Harry v. Buse Timber & Sales, Inc.

Fairhurst, J.

¶37 (dissenting) — The legislature has provided an unambiguous mechanism for establishing compensation benefits for claims resulting from progressive hearing loss. While that scheme may not be optimal, the legislature has made its decision about which schedule of benefits will be used. The majority, however, claims the statutory prescriptions are ambiguous and has fashioned its own new rule without statutory authority and contrary to case law. Because this attempt to remedy a perceived inequity usurps the role of the legislature and is strained, I respectfully dissent.

¶38 Benefits to workers injured on the job are statutorily governed by Title 51 RCW, the Industrial Insurance Act (IIA). For occupational diseases, the plain language of RCW 51.32.180(b) clearly states how to calculate benefits: “the rate of compensation for occupational diseases shall be established as of the date the disease requires medical treatment or becomes totally or partially disabling, which*21ever occurs first, and without regard to the date of the contraction of the disease or the date of filing the claim.”

¶39 When construing a statute, we first look to the plain meaning of the statute. “The ‘plain meaning' of a statutory provision is to be discerned from the ordinary meaning of the language at issue, as well as from the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.” State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005) (quoting Wash. Pub. Ports Ass’n v. Dep’t of Revenue, 148 Wn.2d 637, 645, 62 P.3d 462 (2003); Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 10-11, 43 P.3d 4 (2002)). If not otherwise defined by statute, the ordinary meaning includes the dictionary definition. Campbell & Gwinn, 146 Wn.2d at 9, 11; Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 11 P.3d 762, 27 P.3d 608 (2000). If a statutory provision is subject to more than one reasonable interpretation, it is ambiguous. Jacobs, 154 Wn.2d at 601. Any ambiguity in the language of the IIA must be resolved in favor of the injured worker. RCW 51.12.010; Cockle v. Dep’t of Labor & Indus., 142 Wn.2d 801, 811, 16 P.3d 583 (2001).

¶40 There is no disagreement in this case over the operative portion of the statute — when the disease becomes partially disabling. “[B]ecome” is defined as:

1 a obs (1): come (2): go ... b (1): to come to exist or occur (2) : to emerge as an entity : grow to manifest a certain essence, nature, development, or significance . . . c archaic : to come to experience — used with an infinitive 2 a : to pass from a previous state or condition and come to be: grow or change into being through taking on a new character or characteristic . . . b : to take on a new role, essence, or nature and come to be . . . c : to come to be — used as an auxiliary in passive constructions ...3a: happen.

Webster’s Third New International Dictionary 195 (2002). While the term “partially disabling” is not defined by statute, RCW 51.08.150 defines “ ‘[permanent partial disability." as “the loss of either one foot, one leg, one hand, one arm, one eye, one or more fingers, one or more toes, any *22dislocation where ligaments were severed where repair is not complete, or any other injury known in surgery to be permanent partial disability.” This definition focuses on the loss of bodily function rather than the inability to perform one’s job functions, and it includes both monaural and binaural hearing loss. Clauson v. Dep’t of Labor & Indus., 130 Wn.2d 580, 585, 925 P.2d 624 (1996); RCW 51.08.150; RCW 51.32.080(1)(a). The statute uses the present participle form of disable — disabling; it does not use the past participle form of the term — disabled. The tense is important because the term “disabled” implies a completed action while “disabling” implies that the disability merely exists. Putting the definitions together, the plain meaning of the statute is that the compensation rate is based upon when the loss of bodily function components of the disease come to exist. See WAC 296-14-350(3); Boeing Co. v. Heidy, 147 Wn.2d 78, 88, 51 P.3d 793 (2002); Dep’t of Labor & Indus. v. Landon, 117 Wn.2d 122, 124 n.1, 814 P.2d 626 (1991). Thus, the rate of compensation is based on when the bodily loss first exists. Given the precise wording of the statute and the particular tenses of the words used, I cannot see another reasonable reading of this statute.

¶41 At the time of Donald Harry’s first audiogram in 1974, he had a 5.6 percent monaural loss of his hearing and had a permanent partial disability. Harry’s occupational disease first came to be because of that test, and thus, his rate of compensation should be based on the schedule in effect on that date. The plain meaning of the statute dictates that the rate of compensation for Harry’s occupational monaural hearing loss is 1974, when Harry first lost his hearing.8

*23¶42 The majority, however, concludes that the term “becomes . . . partially disabling” is ambiguous. RCW 51.32.180(b). It provides no explanation of how the term is ambiguous or what competing reasonable interpretations are at play. Instead, the majority argues that the plain-meaning interpretation advanced by petitioners is untenable because the outcome is that a compensation rate will be set before a worker’s subsequent exposure to injurious occupational noise causes further occupational hearing loss.9 Majority at 10-11. While the majority may be correct as a matter of economic fairness that it may not be appropriate to compensate a victim of occupational disease at a rate that went into effect nearly four decades before he is compensated, that is the province of the legislature, not this court.10 Determinations on what would be a more equitable economic outcome are not grounds for overriding the clear meaning of the law. That the legislature’s result does not comport with this court’s notion of perfect equity does not necessitate the construction of a legal fiction to plug a nonexistent ambiguity.

¶43 The majority argues that the interpretation proposed by petitioners would lead to absurd results. Id. at 15. This court has held that if a literal interpretation of a statute is absurd, the statute is ambiguous and the court will move on to examine the legislative history and use judicial canons of statutory interpretation. State v. Taylor, 97 Wn.2d 724, 729-30, 649 P.2d 633 (1982); In re Det. of Martin, 163 Wn.2d 501, 509-13, 182 P.3d 951 (2008). *24Contrary to the majority’s holding, the type of absurdity that causes a statute to be ambiguous is not when there are any absurd policy results from the plain meaning of the statute. Rather, a statute is absurd, and thereby ambiguous, if its plain meaning is directly inconsistent with its statutory purpose or with another statute so as to render either of the statutes meaningless.11 See Martin, 163 Wn.2d at 509-13. In this case, the purpose of the statute is to set the rate of compensation, which it does. The plain meaning of the statute does not contradict another statute in the IIA. Despite policy concerns, the plain meaning of the statute must be given effect.

¶44 In addition to creating this rule on its own and going against the plain meaning of the statute, the majority relies upon case law that does not support its conclusion. Regarding Washington cases, the majority discusses Landon, 117 Wn.2d at 127, in explaining its interpretation of RCW 51.32.180(b). In Landon, we held that for claims resulting from asbestosis filed before the 1988 amendments to RCW 51.32.180(b), the date of manifestation rule should apply because the last injurious rule would not fulfill the then-existing statutory purpose of compensating diseases and injuries equally. Landon, 117 Wn.2d at 124-26. With regard *25to the 1988 amendments, this court explained that the legislature rejected the last injurious exposure rule in favor of the date of manifestation rule. Id. at 127. The majority uses the pre-1988 amendment analysis to support its conclusion, but regarding the statements about the current statute, the majority dismisses those statements because Landon dealt with a long-latency disease rather than a cumulative trauma disease. Majority at 13. The majority’s distinction is flawed. The distinction could be made for claims made before the 1988 amendments when the statutes simply stated that diseases were to be treated the same as injuries. Landon, 117 Wn.2d at 124; former RCW 51.32.180 (1977). That distinction cannot be made, however, when the legislature changed the statute and adopted the date of manifestation rule. If anything, Landoris statement regarding the 1988 amendments to former RCW 51.32.180 support the conclusion that the date of manifestation rule applies.

¶45 Similarly, the majority’s citation to several cases from foreign jurisdictions that have applied the last injurious exposure rule is misleading. In none of those cases was the court interpreting a statute remotely similar to RCW 51.32.180(b). In Discher v. Industrial Commission, 10 Wis. 2d 637, 103 N.W.2d 519 (1960); Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 885 P.2d 1261 (1994); Railco Multi-Construction Co. v. Gardner, 564 A.2d 1167 (D.C. App. 1989); John Deere Dubuque Works of Deere & Co. v. Weyant, 442 N.W.2d 101 (Iowa 1989); and Green Bay Drop Forge Co. v. Industrial Commission, 265 Wis. 38, 60 N.W.2d 409 (1953), all the courts were interpreting statutes that based compensation on the terms “date of injury” or “date of accident.” In Ciavarro v. Despatch Shops, Inc., 22 A.D.2d 312, 314, 255 N.Y.S.2d 48 (1964), the court was interpreting a statutory scheme that explicitly explained that compensation for occupational hearing loss became due and payable six months after separation from work and the last day of work shall be the date of disablement. In Barker v. Home-Crest Corp., 805 S.W.2d 373 (Tenn. 1991), *26the court examined its state’s common law in applying the last injurious exposure rule. Finally, in Bath Iron Works Corp. v. Director, Office of Workers’ Compensation Programs, 506 U.S. 153, 113 S. Ct. 692, 121 L. Ed. 2d 619 (1993) and Ramey v. Stevedoring Services of America, 134 F.3d 954 (9th Cir. 1998), the courts were interpreting the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901, and examined what constituted the time of injury as applicable to that statutory regime. If Washington’s statutory scheme used the same terminology, those cases might be helpful in determining the meaning of our statute. However, none of those cases interpret a statute similar to RCW 51.32.180(b). As such, those cases are unhelpful to our examination of the specific terminology of our statutes.

¶46 Finally, while the majority contends that employing the date of manifestation rule would be absurd, its own analysis belies the argument. In response to the argument that compensating Harry according to the present value of his entire disability would amount to a “ ‘windfall,’ ” the majority contends that Harry did not deliberately fail to file the claim, act negligently, or receive notice that he had a compensable disability. Majority at 18-19. While all of those facts are true, those facts go toward Harry’s motives in filing the compensation claim and the calculation of the running of the statute of limitations. Harry’s motives do not matter for purposes of determining which compensation schedule to use, and the statute of limitations provision has different wording. In a footnote, the majority notes that it is possible to segregate the compensation rate of a prior permanent partial disability based on reliable medical evidence. Id. at 18 n.6. Noticing that the compensation rate could be adjusted based upon an earlier schedule, the majority at least implicitly notes the policy concern of a windfall. Thus, while it is not dispositive to determining the plain meaning of a statute, the majority recognizes it is possible that the legislature drafted RCW 51.32.180(b) as it did to protect companies from having to pay a windfall to workers. There may be better ways to protect companies *27from having to pay a windfall to workers, but the legislature unambiguously wrote a policy to achieve that purpose.

¶47 Occupational hearing loss is, indeed, a factually unique affliction that may not comport perfectly with existing statutory remedies and, as such, may not compensate all victims equitably. Such a determination rightfully belongs to the legislature, and this court should not infringe on the rightful territory of our coordinate branch. Because the manner in which the majority reaches its conclusion is in opposition to existing law and usurps the role of the legislature, I dissent.

Alexander, C.J., and J.M. Johnson, J., concur with Fairhurst, J.

After modification, further reconsideration denied May 18, 2009.

It may be that Harry suffered from two different kinds of disease — monaural and binaural hearing loss — and, thus, has two separate compensation schedules. The first schedule would be compensation for monaural hearing loss that existed in 1974 and went to 1986. The second schedule would compensate Harry for the binaural hearing loss that existed from 1986 to present. However, because Harry never raised this argument below and made only one compensation request for occupational hearing loss, it is not appropriate for this court to step in and bifurcate Harry’s compensation.

Under the majority’s reasoning, claimants with medically untreatable partial disabilities are advantaged as compared to those with diseases that are medically treatable. The claimants with medically untreatable partial disabilities can now wait to file their claim for benefits for the highest possible rate while the claimants with treatable disabilities will still be subject to the earlier schedule of benefits. I do not believe that the plain meaning of the statute accords such disparate treatment.

Pollard v. Weyerhaeuser Co., 123 Wn. App. 506, 98 P.3d 545 (2004), does not aid Harry. In Pollard, the Court of Appeals held that if a person files subsequent claims for further occupational hearing loss, then the rate of compensation is based on when the person filed the previous claim. Id. at 514. Here, as Harry filed only one claim for occupational hearing loss, he cannot benefit from the holding in Pollard.

This analytical framework makes sense given that our justification for avoiding absurd results is that we presume the legislature was rational and did not intend absurd results in drafting the statute. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (quoting State v. Delgado, 148 Wn.2d 723, 733, 63 P.3d 792 (2003) (Madsen, J., dissenting)). It is also why we have described the standard as avoiding “unlikely, absurd, or strained consequences.” Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 239, 59 P.3d 655 (2002). For instance, in Tingey v. Haisch, 159 Wn.2d 652, 664, 152 P.3d 1020 (2007), this court noted that while the plain meaning of the term “account receivable” in a statute led to a substantial effect on the ability to collect business debt, it was not tantamount to an absurd result. The operative effect of the statute was not absurd because all of the related statutes could still be given effect and because it was clear the legislature had considered such impacts in its drafting of the statute. Id. In holding that the operative effect of a narrower definition of “account receivable” would lead to absurd results, we noted that such an interpretation would be standardless and affect other statutory schemes. Id. at 665. Thus, while courts look to the operative effect of a literal meaning of the statute, they are not to depart from that plain meaning unless the legislature could not have rationally intended the results. Simply because the court does not like the policy consequences of a literal interpretation does not mean that the legislature could not have rationally intended those results.