|IN RE: JOHN L. ROBINSON||)||DOCKET NO. 91 0741|
|CLAIM NO. K-745863||)||DECISION AND ORDER|
- Claimant, John L. Robinson, by
- Levinson, Friedman, Vhugen, Duggan & Bland, per
- William D. Hochberg
- Employer, Various
- Department of Labor and Industries, by
- The Attorney General, per
- Jean Jelinek, Paralegal, and per
- Jeffrey P. Bean and Loretta A. Vosk, Assistants
This is an appeal filed by the claimant, John L. Robinson, on February 14, 1991, from an order of the Department of Labor and Industries dated February 7, 1991 which affirmed an order dated October 5, 1990 affirming an order dated August 23, 1990, rejecting the claim on the grounds that "injury occurred while in the course of employment subject to federal jurisdiction (Longshore and Harbor Workers Act)." Reversed and remanded.
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 of Labor and Industries to a Proposed Decision and Order issued on March 12, 1992 in which the order of the Department dated February 7, 1991 was reversed, and the claim was remanded to the Department with direction to determine where claimant's last injurious exposure occurred while employed by an employer covered by the Washington State Industrial Insurance Act, and take such further action as made be indicated or required by the law and the facts. 
The Board has reviewed the procedural and evidentiary rulings in the record of proceedings, and finds that no prejudicial error was committed and said rulings are hereby affirmed.
The issues presented by this appeal and the evidence presented by the parties are adequately set forth in the Proposed Decision and Order. We do wish to emphasize statements in Exhibit No. 5, "Declaration of John L. Robinson". Paragraph 3, on page 1, states:
Following the completion of my job with IPC in Port Angeles, Washington on July 6, 1989, I was dispatched for employment at Todd Pacific Shipyards Corporation with a work start date effective July 12, 1989.
Paragraph 1, on page 2, states:
I had a previous Labor and Industries binaural hearing loss claim with the claim number J-191778. This claim was allowed by the Department of Labor and Industries, and awarded me a 17.20% complete loss of hearing in both ears effective March 1, 1983...
Paragraph 2, on page 2, states in part:
On December 29, 1989, I was evaluated by Dr. B. Richard Leventhal ... A medical inquiry from the Department of Labor and Industries resulted in Dr. Leventhal rendering an opinion that I currently suffered from a binaural hearing loss impairment of 32.5%...
Further, in the stipulated facts of "Supplemental Pleadings," page 2, number 5 states:
Injurious noise exposure occurred while at Todd Shipyards immediately after his rehire and that this exposure occurred while under the jurisdiction of the Longshore and Harbor Workers' Compensation Act. 
Based primarily upon these facts, but also on the other stipulated materials, it appears that Mr. Robinson may have worked for employers subject to the provisions of the Washington State Industrial Insurance Act after he had received compensation in 1983, and before his employment beginning on July 12, 1989 in a job subject to federal jurisdiction. Also, the work he did between 1983 and 1989 may have subjected Mr. Robinson to further injurious noise exposure. If so, it may well be that Mr. Robinson qualifies for additional state benefits or, if not, he may be entitled to interim benefits pursuant to RCW 51.12.100(4).
In any event, the Department's rejection order constrains us once again to delineate the appropriate circumstances for the application of the "last injurious exposure" rule, WAC 296-14-350(1). Certainly, based on the parties' stipulation, Mr. Robinson's last exposure to injurious occupational noise occurred during employment subsequent to July 12, 1989 which was covered by the Longshore and Harbor Workers' Compensation Act, a federal program. However, in such an instance, we have previously held that the "last injurious exposure" rule is not intended to apply as a basis to deny a state claim. It is a rule which governs the insurance risks and liabilities under the state's Industrial Insurance Act between successive self-insured employers or a self-insured employer and the Department's State Fund. The "last injurious exposure" rule is not to be used as a basis to deny benefits when exposure has occurred under different compensation systems such as in the present case involving the State of Washington and the Federal Longshore and Harbor Workers' Compensation Act. See, 4 A. Larsen, The Law of Workers' Compensation,  § 95 (1990);Todd Shipyards Corp. v. Black, 717 F.2d 1280 (9th Cir. 1983); Weyerhaeuser v. Tri, 117 Wn.2d 128 (1991).
After consideration of the Proposed Decision and Order, the Department's Petition for Review filed thereto, and a careful review of the entire record before us, we agree with the Proposed Decision and Order's determination that Mr. Robinson's claim may not be rejected out of hand, on the grounds relied upon by the Department order. At a minimum, the Department is required to determine the nature and extent of claimant's in-state employment between March 1, 1983 and July 12, 1989 and to determine whether any of such employment had an adverse effect on the claimant's hearing. It may also be necessary or appropriate to provide interim benefits pending a final federal determination, pursuant to RCW 51.12.100(4). Mr. Robinson's claim will be remanded for such consideration. We, therefore, enter the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
1. On May 15, 1990 an application for benefits from the claimant, John L. Robinson, was received by the Department of Labor and Industries alleging that as of December 2, 1989, he suffered a worsened bilateral hearing loss due to continuous exposure to injurious levels of noise while in the course of employment with various employers.
On August 23, 1990 the Department issued an order which rejected the claim for the reason that the "injury occurred while in the course of employment subject to federal jurisdiction (Longshore and Harbor Workers' Compensation Act)." 
On September 7, 1990 the Department received claimant's protest and request for reconsideration of its August 23, 1990 order.
On October 5, 1990 the Department issued an order which affirmed the provisions of the Department order dated August 23, 1990.
On November 16, 1990 the Department issued an order holding its October 5, 1990 order in abeyance pending further consideration.
On February 7, 1991 the Department issued an order which affirmed the provisions of the Department order dated October 5, 1990.
On February 14, 1991 the claimant filed a Notice of Appeal with the Board of Industrial Insurance Appeals. On March 7, 1991 the Board issued an order granting the appeal.
2. In March, 1983, the claimant had a hearing loss claim allowed by Department of Labor and Industries under our State Industrial Insurance Act, in Claim No. J-191778. He was awarded, based upon this hearing loss, a permanent partial disability award equal to 17.20% complete loss of hearing in both ears by a Department order effective March 1, 1983.
3. Since 1944, the claimant has been a worker employed as a boilermaker in both state industrial and federal maritime work.
4. The claimant worked at a job immediately prior to July 6, 1989 with IPC in Port Angeles, Washington.
5. The claimant was rehired by Todd Shipyards on July 12, 1989.
6. On December 29, 1989 medical evidence was deduced indicating a binaural hearing loss of 32.5%.
7. Injurious noise exposure occurred while claimant was employed at Todd Shipyards after rehire on July 12, 1989. This exposure occurred while claimant was working under employment subject to the jurisdiction of the  Federal Longshore and Harbor Workers' Compensation Act.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction of the parties and the subject of this appeal.
- RCW 51.12.100 does not automatically preclude the claimant from receiving benefits under the industrial insurance laws of the State of Washington, in light of the provisions of subsection (4) thereof.
- The liable insurer for a hearing loss in an occupational disease claim is the last in-state employer covered by Title 51 RCW at the time of the last injurious exposure to the injurious substance or hazard of disease which gives rise to a claim for compensation, within the meaning of WAC 296-14-350(1).
- The order of the Department of Labor and Industries dated February 7, 1991, which adhered to the provisions of prior orders rejecting the claim for benefits for the reason that "injury occurred while in the course of employment subject to federal jurisdiction (Longshore and Harbor Workers' Compensation Act)", is incorrect, and is reversed. The claim is remanded to the Department to further investigate, provide interim benefits as may be indicated, and to issue further determinative orders as may be indicated or required by the law and the facts.
It is so ORDERED. 
Dated this 29th day of September, 1992.
BOARD OF INDUSTRIAL INSURANCE APPEALS
S. FREDERICK FELLERChairperson
FRANK E. FENNERTY, JR.Member
PHILLIP T. BORKMember