IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DAVID WHITE, No. 80715-3-I
Appellant, DIVISION ONE v. UNPUBLISHED OPINION CENTURYLINK INC. and DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON,
Respondents.
CHUN, J. — 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.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 80715-3-I/2
BACKGROUND
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.
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.
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.
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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
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.
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 Wn. App. 677, 683,
162 P.3d 450 (2007). We review the superior court’s decision, not the Board’s
order. RCW 51.52.140.
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 Wn. App. 348,
353, 962 P.2d 844 (1998). Our review of the superior court’s decision on
summary judgment is de novo. Malang, 139 Wn. App. at 683-84. 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 Wn. App. at 354
(quoting CR 56(c)). A statute is presumptively constitutional, and the party
challenging a statute bears the heavy burden of proving its unconstitutionality
3 No. 80715-3-I/4
beyond a reasonable doubt. Morrison v. Dep’t of Labor & Indus., 168 Wn. App.
269, 272, 277 P.3d 675 (2012).
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.
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
4 No. 80715-3-I/5
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 Wn. 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 Wn.2d 460, 463-64, 909 P.2d 291 (1996).
Equal Protection
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.
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 Wn.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 Wn.2d 856, 859, 734 P.2d 478 (1987). White
alleges neither and so we apply the rational basis standard of review. Harris v.
1 Even if we were to conclude that White’s briefing below was insufficient to call the trial court’s attention to the issues he raises on appeal, this court “will consider an issue raised for the first time on appeal if the claimed error is a manifest error affecting a constitutional right.” Vernon v. Aacres Allvest, LLC, 183 Wn. App. 422, 427, 333 P.3d 534 (2014) (quoting RAP 2.5(a)(3)).
5 No. 80715-3-I/6
Dep’t of Labor & Indus., 120 Wn.2d 461, 477, 843 P.2d 1056 (1993); State v.
Hirschfelder, 170 Wn.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
Wn.2d 570, 609, 192 P.3d 306 (2008).
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 Wn.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.
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 Wn.2d at 88. 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
6 No. 80715-3-I/7
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 and there are a host of
other factors, including disease, infection, medications, and cardiovascular
efficiency, that may also affect an individual’s hair cell population. Id. “In sum,
determining the cause of hair cell loss in the presence of multiple potential
causes is an extremely difficult task” and there is no reliable clinical method to
determine what percentage of hearing loss is attributable to occupational noise
exposure versus the aging process or other non-work related cause. Id., at 5;
Heidy, 147 Wn.2d at 85-86.
Occupational hearing loss occurs simultaneously with exposure to
injurious noise, but ceases to progress once the exposure ends. Bath Iron
Works Corp. v. Dir., Office of Workers’ Comp. Programs, 506 U.S. 153, 161, 113
S. Ct. 692, 121 L. Ed. 2d 619 (1993); Jenkins v. Weyerhaeuser, 143 Wn. App.
246, 250, 256, 177 P.3d 180 (2008). Thus, the injury is complete when the
worker is removed from a noisy environment.2 Pollard v. Weyerhaeuser, 123
Wn. App. 506, 512, 98 P.3d 545 (2004). Because the progression of hearing
loss caused by workplace noise exposure may cease, while hearing loss may, for
other reasons, continue, there is a reasonable basis distinguish between
occupational hearing loss and other occupational disease. And there is a logical
2 White asserts that he did not experience hearing loss until long after his employment ended and the employer did not provide audiogram testing during his employment. White fails to cite the record to support these allegations, as RAP 10.3(a)(6) requires, and our review of the certified board record reveals no evidence to support these assertions of fact.
7 No. 80715-3-I/8
and scientific basis to tie the limitations period to the end of exposure to
workplace noise.
White claims that a separate classification for claimants who suffer from
occupational hearing loss is “antithetical” to another provision of the IIA,
RCW 51.16.040. But that statute simply provides that benefits for workers
disabled by occupational diseases must be calculated in the same way as
benefits for those who suffer injury on the job. Dep’t of Labor & Indus. v. Landon,
117 Wn.2d 122, 124, 814 P.2d 626 (1991). Nothing in RCW 51.16.040 requires
the same statute of limitations to apply to every condition classified as an
occupational disease. White fails to overcome the presumption that the statutory
classification is reasonable. See Skagit Motel, 107 Wn.2d at 860.
As to the third factor, whether the challenged classification has a rational
relationship to the purpose of the legislation, a claimant must do more than
question the wisdom of the statute. Masunaga v. Gapasin, 57 Wn. App. 624,
633, 790 P.2d 171 (1990). A classification must be “purely arbitrary” to
overcome the strong presumption of constitutionality. State v. Smith, 117 Wn.2d
263, 279, 814 P.2d 652 (1991).
The IIA was designed to ensure “sure and certain relief” to workers, while
at the same time, limit employer liability for industrial injuries. RCW 51.04.010;
Dennis v. Dep’t of Labor & Indus., 109 Wn.2d 467, 471, 745 P.2d 1295 (1987).
Requiring hearing loss claims to be filed within two years of the most recent
workplace noise exposure furthers the legislative purpose of avoiding stale
claims and limiting employers’ liability for hearing loss that is unrelated to
8 No. 80715-3-I/9
occupational factors. See Campos v. Dep’t of Labor & Indus., 75 Wn. App. 379,
389, 880 P.2d 543 (1994) (upholding RCW 51.32.160 against an equal protection
challenge because the distinction between claims closed upon a medical
recommendation and those closed without such a recommendation was
rationally related to the statutory purpose of finalizing claims). White fails to
“show conclusively that the classification is contrary to the legislation’s
purposes.” Yakima County Deputy Sheriff's Ass’n v. Bd. of Comm’rs, 92 Wn.2d
831, 836, 601 P.2d 936 (1979). We conclude that RCW 51.28.055 does not
violate equal protection.
Due Process
White also claims that RCW 51.28.055(2) violates his right to procedural
due process.
Both the United States and Washington State Constitutions declare that
no person may be deprived of life, liberty, or property without due process of law.
U.S. CONST. amend. V, XIV, § 1; WASH. CONST. art. I, § 3. Procedural due
process refers to the procedures that the government must follow before it
deprives a person of life, liberty, or property. See Nieshe v. Concrete Sch. Dist.,
129 Wn. App. 632, 640, 127 P.3d 713 (2005). Due process is a flexible concept
and calls for such procedural protections that the particular situation demands.
Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976);
Morrison, 168 Wn. App. at 272-73. State action that results in the deprivation of
constitutionally protected interests is not necessarily unconstitutional; it is only
the deprivation of such interests without due process of law that offends the
9 No. 80715-3-I/10
constitution. Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 108 L. Ed.
2d 100 (1990).
A statute meets the requirements of due process if it provides adequate
notice and standards to prevent arbitrary enforcement. State v. Maciolek, 101
Wn.2d 259, 264, 676 P.2d 996 (1984). Due process does not require actual
notice; rather, it requires the government to provide “‘notice reasonably
calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their
objections.’” Speelman v. Bellingham/Whatcom County Hous. Auth., 167 Wn.
App. 624, 631, 273 P.3d 1035 (2012) (quoting Jones v. Flowers, 547 U.S. 220,
226, 126 S. Ct. 1708, 164 L. Ed. 2d 415 (2006)). Determining what process is
due in a given situation requires consideration of (1) the private interest involved,
(2) the risk that the current procedures will erroneously deprive a party of that
interest, and (3) the governmental interest involved. Mathews, 424 U.S. at 334-
35.
White asserts a “vested interest in receiving his due benefits.” He also
claims that RCW 51.28.055(2) fails to provide adequate procedural protections
because it does not require employers to assess workers or apprise them of the
causal connection between workplace noise and hearing loss, and does not
require individualized notice of the specific limitations period that applies to
occupational hearing loss claims.
A person who alleges a deprivation of due process must first establish a
legitimate claim of entitlement. Haberman v. Wash. Pub. Power Supply Sys.,
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109 Wn.2d 107, 142, 744 P.2d 1032, 750 P.2d 254 (1987). “Legitimate claims of
entitlement entail vested liberty or property rights.” Haberman, 109 Wn.2d at
142. A vested right is “‘something more than a mere expectation based upon an
anticipated continuance of the existing law; it must have become a title, legal or
equitable, to the present or future enjoyment of property, a demand, or a legal
exemption from a demand by another.’” Caritas Servs., Inc. v. Dep’t of Soc. &
Health Servs., 123 Wn.2d 391, 414, 869 P.2d 28 (1994) (emphasis omitted)
(quoting In re Marriage of MacDonald, 104 Wn.2d 745, 750, 709 P.2d 1196
(1985)).
Even assuming that White established a legitimate claim of entitlement to
a partial disability award, his arguments reflect a misunderstanding of the
purpose of the procedural safeguards required by the due process clause. The
guarantee of due process applies to actions of government officials that deprive
an individual of vested rights. It includes the right to be notified of a
governmental decision or action and a meaningful opportunity to be heard to
guard against an erroneous deprivation. See Speelman, 167 Wn .App. at 631.
Here, the state action that affected White’s asserted interest was the
Board’s determination that his claim was untimely and he was ineligible for the
benefit. It is undisputed that White had notice of the Board’s decision and an
opportunity to challenge it. No authority supports White’s claim of a due process
right to notice from his employer, a private entity, of a triggering event for
purposes of a statute of limitations. See Harry v. Buse Timber & Sales, Inc., 166
Wn.2d 1, 19, 201 P.3d 1011 (2009) (employer had “no obligation” to inform the
11 No. 80715-3-I/12
employee that he had compensable loss). To the extent that White advocates for
mandatory audiogram testing, health and safety regulations in place both
currently and at the time of White’s employment require such testing if the
workplace meets certain threshold requirements. See WAC 296-817-100; see
also former WAC 296-62-09027 (1986). There are no facts in the record to
establish whether White’s workplace met the requirements for testing or evidence
in the record to support the assertion that he was not tested prior to leaving his
employment.
In addition, RCW 51.28.055 plainly states the timing requirements for
occupational hearing loss claims and the consequences of untimely filing. It is
well settled that a person is presumed to know the law such that ignorance of the
law is not a defense. Harman v. Dep’t of Labor & Indus., 111 Wn. App. 920, 927,
47 P.3d 169 (2002). The statutory notice was reasonably calculated as a matter
of law to “‘apprise interested parties’” about the limitations period that applies to
workers’ compensation claims stemming from occupational hearing loss.
Speelman, 167 Wn. App. at 631 (quoting Jones, 547 U.S. at 226).
White fails to meet his burden to establish that RCW 51.28.055(2) violates
his right to due process or equal protection. We affirm the superior court’s order
of summary judgment.
WE CONCUR: