Harry v. Buse Timber & Sales, Inc.

201 P.3d 1011, 166 Wash. 2d 1
CourtWashington Supreme Court
DecidedFebruary 26, 2009
DocketNo. 79613-1
StatusPublished
Cited by21 cases

This text of 201 P.3d 1011 (Harry v. Buse Timber & Sales, Inc.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harry v. Buse Timber & Sales, Inc., 201 P.3d 1011, 166 Wash. 2d 1 (Wash. 2009).

Opinions

Madsen, J.

¶1 — This case requires us to determine when occupational hearing loss becomes “partially disabling” for the purpose of determining the appropriate rate of compensation for a permanent partial disability award. Petitioners Buse Timber and Sales, Inc., and Department of Labor and Industries (Department) contend Donald Harry’s 2001 claim for 38.13 percent binaural hearing loss is compensable according to the benefit levels in effect in 1974, when he experienced a 5.6 percent unilateral hearing loss. The Court of Appeals disagreed, holding that Harry’s occupational hearing loss became “partially disabling” on multiple dates, entitling him to compensation according to the schedule of benefits in effect on the date of each documented incremental loss.

¶2 We conclude that the Department erred in calculating Harry’s permanent partial disability award according to the 1974 schedule of benefits. RCW 51.32.180(b) is ambiguous as to whether “the date the disease [is] totally or partially disabling” refers to the first date any compensable hearing loss first occurred, or the last date hazardous workplace noise contributed to the disability for which a worker seeks compensation. Applying the liberal construal mandate, we hold occupational hearing loss is “partially [7]*7disabling” within the meaning of RCW 51.32.180(b) as of the date a worker was last exposed to hazardous occupational noise.

FACTS

¶3 Donald Harry worked for Buse from 1968 until his retirement in 2001. He was exposed to loud noise throughout his employment. Buse administered annual audio-grams in compliance with a Washington Industrial Safety and Health Act of 1973 (ch. 49.17 RCW) regulation. An audiogram performed in 1974 showed that Harry suffered a compensable hearing loss in his left ear. Successive audiograms document a gradual worsening of Harry’s condition. By 1986, Harry’s hearing loss had progressed to both ears. However, it was not until his retirement, in 2001, that he consulted a doctor. His doctor informed him he had a binaural (both ears) hearing loss of 38.13 percent.

¶4 Harry filed a permanent partial disability claim for occupational hearing loss. The Department accepted the claim and ordered Buse to compensate Harry for 38.13 percent binaural hearing loss, according to the schedule of benefits in effect in 2001. Buse protested the order. It argued Harry’s permanent partial disability award should be calculated according to the 1974 schedule of benefits, when he first experienced a compensable hearing loss in his left ear. The Department agreed and revised its order based on the schedule of benefits in effect in 1974.

¶5 The Board of Industrial Insurance Appeals (BIIA) and the superior court affirmed the Department’s order. The Court of Appeals reversed. Harry v. Buse Timber & Sales, Inc., 134 Wn. App. 739, 171 P.3d 1058 (2006). It reasoned that occupational hearing loss is appropriately analyzed as multiple diseases rather than a single disease, with compensation determined according to the schedule of benefits in effect at the time of each documented incremental loss. Id. at 746.

[8]*8¶6 Buse and the Department both filed petitions for review, which we granted. Harry v. Buse Timber & Sales, Inc., 161 Wn.2d 1014, 171 P.3d 1057 (2007).

ANALYSIS

¶7 The Industrial Insurance Act (IIA), Title 51 RCW, was designed to provide “sure and certain relief” to injured workers while limiting employer liability for industrial injuries. RCW 51.04.010; Dennis v. Dep’t of Labor & Indus., 109 Wn.2d 467, 470, 745 P.2d 1295 (1987). Any doubts and ambiguities in the language of the IIA must be resolved in favor of the injured worker in order to minimize “the suffering and economic loss” that may result from work-related injuries. RCW 51.12.010; McIndoe v. Dep’t of Labor & Indus., 144 Wn.2d 252, 256, 26 P.3d 903 (2001); Cockle v. Dep’t of Labor & Indus., 142 Wn.2d 801, 811, 16 P.3d 583 (2001) (“[W]here reasonable minds can differ over what Title 51 RCW provisions mean . . ., the benefit of the doubt belongs to the injured worker.”).

¶8 Occupational hearing loss is compensable as a permanent partial disability according to a fixed schedule of benefits. RCW 51.32.080(1)(a). Unlike the other disability classifications, a “permanent partial disability” is defined as a loss of bodily function rather than inability to perform one’s job functions.1 Clauson v. Dep’t of Labor & Indus., 130 Wn.2d 580, 585, 925 P.2d 624 (1996); RCW 51.08.150. Cf. RCW 51.08.160 (“[p]ermanent total disability” prevents a worker from performing any work); RCW 51.32.090 (same for “[temporary total disability”); RCW 51.32.090(4)(a) (“temporary total disability” interferes with a worker’s normal job functions). A claimant is entitled to an award based on the percentage of functional loss of the affected body part, applying the schedule of benefits in effect on the [9]*9date of injury. See RCW 51.32.080(2), (7). Thus, the amount of the award depends on two factors: the extent of the disability and the date the injury occurred.

¶9 It is undisputed Harry is entitled to a permanent partial disability award for 38.13 percent binaural hearing loss, resulting from continuous exposure to workplace noise from 1968 until his retirement in 2001. The only disputed issue is whether his occupational hearing loss is compensable according to the schedule of benefits in effect on the first date occupational noise resulted in a ratable loss of hearing or on the last date it contributed to his compensable disability.

¶10 Occupational hearing loss may result from either an industrial accident or continuous exposure to hazardous levels of noise. Noise-induced hearing loss is classified as an occupational disease.2 Boeing Co. v Heidy, 147 Wn.2d 78, 51 P.3d 793 (2002); Weyerhaeuser Co. v. Tri, 117 Wn.2d 128, [10]*10130, 814 P.2d 629 (1991); Pollard v. Weyerhaeuser Co., 123 Wn. App. 506, 512, 98 P.3d 545 (2004); In re Brooks, No. 02 17331 (Wash. BIIA Aug. 1, 2003); cf. Rector v. Dep’t of Labor & Indus., 61 Wn. App.

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Harry v. Buse Timber & Sales, Inc.
201 P.3d 1011 (Washington Supreme Court, 2009)

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Bluebook (online)
201 P.3d 1011, 166 Wash. 2d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harry-v-buse-timber-sales-inc-wash-2009.