| IN RE: MELVIN CHRISTENSON, DEC'D | ) | DOCKET NO. 88 1477 |
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| Claim No. G-121319 | ) | FURTHER DECISION AND ORDER ON REMAND FROM SUPERIOR COURT |
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- APPEARANCES
- Claimant, Melvin Christenson, Dec'd., by
- Schroeter, Goldmark & Bender, P.S., per
- Dee Dee White, Legal Assistant and
- Sidney Stillerman Swan
- Employer, Corning Fiberglass Corp., by
- None
- Department of Labor and Industries, by
- The Attorney General, per
- Laurel Anderson, Paralegal, and
- John R. Wasberg, Assistant
This is an appeal filed on behalf of Melvin Christenson, Deceased, on March 31, 1988 from a determination of the Department of Labor and Industries dated January 29, 1988 which notified Ruth M. Christenson, surviving spouse of Melvin Christenson, that the Department was awarding the sum of $600.00 for burial expenses of Melvin Christenson, who sustained injury on the 22nd day of December, 1970 and died on June 6, 1986. Reversed and remanded.
PROCEDURAL HISTORY
The only issue presented in this appeal is which schedule of benefits applies to this claim for the purpose of payment of funeral benefits.
On June 20, 1989, a Proposed Decision and Order was issued affirming the Department order awarding the claimant's estate funeral [2] benefits based on the schedule in effect on the date Mr. Christenson filed his application for benefits for asbestosis.
The claimant filed a timely Petition for Review to the Proposed Decision and Order on July 24, 1989. On August 14, 1989, this Board issued an Order Denying Petition for Review. On August 18, 1989, the claimant filed a Notice of Appeal in the Superior Court of Washington for King County.
On May 18, 1990, an Agreed Order for Remand to the Board of Industrial Insurance Appeals was entered by a Superior Court judge. That order reversed the Proposed Decision and Order of June 20, 1989 and remanded the appeal to the board for the taking of further evidence on the question of when the occupational disease of the claimant became "manifest" for purposes of determining entitlement to funeral expenses.
DECISION
The parties have filed a supplemental stipulation of facts in lieu of "taking further evidence" as stated in the remand order. These facts deal with the difference between asbestosis, the disease for which the claim was filed, and mesothelioma, the disease from which Mr. Christenson died. It is apparent from our review of these stipulated facts that the estate is renewing,, as its primary argument, that the schedule of benefits which should be used to determine the amount of funeral benefits, is the schedule in effect on February 25, 1986, when Mr. Christenson was diagnosed as having mesothelioma as a result of his asbestos exposure. [3]
We do not believe the estate's argument has a basis in law or fact and we agree with the reasoning and conclusion of the Proposed Decision and Order. However, upon review of the record in this case, we believe it is logical and correct to compare burial expense payments to medical aid vendor payments and to conclude that, based on such a comparison, burial expenses should be paid at the rate in effect at the time such services are performed, rather than the rate on the date of injury or date of manifestation of a disease.
Burial expenses, like medical payments, are simply a reimbursement for services rendered (up to a stated maximum) as opposed to prescribed benefits payable to the worker or to surviving beneficiaries. The mere fact that they are covered in a statute rather than a Department rule does not persuade us that the Legislature would agree that it was their intent for a worker's widow to be in the position the Department has placed Mrs. Christenson with respect to the burial expenses incurred for her husband's death. Burial expenses, considered in the context of cases such as this, are for services provided for the worker's ultimate health care problem, i.e., death. We think the burial expenses in this claim should be paid in the amount applicable at the time the burial services were performed, namely, on and/or shortly after the date of the worker's death on June 6, 1986. Thus, in our view, such expenses are payable in the actual amount thereof up to a maximum of $2,000.00. Laws of 1982, ch. 63,§ 18.
After consideration of the Proposed Decision and Order, the Petition for Review and the entire record before us, including the [4] supplemental stipulation of facts, we believe the Department letter dated March 31, 1988 is incorrect and should be reversed and the matter remanded to the Department of Labor and Industries to issue an order awarding the estate burial expenses as provided in RCW 51.32.050(1) as amended in 1982. We hereby adopt Findings of fact Nos. 1, 2, 3, 4, and 5 and Conclusion of Law No. 1 from the Proposed Decision and Order. In addition, we make the following finding and conclusions.
FINDINGS OF FACT
6. Burial expenses most closely resemble medical aid payments in that they are reimbursement for services rendered up to a stated maximum as opposed to prescribed benefits.
CONCLUSIONS OF LAW
2. Burial expenses, as set out in RCW 51.32.050(1) most closely resemble medical aid payments.
3. Burial expenses, like medical aid payments, should be paid in accordance with the law in effect at the time they are incurred.
4. The reimbursement for burial expenses incurred by the estate of Melvin Christenson should be determined by RCW 51.32.050(1) as it was amended by the Laws of 1982, ch. 63, § 18.
5. The determination of the Department of Labor and Industries as reflected in its letter dated January 29, 1988 which ordered that burial expenses be paid in the sum of $600.00 is incorrect and reversed and the matter remanded to the Department of Labor and Industries to make a determination that the burial expenses incurred by the estate of Melvin Christenson be paid in the actual amount, up to a maximum of $2,000.00. [5]
It is so ORDERED.
Dated this 2nd day of July, 1991.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
S. FREDERICK FELLERChairperson
/s/
FRANK E. FENNERTY, JR.Member
/s/
PHILLIP T. BORKMember