Significant Decisions

OCCUPATIONAL DISEASE (RCW 51.08.140)
(See also AGGRAVATION, COURSE OF EMPLOYMENT, SCOPE OF REVIEW and TIMELINESS OF CLAIM)

OCCUPATIONAL DISEASE (RCW 51.08.140)

Aggravation of pre-existing condition

Aggravation of a pre-existing condition by distinctive conditions of work can be the basis for an occupational disease claim allowance without a showing that the pre-existing condition has objectively worsened.  ....Donald Plemmons, 04 12018 (2005)

Aggravation of pre-existing occupational disease vs. new occupational disease – See AGGRAVATION Proximate cause of worsened condition: new occupational disease vs. aggravation

Apportionment

The allocation of responsibility permitted by WAC 296-17-870 may be addressed in an employer's appeal by establishing that the worker was engaged in employments not considered by the Department and that these employments contained the hazard or exposure that contributed to the disease. ….Michael Smith, 00 12127 (2002)

Concurrent employers

Responsibility for an occupational disease can be apportioned between insurers when the worker was employed in concurrent employment covered by different insurers and each employment was a proximate cause of the occupational disease.  ....Amy Dunnell, 03 18764 (2005) [Editor's Note:  The Board's decision was appealed to superior court under  Spokane County Cause No. 05-2-02014-2.]

Date of manifestation – see Schedule of benefits appealable

Hearing loss

A medical expert can segregate alternate causes of hearing loss so long as the segregation is based on the worker's specific circumstances and generally accepted understanding of the nature of hearing loss.  ….Dietrich Hardy, 08 12990 (2009)

A claim for hearing loss can be allowed without a showing of compensable loss so long as occupational exposure to harmful levels of noise caused a loss of hearing. ...Art McDaniel, 03 10546 (2004) 

Although clinically reliable audiograms may present the best measure in determining the extent of hearing loss, industrial audiograms will not be discounted, per se.  All relevant evidence is examined to determine the reliability of any audiogram.  The industrial audiograms that demonstrated a gradual and consistent increase in loss of hearing and were performed close in time to the end of the worker's exposure to workplace noise were reliable. ….Clarence Shellum, 99 12154 (2000) [dissent]

Present methods of differentiating between age-related hearing loss (presbycusis) and noise-related hearing loss are not sufficiently reliable to allow an award for permanent hearing loss to be reduced for presence of presbycusis. ....Eugene Williams, 95 3780 (1998) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 98-2-00806-4, Department; Lewis County Cause No. 98-2-00422-1, Employer]

Last injurious exposure – see Successive insurers - See also COVERAGE & EXCLUSION Longshore and Harbor Workers' Compensation Act

The date of claim filing is the pivotal consideration in determining the insurer on the risk for the last injurious exposure rule, not the date in which the Department adjudicates the claim. Distinguishing In re Juan Muñoz, BIIA Dec., 05 11698 (2007). ….Mike Rasmussen, 09 14857 (2011)

Responsibility for an occupational disease can be apportioned between insurers when the worker was employed in concurrent employment covered by different insurers and each employment was a proximate cause of the occupational disease.  ....Amy Dunnell, 03 18764 (2005) [Editor's Note:  The Board's decision was appealed to superior court under   Spokane County Cause No. 05-2-02014-2.]

A claim should not be rejected on the basis the condition developed while the worker was self-employed and not covered by the industrial insurance laws as the last injurious exposure rule was not intended to apply as a basis to deny a claim. The Department is required to determine the nature and extend of the worker's covered employment to determine whether any of such employment impacted the worker's condition. (Citing In re John Robinson, BIIA Dec., 91 0741 (1992) (federal) and In re Gary Peck, Dckt No. 91 6243 (January 19, 1993) (another state). ....Louis Williams, 92 4110 (1993)

Occupational disease v. injury

When an allowed claim has not been clearly designated as an industrial injury or occupational disease, the parties and the industrial appeals judge must clearly address the question of whether the claim is for an industrial injury or occupational disease. ….Moises Cobian, 10 13290 (2011)

Onset of condition

Even though the likeliest source of a worker's exposure to hepatitis C was "needle sticks" during employment as a dental assistant and the worker could have filed an injury claim based on the needle sticks, the condition did not develop to the extent that it was disabling or required treatment until 1992. For that reason, the claim should be considered as a request for benefits for an occupational disease as defined by RCW 51.08.140. ....Sharon Baxter, 92 5897 (1994)

Proximate cause: occupational disease v. aggravation – See AGGRAVATION

Psychiatric conditions (mental/mental)

On-the-job stress related to failed job performances and related disciplinary actions which results in a mental condition is not an occupational disease. RCW 51.08.142; WAC 296-14-300(2) ....Daniel Ramos, 91 6906 1993) [Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 93-2-01054-4.]

For a worker to establish an occupational disease claim based on mental stress (1) the stress must be objectively corroborated, not just a product of the worker's own subjective perceptions; (2) the stress must be a requirement or condition of the worker's employment, not just a condition occurring coincidentally at work; (3) the stress must arise out of and in the course of employment; (4) the stress must be different from the stress attendant to normal everyday life and all employments in general, i.e., the stress must be unusual; and (5) the stress must be a cause of the worker's psychiatric condition in the sense that, but for the workplace stress, the worker would not be suffering from the psychiatric condition or disability. [Post-Dennis; pre-WAC 296-14-300] ....Ann Woolnough, 85 2816 (1990)

A worker's acute reaction to job stress, even though greater than might be expected for most individuals, constitutes an occupational disease where the increased stress and tension present in the working climate were objectively verifiable and greater than the day-to-day mental stress common to all occupations and to non-employment life. [Post-Kinville (35 Wn. App. 80)] ....Bill Murray (II), 57,009 (1984) [special concurrence and dissent]

A mental condition induced by cumulative stress, the origin and reality of which is solely within the subjective perception of the worker, is not compensable as an occupational disease. [Pre-Kinville (35 Wn. App. 80)] ....Gloria Strothers, 58,772 (1982) [special concurrence and dissent] [Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 82-2-11969-5.]

The response of the average person to a mental stress or physical demand is not the proper test for determining the existence of an occupational disease. An "acute situational reaction" resulting from the particular worker's real and perceived job stress constitutes an occupational disease. [Pre-Kinville (35 Wn. App. 80)] ....Bill Murray (I), 57,009 (1981) [dissent]

A mental illness caused by work-induced mental stimuli qualifies as an occupational disease since it arose naturally and proximately out of employment, there was no intervening or independent cause, and the worker would not have suffered the illness but for the conditions of employment. [Pre-Kinville (35 Wn. App. 80)] ....Lyndall Brolli, 49,051 (1977) [dissent]

A worker's mental breakdown due to stress, anxiety and fearfulness arising out of a temporary job as a store manager qualifies as an occupational disease where the conditions leading to the breakdown were objectively manifested, and were not of a kind to which persons in all employments and all activities are exposed. [Pre-Kinville (35 Wn. App. 80)] ....David Simmonds, 45,038 (1976) [dissent]

Reaction to treatment for probable occupational disease - See COURSE OF EMPLOYMENT

Schedule of benefits applicable

The date of manifestation for binaural hearing loss is the date the binaural hearing loss became partially disabling, not the date a unilateral loss component of the binaural loss became partially disabling.  ....Ronald Lovell, 03 16736 (2005)

In successive claims involving hearing loss, the second claim involves the same type of disease but a different disease process, arising wholly independent of the first disease.  A date of manifestation different from the date used in the first claim can be established.  Reversing In re Scott Pollard, Dckt. No. 99 20741 (August 1, 2001).  ....Paul Brooks, 02 17331 (2003) 

Department orders referring only to a "date of injury" do not clearly establish the "date of manifestation" of an occupational disease and are not considered as res judicata with respect to the date of manifestation. ....Rick Yost, Sr., 01 24199 (2003)

Because the worker's knowledge of his or her disabling condition does not affect the rate of compensation, In re Eugene Willams, BIIA Dec., 95 3780 (1997) is overruled to the extent it held that worker's knowledge of the disability is a factor in determining the date of manifestation.  Citing Boeing v. Heidy, 147 Wn.2d 78 (2002). ….Larry Wass, 01 11201 (2002)  [Editor's Note:  The Board's decision was appealed to superior court under Chelan County Cause No. 02-2-00881-4.]

For claims filed after 1988, the schedule of benefits for an occupational disease is established as of the date the disease requires medical treatment or becomes totally or partially disabling.  An individual's hearing loss is deemed to require medical treatment as of the date a person consults with a physician or seeks other means of obtaining relief from his or her hearing loss.  An individual's hearing loss is partially disabling when the average loss demonstrated by medically valid audiometric testing exceeds 25dB at the four frequencies specified in the AMA Guides and evidence demonstrates that the worker knew of the hearing limitations. ....Eugene Williams, 95 3780 (1998) [dissent] [Editor's Note:  The applicable statute is RCW 51.32.180(b).]  [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 98-2-00806-4, Department; Lewis County Cause No. 98-2-00422-1, Employer.] [Overruled, in part Boeing  v. Heidy, 147 Wn 2d 78(2002), In re Larry Wass, BIIA Dec., 01 11201 (202)]

A disease or disability is not manifest unless it is evident, in some fashion, to the worker. However, 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. ....Kenneth Alseth, 87 2937 (1989)[Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 89-203290-1]; Charles Jones,  (II)87 2790 (1989); Milton May, 87 4016 (1989) [Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 89-2-03033-9.] [Overruled, in part Boeing  v. Heidy, 147 Wn 2d 78(2002)]

The 1988 amendment to RCW 51.32.180 did not explicitly overrule the Board's prior decisions applying the date of manifestation rule. Thus, even for claims filed before July 1, 1988, the Board continues to apply the date of manifestation rule to determine the schedule of benefits. ....Kenneth Alseth, 87 2937 (1989)[Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 89-2023290-1]; Charles Jones, (II)  87 2790 (1989) ; Milton May, 87 4016 (1989)[Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 89-2-03033-9.] Rule upheld by Department of Labor & Indus. v. Landon, 117 Wn.2d 122 (1991)] Rule upheld by Department  of Labor & Indus. v. Landon, 117 Wn.2d 122 (1991) Overruled in part, Harry v. Buse, 166 Wn.2d 1 (2009) (occupational hearing case becomes partially disabling on the date the worker was last exposed to hazardous occupational noise.)]

Date of manifestation of disability is the date which determines the applicable schedule of benefits in an occupational disease claim. ....Otto Weil, Dec'd., 86 2814 (1987) [dissent]

The date of manifestation of disability, not the date of the last injurious exposure, determines which schedule of benefits applies. The date of manifestation in this case was the date the worker's lung was surgically removed, not the date two years later when a physician first notified the worker that his condition was occupational in origin. ....Robert Wilcox, 69,954 (1986) [dissent]

Schedule of benefits -- beneficiary of deceased worker

When the worker dies from an occupational disease that became manifest after voluntary retirement, RCW 51.32.050(2)(a)(i) requires the wage for pension calculation be set as of the date of manifestation and the wages should be set at the statutory minimum when the worker has no wages as of the date of manifestation.  ....Leslie Hood, Dec'd., 05 19216 (2006)

[Editor's Note: The Board's decision was appealed to superior court under Cowlitz County Cause No. 06-2-01910-6 & 06-2-01943-2.  The superior court reversed the Board's decision.  Division One of the Washington State Court of Appeals, in an unpublished opinion, Cause No. 64974-4-1 filed January 10, 2011, affirmed the superior court.  GR 14.1 provides that "A party may not cite as an authority an unpublished opinion of the Court of Appeals".]

The appropriate schedule of benefits is that in effect on the date of the first manifestation of the worker's disease related to occupational exposure. 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. Citing Department of Labor & Indus. v. Landon, 117 Wn.2d 122 (1991) ....William Kilpatrick, Dec'd.,  89 5200 (1991) [Reversed, Kilpatick v. Department Labor & Indus., 125 Wn. 2d 222 (1994)][Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 91-2-09035-1]

Successive insurers

The State Fund is an insurer for purposes of determining the responsible insurer for an occupational disease claim. The last injurious exposure rule is used to determine the responsible insurer and does not allow apportionment between successive insurers. This rule does not prevent the Department from apportioning claim costs between various state fund employers. ….Cindy Meisner, 95 6101 (1997)[Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 97-2-16495-8 SEA.]

Where distinctive conditions of employment with each employer contributed to progression of worker's condition, the later insurer is responsible for the worsened condition or disability. ....Robert Nelson, 89 3376 (1991)[Editor's Note: The Board's decision was appealed to superior court under Spokane County Cause No. 91-2-02863-4.]

The provisions of RCW 51.32.080(3) which require segregation of preexisting conditions cannot be used in an attempt to avoid the "successive insurer rule" prohibiting apportionment. However, employers who take responsibility for current conditions may avoid future responsibility where subsequent employment conditions may constitute a supervening cause of the worsening of the preexisting condition. ....Leonard Roberson, 89 0106 (1990)

An insurer cannot obtain apportionment of financial responsibility for an occupational disease claim (hearing loss) under the guise of segregating preexisting disability under RCW 51.32.080(3). The insurer on the risk on the date of compensable disability is responsible for the full cost of the occupational disease claim. To obtain segregation under RCW 51.32.080(3) it must be established that the worker's preexisting hearing loss was either not industrially related or that the date of compensable disability of the preexisting loss occurred when another insurer/employer was on the risk. ....Ronald Auckland, 88 4099 (1990) [dissent] [Affirmed sub nom, Weyerhaeuser Co. v. Auckland, 119 Wn.2d 1005 (1992)][Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 90-2-02083-7]

Although clear apportionment of disability may be medically possible in hearing loss cases as opposed to other occupational disease cases, the Board will not carve out an exception to the rule against apportionment of liability as between successive insurers. The Board adheres to its longstanding rule that the insurer on the risk for an occupational disease claim on the date of compensable disability or last injurious exposure is responsible for the full costs of the claim. ....Lester Renfro, 86 2392 (1988) [Affirmed sub nom, Weyerhaeuser Co. v. Tri, 117 Wn.2d 128 (1991)][Editor's Note: The Board's decision was appealed to superior court under King County Cause No. 88-2-08444-1]

To avoid financial responsibility for an occupational disease claim (hearing loss), the insurer on the risk on the date of compensable disability must prove that the exposure during the period it was on the risk had no effect on the condition. ....Charles Jones, 70,660 (1987)

The insurer on the risk for an occupational disease claim (hearing loss) on the date of compensable disability is not responsible for the costs of the claim if the exposure during the period the insurer was on the risk had no effect on the condition. ....Frank Johannes, 67,323 (1985) [dissent]

The insurer on the risk for an occupational disease claim (hearing loss) on the date of compensable disability is responsible for the full costs of the claim if the exposure to which the worker was subjected during the period the insurer was on the risk was "of a kind" contributing to the condition for which the claim was made. ....Roland Lamberton, 63,264 (1984)

Where the evidence established that the hearing loss incurred by the worker after the employer became self-insured was not proximately caused by the work exposure, the employer is not responsible in its self-insured capacity for the hearing loss, since employment conditions during the period of self-insurance were not "of a kind" contributing to the worker's disease. ....David Swendt, 61,790 (1983)

The insurer on the risk for an occupational disease claim (lung condition) on the date of compensable disability is responsible for the full costs of the claim if the exposure on that date was "of a kind" contributing to the condition for which the claim was made. The date of compensable disability was the date on which the worker was advised by a physician that he had an occupational disease precluding him from gainful employment. ....Forrest Pate, 58,399 (1982)

Where the worker has been subject to two distinct exposures to cedar dust during the course of employment with two different employers, the first self-insured and the second insured with the state fund, and the cedar dust asthma which developed as a result of the first exposure had resolved and had become asymptomatic prior to the second exposure, the worker has two distinct occupational disease claims for the same condition and the financial responsibility for the reoccurrence and progression of his asthma resulting from the second exposure should be borne by the second employer (i.e, the state fund) and not by the self-insured employer. ....Donald Mathis, 58,195 (1982) [See WAC 296-17-870 (6) regarding apportionment of financial responsibility for occupational disease claims among state fund employers]

The insurer on the risk for an occupational disease claim (lung condition) on the date of compensable disability is responsible for the full costs of the claim if the exposure on that date was "of a kind" contributing to the condition for which the claim was made. The date of compensable disability is the date the worker was advised by a physician that he had a disease which was occupational in origin. ....Harry Lawrence, Dec'd., 54,394 (1980)

The insurer on the risk for an occupational disease claim (hearing loss) on the date of compensable disability is responsible for the full costs of the claim if the employment at that time continued to be "of a kind" which contributes to hearing loss, whether or not it added any specific percentage amount to the worker's hearing loss. ....Winfred Hanninen, 50,653 (1979)

The insurer on the risk for an occupational disease claim (hearing loss) on the date of compensable disability is responsible for the full costs of the claim if the employment at that time continued to be "of a kind" which contributes to hearing loss, whether or not it added any specific percentage amount to the worker's hearing loss. Compensable disability exists when the worker has been notified by a physician that he has an occupational disease and when the disease is causing temporary or permanent disability. ....Delbert Monroe, 49,698 (1978) [dissent]

Time loss compensation benefits

A worker may be eligible for time-loss compensation benefits or loss of earning power benefits from the date of manifestation of an occupational disease.  ....Rick Yost, Sr., 01 24199 (2003)

Tinnitus

A claim for hearing loss should not be rejected merely because the loss is not a rateable impairment under the Industrial Insurance Act. Citing In re Robert MacPhail, BIIA Dec., 89 3689 (1991). A claim for tinnitus should be allowed where the evidence establishes that the tinnitus exists, that it interferes with worker's daily functioning and is related to noise exposure during the course of employment. ....Lloyd Conrad, 92 0602 (1993) [concurrence]

Tinnitus is an impairment manifested by different functional responses than hearing loss and, in appropriate circumstances, it must be evaluated in terms of a percentage of total bodily impairment separately from hearing loss. ....Robert Lenk, Sr., 91 6525 (1993) [concurrence]

Toxic Encephalopathy

A worker presented no objective evidence of exposure to carbon monoxide or insufficient oxygen during employment as a flight attendant and although the medical witness diagnosed hypoxic encephalopathy due to oxygen deprivation or toxic encephalopathy due to carbon monoxide exposure during specific flights, the Department appropriately rejected the claim for occupational disease. ....Nancy Proszek, 92 6049 (1995) [Editor's note: Intalco Aluminum v. Department of Labor & Indus., 66 Wn.App. 644 (1992) distinguished because there the facts demonstrated multiple possible causes of neurological damage actually present in the workplace. The worker offered no objective evidence of a damaging incident or damaging exposure.] [Editor's Note The Board's decision was appealed to superior court under King County Cause No.95-2-0188-8]