Clauson v. Department of Labor & Industries , 130 Wash. 2d 580 ( 1996 )

Guy, J.

— The issue in this case is whether a worker who has been awarded a permanent total disability pension under one worker’s compensation claim may later receive a permanent partial disability award for a prior injury under a separate, pre-existing claim. We hold that the timing of the closure of claims should not work to the disadvantage of an injured worker. The worker in this case, therefore, is entitled to the additional compensation for his permanent partial disability. The Court of Appeals is affirmed.

Facts

Henry Clauson, the worker involved in this appeal, injured his right hip in an industrial accident in August 1974, and filed an application for benefits with the Department of Labor and Industries in September 1974. When that claim was closed six years later, in September 1980, Mr. Clauson was awarded a permanent partial disability award equal to 35 percent of the amputation value of the right leg.

Approximately two and one-half years later, in January 1983, Mr. Clauson suffered a second industrial injury. This injury was to his low back and left hip (hereafter referred to as back injury). He filed a claim for benefits with the Department of Labor and Industries and received continuous time loss payments under that claim from January 1983 to August 1989, when he was determined to be permanently and totally disabled. He was placed on the disability pension rolls on August 16, 1989.

Meanwhile, in April 1987, while his second claim (for the back injury) was pending, Mr. Clauson’s claim for the right hip injury was reopened for medical treatment purposes. Mr. Clauson had hip replacement surgery in September 1988. The parties agree that his right hip condition became medically fixed and stable sometime between February 1989, when his doctor would have testified that his condition was not stable, and August 23, 1989, when his physician last saw him and when his condition was medically fixed and stable.

In October 1989, at the request of the Department of Labor and Industries, a panel of examiners saw Mr. Clauson and concluded that he suffered a permanent partial disability of his right leg, due to the hip injury, of 60 percent.

Because Mr. Clauson had been classified as permanently and totally disabled as of August 16, 1989, and was receiving a pension, the Department closed Mr. Clauson’s right hip claim in October 1989 without making an additional award.

Mr. Clauson appealed, first to the Board of Industrial Insurance Appeals, then to the superior court, and then to the Court of Appeals. The Board and superior court concluded that the Industrial Insurance Act did not permit payment of benefits for a prior injury once the worker began receiving a permanent total disability pension. The Court of Appeals reversed, holding that Mr. Clauson was entitled to payment of both the pension (under the back claim) and the permanent partial disability award (under the hip claim). Clauson v. Department of Labor & Indus., 79 Wn. App. 537, 543, 903 P.2d 518 (1995), review granted, 128 Wn.2d 1022 (1996). We granted the Department’s petition for review.

Issue

Does the Industrial Insurance Act, RCW Title 51, permit a worker who has been classified as permanently and totally disabled, and who is receiving a pension, to additionally receive a permanent partial disability award, under an existing, open claim, for a prior injury?

Analysis

The issue raised by this appeal requires us to construe provisions of the Industrial Insurance Act (the Act), RCW 51.32, providing for the payment of benefits to injured workers. The construction of a statute is a question of law and is reviewed de novo. Stuckey v. Department of Labor & Indus., 129 Wn.2d 289, 295, 916 P.2d 399 (1996); Waste Management of Seattle, Inc. v. Utilities & Transp. Comm’n, 123 Wn.2d 621, 627, 869 P.2d 1034 (1994); Our Lady of Lourdes Hosp. v. Franklin County, 120 Wn.2d 439, 443, 842 P.2d 956 (1993).

The Act is to be "liberally construed for the purpose of reducing to a minimum the suffering and economic loss arising from injuries and/or death occurring in the course of employment.” RCW 51.12.010. All doubts as to the meaning of the Act are to be resolved in favor of the injured worker. Kilpatrick v. Department of Labor & Indus., 125 Wn.2d 222, 230, 883 P.2d 1370 (1994), 915 P.2d 519 (1995); Dennis v. Department of Labor & Indus., 109 Wn.2d 467, 470, 745 P.2d 1295 (1987); Intalco Aluminum Corp. v. Department of Labor & Indus., 66 Wn. App. 644, 654, 833 P.2d 390 (1992), review denied, 120 Wn.2d 1031 (1993).

The right to workers’ compensation benefits is statutory, and a court will look to the provisions of the Act to determine whether a particular worker is entitled to compensation. Harrington v. Department of Labor & Indus., 9 Wn.2d 1, 5, 113 P.2d 518 (1941).

RCW 51.32.060 provides that a worker who is permanently and totally disabled shall receive monthly payments during the period of disability. The amount of payment is determined by the statute and is based primarily on the worker’s wages and family size. RCW 51.32.060(1).

Compensation for a permanent and total disability is awarded where there is a complete loss of earning power, such as an inability to perform reasonably obtainable work suitable to the worker’s existing qualifications and training. "This definition is satisfied, and the employee is put on what is commonly referred to as the 'pension’ rolls, when there is a total loss of eyesight, paralysis, loss of both legs or arms or a combination of them, or other conditions permanently incapacitating the worker from performing any work at any gainful occupation.” 1A Barbara Barker & Irene Scharf, Wash. Practice § 38.8, at 482 (1989); see RCW 51.08.160. The pension is awarded to an injured worker who has previously received a partial disability award, "notwithstanding the payment of a lump sum for his or her prior injury.” RCW 51.32.060(4).¹

Permanent partial disability benefits for amputation or other disabilities not involving amputation shall be paid to the injured worker for the loss of, or the loss of use of, a specific part of the body. RCW 51.32.080(1),² RCW 51.08.150. Such losses are compensated in an amount specified in the statute for the particular loss. The loss is proved by objective medical findings, not by testimony that the employee is unable to work. Barker & Scharf, supra, § 38.10, at 483. See RCW 51.32.080; see also WAC 296--20-01002.

The compensation available to an injured worker under the Act may be limited in certain instances. For example, a worker who has been classified as permanently and totally disabled and who is awarded a pension under the Act may not be additionally compensated for industrial injuries which occur after the permanent total disability classification. Harrington v. Department of Labor & Indus., 9 Wn.2d at 7-8 (having been classified as permanently and totally disabled, worker could not, in law, be further disabled; subsequent lesser disability cannot be superimposed upon the maximum disability recognized by the law); Sorenson v. Department of Labor & Indus., 19 Wn.2d 571, 577-78, 143 P.2d 844 (1943) (having been classified as permanently totally disabled and having received the maximum allowed under the law, worker could not thereafter be compensated further); Peterson v. Department of Labor & Indus., 22 Wn.2d 647, 651, 157 P.2d 298 (1945) (a worker who accepts a permanent total disability award is estopped from receiving, and the department from paying, compensation for subsequent injuries).

No limiting factor exists in this case.

The facts in the present case differ from those in Harrington, Sorenson, and Peterson in that Mr. Clauson seeks a permanent partial disability award for an injury which was sustained before the injury resulting in his permanent total disability and which was considered under a separate claim, which was pending at the time he was classified as permanently totally disabled.

The Department concedes that had the sequence of closing Mr. Clauson’s claims been reversed (i.e., his hip claim had been closed with a partial disability award before he was classified as permanently and totally disabled under the back claim), Mr. Clauson would have been entitled to the full pension, "notwithstanding the payment of a lump sum for his . . . prior injury.” RCW 51.32.060(4). See, e.g., Peterson, 22 Wn.2d 647.

We read the statute as requiring compensation under the particular circumstances of this case. In light of the mandate that any doubt as to the meaning of the workers’ compensation law be resolved in favor of the worker, we hold that the worker here should not be denied benefits under his hip claim simply because his hip condition was not medically fixed and stable until one week after his back claim was resolved.

Because of our resolution of this appeal, we deem it unnecessary to determine the broader issues raised by the parties.

We affirm the Court of Appeals decision in its entirety. Under RCW 51.52.130 and RAP 18.1, Mr. Clauson is entitled to an award of reasonable attorney fees in this court.

Dolliver, Smith, Johnson, Madsen, Alexander, and Sanders, JJ., concur.

1 CW 51.32.060 was amended in 1993, Laws op 1993, ch. 521, § 2. The subsection quoted was not affected by the amendment.

2 CW 51.32.080 was amended in 1993, Laws op 1993, ch. 520, § 1. The amendment did not significantly affect the language of this subsection.