Urban v. Department of Labor & Industries

454 P.2d 395, 75 Wash. 2d 787, 1969 Wash. LEXIS 800

• Court: Washington Supreme Court
• Decided: April 24, 1969
• Docket: No. 39039
• Status: Published

Opinions

Hill, J.

The question in this case¹ is whether the widow of a deceased workman can pursue his claim for permanent partial disability under the workmen’s compensation act when the claim was unliquidated at the time of his death.

The answer must be- found in our industrial insurance statutes notably Laws of .1911,, ch,. 74, § 10, p. 364, and the provisos added to it (presently RCW 51.32.040). The portion of the statute preceding the provisos reads as follows (the bracketed material indicates changes since the original enactment):

No money paid or payable under this [title]' out of the accident fund [or out of the medical aid fund] shall, prior to [the] issuance and delivery of the warrant therefor, be capable of being assigned, charged, [or] ever be taken in execution or attached or garnished, nor shall the same pass, [or be paid], to any other person by operation of law, [or by any form of voluntary assignment, or power of attorney]. Any such assignment or charge shall be void: . . .

A number of provisos have been added to this section. It is with two of them, which will be referred to as the permanent-partial-injury proviso and the time-loss proviso, with which we are here concerned. They will be quoted in parallel columns later in this opinion.

In construing the statute before the provisos were added, we held that unless an award had been secured by the injured workman from an administrative or judicial body, his claim for time loss or permanent partial injury abated with his death. Zahler v. Department of Labor & Indus., 125 Wash. 410, 217 Pac. 55 (1923); Ray v. Industrial Ins. Comm’n, 99 Wash. 176, 168 Pac. 1121 (1917).

In Curry v. Department of Labor & Indus., 49 Wn.2d 93, 97, 298 P.2d 485 (1956)—subsequent to the provisos—we held that a widow of a deceased workman would not be permitted to pursue his claim for permanent partial disability because there had been no award prior to his death, stating that, prior to an award, “[h]is claim was personal to himself and abated at his death.”

Despite the Curry opinion, it is contended (relying on the time-loss proviso as construed by this court in Lightle v. Department of Labor & Indus., 68 Wn.2d 507, 413 P.2d 814 (1966)) that the time-loss proviso is similar to the permanent-partial-injury proviso; and that the Lightle case is, therefore, authority for the proposition that a widow may pursue her husband’s unliquidated claim for permanent partial disability.

It is vigorously argued that the Curry and Lightle opinions are inconsistent. It is our view that the Curry case correctly construes the permanent-partial-disability proviso and that the Lightle case correctly construes the time-loss proviso. We shall place the provisos in parallel columns to make clear the differences.

Permanent-partial-inj ury proviso:

That if any workman suffers a permanent partial injury, and dies from some other cause than the accident which produced such injury before he shall have received payment of his award for such permanent partial injury, . . . the amount of such permanent partial award, '. . . shall be paid to his widow. (Italics ours.)

Time-loss proviso:

That, if any workman suffers an injury and dies therefrom before he shall have received payment of any monthly installment covering time loss for any period of time prior to his death, the amount of such monthly payment shall be paid to his widow . . .

YTtalips nnrs.]

There are two patent distinctions between these two provisos. The permanent-partial-injury proviso deals with payments to. be made to a widow after the workman’s death from some other cause than the accident which produced his injury, and clearly provides that what is to. be paid is the amount of an award which has been made to the workman but not paid to him at the time of his death.

The time-loss proviso deals with payments to be made to a widow, after the workman’s death from the injury he has sustained, of any monthly installment covering time loss for any period prior to his death. No award is necessary; the time loss is the expected result from the injury.

The court, in the Lightle case, was aware of the Curry case construing the permanent-partial-injury proviso; was likewise clearly aware that the provisos were not similar, and it expressly distinguished them in stating that,

The Albertson[²] case holds that, where a disability award (as ■ distinguished from time loss compensation) has not been granted during the lifetime of the decedent, the claim does not survive by “operation of law” to the widow or children.

Appellant also relies on Curry v. Department of Labor & Indus., 49 Wn.2d 93, 298 P.2d 485 (1956). This likewise is not a “time loss” case, and did not involve-an interpretation of the proviso here in question. In the Curry case, this court said: “He [the workman] filed a claim with the department, which was allowed. Time los.s was paid, and medical treatment given.” (Italics ours.) In interpreting RCW 51.32.040 as it relates to disability claims which have not ripened into a verdict or judgment, the court held that “His [the workman’s] claim was personal to himself and abated at his death.”

(Lightle v. Department of Labor & Indus., 68 Wn.2d 507, 511, 413 P.2d 814)

We are satisfied that there is no conflict between the Lightle and Curry cases, and that Curry and Albertson correctly construed the permanent-partial-injury proviso.

The judgment of the superior court appealed from is set aside with instructions to enter an order dismissing Mrs. Urban’s action against the Department of Labor and Industries.

Hamilton, Neill, and McGovern, JJ., and Donworth, J. Pro Tem., concur.

1 The case history is as follows: Harry J. Urban sustained an industrial injury on August 8, 1962. This was reported to the Department of Labor and Industries, which closed the claim on October 5, 1962, with no award for permanent partial disability. Mr. Urban filed a notice of appeal with the Board of Industrial Insurance Appeals. The department then directed that its order of October 5, 1962, be held in abeyance pending further investigation. February 21, 1963, it issued a new order —again closing Mr. Urban’s claim with no award for permanent partial disability; and he filed another notice of appeal with the board. Hearings were held on that appeal and all evidence completed March 3, 1964. The board’s hearing examiner then prepared a proposed decision and order sustaining the department’s order of February 21, 1963, to which Mr. Urban filed exceptions on May 5, 1964. The next day, May 6, 1964, Mr. Urban died from causes unrelated to his injury.

On August 18, 1964, the board (not having been advised of Mr. Urban’s death) rejected the examiner’s proposed decision and order; reversed the department’s orders of February 21, 1963, and October 5, 1962, and ruled that in consequence of the industrial injury sustained August 8, 1962, Mr. Urban was entitled to a permanent-partial-disability award equal to 10 per cent of the maximum allowable for unspecified disabilities—the total award being $875. The department (likewise unaware of Mr. Urban’s death) complied with the board’s order and made such an award.

Thereafter, on being advised that Mr. Urban had died on May 6, 1964, of causes unrelated to his industrial injury, the department canceled its order granting the award for the reason that there had been no determination during his lifetime that he was entitled to such an award. Mr. Urban’s widow appealed to the board which denied the appeal. She then appealed to the superior court which, in effect; directed the department to pay to the widow the 10 per cent .($875) award. The department appealed to this court.

2 Albertson v. Department of Labor & Indus., 28 Wn.2d 750, 184 P.2d 53 (1947).