| IN RE: LAWRENCE GUYETTE, DEC'D. | ) | DOCKET NO. 89 0832 |
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| CLAIM NO. K-275200 | ) | DECISION AND ORDER |
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- APPEARANCES
- Widow-petitioner, Arlet J. Guyette, by
- Walthew, Warner, Costello, Thompson and Eagan, per
- Christopher Eagan and Robert H. Thompson
- Employer, Various
- None
- Department of Labor and Industries, by
- Office of the Attorney General, per
- Beverly Norwood Goetz, Assistant
This is an appeal filed by the widow-petitioner on March 10, 1989 from an order of the Department of Labor and Industries dated January 10, 1989. The order declared an offset totalling $65,330.70 (based upon the remaining value of an excess third party recovery) and provided that the offset deduction would be taken against the widow's pension benefits of Arlet Guyette. 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 widow-petitioner to a Proposed Decision and Order issued on March 12, 1990 in which the order of the Department dated January 10, 1989 was affirmed.
The issue presented in this appeal is whether the Department may assert an excess third party recovery offset, established under the [2] deceased worker's industrial insurance claim pursuant to RCW 51.24.060, against the pension benefits which the worker's surviving spouse is entitled to receive under RCW 51.32.050. The parties submitted this question for disposition based upon a written "Stipulation of Facts" and written argument.
On February 23, 1988 the Department of Labor and Industries entered an order which allowed a claim filed by Lawrence Guyette based upon the occupational diseases of asbestosis and mesothelioma. The factual stipulation states: "As a result of a law suit against certain asbestos manufacturers, the claimant and his wife recovered $195,500.00; after all the parties settled the matter, there was an excess recovery totalling $81,718.76." Stipulation of Facts, 1/23/90, paragraph 3. Mr. Guyette died as a result of his occupational disease on May 12, 1988.
On May 23, 1988, the Department issued an order in Mr. Guyette's claim which distributed proceeds from the third party recovery pursuant to RCW 51.24.060. The stipulation sets forth the terms of this order as follows: "no benefits or compensation will be paid to or on behalf of the claimant until such time as this excess totalling $81,718.76 has been expended by the claimant for costs incurred as a result of the condition(s) covered under this claim." Stipulation of Facts, 1/23/90, paragraph 4. Time loss compensation totalling $16,387.97, owed to the claimant for the period March 23, 1987 through May 11, 1988, was subsequently credited against the excess recovery. The May 23, 1988 order was neither appealed by any party, nor set aside by the Department, within the time allowed by RCW 51.52.060. [3]
Arlet J. Guyette is the claimant's widow. Pursuant to RCW 51.32.050(2), she made a claim for pension benefits as a surviving spouse. In an order dated September 8, 1988, the Department awarded Arlet Guyette a widow's pension. By the order which is currently on appeal dated January 10, 1989, the Department asserted a third party offset against the benefits payable to Mrs. Guyette. The offset, which totalled $65,330.70, was based upon the remainder of the excess third party recovery not previously offset against benefits payable to or on behalf of her husband.
Under RCW 51.24.030 a worker or beneficiary is permitted in certain circumstances to seek and recover damages from third parties, subject to the distribution scheme found in RCW 51.24.060. A "beneficiary," as defined in RCW 51.08.020, includes a "wife ... of a worker in whom shall vest a right to receive payment under this title."
Under RCW 51.32.050 a right to receive payment by a spouse is a right which is separate from the worker's claim. A claim under this section may not be filed unless the circumstances described in the statute are present. The primary contingency is the death of the worker as a result of the injury (or disease). The surviving spouse's claim is totally separate and distinct from that of the worker. Purdy & Whitfield v. Dep't of Labor & Indus., 12 Wn.2d 131 (1942).
In In re Charles H. Downey, Dec'd., BIIA Dec., 87 1718 (1989), another asbestosis case which is somewhat similar to the one before us, a third party recovery had been made while both Mr. and Mrs. Downey were alive. The Department allocated to Mrs. Downey a 20% share of the [4] recovery. The Department recognized the common law remedy for loss of consortium by the wife as separate and distinct from the remedies available to the husband. See Reichelt v. Johns-Manville Corp., 107 Wn.2d 761, 776 (1987). At the time of the recovery, Mrs. Downey was not technically a "beneficiary" as defined in RCW 51.08.020 and as contemplated by the specific language in RCW 51.24.030. However, Mrs. Downey was a contingent beneficiary in the sense that she possessed a contingent right to make a claim under RCW 51.32.050, which would not be operational until her husband's death. While Mr. Downey was alive he received benefits which were offset by 80% of the total excess recovery. When Mr. Downey died, Mrs. Downey filed her claim under RCW 51.32.050, which was accepted by the Department. We held that the remaining 20% of the total excess recovery previously apportioned to Mrs. Downey could then be offset against the widow's pension benefits otherwise payable to her.
In this case, a third party recovery was also made during Mr. Guyette's lifetime. However, in its May 23, 1988 order the Department did not attribute any portion of the recovery to Mrs. Guyette. Instead, the Department established a lien and an excess recovery which attributed the entire amount of the third party recovery solely to Mr. Guyette. Mrs. Guyette was not even implicitly recognized as having made a recovery under RCW 51.24.030 and .060.
Despite the fact the parties here stipulated that the recovery was made by both Mr. and Mrs. Guyette, the Department allocated all [5] the proceeds of the third party recovery to Mr. Guyette.(1) Therefore, the only recovery subject to Chapter 51.24 RCW was that made by and previously allocated to the injured worker. When Mrs. Guyette became entitled to benefits under RCW 51.32.050 her claim could not be encumbered with any excess third party recovery since Mrs. Guyette, per the May 23, 1988 order, did not realize a third party recovery. The Department is not entitled to reduce the benefits of one beneficiary by a recovery made by the worker or other beneficiaries. See In re Estate of Boettcher, 35 Wn. App. 178 (1983); See also Anderson v. Dep't of Labor & Indus., 40 Wn.2d 210 (1952); Gassaway v. Dep't of Labor & Indus., 18 Wn. App. 747 (1977).
We reiterate the importance of the Department's own final third party distribution order dated May 23, 1988. It pronounced satisfaction of the lien and established an offset solely against Mr. Guyette's claim. It was based on an allocation of the entire third party recovery to Mr. Guyette. The Department now has no power to indirectly attack the integrity of its own prior determination and contend that the recovery it attributed to Mr. Guyette should now be attributed to Mrs. Guyette.
The Department order of January 10, 1989 must be reversed and the [6] matter remanded to the Department to pay benefits to Mrs. Guyette without regard to any excess third party recovery previously attributed to her husband.
FINDINGS OF FACT
1. On May 15, 1987 the Department of Labor and Industries received an application for benefits indicating Lawrence Guyette suffered an occupational disease during the course of his employment with various Washington employers. The claim was assigned Claim No. K-275200. On February 23, 1988 the Department issued an order allowing the claim for occupational asbestosis and mesothelioma. On May 23, 1988 the Department issued an order declaring a statutory lien against the claimant's third party recovery for the sum of $647.77. The order remitted to the claimant $17,276.06. The lien against this recovery was found to have been satisfied and no benefits or compensation were to be paid to or on behalf of the claimant until such time as the excess third party recovery totalling $81,718.76 had been expended by the claimant for costs incurred as a result of the conditions covered under the claim.
On June 8, 1988 the Department was advised that the claimant had died on May 12, 1988, as a result of mesothelioma. On June 30, 1988 the Department received a claim for pension benefits filed by the worker's surviving spouse, Arlet J. Guyette. On September 8, 1988 the Department issued an order allowing the claim filed by the surviving spouse. By another order dated September 8, 1988 the Department ordered the payment of time loss compensation for the periods March 23, 1987 to June 30, 1987 and July 1, 1987 through May 11, 1988, for a total amount of $16,387.97. The amount of time loss compensation due was not paid, but was offset against the excess third party recovery.
In a letter dated December 21, 1988 the Department set forth a determination that the excess third party recovery on the claim would be offset against benefits payable to the [7] surviving spouse until the sum of $65,317.83 had been expended. In a letter dated December 27, 1988 the Department also indicated that the excess third party recovery would be offset against the widow's benefits. On December 27, 1988 the surviving spouse wrote a letter to the Department protesting the offset provisions of the Department's December 21, 1988 letter.
On January 5, 1989 the Board of Industrial Insurance Appeals received two notices of appeal, filed on behalf of the widow- petitioner, from the letters dated December 21, 1988 and December 27, 1988. These appeals were assigned Docket Nos. 89 0036 and 89 0037, respectively. On January 10, 1989 the Department issued an order stating that Arlet Guyette's widow's pension benefits were to be offset against the excess recovery of $65,330.70. On January 11, 1989 the Department issued an order stating that the letters dated December 21, 1988 and December 27, 1988 had been corrected and superseded by the Department order of January 10, 1989. On January 13, 1989 the Board issued two orders in the appeals assigned Docket Nos. 89 0036 and 89 0037, returning the case to the Department for further action.
On March 10, 1989 the Board of Industrial Insurance Appeals received a notice of appeal, filed on behalf of the widow-petitioner, from the January 10, 1989 Department order. On March 21, 1989 the Board issued its order granting the appeal, assigning it Docket No. 89 0832, and directing that proceedings be held on the issues raised by the notice of appeal.
2. Lawrence Guyette, the claimant, contracted asbestosis and mesothelioma during the course of his employment in the state of Washington. He was a worker who filed a claim for and received benefits under the Washington Industrial Insurance Act as a result of an occupational disease.
3. As a result of a law suit against certain asbestos manufacturers, Mr. Guyette and his wife recovered $195,500.00. [8] After all the parties had settled the matter there was an excess recovery totalling $81,781.76.
4. Mr. Guyette died on May 12, 1988. His death was caused by his occupational disease. The Department was advised of the disease-caused death on June 8, 1988. Mr. Guyette was survived by his wife, Arlet J. Guyette. On June 30, 1988 Mrs. Guyette made a claim for benefits under RCW 51.32.050 and was awarded a surviving spouse's pension.
5. In a final order dated May 23, 1988 the Department declared that Mr. Guyette had made a third party recovery in the amount of $195,500.00. A lien was set forth totalling $647.00. The lien was declared satisfied. It was further declared that no compensation was to be paid to or on behalf of the claimant until an excess recovery totalling $81,718.76 had been expended by the claimant for costs incurred as a result of conditions covered under the claim.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction of the parties and the subject matter of this appeal.
- The Department order of May 23, 1988 constitutes a res judicata determination in this case, binding upon the Department, that the entire third party recovery was made by Mr. Guyette and that the excess recovery was subject to offset only against benefits payable to or on behalf of Mr. Guyette.
- Because of the final Department order of May 23, 1988, the Department is not entitled under the provisions of RCW 51.24.060 to offset an excess third party recovery previously attributed to Mr. Guyette against any benefits paid or payable as a result of Mrs. Guyette's separate claim for benefits as a surviving spouse.
- The order of the Department of Labor and Industries dated January 10, 1989 which provided that Arlet Guyette's widow's pension [9] benefits were to be offset against the claimant's excess recovery of $65,330.70 is incorrect and is reversed. This matter is remanded to the Department to provide Arlet Guyette with widow's pension benefits without offset for the third party recovery made prior to Lawrence Guyette's death.
It is so ORDERED.
Dated this 14th day of September, 1990.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
SARA T. HARMON Chairperson
/s/
PHILLIP T. BORK Member
(1)It is not known whether the court in which the recovery was made apportioned the recovery made by the Guyettes. There is no evidence of any judicial determination allocating the damages recovered between Mr. Guyette's claims for personal injuries and Mrs. Guyette's claims for loss of consortium or otherwise declaring the extent to which each shared individually or jointly in the
entire recovery, either by virtue of their separate and independent claims or a community property interest in any amounts recovered. See In re Marriage of Brown, 100 Wn.2d 729 (1984).