Kilpatrick v. Department of Labor & Industries

Madsen, J.

(dissenting) — I dissent. Today this court accomplishes an objective inconsistent with our state’s workers’ compensation statute and case law: it creates an exception under the statute for survivor’s benefits which is applicable only to beneficiaries of deceased asbestos workers. Not only is this holding unfair to survivors of deceased workers of industrial accidents, but it fails to achieve the express purpose of the statute and results in a greater burden to all parties of a workers’ compensation claim.

The mechanisms to adequately compensate an injured asbestos worker and his or her beneficiaries are firmly in place under this state’s Industrial Insurance Act (the Act). See generally RCW Title 51. Moreover, Washington case law has further defined workers’ rights under the Act. Specifically, in Department of Labor & Indus. v. London, 117 Wn.2d 122, 128, 814 P.2d 626 (1991), this court held that for occupational disease claims filed prior to July 1, 1988, benefits will be calculated as of the date the worker’s disease manifests itself. *233Furthermore, in London, we established that the law in effect at the time of manifestation will govern benefits for claims related to occupational disease. London, at 126-27. These rules parallel our well-established "date of injury” rules for workers injured in industrial injury accidents. Ashenbrenner v. Department of Labor & Indus., 62 Wn.2d 22, 27, 380 P.2d 730 (1963); Lynch v. Department of Labor & Indus., 19 Wn.2d 802, 807, 145 P.2d 265 (1944); Thorpe v. Department of Labor & Indus., 145 Wash. 498, 500, 261 P. 85 (1927).

Today, the majority circumvents this legal precedent by declaring that each occupational disease an injured asbestos worker may contract as a result of exposure to asbestos gives rise to a new date of manifestation. The majority claims to base its decision on "undisputed medical evidence” without so much as citing a single medical source to support its contention. Majority, at 231. To the contrary, however, medical experts, case law and the Act itself, as well as considerations of fairness, require the opposite result.

In order to adequately define the date of manifestation in asbestos cases, it is necessary to have an understanding of the nature of asbestos-related disease. The majority correctly identifies the major diseases a worker may contract as a result of asbestos exposure: asbestosis (pleural and parenchy-mal), pulmonary (lung) cancer, and mesothelioma.3 Christopher C. Mansfield, Asbestos: The Cases and the Insurance Problem, 15 Forum 860, 862 (1979); see generally Irving J. Se-likoff & Douglas H.K. Lee, Asbestos and Disease 143-336 (1978) (establishing the cause-and-effect relationship of exposure to asbestos and the subsequent development of disease). However, suggesting, as the majority does, that these diseases are somehow separate from the injured worker’s original asbestos-related diagnosis, thereby warranting different treatment under the workers’ compensation statute, is unfounded.

Indeed the link between asbestos exposure and these diseases is unquestionable. In fact, over a dozen major studies have been conducted since 1955 confirming the link between asbestos and the increase in lung cancer. Gideon Mark, *234Comment, Issues in Asbestos Litigation, 34 Hastings L.J. 871, 873 (1983). Further, it has been found that "[p]ulmo-nary carcinoma or lung cancer is more prevalent among those occupationally exposed to asbestos than the general population.” Mansfield, 15 Forum at 863. Moreover, me-sothelioma, a type of cancer affecting primarily the lining of the lungs, was relatively rare until the widespread use of asbestos. James W. Mehaffy, Asbestos-Related Lung Disease, 16 Forum 341, 343 (1980).

It is common knowledge that physical manifestation of asbestos-related disease can take years. See IB Arthur Larson, Workmen’s Compensation § 41.82 (1991). The latency period between the first asbestos exposure and the appearance of lung cancer is generally 15 years or more; however, it is not unusual for a 30- to 35-year lag before the onset of this disease. Barbara A. Wetzel, Comment, Asbestos in the Work Place: What Every Employee Should Know, 31 Santa Clara L. Rev. 423, 430 (1991). In addition, it can take as long as 40 to 45 years before asbestosis and mesothelioma manifest in a worker exposed .to asbestos. Wetzel, at 430.

The significance of a worker diagnosed with asbestos-related condition is that it is a precursor of diseases yet to come. The paramount problem facing the injured asbestos worker is that it is impossible to foresee which subsequent disease the worker will contract.

Asbestos inhalation starts an injurious process. This is best illustrated by asbestosis, which is a progressive disease that is "characterized by pulmonary fibrotic changes which develop slowly over the years. The process begins near the time of initial exposure. The fibers insidiously injure the lungs throughout the period of exposure, and the process continues even after physical symptoms become evident.” (Footnotes omitted.) Pamela J. Layton, Comment, Manifestation: The Least Defensible Insurance Coverage Theory for Asbestos-Related Disease Suits, 7 U. Puget Sound L. Rev. 167, 175 (1983); see also Selikoff & Lee, at 145-47. Accordingly, while the resulting diseases injured asbestos workers may contract involve unique pathologies and *235require various treatments, as the majority states, this is beside the point. What is pivotal is that these diseases can be traced to a worker’s single or prolonged exposure to asbestos and once diagnosed with asbestos-related condition the injured worker is entitled to trigger the workers’ compensation statute by filing a claim for compensation and benefits. See RCW 51.28.055; RCW 51.32.180; Mansfield, 15 Forum at 861-62; see also Selikoff & Lee, at 173-74; Marvin J. Levine, Legal Questions Regarding the Causation of Occupational Disease, 26 Lab. L.J. 88 (1975). As a result, it must be concluded that diagnosis of the original asbestos-related condition is the appropriate date of manifestation for the purpose of compensating an injured asbestos worker, and subsequently the worker’s beneficiaries.

This result is supported by Washington case law. In Crabb v. Department of Labor & Indus., 186 Wash. 505, 506, 58 P.2d 1025, 105 A.L.R. 964 (1936), appellant successfully filed a claim for an injury sustained to his right ankle as a result of a fall. Approximately 2 years later, appellant filed a petition for aggravation to reopen his claim for an injury to his neck which resulted from the original injury but was not immediately apparent to him. Crabb, at 506-07. This court held that even though the injuries to appellant’s ankle and neck were distinct, it was an aggravation of the original injury. Crabb, at 512.

In reaching its decision, this court considered the express legislative intent of liberal construction to insure workers are adequately compensated. Crabb, at 512. The court concluded that:

A liberal interpretation impels us to hold that the change in condition, when proven, permits a continuing jurisdiction to end, diminish, or increase compensation previously awarded, even though the change in condition manifests itself in injuries not expressly enumerated in the original award, but yet attributable to the original accident.

Crabb, at 509-10 (quoting Skelly Oil Co. v. Standley, 148 Okla. 77, 79, 297 P. 235, 237 (1931)). Consequently, to conclude that the various diseases an injured asbestos worker *236may contract are anything other than an aggravation fails to fulfill our state’s statutory mandate of liberal construction.

Further, this court has held that to establish aggravation, the injured worker need only show a "causal connection” between the injury and subsequent aggravation through evidence provided by a medical expert. Venezelos v. Department of Labor & Indus., 67 Wn.2d 71, 74, 406 P.2d 603 (1965). The record before this court is replete with expert evidence that each worker had a subsequent aggravation of his condition.

Although the majority insists that the decedents’ final asbestos conditions were not aggravations of the original asbestos-related conditions, in fact, twice Mr. Lee successfully reopened his claim with the Department on grounds of aggravation of his condition.4 He filed to reopen his claim on March 30,1988, and again on October 1,1990. In re Lee, Bd. of Indus. Ins. Appeals Dec. 91 6000, 910795, at 3 (1992). Each time the Department granted his request and authorized additional medical treatment. In re Lee, at 3. In spite of this, the majority holds that subsequent asbestos diseases are not aggravations of the original condition. This conclusion is contrary to the Act and not supported by case law.5

The dictionary defines "aggravation” as "an increasing in seriousness or severity”. Webster’s Third New International Dictionary 41 (1966). Certainly, when a worker’s condition goes from asbestosis to small cell carcinoma, as was the case *237for Mr. Lee, an increase in seriousness of the worker’s condition has occurred. Or going from asbestos-related lung disease to mesothelioma, as happened to Mr. Kil-patrick, is an aggravation of a worker’s condition. Under today’s ruling, each of these workers would be expected to file a new claim for each condition he subsequently contracted as a result of the original asbestos injury. This result reduces neither the worker’s suffering nor economic loss. RCW 51.12.010. And in some cases, this added burden may result in workers not filing a new claim after the first manifestation, which would effectuate lower death benefits since the "new disease” does not relate back to the date of exposure. Clearly, the majority’s decision places a great burden on the injured asbestos worker and his or her family, as well as on the workers’ compensation scheme as a whole.

Of further concern is that treating beneficiaries of occupational disease workers and industrial injury accident workers differently, as the majority has done today, is not supported by the Act. First, under the Act all beneficiaries entitled to death benefits, regardless of whether the worker dies as a result of an occupational disease or an industrial injury, "shall receive the same compensation benefits”. (Italics mine.) RCW 51.32.180. This court has stated that "no part of a statute should be deemed inoperative or superfluous unless it is the result of obvious mistake or error”. Klein v. Pyrodyne Corp., 117 Wn.2d 1, 13, 810 P.2d 917, 817 P.2d 1359 (1991). This requires that every word, clause, and sentence of the statute be given meaning. Clark v. Pacificorp, 118 Wn.2d 167, 183, 822 P.2d 162 (1991). By providing survivors of deceased asbestos workers greater compensation benefits than survivors of other workers killed in the course of employment, the majority’s interpretation renders this provision meaningless.

Next, this court has stated that when interpreting a statute the Act must be read as a whole, giving effect to all language used. State v. S.P., 110 Wn.2d 886, 890, 756 P.2d 1315 (1988). The death benefits provision of the Act provides that "[w]here death results from the injury” a surviving *238spouse is eligible for benefits under this title. (Italics mine.) RCW 51.32.050(2)(a). This statutory language clearly indicates that the Legislature intended to compensate the injury, or in the case of occupational disease the disability, which gave rise to the worker’s rights to compensation. Had the Legislature intended that death benefits be paid for death as a result of "an” injury, it would have provided so. Under the majority’s approach, "an” injury is compen-sable and death benefits will not be based on the injury for which the worker was compensated. This result ignores the Act’s directive.

Lastly, when a statute is amended it is presumed to operate prospectively unless the legislative intent expressly provides the application be retrospective. Ashenbrenner v. Department of Labor & Indus., 62 Wn.2d 22, 25, 380 P.2d 730 (1963); Bodine v. Department of Labor & Indus., 29 Wn.2d 879, 888, 190 P.2d 89 (1948); Barlia v. Department of Labor & Indus., 23 Wn.2d 126, 128, 160 P.2d 503 (1945); Lynch v. Department of Labor & Indus., 19 Wn.2d 802, 807, 145 P.2d 265 (1944). At the, time decedents filed their claims, monthly death benefit payments were not to exceed 75 percent of the average monthly wage computed under RCW Title 51. See Laws of 1988, ch. 161, § 2. On July 1, 1988, the statute was amended so that death benefits after that date were not to exceed 100 percent. RCW 51.32.050(2)(d). The statute is silent as to whether the amendment was retrospective; therefore, it must be concluded that the July 1,1988, amendment is prospective. Thus, the claimants’ benefits must be determined on schedules in existence prior to the July 1, 1988, amendment.

Finally, today’s decision disregards the longstanding principle of workers’ compensation law which is the protection of the state workers’ compensation fund. Clark, at 186. And while the purpose of workers’ compensation is to provide injured workers and their families with swift and certain relief, the point is to achieve this objective as economically as possible. See RCW 51.04.010; RCW 51.12.010; Favor v. Department of Labor & Indus., 53 Wn.2d 698, 336 P.2d 382 *239(1959); see also Lance Palmer, Note, Curing Washington’s Occupational Disease Statute, 11 U. Puget Sound L. Rev. 763, 767 (1988). The Act, through various provisions, has established a method for maintaining and replenishing the funds so that all injured workers and their dependents are insured future coverage. See generally RCW Title 51. The majority’s decision is incompatible with this statutory scheme.

In summary, had the majority based its opinion on this state’s case law and the Act, I believe it would have concluded that due to the nature of asbestos-related disease, the rights of claimants to compensation and benefits are fixed as of the date the worker’s asbestos-related condition first manifests itself. The Act is intended to provide prompt relief to an injured worker and under the current scheme it does just that. It does not draw a distinction between the various stages of disease an injured asbestos worker may experience, nor does it distinguish between the compensation and benefits afforded workers injured from occupational disease and workers injured from industrial injuries; neither should this court.

Andersen, C.J., and Dolliver and Durham, JJ., concur with Madsen, J.

Other asbestos-related conditions exist such as “asbestos warts, benign pleural effusions and cancers of other organs, but these are either less common or of less significance in the legal area.” Robert H. Thompson et al., Current Issues in Washington Workers’ Compensation 39 (1988).

The majority cites to Chevron U.S.A., Inc. v. Workers’ Comp. Appeals Bd., 219 Cal. App. 3d 1265, 268 Cal. Rptr. 699 (1990) in support of this contention. However, that case is distinguishable from the case we decide today, for at issue there was whether it was possible for one period of exposure to asbestos to result in more than one injury, therefore, more than one date of injury. Chevron, at 1271. Equally important, this court has declared that "our Industrial Insurance Act is unique and the opinions of other state courts are of little assistance in interpreting our Act.” Dennis v. Department of Labor & Indus., 109 Wn.2d 467, 482-83, 745 P.2d 1295 (1987).

RCW 51.32.160 provides that "[i]f aggravation ... of disability takes place, the director may, upon the application of the beneficiary, made within seven years from the date the first closing order becomes final, or at any time upon his or her own motion, readjust the rate of compensation in accordance with the rules in this section . . ..” Moreover, WAC 296-14-400 grants the Director the authority to reopen, upon the worker’s application, a claim for aggravation or worsening of condition to provide proper and necessary medical treatment.