John Klor
Wallace Klor & Mann, PC
WSIA Amicus Subcommittee Chair
March 2009
SUPREME COURT ASSUMES LEGISLATIVE ROLE IN HARRY V. BUSE TIMBER & SALES, INC.
“Inequitable, illogical, and absurd” is how the Washington Supreme Court described the prior application of RCW 51.32.180(b) at the conclusion of its recent decision in Harry v. Buse Timber & Sales, Inc., No. 79613-1 (Feb. 26, 2009). The main issue before the Court was whether hearing loss PPD should be paid on a schedule of benefits based on the date of manifestation, a “tiered” schedule, or the last date of occupational noise exposure. RCW 51.32.180 governs the issue of determining the "partially disabling" date. Under RCW 51.32.180(b), the rate of compensation for an occupational disease is “established as of the date the disease requires medical treatment or becomes totally or partially disabling, whichever occurs first.”
The Court interpreted RCW 51.32.180(b) to decide whether claimant's PPD award for binaural hearing loss should be calculated based upon the 1974 schedule of benefits (when claimant first had an audiogram showing compensable hearing loss in one ear), or the 2001 schedule of benefits (the first time his doctor informed him he had binaural hearing loss). The Department ultimately used the 1974 schedule to calculate PPD, and the Board affirmed that determination. The Court of Appeals, however, applied a tiered system which used the schedule of benefits in effect at the time each audiogram evidenced an increased PPD. The Supreme Court rejected the application of multiple schedules of benefits as it would "unduly complicate" the adjudication of hearing loss claims. Instead, it determined the Legislature intended RCW 51.32.180(b) to refer to "the date the aggregate compensable disability occurred." Thus, under this ruling, "the date of last injurious exposure" will be used as the "partially disabling" date for purposes of awarding PPD. This was determined to be in line with the "liberal construal mandate" set forth by the Industrial Insurance Act.
Justice Fairhurst provided the voice of reason in her dissenting opinion, stating "[t]he legislature has provided an unambiguous mechanism for establishing compensation benefits for claims resulting from progressive hearing loss." Thus, in her opinion, the majority usurped the role of the legislature by using a date of manifestation which contradicts the legislative intent of the statute. Justice Fairhurst pointed out the "plain meaning" of a statute is preferred in cases necessitating statutory construction. Thus, using the plain meaning of RCW 51.32.180(b), Justice Fairhurst concluded "the compensation rate is based when the loss of bodily function components of the disease come to exist." To render any other conclusion would infringe on the rightful territory of the legislative branch. Because claimant first lost his hearing in 1974, Justice Fairhurst felt the earlier schedule of benefits should prevail based upon the statutory language.
as of 3/9/2009
