Kilpatrick v. Department of Labor & Industries , 125 Wash. 2d 222 ( 1995 )

Johnson, J.

In each of the three consolidated cases, the widow of a deceased worker challenges the calculation of surviving spouse’s benefits under Washington’s workers’ compensation act, the Industrial Insurance Act. RCW Title 51.

The Superior Court affirmed the Department of Labor and Industries (Department) and the Board of Industrial Insurance Appeals (Board) in the calculation of benefits for each surviving spouse at the rate schedule in effect when her husband first manifested an asbestos-related disease. The widows contend the benefits should be paid at the rate in effect (1) at the death of their husbands, or (2) at the manifestation of the specific asbestos-related condition which caused the death.

We reverse, and hold survivor’s benefits are determined according to the rate schedule in effect at the date of manifestation of the particular asbestos-related disease which caused the worker’s death.

Facts

The pertinent facts of the three cases are similar and not contested by the parties. Each worker suffered occupationally related asbestos exposure and filed a claim for an asbestos-related condition prior to 1988. In 1988, the Legislature amended the statutes relating to the maximum monthly payments available under the Industrial Insurance Act, RCW 51.32.050 and RCW 51.32.060.¹ The amendments increased the monthly benefit from 75 percent to 100 percent of the average worker’s salary. After the effective date of the amendments, July 1, 1988, each worker manifested and quickly died from a second asbestos-related disease.

Kilpatrick

Mr. Kilpatrick manifested asbestos-related lung disease on January 19, 1983, as a result of work-related asbestos exposure. The asbestos exposure also resulted in a diagnosis of intraabdominal mesothelioma in November 1988. Mr. Kil-patrick died on December 29, 1988.

On May 17, 1989, Mrs. Kilpatrick filed her claim for survivor’s benefits. In calculating her benefits, the Department used the 75 percent rate in effect when Mr. Kilpatrick manifested asbestos-related lung disease, rather than the 100 percent rate in effect at the manifestation of mesothe-lioma. Mrs. Kilpatrick appealed to the Board, which affirmed the Department. She then appealed to superior court, which granted summary judgment for the Department. She appealed to the Court of Appeals, Division One, and the case was transferred to this court.

Hendricks

Mr. Hendricks first submitted a claim for asbestosis on August 4,1986. In April 1989, Mr. Hendricks was diagnosed with lung cancer. Mr. Hendricks underwent surgery to remove the cancerous tumor from his lung. On April 15, 1989, following lung surgery, Mr. Hendricks died of a heart attack.

The Department received Mrs. Hendricks’ claim for survivor’s benefits on May 3,1989. Mr. Hendricks had been aware of both the asbestosis and asbestos-related pleural disease by June 1987. Therefore, June 1987 was used by the Department as the date of manifestation for the purpose of calculating benefits. Mrs. Hendricks appealed the calculation of benefits to the Board, which affirmed the Department. She then appealed to superior court, which granted summary judgment for the Department. She appealed to Division One, and the case was consolidated and transferred to this court.

Lee

Mr. Lee first filed a claim for asbestosis on June 29, 1979. On August 31,1983, the Department closed Mr. Lee’s claim with an award for permanent partial respiratory impairment.

In July 1990, Mr. Lee was diagnosed with lung cancer. He had continued to work full time as an insulator up until the cancer diagnosis. Mr. Lee filed an application to reopen his claim on October 1, 1990. On November 19, 1990, the Department reopened the original claim, classifying the new claim for lung cancer as an aggravation of the asbestosis. In this way, the claims were consolidated, using the date of manifestation of the asbestosis. Mr. Lee then filed a new claim for the same lung cancer. The lung cancer claim was denied as a separate claim. Mr. Lee protested this decision. The Department reaffirmed its position, and Mr. Lee appealed the reaffirming order to the Board on February 13, 1991.

Mr. Lee died on May 12, 1991, and Mrs. Lee filed for survivor’s benefits. The Department calculated the benefits according to the rate in effect on June 14, 1983, when the original asbestosis manifested itself. Mrs. Lee appealed.

The Board consolidated Mrs. Lee’s appeals of the reaffirming order and the calculation of benefits. The Board affirmed the Department on both orders, relying in part on its decision in In re Kilpatrick, Bd. of Indus. Ins. Appeals Dec. 89 5200 (1991). Further, the Board made findings of fact that Mr. Lee suffered from asbestosis and small cell carcinoma of the lung from the same exposure to asbestos, and that the lung cancer was an aggravation of his asbestos-related disease covered by the original claim. Mrs. Lee appealed the Board’s decision to superior court. The court granted summary judgment for the Department. Mrs. Lee appealed to the Court of Appeals, Division Two, and the case was transferred to this court.

Analysis

The claimants contend they are entitled to collect benefits at the 100 percent level instituted by the 1988 amendments based on two arguments.² First, they argue the claim for survivor’s benefits does not accrue until the death of the worker. Therefore, they argue, it should be treated as a separate claim brought after the effective date of the 1988 increase in benefits. Under this approach, the widows would be entitled to the schedule of benefits in effect at the death of their husbands.

Second, the claimants challenge the Department’s handling of the final disease as an aggravation or continuation of the original asbestos-related claim, using the original manifestation date to determine benefits. They argue the relevant date of manifestation of an occupational disease is the date each worker contracted the specific asbestos-related disease which caused the death. This approach would also entitle the claimants to the 100 percent compensation rate, which was in effect at the manifestation of the final disease.

In addition, the claimants seek attorney fees on appeal under RCW 51.52.130.

We hold that for purposes of determining the applicable benefit schedule, the widows’ claims are not independent of their husbands’ claims, and thus do not use a different date of injury when calculating their survivor’s benefits. However, we hold the widows are entitled to the 100 percent benefit level instituted by the 1988 amendments on the basis that the date of manifestation of the specific disease that caused death is the relevant manifestation date for determining the applicable level of benefits.

A

The claimants’ first argument is a familiar one, and one which we have consistently declined to adopt. Relying on Purdy & Whitfield v. Department of Labor & Indus., 12 Wn.2d 131, 120 P.2d 858 (1942), McFarland v. Department of Labor & Indus., 188 Wash. 357, 62 P.2d 714 (1936), and Beels v. Department of Labor & Indus., 178 Wash. 301, 34 P.2d 917 (1934), the claimants argue a beneficiary’s claim is separate and distin ct from the worker’s claim.

The claimants contend Purdy, McFarland, and Beels establish that a beneficiary’s claim is based upon the fact of death and accrues from that date. A worker’s claim, they argue, is based upon the fact that an industrial injury has been sustained, or that an occupational disease has been contracted, and accrues at the date of injury or manifestation of disease. Therefore, according to the argument, the worker’s claim and the survivor’s claim should be treated as independent claims, with the benefits determined as of the date each claim accrues.

However, it is well settled in this state that survivor’s benefits are fixed at the rate schedule in effect on the date of the worker’s injury, or in the case of occupational disease, date of manifestation. Ashenbrenner v. Department of Labor & Indus., 62 Wn.2d 22, 380 P.2d 730 (1963); Barlia v. Department of Labor & Indus., 23 Wn.2d 126, 160 P.2d 503 (1945); Lynch v. Department of Labor & Indus., 19 Wn.2d 802, 145 P.2d 265 (1944). In Ashenbrenner, Barlia, and Lynch, a surviving spouse sought to obtain the Legislature’s postinjury increase in survivor’s benefits, arguing the spousal claim did not accrue until the death of the worker. In each case we reaffirmed the rule that a survivor’s claim is independent from the worker’s claim to the extent the worker cannot waive the survivor’s rights to benefits. Barlia, 23 Wn.2d at 129. However, the survivor’s claim is derivative of the worker’s injury claim for the purpose of determining the applicable schedule of benefits.

Because the survivor’s claim derives from the injury claim, the date of injury controls the schedule of benefits. In the context of occupational disease, the counterpart to date of injury is date pf manifestation. Department of Labor & Indus. v. London, 117 Wn.2d 122, 125-26, 814 P.2d 626 (1991). Thus, the date of manifestation controls the schedule of benefits for the worker’s claim for an asbestos-related disease and for the survivor’s claim for death benefits.

The Department is correct that for the purpose of determining benefit schedules, a survivor’s claim is a derivative of the injured worker’s claim. Thus, the relevant date for determining survivor’s benefits is the date of the worker’s injury, or in case of disease, the date of manifestation.

B

Alternatively, the claimants argue they are entitled to the increased survivor’s benefits under the 1988 amendments to the workers’ compensation act because the relevant date of manifestation occurred after the effective date of the amendments. This argument turns on whether disability from a separate asbestos-related disease gives rise to a separate date of manifestation. London foreshadowed this issue but did not decide it: "We recognize that the date of manifestation itself is open to differing interpretations”. London, 117 Wn.2d at 128.

There are three primary diseases associated with asbestos exposure: asbestosis, lung cancer, and mesothelioma. Gideon Mark, Comment, Issues in Asbestos Litigation, 34 Hastings L.J. 871, 875 (1983). The Department and the claimants agree the various asbestos-related conditions are separate diseases. The parties also agree the same exposure to asbestos may lead to several separate and distinct asbestos-caused medical conditions, each with different latency periods. A worker who is exposed to asbestos may contract one of the conditions, and not another. It is possible a worker may contract all the conditions.

The claimants contend that because the final, fatal asbestos-induced disease is a separate and distinct condition, its onset gives rise to a separate and distinct date of manifestation. Accordingly, the claimants assert it was error for the Department to use the date of manifestation of the initial asbestos-induced disease in determining benefits. They argue the relevant manifestation date for determining benefits is that of the final asbestos-induced disease which caused the death. This approach would entitle the claimants to the 100 percent level of compensation effective July 1, 1988, because each worker manifested the final, fatal asbestos-related disease after that date.

The Department treats a later manifesting asbestos-related disease as an aggravation of the original asbestos-related condition even though each is a separate and distinct disease. The Department contends it is well established that all medical conditions which arise from the original traumatic event are covered under the same claim, regardless of when they arise. Seattle Sch. Dist. 1 v. Department of Labor & Indus., 116 Wn.2d 352, 358-59, 804 P.2d 621 (1991); Corak v. Department of Labor & Indus., 2 Wn. App. 792, 800-01, 469 P.2d 957 (1970). Under the Department’s approach, even though a worker’s lung cancer is a different disease process than the ashestosis, both diagnoses arise out of the same asbestos exposure and would be handled as part of the same claim.

The problem with treating a separately occurring asbestos-related disease as an aggravation of the original asbestos-related disease is readily apparent. Each asbestos-related disease involves a unique pathology, requires a different treatment, and is not, in fact, an aggravation or continuation of a different asbestos-related condition. Thus, the asbestos-related conditions necessarily involve different dates of injury or manifestation. Chevron U.S.A., Inc. v. Workers’ Comp. Appeals Bd., 219 Cal. App. 3d 1265, 268 Cal. Rptr. 699 (1990).

Another problem with the Department’s approach is that it focuses on the date of exposure even though the relevant occurrence for determining benefits is the manifestation of disease, not the date of exposure. Landon, 117 Wn.2d at 124. In Landon, we noted the shift to the date of manifestation and away from the date of exposure fulfills our statutory mandate of liberal construction to insure the fair compensation of disabled workers, with all doubts resolved in favor of the employee. Landon, 117 Wn.2d at 126; Dennis v. Department of Labor & Indus., 109 Wn.2d 467, 470, 745 P.2d 1295 (1987). In addition, the purpose of workers’ compensation benefits is to reflect future earning capacity rather than wages earned in past employment, and the application of outdated benefit schedules fails to fulfill that purpose. Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1289 (9th Cir. 1983). The Department’s focus on the date of exposure is more likely to cause an outdated schedule of benefits to be applied. Landon, 117 Wn.2d at 127.

The same reasoning applies here. If the worker were confined to the original date of manifestation, benefits would be determined according to schedules already obsolete under current statutes. This is inconsistent with the purpose of replacing future wages, and the express goal of the workers’ compensation act to reduce to a minimum the worker’s economic loss. RCW 51.12.010. Thus, the policies behind the workers’ compensation act, Landon’s directive that we focus on the date of manifestation in latent occupational diseases, and the undisputed medical evidence compel the conclusion that the claimants’ final asbestos-induced disease should be accorded its own date of manifestation.

The Department argues the claimants’ proposed approach represents a symptom-by-symptom date of manifestation rule. However, these cases do not involve a worker who manifests additional symptoms of the original disease. Instead, years after the original ashestos-related condition, each worker suffered the onset of an entirely different disease with its own set of symptoms and treatment.

The Department also asserts that using the later manifestation date violates the statutory provision requiring occupational disease claims and injury claims be handled "in the same manner”. RCW 51.16.040. In handling an industrial injury claim, the injured worker’s rights are fixed at the time of the original injury regardless of whether there is a subsequent aggravation or worsening of the condition. Corak, 2 Wn. App. at 800-01. The Department argues RCW 51.16.040 dictates only one date of manifestation when the worker suffers multiple, unrelated diseases.

We do not agree. RCW 51.16.040 requires the amount of benefits paid to workers suffering an occupational disease be calculated in the same way as benefits paid to those suffering an industrial injury. Landon, 117 Wn.2d at 124. Just as multiple dates of injury will give rise to multiple industrial injury claims, so also will the worker who establishes separate and distinct diseases from asbestos exposure be able to claim separate dates of manifestation.

Conclusion

We hold the survivor’s benefits should be determined as of the date of manifestation of the asbestos-related disease causing the death. The right to attorney fees, as well as the determination of the amount thereof, is governed by the statute in force at the termination of the action, rather than at the time of its commencement. Petersen v. Port of Seattle, 94 Wn.2d 479, 487, 618 P.2d 67 (1980); Mackey v. American Fashion Inst. Corp., 60 Wn. App. 426, 430, 804 P.2d 642 (1991); Bellingham v. Eiford Constr. Co., 10 Wn. App. 606, 608, 519 P.2d 1330, review denied, 84 Wn.2d 1002 (1974). Under amended RCW 51.52.130, effective July 25, 1993, claimants are entitled to reasonable attorney fees for their appeals to superior court and to appellate courts, where the Board’s decision is reversed or modified and additional relief is granted to a worker or beneficiary. See Laws of 1993, ch. 122, § 1. Accordingly, the claimants are entitled to their reasonable attorney fees incurred in their appeal to superior court and this court. On remand, the trial court shall determine the proper amount of attorney fees to be awarded. RAP 18.1 (i).

These cases are remanded for proceedings consistent with this opinion.

Utter, Brachtenbach, Smith, and Guy, JJ., concur.

1 As a result of the 1988 amendments, RCW 51.32.050(2Xd) read: "In no event shall the monthly payments provided in subsection (2) of this section exceed one hundred percent of the average monthly wage in the state as computed under RCW 51.08.018”. Likewise, amended RCW 51.32.060(5) read: "In no event shall the monthly payments provided in this section exceed one hundred percent of the average monthly wage in the state as computed under the provisions of RCW 51.08.018, except that this limitation shall not apply to the payments provided for in subsection (3) of this section”. Laws of 1988, ch. 161, §§ 2,1. Previously, each of the subsections listed "seventy five percent” as the maximum monthly rate.

Both statutes were subsequently amended in 1993; however, the 1993 amendments do not affect the outcome in this case.

2 The claimants make an additional argument, asserting the date the claim for survivor’s benefits was filed should control which benefit schedule applies to their claims. However, there is no support for this position and the amendments clearly state the date a claim is filed is not relevant to the determination of benefits. RCW 51.32.180 provides: "for claims filed on or after July 1,1988, the rate of compensation for occupational diseases shall be established as of the date the disease requires medical treatment or becomes totally or partially disabling, whichever occurs first, and without regard to the date of the contraction of the disease or the date of filing the claim”. (Italics ours.)