| IN RE: RICHARD C. CORKUM | ) | DOCKET NO. 90 0280 |
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| CLAIM NO. K-394340 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Richard C. Corkum, by
- Levinson, Friedman, Vhugen, Duggan, Bland & Horowitz, per
- Ronald R. Ward and William D. Hochberg
- Employer, Various
- None
- Department of Labor and Industries, by
- The Attorney General, per
- Winslow Whitman, Assistant
This is an appeal filed on behalf of the claimant, Richard Corkum, on January 16, 1990 from an order of the Department of Labor and Industries dated January 9, 1990. The order rejected Mr. Corkum's claim for the reason that the evidence revealed that the last injurious exposure which gave rise to the disease for which this claim was filed did not occur during employment subject to coverage under the industrial insurance laws of the State of Washington and that the claim was not considered allowable under the asbestos fund as the federal claim had been allowed. Reversed and remanded.
PRELIMINARY ISSUE
Proposed Finding of Fact No. 1 set forth in the Proposed Decision and Order presents an issue of the jurisdiction of the Department to issue its January 9, 1990 order from which this appeal was taken. As proposed, it appears the Department originally rejected Mr. Corkum's [2] claim by an order dated April 1, 1988 and no timely protest or appeal was filed to that order. We have reviewed the Department's claim file in order to attempt to resolve this jurisdictional question. In re Mildred Holzerland, BIIA Dec., 15,729 (1965).
The Department file reveals that on April 17, 1989 the Department received a declaration, signed by Mr. Corkum, which states that he did not receive the order dated April 1, 1988. The Department file does not reveal when the April 1, 1988 order was properly communicated to Mr. Corkum. The Department and the claimant have stipulated that the order of January 9, 1990 was issued within sixty days of the communication of the April 1, 1988 Department order.
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 to the Proposed Decision and Order issued on September 25, 1990 in which the order of the Department dated January 9, 1990 was reversed and the matter remanded to the Department with direction to further investigate the claim and issue a further determinative order.
This case was presented for decision based on stipulated facts and legal memoranda. The parties stipulated:
- Richard C. Corkum has objective findings of asbestos-related disease as a result of asbestos exposure occurring at various times between 1952 and the mid-1980s, and with various employers subject to a variety of workers' compensation laws, both state and federal.
- Richard C. Corkum has filed a claim for benefits under the Federal Employees [3] Compensation Act of the United States for conditions resulting from asbestos exposure occurring in employment subject to the jurisdiction of this law. His claim was allowed for annual surveillance examinations on September 11, 1987. He has also filed a claim under the Federal Longshore and Harborworkers' Compensation Act, which has not been allowed as of May 9, 1990.
- Richard C. Corkum has worked for the following employers as a pipefitter, plumber, or sprinkler fitter, in situations where asbestos fiber was present:
1952: Puget Sound Naval Shipyard, Bremerton, WA
1952: Grinnell Co. of the Pacific, Tacoma, WA
1952-1953,1955 and 1959-1962: Todd Shipyard, Tacoma, WA
1952-1971: Lockheed Shipbuilding, Tacoma, WA
1959-1963: United Plumbing & Heating, Seahurst, WA
1963-1979: Todd Shipyard, Tacoma, WA
1965 (part-time): Duwamish Shipyards, Tacoma, WA
1971-1974: Tacoma Boatbuilding, Tacoma, WA
1979-1986: Todd Shipyard, Tacoma, WA
4. Richard C. Corkum's injurious exposure to asbestos began in 1952 when he was subject to the jurisdiction of the Federal Employees Compensation Act, while working for Puget Sound Naval Shipyard, and continued from 1952 to the mid-1980s, when he was subject to the jurisdiction of the Federal Longshore and Harborworkers' Compensation Act. From 1959 to 1963 he was exposed to asbestos while covered under the State Department of Labor and [4] Industries jurisdiction. The last job site on which he was exposed was at Todd Shipyard, Tacoma, Washington from 1979-1986.
5. On June 16, 1987, Richard C. Corkum filed a claim for benefits under Title 51 RCW.
6. On January 9, 1990, Richard C. Corkum's claim for benefits was rejected by the Department of Labor and Industries on the ground that he was not subject to coverage under the Industrial Insurance Laws of the State of Washington at the time of his last injurious exposure to asbestos, thereby excluding Mr. Corkum from coverage under the Department of Labor and Industries Asbestos Fund. Grounds set forth by the Department for the rejection were that he was last employed by Todd Shipyards and subject to the Longshore and Harborworkers' Compensation Act and that his claim had been allowed for annual surveillance examinations under the Federal Employees Compensation Act.
7. Department records indicated Richard C. Corkum was exposed to asbestos in employment covered by Title 51 RCW in 1952 and from 1959 to 1963 while working for various employers.
Stipulation of Facts.
Although we agree with our industrial appeals judge that the Department order rejecting this claim should be reversed, we have granted review to clarify the legal basis for our decision, to direct the Department to pay interim benefits under the asbestos fund, to direct the Department to determine the liable insurer, and to direct the Department to pursue the federal program on behalf of the worker, if appropriate.
Mr. Corkum has made a prima facie showing of entitlement to interim benefits under the provisions of RCW 51.12.102(1). He has established:
(a) there are objective clinical findings to substantiate that the worker has an asbestos-related occupational disease and [5]
(b) the worker's employment history has a prima facie indicia of injurious exposure to asbestos fibers while employed in the state of Washington in employment covered under this title. . . .
RCW 51.12.102(1). The Department argues, however, that it can reject Mr. Corkum's claim on the basis that his Federal Employees Compensation Act (FECA) claim has been allowed for annual surveillance examinations. According to the Department, the provisions of RCW 51.12.102(1) direct it to pay benefits only until the liable insurer initiates payments. Since the liable insurer, FECA, has initiated benefits, the Department argues it properly rejected the claim. With this we disagree.
The basis of Mr. Corkum's FECA claim is his exposure to asbestos fiber while employed at Puget Sound Naval Shipyard in 1952. RCW 51.12.060 specifically states that employees of the United States are not covered by Title 51 RCW. However, the mere fact that Mr. Corkum's FECA claim has been allowed is not sufficient basis for the Department to reject his claim. For he suffered subsequent injurious exposure while covered both by our state law and the Longshore and Harbor Workers' Compensation Act (LHWCA). If Mr. Corkum had only suffered exposure to injurious asbestos fiber during his employment covered by FECA, the Department's rejection of his claim would have been appropriate under the provisions of RCW 51.12.060. But since Mr. Corkum's maritime claim and state claim are based on exposure subsequent to his federal employment claim, he is entitled to at least interim state benefits under RCW 51.12.102. [6]
RCW 51.12.102(1) specifically refers to any worker "who may have a right or claim for benefits under the maritime laws of the United States resulting from an asbestos-related disease. . . ." (Emphasis added) Mr. Corkum's maritime claim (LHWCA) had not been allowed as of the date of the Department order under appeal. Only his federal employment claim (FECA) had been allowed. The provisions of RCW 51.12.102(1) do not apply to federal employment claims. See, In re Edward H. Reichelt, Dckt. No. 87 4384 (January 20, 1989).
The Department also argues that the last injurious exposure rule permits the rejection of Mr. Corkum's claim. This is based on the fact that during the last years of employment in which he was injuriously exposed to asbestos fibers, Mr. Corkum was engaged in employment subject to LHWCA (Todd Shipyards from 1979 to 1986). Stipulation of Facts, Items 1., 3. and 4. See also, Department Order dated January 9, 1990. The Department cites RCW 51.32.180 (as amended 1988) and WAC 296-14-350 (1988). RCW 51.32.180 mandates the same benefits for workers and beneficiaries, regardless of whether the worker has sustained an industrial injury or an occupational disease. The 1988 amendments to RCW 51.32.180 and WAC 296-14-350(2) and (3) also establish the applicable schedule of benefits in occupational disease claims filed on or after July 1, 1988. In addition, WAC 296-14-350(1) provides: "The liable insurer in occupational disease cases is the insurer on risk at the time of the last injurious exposure to the injurious substance or hazard of disease which gave rise to the claim for compensation." [7]
It appears that Mr. Corkum's last injurious exposure to asbestos fiber may well have occurred during employment covered by the LHWCA. Resolution of this appeal does not, however, turn on the likelihood of eventual LHWCA coverage for subsequent exposure. In order for Mr. Corkum to receive interim benefits from the Department he need only show that he may have a maritime claim, that he has objective clinical findings to support an occupational disease claim for asbestos exposure, and that he has an employment history of injurious exposure while in employment covered under Title 51 RCW. RCW 51.12.102(1). This he has done. The Department then has the responsibility by statute to determine the liable insurer and "continue to pay benefits until the liable insurer initiates payments or benefits. . . ." Ibid. The last injurious exposure rule cannot be construed to deny interim benefits to workers based on employment not covered by this state's workers' compensation law.
A review of the legislative history of RCW 51.12.102 (Laws of 1988, ch. 271, ] 1 p. 1226, Substitute House Bill 1592) reveals that the driving force behind the legislation was a concern that workers who contracted asbestos-related occupational diseases frequently have work histories which include exposure to asbestos in several different employments which may be covered by more than one workers' compensation program. While jurisdictional battles were waged among the various compensation programs, workers were often totally disabled and without sources of income or medical coverage. The goal of the legislation was to provide state industrial insurance benefits to workers whose employment history established exposure to asbestos fibers while employed [8] in covered employment in this state. Benefits would be paid even if the Department determined that benefits were owed by an insurer under the maritime laws. The Department would then pursue the federal program on behalf of the worker or be entitled to a lien against any third party recovery. See, Senate Bill Report, Committee on Economic Development and Labor (February 26, 1988); Floor synopsis, Substitute House Bill 1592; and, K. Haynes, Office of Program Research, House of Representatives, memorandum to House Commerce and Labor Committee (September 2, 1987).
Application of the last injurious exposure rule as argued by the Department would not only deny benefits to Mr. Corkum but also to significant numbers of workers the statute was clearly intended to cover. Further, as pointed out in the extensive discussion in the Proposed Decision and Order from Professor Larson's treatise on Workmen's Compensation, the last injurious exposure rule has generally been interpreted to apply to the last employer over which the particular compensation program has jurisdiction. 4 A. Larson, The Law of Workmen's Compensation, ] 95.25(d), at 17-187 (1990).
In Todd Shipyard Corp. v. Black, 717 F.2d 1280 (9th Cir. 1983), cert. denied, 104 S.Ct. 1910 (1984), the court discussed the last covered employer rule as it applies to LHWCA. Mr. Black had injurious exposure to asbestos fiber while employed in Washington state at Todd Shipyard, employment covered by LHWCA. Subsequently, he worked in Washington for Boeing for 26 years where he again had injurious exposure to asbestos fiber. This employment was not covered by LHWCA. Todd Shipyard attempted to absolve its liability to Mr. Black using the last [9] covered employer rule on the theory that Mr. Black was last exposed to asbestos at Boeing. The court held:
The last covered employer rule means, plainly and simply, that the last employer covered by the LHWCA who causes or contributes to an occupational injury is completely liable for that injury. This is true even if the employee incurred the injury, in part, while subsequently working for an employer not covered by the Act.
717 F.2d at 1287.
In support of its decision, the court discussed the intent of Congress with regard to the last covered employer rule.(1) Black, at 1284-1286. This purpose is very similar to the intent behind our own RCW 51.12.102, i.e., to avoid delay in benefits caused by disputes among insurers. See also RCW 51.04.010. The court in Black also pointed out that their interpretation of the rule had been endorsed in state cases where the last employer was located in a state different from that in which the claim had been brought. Black, at 1285. See generally, 4 A. Larson, The Law of Workmen's Compensation. § 95 (1990). The Washington statute is designed to deal with Washington problems. The last injurious exposure rule only applies within a given jurisdiction. The Department has no jurisdiction over employers covered by FECA or LHWCA. Therefore the Department cannot determine the liability of such an employer over [10] whom the Department has no jurisdiction. Until the claim under LHWCA is competently adjudicated, RCW 51.12.102 applies.
Mr. Corkum has made a prima facie showing under the provisions of RCW 51.12.102(1). After review of the record, the Proposed Decision and Order, and the Department's Petition for Review, this Board is persuaded that the Department order of January 9, 1990 is incorrect and should be reversed and the claim remanded to the Department with directions to issue an order providing Mr. Corkum with benefits pursuant to RCW 51.12.102 and taking such further action as is required by law.
FINDINGS OF FACT
1. On June 16, 1987 the Department of Labor and Industries received an application for benefits on behalf of Richard Corkum, alleging asbestos exposure during the course of his employment with various employers. On April 1, 1988 the Department issued an order rejecting the claim for the reason that the injury occurred while Mr. Corkum was in the course of his employment subject to federal jurisdiction. Longshore and Harbor Workers' Compensation Act.
On January 9, 1990, within sixty days of the communication of the Department's order of April 1, 1988 to Mr. Corkum, the Department issued an order rejecting his claim for the reason that the last injurious exposure which gave rise to the occupational disease for which the claim was filed did not occur during employment subject to coverage under the industrial insurance laws of the State of Washington, and the claim was not considered allowable under the asbestos fund as the federal claim had been allowed.
On January 16, 1990 a notice of appeal was filed with the Board of Industrial Insurance Appeals from the Department order of January 9, 1990. On February 1, 1990, the Board issued an order granting the appeal, assigning it Docket [11] No. 90 0280, and directing that proceedings be held on the issues raised.
2. From 1952 until 1986 Richard Corkum was exposed to asbestos fiber during the course of his employment with various employers as a pipefitter, plumber, and sprinkler fitter.
3. Mr. Corkum's injurious exposure to asbestos fibers during the course of his employment began in 1952 while he was subject to the jurisdiction of the Federal Employees Compensation Act. At various times between 1952 and 1963 Mr. Corkum was injuriously exposed to asbestos fibers while in the course of his employment with employers subject to the provisions of the Washington State Industrial Insurance Act. From 1963 through 1985 and part of 1986 Richard Corkum was subject to injurious exposure to asbestos fibers during the course of his employment with employers subject to the jurisdiction of the Federal Longshore and Harbor Workers' Compensation Act.
4. Richard Corkum has objective clinical findings of asbestos-related disease as a result of injurious exposure to asbestos fibers while in the course of his employment with various employers, including employment subject to the provisions of the Washington Industrial Insurance Act.
5. Richard Corkum filed a claim for Federal Employees Compensation Act benefits, for occupational exposure in 1952, which was allowed for annual surveillance exams. He also filed a claim for Federal Longshore and Harbor Workers' Compensation Act benefits. As of May 9, 1990, that claim was still pending.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and subject matter of this appeal.
- Claimant Richard Corkum has objective clinical findings within the meaning of RCW 51.12.102(1)(a) to substantiate that he has an [12] asbestos-related claim for occupational disease, and his employment history has a prima facie indicia of injurious exposure to asbestos fibers while employed in the State of Washington in employment covered under Title 51 RCW, within the meaning of RCW 51.12.102(1)(b).
- Within the meaning of RCW 51.12.102, claimant Richard Corkum may have a right or claim for benefits under the maritime laws of the United States resulting from an asbestos-related disease.
- Claimant Richard Corkum's prior allowed claim under the Federal Employees Compensation Act does not preclude interim coverage, for subsequent occupational exposure, under RCW 51.12.102.
- The last injurious exposure rule applies only within a given jurisdiction.
- The order of the Department of Labor and Industries dated January 9, 1990 which rejected the claim for the reason that the last injurious exposure which gave rise to the disease for which the claim was filed did not occur during employment subject to coverage under the industrial insurance laws of the State of Washington, and that the claim was not considered allowable under the asbestos fund as the federal claim had been allowed, is incorrect and is reversed. This matter is remanded to the Department with directions to issue an order determining that Mr. Corkum is entitled to interim benefits pending the Department's determination as to the liable insurer, and that the Department will pursue the federal program insurer to extent required by RCW 51.12.102(4) and WAC 296-14-600(4). [13]
It is so ORDERED.
Dated this twenty-eighth day of March, 1991.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
SARA T. HARMONChairperson
/s/
FRANK E. FENNERTY, JR.Member
/s/
PHILLIP T. BORKMember
(1)E.g.: "Congress intended the last employer be completely liable because of "the difficulties and delays which would inhere in the administration of the Act" if attempts were made to apportion liability among several responsible employers [citation omitted]." 717 F.2d at 1285.