|IN RE: LEO GILMORE, DEC'D.||)||DOCKET NO. 57,759|
|Claim No. G-941955||)||DECISION AND ORDER|
- Son-Petitioner, Gary Lee Gilmore, by
- Schroeter, Goldmark & Bender, per
- James Hailey
- Employer, Hope Cement Finishing, Inc.,
- Department of Labor and Industries, by
- The Attorney General, per
- William Bailey, Assistant
This is an appeal filed by the heir-petitioner on September 29, 1980 from an order of the Department of Labor and Industries dated July 23, 1980, which adhered to a prior order dated June 26, 1980, which denied payment of benefits to the estate of the claimant for the reason that there was no surviving spouse or children who were eligible to receive benefits under RCW 51.32.040 and closed the claim with no benefits payable of any kind. Affirmed.
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 heir-petitioner to a Proposed Decision and Order issued by a hearings examiner for this Board on March 9, 1981, in which the order of the Department dated July 23, 1980 was sustained.
The facts presented before us are uncontested and were stipulated by the parties to clarify the legal issues raised by this appeal. However, for purposes of the foregoing discussion, a brief summary is included herein.
Leo Gilmore, now deceased, was injured on September 13, 1976 during the course of his employment with Hope Cement Finishing, Inc. His claim was eventually closed with permanent partial disability awards for impairment of the left leg and left arm. Upon an appeal to this Board, he was declared to be permanently totally disabled in  a Proposed Decision and Order dated May 13, 1980. Mr. Gilmore died on June 9, 1980, leaving no surviving spouse or eligible dependent children as contemplated under the Workers' Compensation Act. On June 11, 1980 the Board, not aware of Mr. Gilmore's death, issued its order adopting the hearings examiner's Proposed Decision and Order, there having been no petition for review filed thereto. RCW 51.52.104. Thereafter, the Department of Labor and Industries determined that Mr. Gilmore left no surviving eligible beneficiaries and closed the claim with no benefits being payable pursuant to RCW 51.32.040. The Department's action in so denying benefits following Mr. Gilmore's death gives rise to the instant appeal.
In the Proposed Decision and Order in the appeal now before us, the hearings examiner specifically found that Mr. Gilmore died leaving no surviving spouse nor children eligible as beneficiaries. In addition, the examiner's short decision indicates the estate of Leo Gilmore, Deceased, would not be a "beneficiary" under the Act. Ray v. Industrial Insurance Commission, 99 Wash. 176 (1917). We agree with the examiner's reasoning insofar as it determines that the estate cannot be a beneficiary.
However, the claimant's Petition for Review incorporating an argument first advanced in a hearing brief filed prior to the issuance of the Proposed Decision and Order raises a further legal question. In short, the issue can be stated as follows:
Was the prior appeal declaring the claimant to be permanently totally disabled, reduced to judgment prior to the claimant's death so that a property right was thereby created which would descend to the deceased's estate?
In support of its contention the petitioner cites for our consider ation Calkins v. Department of Labor & Industries, 10 Wn. 2d 565 (1941) and Carl v. Department of Labor & Industries, 38 Wn. 2d 890 (1951). In Calkins, the workman died following entry of a judgment in superior court based on a jury verdict in his favor that supported his request to reopen his claim for aggravation. Upon his death, he left no widow  or children but had not received any compensation since an appeal had been taken by the Department and the employer to the supreme court. The court held that the administrator of the estate could properly be substituted as a party to the action because the claim had been reduced to judgment at the superior court level creating a property right which would descend to the deceased workman's estate.
In the Carl case, the legal representative of the claimant's estate was found to be the proper party to be substituted following appellant Carl's death pending his appeal to the supreme court from the dismissal non obstante verdicto after a jury found him permanently totally disable. Citing the Calkins case the court held that:
"In actions at law, where the action would otherwise abate upon death of one of the parties, the rule is established that, if the jury verdict has been entered prior to death, a judgment, the entry of which is delayed by the trial court or the opposing party, will be entered nunc pro tunc as of that date, for the purpose of avoiding abatement."
From these cases the petitioner argues that an award which is reduced to judgment becomes a property right for which the personal representative of the deceased worker can properly be substituted to marshal that property in the administration of the deceased's estate.
The cases cited by the petitioner are not in point with the appeal before us as they both deal with the question of superior court judgments being entered and the worker's death occurring during the pendency of an appeal to the supreme court. Petitioner provides no authority to support the proposition that Mr. Gilmore's claim had been reduced to judgment before his death. It is clear from the facts before us that the Board had not entered its final order as required by RCW 51.52.104 since the period for filing a Petition for Review had not expired. We hold that in the circumstances before us no property right was created because no claim had been reduced to judgment at the time of Mr. Gilmore's death. Cf. Lutch v. Department of Labor & Industries, 54 Wn. 2d 373 (1959). 
- On or about September 13, 1976, the Department received an accident report from the claimant, Leo R. Gilmore, now deceased, alleging the occurrence of an industrial injury of September 8, 1976, during the course of his employment with Hope cement Finishing, Inc. Following allowance of the claim, the Department issued an order closing the claim with a permanent partial disability award of 10% of the amputation value of the left leg at or above the knee joint with a functional stump. Following subsequent reopenings of the claim and consolidation with a second injury, the Department issued an order closing the claim on March 29, 1979, with a further permanent partial disability award of 20% of the amputation value of the left arm at or above the deltoid insertion or by disarticulation at the shoulder. On June 1, 1979, following reassumption of jurisdiction over the claim the Department entered an order adhering to the provisions of its order of March 29, 1979. On July 3, 1979 the Board of Industrial Insurance Appeals received a notice of appeal filed by the claimant. On August 1, 1979 the Board issued an order granting the appeal under Docket No. 54,810.
- Following hearings under that prior appeal, a Proposed Decision and Order was issued by a hearings examiner for the Board on May 13, 1980, which contained an order declaring the claimant to be permanently totally disabled as of June 1, 1979 and directing the Department to place the claimant on the pension rolls accordingly.
- On June 9, 1980 Leo R. Gilmore died leaving no surviving spouse nor children eligible as beneficiaries under the workmen's compensation statute.
- On June 11, 1980 the Board of Industrial Insurance Appeals issued an order adopting the Proposed Deci- sion and Order of May 13, 1980 in the prior appeal, Docket No. 54,810. On June 26, 1980 the Department entered an order effectively determining that Leo Gilmore was a single worker leaving no surviving spouse nor children eligible to receive benefits under RCW 51.32.040 and the claim was closed with no benefits payable of any kind. On July 15, 1980 an attorney for the deceased protested the order of June 26 making reference to the fact that Mr. Gilmore left a surviving son, Gary Lee Gilmore. On July 25, 1980 the Department issued an order adher- ing to the provisions of its order of June 26, 1980. On September 29, 1980 the Board received a notice of appeal filed on behalf of Leo R. Gilmore, Deceased. On October 15, 1980 the Board issued an order grant- ing the appeal and directed that proceedings be held on the issues raised by the appeal. 
- The Board of Industrial Insurance Appeals has jurisdiction of the parties and subject matter to this appeal.
- At the time of the death of Leo R. Gilmore, there were no beneficiaries to his rights under an appeal from the Department order of June 1, 1979, which had been the subject of a prior appeal under Board Docket No. 54,810 as contemplated under the Indus- trial Insurance Act of this state.
- As of the date of the death of Leo R. Gilmore, no final order under prior appeal Docket No. 54,810 had been entered and the matter had not been reduced to judgment.
- The order of the Department of Labor and Industries issued herein on July 23, 1980, effectively affirm- ing the non-payment of benefits to any surviving spouse or child is correct, and should be affirmed.
It is so ORDERED.
Dated this 11th day of May, 1981.
BOARD OF INDUSTRIAL INSURANCE APPEALS
MICHAEL L. HALLChairperson
AUGUST P. MARDESICHMember