White v. Qwest Corp.

• Decision Date: 09 November 2020
• Docket Number: No. 80715-3-I,80715-3-I
• Citation: 478 P.3d 96,15 Wash.App.2d 365
• Court: Washington Court of Appeals
• Parties: David WHITE, Appellant, v. QWEST CORPORATION dba CenturyLink and Department of Labor and Industries of the State of Washington, Respondents.

15 Wash.App.2d 365

478 P.3d 96

David WHITE, Appellant,

v.QWEST CORPORATION dba CenturyLink and Department of Labor and Industries of the State of Washington, Respondents.

No. 80715-3-I

Court of Appeals of Washington, Division 1.

FILED November 9, 2020

Ordered Published Date December 18, 2020

Dominique Louise Eng Jinhong, Attorney at Law, 2522 N Proctor St. #199, Tacoma, WA, 98406-5338, for Appellant.

Shawna G. Fruin, Reinisch Wilson Weier, P.C., 10260 SW Greenburg Rd. Ste. 1250, Portland, OR, 97223-5522, Anastasia R. Sandstrom, Attorney General's Office, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, for Respondents.

PUBLISHED OPINION

Chun, J. ¶1 An employee who suffers from occupational-related hearing loss must file a claim for workers’ compensation benefits within two years of the worker's last exposure to occupational noise or by September 10, 2004, whichever date is later. RCW 51.28.055(2)(a). The failure to do so precludes monetary benefits, such as a partial disability award, and limits recovery to medical aid benefits. In this case, the claimant's last exposure to occupational noise occurred, at the latest, in 1986 and he filed his claim for benefits three decades later. The claimant was entitled only to medical benefits. The statutory limitations provision does not violate equal protection by distinguishing occupational-related hearing loss from other occupational disease or violate due process. We thus affirm the superior court's order granting the employer's motion for summary judgment.

BACKGROUND

¶2 In 2017, David White filed a claim for occupational hearing loss that occurred during his employment with Qwest Corporation, d/b/a CenturyLink. Based on the information White provided in his claim, the Department of Labor and Industries (Department), the agency responsible for administering Washington's workers’ compensation system, allowed the claim. See RCW 43.22.030 (power and duties of the director of the Department). The Department awarded partial disability benefits of $38,509, corresponding to 40.10 percent bilateral hearing loss.

¶3 Both White and the employer appealed the Department's order to the Board of Industrial Insurance Appeals (Board). See WAC 263-12-010 (function and jurisdiction of the Board) While the appeal was pending, White responded to the employer's discovery requests and indicated that his last date of employment with CenturyLink or its subsidiaries was in 1986, at the latest.

¶4 CenturyLink moved for partial summary judgment and moved to limit the claim to medical benefits. CenturyLink asserted that White was ineligible for monetary benefits because his claim was untimely under RCW 51.28.055, a statute of limitations provision that applies to occupational hearing loss. CenturyLink stipulated to liability for medical aid benefits—in this case, hearing aids. The Department, having learned the date of White's last exposure to occupational noise, did not contest the employer's motions. The Board granted CenturyLink's motions, reversed the Department's permanent partial disability award, and affirmed the allowance of medical aid benefits.

¶5 White appealed the Board's decision to superior court. CenturyLink moved for summary judgment. The Department supported the employer's motion. After hearing argument, the superior court granted CenturyLink's motion. White appeals.

ANALYSIS

¶6 White claims the superior court erred in granting summary judgment because RCW 51.28.055(2) is unconstitutional.

Specifically, White contends that the statute arbitrarily discriminates between claimants with occupational hearing loss and those with other occupational diseases and violates due process.

¶7 Reviewing a decision under the Industrial Insurance Act (IIA), the superior court "considers the issues de novo, relying on the certified board record." RCW 51.52.115 ; Malang v. Dep't of Labor and Indus., 139 Wash. App. 677, 683, 162 P.3d 450 (2007). We review the superior court's decision, not the Board's order. RCW 51.52.140.

¶8 The superior court's ruling is subject to the ordinary rules governing civil appeals. RCW 51.52.140 ; Romo v. Dep't of Labor & Indus., 92 Wash. App. 348, 353, 962 P.2d 844 (1998). Our review of the superior court's decision on summary judgment is de novo. Malang, 139 Wash. App. at 683-84, 162 P.3d 450. We review the superior court's grant of summary judgment to determine whether the evidence shows " ‘that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ " Romo, 92 Wash. App. at 354, 962 P.2d 844 (quoting CR 56(c) ). A statute is presumptively constitutional, and the party challenging a statute bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt. Morrison v. Dep't of Labor & Indus., 168 Wash. App. 269, 272, 277 P.3d 675 (2012).

¶9 RCW 51.28.055 establishes the limitations period for filing workers’ compensation claims based on occupational disease and includes a specific provision for work-related hearing loss. To be entitled to monetary benefits, a claimant must file such a claim within two years of the last exposure to workplace noise, or by September 10, 2004, whichever is later.

(2)(a) Except as provided in (b) of this subsection, to be valid and compensable, claims for hearing loss due to occupational noise exposure must be filed within two years of the date of the worker's last injurious exposure to occupational noise in employment covered under this title or within one year of September 10, 2003, whichever is later.

(b) A claim for hearing loss due to occupational noise exposure that is not timely filed under (a) of this subsection can only be allowed for medical aid benefits under chapter 51.36 RCW.

RCW 51.28.055(2) (emphasis added). In contrast, a claim for benefits based on other occupational diseases is timely if filed within two years after the worker receives written notice from a medical provider that the disease exists and that a claim may be filed. RCW 51.28.055(1). It is undisputed that White did not file his claim within two years of his last exposure to work-related noise or before September 10, 2004.

¶10 As an initial matter, White claims the superior court erred when it declined to reach his constitutional challenges to RCW 51.28.055(2) because, while he did not include a detailed discussion of his arguments in his brief opposing summary judgment, he raised the arguments in a previously-filed trial brief. On review of summary judgment, the appellate court considers the "evidence and issues called to the attention of the trial court." RAP 9.12. Assuming for purposes of this appeal that White properly called the court's attention to his constitutional arguments, we may consider the issues on review even if the superior court declined to do so. Goodwin v. Wright, 100 Wash. App. 631, 648, 6 P.3d 1 (2000). In other words, the proper remedy for the error, if any, is for this court to consider the arguments on de novo review.¹ See Mithoug v. Apollo Radio of Spokane, 128 Wash.2d 460, 463-64, 909 P.2d 291 (1996).

Equal Protection

¶11 White contends that RCW 51.28.055(2) violates equal protection because it "singles out a class of injured workers," those who suffer from occupational-related hearing loss, and treats them differently from workers who suffer from other occupational diseases with no rational basis or justification.

¶12 The equal protection clause of the Washington State Constitution, article I, section 12 and the Fourteenth Amendment to the United States Constitution require that "persons similarly situated with respect to the legitimate purpose of the law" receive like treatment. State v. Coria, 120 Wash.2d 156, 169, 839 P.2d 890 (1992). An equal protection challenge requires minimal scrutiny, unless the subject legislation affects a fundamental right or a suspect class. Skagit Motel v. Dep't of Labor & Indus., 107 Wash.2d 856, 859, 734 P.2d 478 (1987). White alleges neither and so we apply the rational basis standard of review. Harris v. Dep't of Labor & Indus., 120 Wash.2d 461, 477, 843 P.2d 1056 (1993) ; State v. Hirschfelder, 170 Wash.2d 536, 550, 242 P.3d 876 (2010). Under this standard, a provision is not constitutionally objectionable so long as it (1) applies alike to all members within the designated class, (2) reasonable grounds exist to support the classification, and (3) the classification bears a rational relationship to the purpose of the legislation. Am. Legion Post #149 v. Wash. Dep't of Health, 164 Wash.2d 570, 609, 192 P.3d 306 (2008).

¶13 RCW 51.28.055(2) applies equally to all members of the class (workers with occupational hearing loss) with regard to eligibility for benefits. White does not contend otherwise. But as to the second factor, White argues that because occupational-related hearing loss is categorized as an occupational disease, it must be treated the same in every respect to other occupational diseases. See Boeing Co. v. Heidy, 147 Wash.2d 78, 88, 51 P.3d 793 (2002) (noise-induced hearing loss is an occupational disease). In other words, White claims there are no reasonable grounds to support a distinct limitations period for hearing loss claims.

¶14 But White fails to address the unique aspects of hearing loss that provide a basis to distinguish it from other occupational diseases. While hearing loss is a "progressive condition," it is not progressive in the same manner as other conditions, such as asbestosis. Heidy, 147 Wash.2d at 88, 51 P.3d 793. Exposure to excessive noise causes sensory hair cells to die in the inner ear. In re Eugene W. Williams, No. 95 3780, at 4 (Wash. Bd. Ind. Ins. App. Mar. 2, 1998). When this happens, sensory cells are replaced by scar tissue that does not sense sound or transmit signals to the brain. Id. The process of aging also causes sensory hair cells to deteriorate and die in a clinically indistinguishable fashion. Id. But individuals do not lose sensory hair cells at the same rate as they age...