IN MATTER OF HOOD v. WEYERHAEUSER, 159 Wn. App. 1020 (2011)

In the Matter of LESLIE W. HOOD. IRENE M. HOOD ET AL., Respondents, v. WEYERHAEUSER COMPANY, Appellant.

No. 64974-4-I.The Court of Appeals of Washington, Division One.
January 10, 2011. UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from a judgment of the Superior Court for Cowlitz County, No. 06-2-01910-6, James E. Warme, J., entered April 20, 2009.

Affirmed by unpublished opinion per Ellington, J., concurred in by Leach, A.C.J., and Schindler, J.

ELLINGTON, J.

After her husband’s death from a work-related disease, Irene Hood was awarded survivor benefits. As requested by the Department of Labor and Industries (Department), the court based the award on Mr. Hood’s last known wages, which were his earnings at the time of his voluntary retirement. Weyerhaeuser argues that when a worker voluntarily retires before the manifestation of a work-related disease, survivor’s death benefits are not available. Because Weyerhaeuser did not preserve a challenge to Irene Hood’s eligibility, however, it argues her benefit should be the statutory minimum.

The court did not err in deferring to the Department’s longstanding interpretation of the death benefits statute, and we affirm. We also award attorney fees to Irene Hood.

BACKGROUND
Leslie Hood worked for Weyerhaeuser from 1964 until his voluntary retirement in 1990.[1] Seven years after he retired, he was diagnosed with asbestos-related illness, which caused his death in 1999. He was survived by his wife Irene, who filed an application for death benefits under Washington’s Industrial Insurance Act (Act), Title 51 RCW. The Department determined that workplace exposure to asbestos caused his disease, that the date of manifestation was January 24, 1997, and entered an order allowing the claim under former RCW 51.32.050(2)(a) (1995) (in force when Irene Hood filed her application). The statute provided that when there are no children, death benefits for a surviving spouse are calculated as 60 percent of the worker’s wages or not less than $185.[2]

Weyerhaeuser appealed, contending that Mr. Hood’s voluntary retirement precluded the claim. The Board of Industrial Insurance Appeals (Board) affirmed the order. Weyerhaeuser did not appeal further.

The Department then issued a “wage order” awarding benefits. Consistent with the Department’s standard policy in such cases, the order based the benefit rate on Mr. Hood’s last known wages — his gross monthly wages at the time he retired. According to the pension adjudicator for the Department, this approach to calculation of death benefits is longstanding, was the practice of her predecessors, and has been the consistent practice of the Department since she began adjudicating benefit claims in 1993.[3]

Weyerhaeuser appealed to the Board, arguing that under the statute, benefits should be based upon Mr. Hood’s wages at the time of manifestation of his fatal occupational disease (i.e., zero) rather than his wages at the time of retirement ($4,223.60 per month), so the award should be the statutory minimum ($185 per month). The Board agreed, reversed the Department’s determination, and awarded benefits at the minimum amount.

Irene Hood and the Department both appealed. Cowlitz County Superior Court granted summary judgment in their favor, reversed the Board, and reinstated the Department’s award of benefits based on Leslie Hood’s last known wages. The court also granted Irene Hood and the Department their reasonable attorney fees and costs. Weyerhaeuser appeals, contending the award violates legislative intent.

DISCUSSION
Weyerhaeuser maintains the legislature intended a surviving spouse to be eligible for death benefits only when the occupational disease that causes the worker’s death manifests before the worker voluntarily retires. If correct, this would mean that spouses in Irene Hood’s circumstances would not be eligible for survivor’s benefits in any amount.[4] But as Weyerhaeuser acknowledges, it did not appeal the Board’s determination that Irene Hood is eligible for benefits. The only question at issue is therefore the proper calculation.

If the benefit calculation were derivable from the plain language of the statutes, our job would be simple. We conclude, however, that the statutes do not clearly answer this question, the Department has adopted a policy that does so in a way favorable to the worker, and in the face of the statutory ambiguity, we defer to the Department.

We apply the usual standard of review on summary judgment.[5]
Appeals from the Board to the superior court are reviewed solely on the record developed before the Board.[6]

The Industrial Insurance Act is based on a compromise between workers and employers, wherein workers are entitled to speedy and sure relief and employers are immunized from most common law responsibility.[7] Thus, most potential civil actions are replaced by the exclusive remedy of workers’ compensation benefits, which are calculated as a percentage of the employee’s wages.[8] The Act must “be liberally construed for the purpose of reducing to a minimum the suffering and economic loss arising from injuries and/or death occurring in the course of employment.”[9]

In interpreting a statute, we try to ascertain the legislature’s intent for the statute as a whole.[10] If the meaning is plain on the face of the statute, we follow that plain meaning.[11] If, however, the statute is ambiguous, we employ various rules of statutory interpretation to discern the legislature’s intent.[12] We construe a statute so as to effectuate that intent, avoiding a literal reading if it would result in unlikely, absurd or strained consequences.[13]

Courts have the ultimate authority to interpret a statute, but we give substantial weight to the interpretation of the agency charged with administering the statute.[14]

An injured worker may be entitled to time loss compensation, partial time loss compensation, or pension benefits, and his or her family may be eligible for survivor’s death benefits.[15]
These benefits are based on wages.[16] Under the death benefits statute, when a worker is (1) injured on the job, (2) entitled to pension benefits, and (3) dies of his injury, his family is entitled to death benefits based on the worker’s wages at the time he was injured.[17] If the worker has no children, the surviving spouse’s benefits are 60 percent of the worker’s last wages, but not less than $185 per month.[18]

Rather than an industrial injury, Leslie Hood was felled by an occupational disease. Compensation and benefits for occupational diseases are the same as for industrial injuries, [19] but the date the disease manifests is treated as the date of injury for purposes of calculating benefits.[20] Weyerhaeuser therefore maintains that under the statute, benefits should be calculated based upon the wages Mr. Hood was earning at the time his disease manifested — which, given his voluntary retirement seven years earlier, was zero. Weyerhaeuser contends Irene Hood is entitled to benefits only because Weyerhaeuser did not preserve its appeal as to her eligibility, and the benefit must therefore be limited to the statutory minimum.[21]

Hood and the Department maintain that Irene Hood is entitled to death benefits under the statute. They argue it is unlikely the legislature intended an eligible party’s benefits be calculated based on zero wages (60 percent of zero is still zero) or that the statutory minimum of $185 serve as the default benefit for surviving spouses.[22] They argue the reasonable interpretation is the Department’s, embodied by its policy of using last known wages to calculate death benefits in occupational disease cases.[23]

Workers’ compensation benefits are largely intended as future wage replacement. Survivor benefit payments to a surviving spouse cease upon remarriage.[24] Survivor benefits to dependents cease when the dependent turns 18 (or 23 if enrolled in full time course at accredited school), or when dependency would otherwise cease if injury had not occurred.[25] InKilpatrick v. Department of Labor and Industries, the court reiterated that survivor benefits are calculated using the wages of the decedent at the time his or her terminal occupational disease manifested, stating “the purpose of workers’ compensation benefits is to reflect future earning capacity rather than wages earned in past employment.”[26]

If survivor benefits are, in fact, intended solely as wage replacement, then when there are no wages to replace, compensation is precluded (or in this case, Weyerhaeuser having failed to challenge Irene’s eligibility for some benefit, compensation is the statutory minimum).

On the other hand, the Act deviates from this principle in at least one instance: spouses who do not remarry will receive survivor benefits for life, regardless of when the worker’s wages would, absent the injury or disease, have ceased due to voluntary retirement.[27]

In 1986, the legislature amended RCW 51.32.060 and .090 to provide that a worker who has voluntarily retired may not collect pension or time loss benefits for a disability that does not occur until after retirement.[28] Weyerhaeuser argues the legislature expressly intended to exclude voluntarily retired workers (and their spouses) from eligibility for benefits where an occupational disease manifests after retirement.

However, the 1986 amendments to RCW 51.32.060 and .090 did not similarly amend the death benefits statute.[29] Under the doctrine of expressio unius est exclusio alterius, had the legislature intended to preclude survivors’ benefits under those circumstances, it would have so provided in its 1986 amendments.[30]

The regulation for claim allowance and wage determination in occupational disease cases also addresses voluntary retirement: “Compensation shall be based on the monthly wage of the worker as follows:. . . . (b) If the worker was not employed, for causes other than voluntary retirement, at the time [of manifestation], compensation shall be based upon the last monthly wage paid.”[31]

Weyerhaeuser relies heavily upon this provison. But the regulation confines itself to stating the basis for calculation when the worker has no wages “for causes other than voluntary retirement.” It is silent as to whether or how to calculate benefits where the worker is voluntarily retired. Nor is there any other provision that does so.

In addition, the legislature never contemplated that the benefits calculated for a survivor would be zero. For example, former RCW 51.32.070 (1971) directed that where benefits did not add up to the established minimum amount, the pension administrator was to facilitate payment of th difference from a pension reserve fund. The clear intent of mandating a minimum was to assure that workers earning low wages would still receive a tangible benefit.[32] We do not believe the legislature intended the calculation of benefits for an eligible beneficiary to be based on no wages at all, or that the $185 minimum was intended to operate as the default benefit amount for late-manifesting occupational diseases.

We thus find no clear answer to this situation in the statutes or the cases. The Department has addressed these circumstances in a way favorable to the claimant. The Department is charged with the administration and enforcement of the Industrial Insurance Act, the statute falls within the Department’s expertise, and the Department’s policy is consistent with the mandate for liberal construction most favorable to the worker. We therefore give deference to Department policy and affirm.[33]

Attorney fees and costs are authorized when a party prevails on appeal.[34] We affirm the award of attorney fees to Irene Hood and the Department by the trial court. Hood seeks fees on appeal as well, which are also awarded.

WE CONCUR.

[1] “Voluntary retirement” means the worker is not receiving income, salary, or wages from any gainful employment and has shown no evidence of a bona fide attempt to return to work. WAC 296-14-100(a), (b).

[2] Former RCW 51.32.050.

[3] The pension adjudicator testified she had adjudicated some 40 to 60 claims for survivor’s death benefits where the deceased worker was voluntarily retired before manifestation of a fatal asbestos-related occupational disease, and benefits were awarded pursuant to Department policy based on the worker’s last monthly wages. See Certified Appeal Board Record at 204.

[4] The Department strongly disputes this assertion. Given the posture of this case, we do not resolve the issue.

[5] Appellate courts review decisions on motions for summary judgment de novo. Elliott v. Dep’t of Labor Indus., 151 Wn. App. 442, 446, 213 P.3d 44 (2009),review denied, 167 Wn.2d 1021 (2010). Summary judgment is affirmed when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005); CR 56(c).

[6] Elliott, 151 Wn. App. at 445.

[7] Flanigan v. Dep’t of Labor Indus., 123 Wn.2d 418, 422, 869 P.2d 14 (1994).

[8] Id. at 422-23 (citing RCW 51.32.050, .060, .090).

[9] RCW 51.12.010. In fulfilling this statutory mandate of liberal construction, courts insure the fair compensation of disabled workers, with all doubts resolved in favor of the employee. Kilpatrick v. Dep’t of Labor Indus., 125 Wn.2d 222, 230, 883 P.2d 1370 (1994), opinioncorrected, 915 P.2d 519 (1995).

[10] Whatcom Cnty. v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996).

[11] Dep’t of Ecology v. Campbell Gwinn,L.L.C., 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002).

[12] Whatcom Cnty., 128 Wn.2d at 546.

[13] Id. (“The purpose of an enactment should prevail over express but inept wording.”).

[14] Rose v. Dep’t of Labor Indus., 57 Wn. App. 751, 757, 790 P.2d 201 (1990).

[15] See RCW 51.32.050, .060, .090(1), (3).

[16] See id.

[17] Former RCW 51.32.050(2)(a) (1995).

[18] Id. The 2007 amendments to the statute eliminated the statutory minimum. Laws of 2007, ch. 284, § 1.

[19] RCW 51.16.040 (“compensation and benefits provided for occupational diseases shall be paid and in the same manner as compensation and benefits for injuries under this title”).

[20] RCW 51.32.180(a). The date an occupational disease requires medical treatment or becomes totally or partially disabling is the “date of manifestation.” WAC 296-14-350(3);see also Dep’t of Labor Indus. v. Landon, 117 Wn.2d 122, 125-26, 814 P.2d 626 (1991); Kilpatrick, 125 Wn.2d at 227-28.

[21] Relying upon Ashenbrenner v. Dep’t of Labor andIndustries, 62 Wn.2d 22, 380 P.2d 730 (1963), Weyerhaeuser contends that the Department’s policy does not apply because the effective date of the written policy (July 1, 1997) postdates the January 24, 1997 date of manifestation of Leslie Hood’s occupational disease. Ashenbrenner confirms that workers’ compensation rights are controlled by the law in effect at the time of injury. It does not, however, address agency policy or any requirement that agency policy be in writing at the time of injury.

[22] The Department characterizes the calculation of benefits based on zero wages as “a conflict” between RCW 51.32.050 (death benefits) and RCW 51.32.180 (limiting scope of benefits to workers suffering from an occupational disease).

[23] Irene Hood also contends that Leslie Hood’s decision to voluntarily retire should not and does not have the effect of waiving her right to survivor’s death benefits. While it is true that the worker cannot waive his survivor’s right to benefits, the survivor’s claim is not separate and distinct from the worker’s right to benefits; rather, it is derivative, and the rate schedule for both is fixed by the date of the injury or manifestation. Kilpatrick, 125 Wn.2d at 228 (court reaffirmed the rule that, while a survivor’s claim is independent from the worker’s claim to the extent the worker cannot waive the survivor’s rights to benefits, the survivor’s claim is derivative of the worker’s, thereby fixing the rate schedule in effect on the date of the worker’s injury or manifestation of occupational disease).

[24] RCW 51.32.050(2)(c).

[25] RCW 51.32.025, 050(5).

[26] 125 Wn.2d at 230.

[27] RCW 51.32.050(2)(a). Pension benefits for permanent total disability under RCW 51.32.060 and .067 could also extend well past the date wages normally would have ceased.

[28] See also Weyerhaeuser Co. v. Farr, 70 Wn. App. 759, 761, 765, 855 P.2d 8 (1990) (person who withdraws from workforce and subsequently becomes totally disabled because of workplace injury not entitled to benefits); Kaiser Aluminum Chem. Corp. v. Overdorff, 57 Wn. App. 291, 296, 788 P.2d 8 (1990) (voluntarily retired worker subsequently in need of surgery because of inflamed workplace injury not entitled to benefits). Weyerhaeuser argues that under these cases, the “not after voluntary retirement” rule was in effect before the 1986 amendments. The Department disagrees and points out that these cases do not address death benefits. We need not settle this argument to answer the unique question presented here.

[29] See Laws of 1986, ch. 59, §§ 1-3.

[30] ATU Legislative Council of Wash. State v. State ofWash., 145 Wn.2d 544, 552-53, 40 P.3d 656 (2002) (the inclusion of one implies the exclusion of another);Jacobsen v. Dep’t of Labor Indus., 127 Wn. App. 384, 392, 110 P.3d 253 (2005) (where statute specifically designates things upon which it operates, inference arises that things omitted from it were intentionally omitted).

[31] WAC 296-14-350(2)(b) (emphasis added).

[32] In 1971, the legislature raised the minimum death benefits award to $185. See Laws of 1971, First Ex. Sess., ch. 289, § 7.

[33] We do not give similar deference to the Board’s interpretation. The Board is a quasi-judicial review agency, whereas the Department is the exclusive policy-making agency tasked with administering the Act. See Port of Seattle v.Pollution Control Hr’gs Bd., 151 Wn.2d 568, 593-94, 90 P.3d 659 (2004); Potomac Elec. Power Co. v United States Dep’tof Labor, 449 U.S. 268, 278 n. 18, 101 S. Ct. 509, 66 L. Ed. 2d 446 (1980).

[34] RCW 4.84.010; RCW 51.52.130.