Kilpatrick v. Department of Labor & Industries

915 P.2d 519, 125 Wash. 2d 222, 1995 WL 859243
CourtWashington Supreme Court
DecidedJanuary 27, 1995
Docket60798-2
StatusPublished
Cited by33 cases

This text of 915 P.2d 519 (Kilpatrick v. Department of Labor & Industries) 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
Kilpatrick v. Department of Labor & Industries, 915 P.2d 519, 125 Wash. 2d 222, 1995 WL 859243 (Wash. 1995).

Opinions

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 [224]*224each 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.

[225]*225On 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 [226]*226Department 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 [227]*227worker. 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.,

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Bluebook (online)
915 P.2d 519, 125 Wash. 2d 222, 1995 WL 859243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kilpatrick-v-department-of-labor-industries-wash-1995.