| IN RE: CHRISTOPHER AALMO, DEC'D | ) | DOCKET NO. 87 4382 |
| ) | ||
| CLAIM NO. K-368164 | ) | DECISION AND ORDER |
| ) |
- APPEARANCES
- Beneficiary-Petitioner, Pearl Aalmo, by
- Schroeter, Goldmark & Bender, P.S., per
- Sidney Stillerman Swan
- Employer, Multiple,
- None
- Department of Labor and Industries, by
- The Attorney General, per
- John R. Wasberg, Assistant, and
- Laurel Anderson, Paralegal
This is an appeal filed by Pearl Aalmo, widow of Christopher Aalmo, on December 18, 1987 from an order of the Department of Labor and Industries dated October 22, 1987. The October 22, 1987 order rejected Mrs. Aalmo's claim for spouse's benefits on the sole ground that the claim was not timely filed since Mr. Aalmo died on August 16, 1984, from lung cancer allegedly due to asbestos exposure and Mrs. Aalmo's claim was not filed until August 5, 1987. Reversed and remanded.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the Department of Labor and Industries to a Proposed Decision and [2]
Order issued on August 18, 1988 in which the order of the Department dated October 22, 1987 was reversed and the matter remanded to the Department to consider the merits of the claim based on a timely application for benefits filed by Pearl Aalmo.
The issue on appeal is whether Mrs. Aalmo's claim for widow's benefits, premised on the contention that her husband died as the result of an occupational disease, was timely filed.
The Department contends that the last sentence of RCW 51.28.055, as amended in 1984, requires a beneficiary or dependent to file an occupational disease claim within two years of the date of the worker's death, irrespective of whether the worker has received the requisite written statutory notification. The widow, on the other hand, refers to the first sentence of RCW 51.28.055 and argues that the statutory time limitation only applies if the worker has received the statutory notification prior to his death.
The Proposed Decision and Order relied on RCW 51.28.050, not RCW 51.28.055, to determine the timeliness of Mrs. Aalmo's claim. RCW 51.28.050 provides a one-year period for filing claims following the occurrence of an injury or the accrual of the rights of dependents or beneficiaries. Up until June 6, 1984, RCW 51.28.050 could be interpreted to apply to deaths resulting from either an industrial injury or an occupational disease. However, Laws of 1984, ch. 159, §§ 1 & 2, p. 792 became effective on June 6, 1984. Section 1 of that legislation amended RCW 51.28.050 to read as follows:
No application shall be valid or claim thereunder enforceable unless filed within one year after the day upon which the injury occurred or the rights of dependents or beneficiaries accrued, except as provided in RCW 51.28.055. [3]
Section 2 amended RCW 51.28.055 to read as follows:
Claims for occupational disease or infection to be valid and compensable must be filed within ((one year)) two years following the date the worker had written notice from a physician: (1) Of the existence of his or her occupational disease ((without reference to its date of origin)) and (2) that a claim for disability benefits may be filed. The notice shall also contain a statement that the worker has two years from the date of the notice to file a claim. The physician shall file the notice with the department. The department shall send a copy to the worker and to the self-insurer if the worker's employer is self-insured. However, a claim is valid if it is filed within two years from the date of death of the worker suffering from an occupational disease.
These amendments, read in concert, clearly indicate that the time period for filing occupational disease claims by either the worker or beneficiaries is now governed by RCW 51.28.055, not RCW 51.28.050. Therefore, contrary to the assertion in the Proposed Decision and Order, it is not necessary to determine when ". . . the rights of dependents or beneficiaries accrued . . ." under RCW 51.28.050.
We further note that neither party has challenged the applicability of the 1984 amendments to this claim. We agree that the 1984 amendments are applicable, since Mr. Aalmo died on August 16, 1984, after the June 6, 1984 effective date.
The widow alleges that her husband died as the result of an asbestos-related occupational disease. The parties stipulated that neither Mr. Aalmo nor his widow was ever notified in writing or orally of the occupational nature of his condition. Indeed, the treating physician was unaware that either Mr. Aalmo or his widow might have a claim under the Washington Industrial Insurance Act. [4]
This appeal raises a question of first impression, which has not been addressed previously by any reported appellate court decision or by this Board. Attached to the Department's Petition for Review is material regarding the legislative history of the 1984 amendments. However, if a statute is unambiguous, there is no need to refer to legislative history as an aid to interpretation. Jepson v. Department of Labor and Industries, 89 Wn.2d 394, 400-401 (1977). Thus our starting point is the specific language of RCW 51.28.055 and 51.28.050, as amended in 1984, as set forth above.
The first sentence of RCW 51.28.055 simply refers to "claims" for occupational disease or infection, without any reference to who has filed the claim. Under the last phrase of RCW 51.28.050, RCW 51.28.055 governs the rights of beneficiaries or dependents, as well as workers, when an occupational disease claim is filed. Thus, the term "claims for occupational disease or infection" must encompass any claim based on an occupational disease allegation, whether the claim is filed by the worker, dependents or beneficiaries.
RCW 51.28.055, like RCW 51.28.050, is a nonclaim statute. See, e.q., Wheaton v. Department of Labor and Industries, 40 Wn.2d 56 (1952). Under the first sentence of RCW 51.28.055, the right to seek benefits is not extinguished unless and until two years have passed from the date "the worker had written notice from a physician: (1) of the existence of his or her occupational disease, and (2) that a claim for disability benefits may be filed." Under the terms of the statute, this written notice must "also contain the statement that the worker [5] has two years from the date of the notice to file a claim." Mr. Aalmo never received such notice. Thus the right to seek benefits under this occupational disease claim had not been extinguished, as against either the worker or his dependents and beneficiaries.
The Department relies on the final sentence of RCW 51.28.055, arguing that Mrs. Aalmo's right to benefits was extinguished by her failure to file a claim within two years of Mr. Aalmo's death, irrespective of whether the requisite statutory written notification had been received. We disagree. Clearly that sentence provides dependents and beneficiaries an additional two years from the date of death in which to file a claim, but just as clearly, it does not eliminate the notification requirement. If written notification has not been provided the worker as mandated by the first sentence of RCW 51.28.055, it is irrelevant when the beneficiaries or dependents file their claim; their right to benefits is not extinguished.
The Department raises the specter of stale claims and the associated evidentiary problems which will result from this interpretation of the statute. By their very nature, long-developing occupational disease claims involve evidence from years gone by, since it is not uncommon for many years to pass between the last injurious exposure and the manifestation of the disease. Thus, adherence to the statutory notification requirement imposes no greater burden on the Department in defending against a claim than is already imposed, by the very nature of an occupational disease claim, on the worker or beneficiary who is asserting, and must prove, the claim. [6]
While not strictly applicable here, White v. Johns-Manville Corp., 103 Wn.2d 344 (1985) contains compelling language regarding the difficulties facing a person seeking redress for a long-developing occupational disease. The question before the court in that case was whether the "discovery rule" applied to the widow's wrongful death and survival actions so that the time for filing those actions was tolled "until such time as plaintiff, . . ., discovers or should reasonably have discovered the essential elements of her possible causes of action." White, at 345. In adopting the discovery rule, the court addressed the defendant corporation's "contention that application of the discovery rule to wrongful death actions will have a "slippery slope" effect on occupational hazard litigation", as follows:
While the Legislature may in the future decide otherwise, we find the problem of "unearthing" wrongful death causes of action to be minimal compared to the hardships imposed on the victims unblamably left without a remedy.
White, at 355-356. While this reasoning is not binding with respect to our interpretation of RCW 51.28.055, it is in accord with our reading of this statute.
In sum, under RCW 51.28.055 as amended in 1984, a beneficiary's claim for benefits pursuant to RCW 51.28.055 is not extinguished by the mere passage of two years from the date of the worker's death, if the worker was never provided with the requisite written statutory notification mandated by RCW 51.28.055. The safeguard provided by such notification is critical. If the worker receives statutory notification, he or she has the opportunity to convey that information to beneficiaries prior to death. Additionally, since that notification must be filed with the Department, there is a better chance that the surviving beneficiaries will receive the information they need in order to make an informed decision as to whether to file a claim. But without any notification, a beneficiary's right to seek benefits under the Industrial Insurance Act premised on an occupational disease claim would, in many cases, be just an empty right. [7]
When a worker has received the requisite written notice during his or her lifetime, the beneficiaries have an additional two years after the worker's death in which to file a claim. When a worker has not been provided with such statutory notification, the claim is never extinguished. A premium is therefore placed on prompt and complete disclosure and notification to the worker who has allegedly contracted an occupational disease during the course of employment. We believe this is precisely what the Legislature intended by the 1984 amendments.
The Department order under appeal must therefore be reversed and the claim remanded to the Department with direction to adjudicate the merits of the claim based upon a timely application for widow's benefits.
After consideration of the Proposed Decision and Order and the Petition for Review filed thereto, and a careful review of the entire record before us, we hereby enter the following:
FINDINGS OF FACT
1.On August 5, 1987, the Department of Labor and Industries received a claim for pension by spouse or children from Pearl Aalmo, alleging that she was the widow of Christopher Aalmo who died on [8] August 16, 1984 of carcinomatosis, carcinoma of left lung, arteriosclerosis (sic) heart disease, asbestosis left lung, chronic obstructive pulmonary disease. The claim for a pension alleged that one or more of these medical conditions was proximately caused by occupationally related exposure to asbestos during the course of Mr. Aalmo's employment with various Washington State employers.
On October 22, 1987, the Department issued an order which rejected Pearl Aalmo's claim for benefits on the ground that it was not timely filed.
On December 18, 1987, the beneficiary-petitioner filed a Notice of Appeal with the Board of Industrial Insurance Appeals from the October 22, 1987 Department order. On January 13, 1988, the Board granted the appeal, assigned it Docket No. 87 4382 and directed that further proceedings be held.
2. Christopher Aalmo died on August 16, 1984 of diseases diagnosed as carcinomatosis, carcinoma of left lung, arteriosclerosis (sic) heart disease, asbestosis left lung, and chronic obstructive pulmonary disease.
3. On or before August 16, 1984, the date of his death, Christopher Aalmo was not informed orally or in writing by a physician that his conditions were causally related to occupational exposure to asbestos or that a claim for benefits may be filed.
4. Pearl Aalmo was married to Christopher Aalmo at the date of death and is his widow.
5. Pearl Aalmo was never informed orally or in writing by a physician that Christopher Aalmo's lung conditions or his death were causally related to occupational exposure to asbestos or that a claim for benefits may be filed.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and subject matter to this appeal.
- Pearl Aalmo's application for benefits filed with the Department of Labor and Industries on August 5, 1987, was timely filed, inasmuch as the [9] time for filing such an occupational disease claim under RCW 51.28.055 had not begun to run, and the claim was therefore not extinguished.
- The order of the Department of Labor and Industries dated October 22, 1987, rejecting Pearl Aalmo's claim for widow's benefits on the ground that the claim was not timely filed, is incorrect and should be reversed and the claim remanded to the Department with directions to consider the application for benefits as timely filed and to determine the merits of the claim.
It is so ORDERED.
Dated this 10th day of March, 1989.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
SARA T. HARMON Chairperson
/s/
FRANK E. FENNERTY, JR. Member
DISSENTING OPINION
I disagree with the Board majority's decision.
It is quite clear to me that, based on the 1984 statutory amendments, there are two mutually exclusive statutes of limitations for timely filing of claims under Title 51: RCW 51.28.050 for claims based on injuries; and RCW 51.28.055 for claims based on alleged occupational diseases.
If the claim -- whether by worker or beneficiary--is based on injury, RCW 51.28.050 solely governs. The claim must be filed [10] within one year from the date of injury, for the worker's claim; or it must be filed within one year from the date of the worker's death, for the beneficiary's claim.
On the other hand, if the claim--whether by worker or beneficiary--is based on alleged occupational disease (as here), RCW 51.28.055 solely governs. The claim must be filed within two years from the date of the requisite written notice to the worker, for the worker's claim; or it must be filed within two years from the date of death of the worker, for the beneficiary's claim.
This beneficiary's claim, based on the worker's alleged occupational disease, was not filed within two years from the date of the worker's death. Indeed, it was not filed until a few days short of three years from the worker's death. Therefore, pursuant to what I view as the plain meaning of RCW 51.28.055 as amended in 1984 -- particularly the new language added as the last sentence of that statute -- the beneficiary's claim was not timely filed. From the legislative history of the 1984 amendments, this view clearly accords with legislative intent. Mrs. Aalmo's claim is not valid, and her right to claim benefits is extinguished.
I would affirm the Department's order of October 22, 1987, rejecting the claim.
Dated this 10th day of March, 1989.
/s/
PHILLIP T. BORK Member