| IN RE: WILLIAM KILPATRICK, DEC'D. | ) | DOCKET NO. 89 5200 |
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| CLAIM NO. J-217072 | ) | DECISION AND ORDER |
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- APPEARANCES
- Surviving Spouse, Marilyn Kilpatrick by
- Levinson, Friedman, Vhugen, Duggan, Bland & Horowitz, per
- William D. Hochberg and Ronald R. Ward
- Employer, Various by
- None
- Department of Labor and Industries by
- The Attorney General, per
- James S. Kalmer, Zimmie Caner and Donna S. Brown, Assistants, and Whitney Petersen, Paralegal
This is an appeal filed by the surviving spouse, Marilyn Kilpatrick, on November 20, 1989 from an order of the Department of Labor and Industries dated November 6, 1989 which affirmed an order dated July 20, 1989 which affirmed an order dated June 15, 1989 which determined that claimant William Kilpatrick died on December 29, 1988 as a result of an occupational disease resulting from exposure to asbestos fibers in covered employment. The order dated June 15, 1989 set aside and held for naught three orders related to previous rejection of the deceased worker's claim, allowed his claim for benefits, approved Marilyn Kilpatrick's claim for benefits, and stated: "The date of injury and last injurious exposure for compensation purposes is determined to be December 31, 1982". Reversed and remanded. [2]
PROCEDURAL AND EVIDENTIARY MATTERS
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 surviving spouse, Marilyn Kilpatrick, from a Proposed Decision and Order issued on August 27, 1990 in which the order of the Department dated November 6, 1989 was affirmed.
This matter was submitted for decision upon a Stipulation of the Parties accompanied by exhibits stipulated for admission and numbered 2 through 11. These exhibits are admitted as numbered.
A Correction to Stipulation of Parties was received by facsimile on October 17, 1990, correcting Item 5 of the original Stipulation of the Parties and clarifying that Marilyn Kilpatrick's application for widow's benefits was received by the Department on May 17, 1989. The Correction to Stipulation of Parties is accepted and considered as part of the record in this appeal.
DECISION
The issue presented in this appeal is whether computation of Marilyn Kilpatrick's benefits as survivor of the deceased worker should be determined by reference to: (1) the date of the worker's last injurious exposure, December 31, 1982, as indicated in the Department's order; or, (2) the date Marilyn Kilpatrick filed her claim for survivor's benefits, May 17, 1989; or, (3) the date of manifestation of the deceased worker's disability. We hold that Marilyn Kilpatrick's benefits are determined by the schedule in effect on the date of first manifestation of her [3] husband's disease related to his occupational exposure. On the evidence before us, we find that date to be January 19, 1983.
This case arises out of William Kilpatrick's occupational exposure to asbestos fibers and eventual death due to intra-abdominal mesothelioma. The parties have stipulated he suffered his last injurious exposure on December 31, 1982. His claim for benefits, which was received by the Department on January 19, 1983, was allowed by the Department order under appeal. Mr. Kilpatrick died on December 29, 1988. The Postmortem Examination Final Report concluded that ". . . it is certain that this patient had asbestosis. The mesothelioma, pleural plagues, and at least to some degree, the patient's pulmonary disease were a result of asbestos exposure. Factors contributing to the patient's demise were the organizing pneumonitis and cerebral infarct. . . ." Exhibit No. 11, page 3, CLINICOPATHOLOGICAL CORRELATION FOR 88-A-132.
Consistent with its order, the Department argues that Mrs. Kilpatrick's benefits should be determined with reference to the schedule in effect on the date Mr. Kilpatrick was last injuriously exposed to asbestos fibers in his occupation. In so arguing, the Department acknowledges that the Board has rejected the last injurious exposure rule, and adopted the date of manifestation rule, for purposes of determining applicable benefit schedules. All of the Department's arguments raised in the present case with regard to this limited issue have been fully addressed in the following cases: In re Charles Jones, BIIA Dec., 87 2790 (1989); In re Kenneth R. Alseth, BIIA Dec., 87 2937 [4] (1989); and In re Milton L. May, BIIA Dec., 87 4016 (1989). We will not revisit this issue here.(1) As between the date of last injurious exposure and date of manifestation, the date of manifestation controls to set benefits.
Mrs. Kilpatrick contends that the date for determining the schedule of her benefits is a date after July 1, 1988. July 1, 1988 is the effective date of Chapter 161, Laws 1988 (HB 1396) which, in part, amended RCW 51.32.050(2)(d) and RCW 51.32.060(5) to increase maximum periodic benefits from 75% to 100% of the state average monthly wage. Mr. Kilpatrick's wages were high enough so that the amendment, if applicable in this case, would apparently increase Mrs. Kilpatrick's monthly benefit. Toward this end, Mrs. Kilpatrick specifically urges, "the date which should be used is the date Mrs. Kilpatrick filed her claim for benefits [May 17, 1989] or the date Mr. Kilpatrick first required treatment, for his mesothelioma, which was November, 1988." Petition for Review, page 2. [5]
In support of using the date of claim filing, Mrs. Kilpatrick argues that her claim did not accrue until after Mr. Kilpatrick's death and reminds us that a death beneficiary's claim is separate and distinct from the worker's claim. She cites: Purdy & Whitfield v. Dep't of Labor & Indus., 12 Wn.2d 131, 120 P.2d 858 (1942); McFarland v. Dep't of Labor & Indus., 188 Wash. 357, 62 P.2d 714 (1936); and Beels v. Dep't of Labor & Indus., 178 Wash. 301, 34 P.2d 917 (1934). This argument, however, has been fully considered and rejected previously by our Supreme Court. Barlia v. Dep't of Labor & Indus., 23 Wn.2d 126, 160 P.2d 503 (1945) and Lynch v. Dep't of Labor & Indus., 19 Wn.2d 802, 145 P.2d 265 (1944). Barlia and Lynch also dispose of an additional, separate argument of Mrs. Kilpatrick, that the amendments to RCW 51.32.050 and .060 which were effective July 1, 1988 should apply retroactively to her husband's claim.
It is a fundamental rule in this state that a statute will be presumed to operate prospectively only, and that it will not be held to apply retrospectively in the absence of language clearly indicating such legislative intent. [citations omitted]
It is also the general rule in this state that awards made payable under the workmen's compensation act are governed by the law in effect at the time the injury to the workman occurred." [citations omitted]
Lynch, 19 Wn.2d at 807.
Lynch specifically rejected a widow's attempt to take advantage of a statutory increase in benefits effective after the date of her husband's injury and death. In Barlia, as in the present case, the [6] widow sought to take advantage of an increase in benefits which occurred after the worker's injury but before his death. The court held that:
. . . In [Lynch] we called attention to our well- established rule that a statute is presumed to operate prospectively and will not be held to apply retroactively in the absence of language which clearly indicates such legislative intent. Attention was also called to the rule that awards payable under our compensation act are governed by the law in effect at the time the injury of the workman occurred.
Barlia, 23 Wn.2d at 128. The court specifically considered McFarland and Purdy & Whitfield:
Those cases, when analyzed, do not have a bearing upon the situation present here. They simply hold that the rights of the widow are never waived by the neglect of her husband to insist upon his rights.
The new independent right given to the widow at the time of the death of the workman relates not to the pension, but to the rights which were those of her husband during his lifetime.
Barlia, 23 Wn.2d at 129. The same analysis would apply to Beels.
Mrs. Kilpatrick's counsel urges that Barlia should not be followed, because it is "old, tired law". Petition for Review at 5. The more specific arguments against following Barlia, although stated only in a cursory manner, are alleged to rest upon legislative history, common sense, and what appear to be public policy grounds.(2) However, our [7] Supreme Court has made clear its view that such arguments are more appropriately taken up with the Legislature and, until that time, will not alter judicial interpretation of the law.
It has been firmly established in this state, by a consistent series of decisions of this court, that the rights of claimants under the Workmen's Compensation Act are controlled by the law in force at the time of the person's injury, rather than by a law which becomes effective subsequently. [citations, including to Barlia and Lynch, omitted]
It is a fundamental rule in this state that a statute will be presumed to operate prospectively only, and that it will not be held to apply retrospectively in the absence of language clearly indicating such legislative intent . . . . [citation to Lynch omitted]
Another rule of statutory construction which the courts observe is that the law-making body is presumed to be familiar not only with its own prior legislation relating to the subject of legislation, but also with the court decisions construing such former legislation . . . . [citations omitted]
Ashenbrenner v. Dep't of Labor & Indus., 62 Wn.2d 22, 25-27, 380 P.2d 730 (1963). See also Seattle School Dist. v. Dep't of Labor & Indus., 116 Wn.2d 352, 358, ____ P.2d ____ (1991); Ellis v. Dep't of Labor & Indus., 88 Wn.2d 844, 851, 567 P.2d 224 (1977); and, Kaiser Aluminum v. Overdorff, 57 Wash. App. 291, 293-294, 788 P.2d 8 (1990). We are confident, then, that under the laws of this state Mrs. Kilpatrick's [8] benefits must be set according to the schedule in effect on the date Mr. Kilpatrick's occupational disease first became manifest. We next determine that date of manifestation in view of the facts put before us.
A disease or disability is not manifest unless it is evident, in some fashion, to the worker. This knowledge need not necessarily be tied to the notice that the disease or disability is occupationally induced. The date of manifestation of disease or disability is the point in time when contemporaneous medical evidence of disability or need for treatment is coupled with knowledge on the worker's part, that a disease or disability exists. See, supra, In re Charles Jones; In re Kenneth R. Alseth; and, In re Milton L. May.
Mrs. Kilpatrick contends her husband's occupational disease did not become manifest until November, 1988. In part she argues that we should focus exclusively upon Mr. Kilpatrick's intra-abdominal mesothelioma which was not definitively diagnosed until November, 1988 and which significantly contributed to his death due to respiratory arrest in late December, 1988. See, Certificate of Death, Exhibit No. 9. Mrs. Kilpatrick would have us ignore any previous manifestation of occupationally-related asbestos disease.
We cannot find any support in the law or the facts of this case for Mrs. Kilpatrick's position. An injury previously sustained or an occupational disease previously manifest does not become a new and separate injury or occupational disease merely because it later manifests in additional symptoms which may have been unknown originally. Crabb v. Dep't of Labor & Indus., 186 Wash. 505, 58 P.2d 1025 (1936). The [9] rule from Ashenbrenner and the associated line of cases still applies. Workers who sustain an injury or an occupational disease "at the same time receive the same compensation for equal disabilities" regardless of whether the particular condition considered arose immediately or made a delayed appearance as a result of aggravation. Corak v. Dep't of Labor & Indus., 2 Wn. App. 792, 800, 469, P.2d 957 (1970). See also, Seattle School Dist. v. Labor & Indus., supra, 116 Wn.2d at 358.
The specific information supplied to the Department on Mr. Kilpatrick's accident report is most helpful in determining the date of manifestation in this particular case. On that report, Mr. Kilpatrick stated: "I was exposed to asbestos for 30 years. I worked for contractors in Wash., Ore., Idaho & Alaska on schools, hospitals, defense installations, refineries & ships." He also explained that the employer was not notified because this was an "illness not accident". Exhibit No. 3. On the same report, the physician noted the complaint or physical finding of dyspnea on exertion and diagnoses of "1) coronary a. [artery] disease 2) asbestos-related lung disease". He noted x-ray findings "mild pleural thickening . . ." and checked "yes" in response to the question of whether the condition diagnosed was the result of the incident described. Ibid.
We are comfortable with the inference from this information that Mr. Kilpatrick had become aware of his asbestos-related disease, and at least some associated disability in the form of dyspnea, no later than the date he arranged to have his accident report finally forwarded to the Department. The employee's and physician's portions of the report were [10] completed on two different dates. The Department received the report on January 19, 1983. This latter date, then, best approximates the date of manifestation of Mr. Kilpatrick's occupational disease.(3) In so concluding we emphasize our reliance is upon the evidentiary value of the content and timing of the accident report and not upon the legal act of filing a claim for benefits.
Our conclusion in this regard is further supported by a medical report of Dr. Terry R. Rogers dated July 27, 1983 in which Dr. Rogers states: [11]
IMPRESSION: This man gives a story consistent with mild to perhaps moderate lung problems with exertional breathlessness suggesting either pulmonary emphysema or perhaps mild fibrosis. The final diagnosis will await the review of the pulmonary function tests.
In light of his occupational history and his chest x-ray changes, at least part of these abnormalities are related to his asbestos exposure.
Exhibit No. 4, page 2. From a review of subsequent medical reports we are fully aware that there ensued a long period of medical uncertainty with regard to the exact nature and extent of the effects from Mr. Kilpatrick's asbestos exposure. Nevertheless, the reports from August of 1987 (Exhibit No. 5) and all of the later reports provided us (Exhibit Nos. 6-11) make it unmistakably clear that the original diagnosis contained in Mr. Kilpatrick's accident report and Dr. Roger's report of July 27, 1983 were correct. Mr. Kilpatrick's occupational disease had become manifest by January 19, 1983. This date determines the schedule of benefits appropriate to Mrs. Kilpatrick's claim for survivor's benefits.
We adopt from the Proposed Decision and Order Findings of Fact Nos. 1, 3 and 4 and Conclusion of Law No. 1. In addition, we make the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
2. Between 1951 and 1982 the claimant was exposed to asbestos fibers in employment which caused him to develop asbestos-related disease in the form of lung disease by January 19, 1983 and intra-abdominal mesothelioma at an undetermined time before his death. [12]
5. On January 19, 1983, William Kilpatrick's asbestos- related occupational disease was evident to him. He had knowledge of the disease, that it was causing some disability and that it required further medical monitoring.
CONCLUSIONS OF LAW
2. The 1988 amendments to RCW 51.32.050(2)(d) and .060(5) and .180 do not apply to this case.
3. Mrs. Kilpatrick's benefits as surviving spouse are determined by reference to the schedule of benefits in effect on January 19, 1983.
4. The order of the Department of Labor and Industries dated November 6, 1989 which adhered to the provisions of an order dated July 20, 1989 which adhered to the provisions of an order dated June 15, 1989, which determined that Mr. Kilpatrick died on December 29, 1988 as a result of an occupational disease resulting from exposure to asbestos fibers in covered employment, and which set aside orders of the Department dated March 23, 1984, September 14, 1984 and May 28, 1985, and which allowed Mr. Kilpatrick's claim for benefits and which approved Mrs. Kilpatrick's claim as surviving spouse for payment of benefits and which determined the date of injury and last injurious exposure for compensation purposes as December 31, 1982, is incorrect and is reversed. The matter is remanded to the Department of Labor and Industries to issue an order stating that Mr. Kilpatrick died on December 29, 1988 as the result of an occupational disease resulting from exposure to asbestos fibers in covered employment, allowing Mr. Kilpatrick's claim for benefits and allowing Mrs. Kilpatrick's claim as surviving spouse, and establishing the date of January 19, 1983 as the date upon which Mr. Kilpatrick's occupationally related asbestos disease became manifest and as the determinative date for schedule of benefits purposes. [13]
It is so ORDERED.
Dated this third day of April, 1991.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
SARA T. HARMON Chairperson
/s/
PHILLIP T. BORK Member
(1) It appears this issue is presently squarely before our Supreme Court. By Order Denying Petition for Review dated August 7, 1989 we adopted the Proposed Decision and Order, relying upon Alseth, supra, in In re Robert A. Landon, Dckt. No. 88 3777 (August 7, 1989). The Department subsequently appealed to superior court, King County Cause No. 89-2-17180-3, wherein summary judgment was entered on November 8, 1989 in favor of Mr. Landon and specifically finding that the date of manifestation rule applies for compensation purposes. The Department then appealed to the Court of Appeals, Division I, Docket No. 25286-1- I. The Court certified the matter as one of substantial public interest to our Supreme Court on August 21, 1990 where the matter is pending as Department of Labor & Industries v. Landon, Supreme Court No. 57483-9. It is our understanding that oral argument was scheduled in this matter for February 26, 1991 and that a decision has not yet been issued.
(2) We are particularly puzzled by the following language: ". . . There has been no rationale to justify why Mrs. Kilpatrick's claim should be treated differently than a widow whose husband did not file a claim. It seems rather unconscionable to treat two beneficiaries quite differently (some $400 per month) when there is no rationale supporting such a difference." Petition for Review at 4. This argument appears based upon a false premise. Although the content of a deceased worker's previous claim filing may be of some evidentiary value in determining the date of manifestation (see factual analysis in this particular case, infra), whether or not the deceased worker previously filed a claim has no other legal significance of which we are aware relevant to the issues in this case. We do not find anything in Barlia or Lynch, supra, or any other authority which would direct that the rate of benefits be legally tied to whether or not a deceased worker had filed a claim.
(3) From Exhibit No. 1, the historical/jurisdictional facts agreed to by the parties, we are aware that the Department neither finally rejected nor allowed Mr. Kilpatrick's claim. Had orders rejecting the claim become final, it could have, depending upon the circumstances, become appropriate to apply principles of res judicata against the Department to the effect that the Department had determined that the occupational disease had not yet become manifest. Nevertheless, that is clearly not the case before us. It appears that Mr. Kilpatrick was represented by counsel throughout and that the Department's proposed rejection of the claim came before this Board by way of appeals filed in November, 1984 and again in July, 1985. The first appeal was resolved by an Order on Agreement of Parties which remanded to the Department and directed that the matter would be put in abeyance until the claimant requested final adjudication or the Department determined that a final adjudication was appropriate. Likewise, the second appeal was resolved also by an Order on Agreement of Parties which directed the Department to hold further adjudication in abeyance pending further investigation. It appears that delay of final adjudication of Mr. Kilpatrick's claim was mutually agreeable. We do not perceive any unfairness in finding upon the evidence before us that Mr. Kilpatrick's occupational disease was manifest no later than the date on which he filed the accident report containing evidence of manifestation.
We further note that we found manifestation on the basis of similar medical evidence, and ordered the claim allowed, in a case not involving survivor's benefits. In re Marion A. Funston, Dckt. No. 87 0248 (April 10, 1989).