In RCW 51.32.080(3) the Legislature authorizes segregation of a prior disability when there is an additional injury to a part of the body already permanently partially disabled. RCW 51.32.100 mandates segregation when a preexisting disease delays or prevents recovery from an injury. The "second injury fund" 6 authorizes apportionment when a previously disabled worker becomes permanently and totally disabled. Thus, the Legislature has, in three specific instances, authorized a form of apportionment. It can be inferred that the Legislature's refusal to specifically approve apportionment among successive insurers in occupational disease cases is intentional. Therefore, we reject Weyerhaeuser's argument, and decline to judicially impose apportionment in these cases. 7


Weyerhaeuser asserts that the last injurious exposure rule is incompatible with the Act. The Company's argument is twofold. First, it argues that since the Washington statutory scheme does not allow private insurance there is no justification for the rule. Second, it contends that the rule defeats the Act's goal of limiting employer liability.

The normal justification for the last injurious exposure rule is that the rule solves two problems peculiar to occupational disease cases involving successive insurers. The Supreme Court of Oregon characterizes these as the proof problem 8 and the assignment of responsibility problem. In re Runft, 303 Or. 493, 499, 739 P.2d 12 (1987). With respect to Weyerhaeuser's argument, only the assignment of responsibility problem is at issue. This refers to the difficulty in determining which insurer should be held responsible for what percentage of the award.

Under an apportionment system there must be a determination made as to what proportion of the disability occurred when each insurer was at risk. As the Board notes, however,

an occupational disease may occur over a prolonged period of time during which a worker may receive multiple exposures while in the course of employment with multiple employers. If each successive employment exposes the worker to the conditions giving rise to the occupational disease, then that disease has arisen naturally and proximately out of each of those employments.... The problem is that it is difficult, if not impossible, to go back in time and determine the degree or extent to which each and every exposure affected the ultimate disability.

In re Renfro, Bd. of Indus. Ins. Appeals Dec. 86,2392 at 6 (1988); see also 4 A. Larson § 95.11, at 17-116. This problem makes it difficult to assign proportionate responsibility. 9 The last...

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