Kaiser Aluminum & Chemical Corp. v. Overdorff , 57 Wash. App. 291 ( 1990 )

Thompson, J.

(dissenting)—I am constrained to dissent since I disagree with the majority's conclusion that the allowance of time loss benefits to Mr. Overdorff is contrary to the legislative intent of the workers' compensation act. This conclusion overlooks the clear and unambiguous language of RCW 51.32.090(3), which provides:

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 [time loss] payments shall cease.

(Italics mine.) The italicized phrase focuses on the worker's physical capabilities rather than upon the worker's economic need for income replacement. In denying time loss benefits, the majority cites the fact that Mr. Overdorff lacked the "requisite adverse economic impact" because he was voluntarily retired. A logical extension of this analysis would make an injured worker's net worth a relevant consideration in determining whether benefits should be awarded in any case.

In support of its conclusion, the majority relies upon RCW 51.12.010, which reads:

This title shall be liberally construed for the purpose of reducing to a minimum the suffering and economic loss arising from injuries . . . occurring in the course of employment.

(Italics mine.) This general language cannot override the specific and unambiguous language of RCW 51.32.090(3). It would also appear somewhat ironic that a provision encouraging liberal construction is used to limit benefits to an injured worker. Cf. Gaines v. Department of Labor & Indus., 1 Wn. App. 547, 552, 463 P.2d 269 (1969) (any doubt as to the meaning of the statute should be resolved in favor of the claimant for whose benefit it was passed).

The reference in RCW 51.32.090(3) to the worker's present earning power also casts doubt on the majority's conclusion. The use of the word "present" suggests that retirement benefits, which are in the nature of deferred compensation already earned, should not be considered in determining whether time loss benefits are payable. Cf. Farver v. Department of Retirement Sys., 97 Wn.2d 344, 346, 644 P.2d 1149 (1982) (pension and other retirement plans are deferred compensation).

Finally, I note that the Legislature found it necessary to amend RCW 51.32.090 to add a section providing that workers who voluntarily retire and are no longer attached to the work force are not eligible for time loss benefits. RCW 51.32.090(8). Amendments of unambiguous statutes usually are intended as changes to the prior law. State v. Standifer, 110 Wn.2d 90, 94, 750 P.2d 258 (1988); Port of Edmonds v. Public Empl. Relations Comm'n, 103 Wn.2d 331, 336-37, 692 P.2d 814 (1985). See also 1A N. Singer, Statutory Construction § 22.30, at 265 (4th ed. 1985). The general rule is supported in this case by the legislative history connected with the passage of the amendment adding the subsection dealing with retirement. The House Journal for February 12, 1986, includes this entry at page 320:

Mr. McMullen: "Representative Wang, I'm concerned that we are changing the rules in midstream on certain people. Section 5 is dealing with retired people. Is it the intent of this legislation that it would only apply to the people who apply to reopen their claims after the effective date of this act and not before?"

Mr. Wang: "Yes, Representative McMullen, that is correct." (Italics mine.) I believe this exchange evidences not only that the legislation applies prospectively, rather than retroactively, but that it also changed existing law. Otherwise, Mr. McMullen would not have had any concern about retroactivity.

Based on the above reasons, I would affirm the trial court's judgment awarding time loss compensation to Mr. Overdorff.