NOTE. Curing Washington's Occupational Disease Statute: Dennis v. Department of Labor and Industries - PDF

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NOTE Curing Washington's Occupational Disease Statute: Dennis v. Department of Labor and Industries I. INTRODUCTION' Under Washington's Industrial Insurance Act, 2 a disabled worker is eligible to receive
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NOTE Curing Washington's Occupational Disease Statute: Dennis v. Department of Labor and Industries I. INTRODUCTION' Under Washington's Industrial Insurance Act, 2 a disabled worker is eligible to receive disability benefits 3 if the worker's disability arises from what can either be defined as a workrelated injury 4 or an occupational disease.' Because of these definitions, Washington's treatment of work-related disability claims is unique in comparison to the differing approaches taken by other states.' In most other states, the definitions of 1. The author would like to thank the lawyers and staff members of the Tacoma, Washington firm of Small, Snell, Logue & Weiss, P.S., who, through their advice and support, contributed to this Note. 2. WASH. REV. CODE tit. 51 (1987). 3. See Lenk v. Department of Labor and Indus., 3 Wash. App. 977, 478 P.2d 761 (1970). A worker is also entitled to receive treatment benefits if, as a result of an injury or occupational disease, he has a physical or mental condition that requires medical attention. This is regardless of whether there is any disability. Thus, an injury resulting in a cut finger would give rise to a claim for benefits. Treatment benefits would be given if the cut required medical treatment, i.e., stitches. Unless the cut rendered the worker unable to work (for any period of time exceeding three days) or resulted in permanent dysfunction, there would be a condition for which medical benefits would be payable, but no compensable disability. Therefore, even if a worker has suffered an injury or an occupational disease, disability benefits will not be provided unless the worker is disabled as a result of the injury or occupational disease. For ease of discussion, however, all references to entitlement in this Note will be limited to disability benefits. Disability benefits are payable for permanent total disability (WASH. REV. CODE (1987)), temporary total disability (WASH. REV. CODE (1987)), and permanent partial disability (WASH. REV. CODE (1987)). 4. WASH. REv. CODE (1987). Injury means a sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without, and such physical conditions as result therefrom. 5. WASH. REv. CODE (1987). Occupational disease means such disease or infection as arises naturally and proximately out of employment under the mandatory or elective adoption provisions of this title. 6. See generally 4 A. LARSON, THE LAw OF WORKMEN'S COMPENSATION app. A, Tables 2-2A (1987) [hereinafter LARSON]. Approximately half of the states have 764 University of Puget Sound Law Review [Vol. 11:763 injury and occupational disease overlap and dovetail, thereby allowing all work-related disabilities to fall into one of the two categories.' In Washington, however, the injury and occupational disease statutes have been so narrowly interpreted that until very recently there existed a gap in workers' compensation coverage.' Into this gap between compensable injuries and compensable occupational diseases fell two kinds of workrelated disabilities that the Department of Labor and Industries 9 would not cover: (1) disability caused by work-related repetitive trauma 10 and (2) disability caused by an occupational disease aggravation of an ordinary disease of life or nonworkcomprehensive statutes wherein injuries and occupational diseases are not distinguished as such and are treated jointly under the generic label of personal injury. The comprehensive approach also has been embraced by Congress in the form of the Longshoremen's and Harbor Workers' Compensation Act. 33 U.S.C. 902(2) (1982). The remainder of the states vary in their statutory treatment of injuries and occupational diseases, some broadly defining injury and separately enumerating occupational diseases, others narrowly defining injury as an unexpected accident and separately passing catch-all statutes wherein all but the most common ailments might be considered to be occupational diseases. The states that exclude coverage for ordinary diseases of life are as follows: ALA. CODE (1986); ARIZ. STAT. ANNO (1983); COLO. STAT. ANNO (1986); CONN. STAT. ANNO (1986); FLA. STAT. ANNO (1981); GA. CODE ANN (1983); IND. STAT. ANNO (1986); IOWA CODE ANNO & (1983); KANS. STAT. ANNO (1986); MASS. GEN. LAWS. ANNO (1988 Supp.); MICH. LAWS. ANNO (1985); MINN. STAT. ANNO (1988 Supp.); Mo. STAT. ANNO (1988 Supp.); NEB. STAT (1984); N.C. STAT (1985); N.D. CODE (1987 Supp.); OHIO CODE ANNO (1980); OKLA. STAT. ANNO (1988 Supp.); OR. STAT (1987); S.C. CODE ANNO (1988); S.D. CODE. LAWS (1978); TEx. STAT. ART (1988 Supp.); UTAH CODE ANNO , 12, 27 (1988 Supp.); VT. STAT. ANNO. T (1978); VA. CODE (1987); W. VA. CODE ANNO (1985); Wyo. STAT. ANNO (1987). For more information on the workers' compensation schemes in other states, see also Comment, The Ordinary Disease Exclusion in Virginia's Workers' Compensation Act: Where is it Going After Ashland Oil Co. v. Bean?, 18 U. RICH. L. REV. 161 (1983). The generic personal injury method was adopted by drafters of the Model Act. WORKMEN'S COMPENSATION AND REHABILITATION LAW (Revised) 2(a) (1977). 7. See supra note 6 for different approaches to the same problem of defining compensable work-related disabilities. 8. See infra text accompanying notes The Department of Labor and Industries is the administrative agency charged with carrying out the provisions of the Industrial Insurance Act. WASH. REV. CODE (1987). 10. For the purpose of this Note, repetitive trauma shall be defined as physical traumas (e.g. jolts or bumps) happening over an extended period of time, caused from external sources and that, cumulatively, result in a disabling physical condition. This is the author's definition. It is drawn from the supreme court's ruling in Dennis v. Department of Labor and Indus., 109 Wash. 2d 467, 745 P.2d 1295 (1987). In that case, it was found that a valid workers' compensation claim could be had for a disabling condition proximately caused by 38 years of repetitive tin snipping. See infra text accompanying notes 1988] Occupational Disease related disease. Recently, in Dennis v. Department of Labor and Industries, 2 the Washington Supreme Court had occasion to take a fresh look at Washington's occupational disease statute. 13 After reviewing the legislative history of the Industrial Insurance Act, 4 the past judicial treatment of the occupational disease statute,' 5 and the general policy concerns attendant to disability coverage in Washington,' 6 the court created a fair and workable test for determining whether a worker's disability is compensable as an occupational disease.' 7 In so doing, the Dennis court also eliminated the prior judicial standard that kept repetitive traumas and occupational disease aggravations of ordinary diseases from giving rise to compensable claims for workers' compensation benefits.' 6 Thus, the court 11. For the purpose of this Note, the author has defined aggravation to mean to make worse to the extent that treatment is required or disability results. This definition is loosely derived from McDougle v. Department of Labor and Indus., 64 Wash. 2d 640, 393 P.2d 631 (1964); Bennett v. Department of Labor and Indus., 48 Wash. 2d 553, 295 P.2d 310 (1956). See WASH. REV. CODE (1987) for the statutory basis. An ordinary disease of life is defined by the author as any organic or mental condition whose origin is not work-related with not work-related meaning that the preexisting condition was not originally caused by the same employment that aggravated the preexisting condition. This definition is loosely derived from the Dennis case. See Dennis, 109 Wash. 2d at , 745 P.2d at See also LARSON, supra note 6, at Dennis, 109 Wash. 2d at 467, 745 P.2d at WASH. REV. CODE (1987). 14. WASH. REV. CODE tit. 51 (1987); Dennis, 109 Wash. 2d at , 745 P.2d at WASH. REv. CODE (1987); Dennis, 109 Wash. 2d at , 745 P.2d at Dennis, 109 Wash. 2d at , 785 P.2d at Id. at 481, 745 P.2d at The court stated that for a worker to establish that he has an occupational disease, he must prove that his disability was proximately caused by his particular employment. Moreover, he must establish that his condition was more probably-than-not caused by distinctive conditions of his employment, as opposed to conditions of everyday life. 18. Id. at 472, 745 P.2d at Prior to the decision in Dennis, repetitive traumas resulting in disability had not been allowed as compensable injuries. Because of the repetitive nature, such an etiology can never fit within the narrow time-specific language of the injury statute. Garrett Freightlines v. Department of Labor and Indus., 45 Wash. App. 335, 725 P.2d 463 (1986). But repetitive traumas causing disability had not been recognized as compensable occupational diseases by the Department of Labor and Industries either. DEPARTMENT OF LABOR AND INDUSTRIES WORKERS' COMPENSATION MANUAL: A GUIDE TO CLAIMS ADJUDICATION IN WASHINGTON STATE B (1987) (hereinafter MANUAL). Other jurisdictions have, under certain circumstances peculiar to their own workers' compensation systems, provided benefits to workers disabled by repetitive traumas. See, e.g., Brown Shoe Co. v. Fooks, 238 Ark. 815, 310 S.W.2d 816 (1958) (compensation given to a worker who developed bursitis due to continued sitting on the job); Bondar v. Simmons Co.. 20 NJ. 766 University of Puget Sound Law Review [Vol. 11:763 effectively closed the gap in coverage that had allowed the Department of Labor and Industries to deny benefits to workers whose disabilities, although work-related, could not be stereotyped as injuries or occupational diseases. 9 This Note focuses on the current state of occupational disease coverage under the workers' compensation system in Washington, and will review the legislative history, 20 the administrative interpretation, 2 ' and the judicial development of the occupational disease law. 22 Further, after setting forth the broad policy goals behind the Industrial Insurance Act 23 and outlining Washington's occupational disease statute, 24 this Note will conclude with a discussion of the supreme court's analytical framework for a fair, workable, and uniform method for adjudicating occupational disease claims in Washington. 25 Super. 14T, 89 A.2d 299 (1952) (compensation given to a worker who developed bursitis due to pushing and pulling a lever 500 to 700 times a day); Kalce v. Dewey Product, 296 Mich. 540, 296 N.W. 826 (1941) (compensation given to a worker who developed bursitis due to a particular method that the worker used to fill bottles). 19. See Dennis, 109 Wash. 2d 467, 745 P.2d 1295 (1987) (where a worker with a disability caused by repetitive trauma was found to have a compensable occupational disease). The problem of distinguishing between injuries and occupational diseases is avoided in those states that have general personal injury statutes. See supra note 6 for an enumeration of such states. For an interesting case showing the difficulty that sometimes arises when it is necessary to distinguish between an injury and a disease, see Connelly v. Hunt Furniture Co., 240 N.Y. 83, 147 N.E. 366 (1925). In that case, an embalmer, who had touched a gangrenous corpse, made the mistake of scratching a pimple on the back of his own neck, thereby transmitting the infection to himself. The issue before the court was whether the embalmer sustained an injury or developed an occupational disease. 20. See infra text accompanying notes See infra text accompanying notes See infra text accompanying notes WASH. REV. CODE tit. 51 (1987). For a statement of the goals of the Industrial Insurance Act, see infra notes WASH. REV. CODE (1987). See infra notes and notes and accompanying text. 25. When the current version of the occupational disease statute was passed in 1941, a Washington law student wrote that [w]ho can say what meaning will be given the key adverbs, 'naturally and proximately,' and when, for that matter, does a disease 'arise out of employment?' Only a series of supreme court decisions can furnish reliable answers. Note, Workmens' Compensation, 16 WASH. L. REV. 153, 155 (1941) [hereinafter Workmens' Compensation]. Ironically enough, as the author of this Note will point out, it took 46 years to get a reliable answer in the form of the Dennis decision. Dennis, 100 Wash. 2d 467, 745 P.2d 1295 (1987). 1988] Occupational Disease II. THE LEGISLATIVE DEVELOPMENT OF INDUSTRY AND OCCUPATIONAL DISEASE LAW IN WASHINGTON STATE Like other states, 26 Washington enacted its first workers' compensation legislation in an effort to ameliorate problems spawned by the burgeoning industrial revolution. 27 Among these problems were the cost to society of the increasing number of common law tort actions brought against employers by injured employees and the uncertainty of the worker's remedy. 28 Given the ever increasing number of work-related injuries occurring as Washington became industrialized, the courts were unable to efficiently provide civil tort remedies for injured workers. Moreover, when judgments were given, the tortfeasor-employers merely attempted to pass on the cost of the judgment to consumers. The point of workers' compensation was not only to quickly and surely compensate injured workers, but to do so as economically as possible. Through industrial insurance, the cost could be spread among the employees and employers, with high-risk industries paying more for coverage than low-risk industries, thereby minimizing the externalization of the cost of work-related injuries. When the Industrial Insurance Act was passed in 1911, occupational 26. Comment, What is Wrong with Maine's Occupational Disease Law, 34 ME. L REV. 165 (1982) [hereinafter Disease Law] (discussing general development of occupational disease law in the United States) WASH. LAws, ch. 74, 5. See infra note The legislature's declaration of the purpose of the workers' compensation act reads as follows: The common law [tort] system governing the remedy of workmen against employers for injuries received in hazardous work is inconsistent with modern industrial conditions. In practice it proves to be economically unwise and unfair. Its administration has produced the result that little of the cost of the employer has reached the worker and that little only at large expense to the public. The remedy of the workman has been uncertain, slow and inadequate. Injuries in such works, formerly occasional, have become frequent and inevitable. The welfare of the State depends upon its industries, and even more upon the welfare of its wage-worker. The State of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workers, injured in their extra hazardous work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this act; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the State over such causes are hereby abolished, except as in this act provided WASH. LAws, ch. 74, 1. 768 University of Puget Sound Law Review [Vol. 11:763 diseases were not covered;' disability compensation was only provided for workers with disabilities caused by an injury resulting from some fortuitous event as distinguished from the contraction of disease. ' Under the law at that time, a worker who became disabled after being poisoned by toxic fumes was deemed to have suffered a compensable injury.a However, a different worker who was exposed to similar toxic fumes and thus weakened to the extent that he contracted tuberculosis (which resulted in a disability) was held not to have suffered a compensable injury. 3 2 This definition of injury prevailed until 1927, when the legislature passed the prototype of the current injury statute, which defines injury as a sudden and tangible happening of a traumatic nature, producing an immediate or prompt result... By the late 1920s it was common knowledge that certain diseases are peculiar to a given occupation and are brought about by exposure to certain harmful conditions that are constantly present, and to which all workmen in the occupation are continually exposed.' However, the 1927 amendment to the Industrial Insurance Act failed to extend coverage to occupational diseases. 35 In order to have any hope of recovery, workers disabled by such diseases were forced to bring per- 29. The 1911 Industrial Insurance Act provided: Each workman who shall be injured whether upon the premises or at the plant or, he being in the course of his employment, away from the plant of his employer, or his family or dependents in case of death of the workman, shall receive out of the accident fund compensation...and, except as in this act otherwise provided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever WASH. LAWS, ch. 74, WASH. LAWS, ch. 74, Seattle Can Co. v. Department of Labor and Indus., 147 Wash. 303, 265 P. 739 (1928) (court allowed claims of workers poisoned by Benzol fumes, even though the workers did not suddenly fall ill upon first exposure, but only after repeated exposure). 32. Depre v. Pacific Coast Forge Co., 145 Wash. 263, 259 P. 720 (1927) (court disallowed claim because worker who was exposed to sulfuric and muriatic fumes for several months and consequently weakened to the point of being susceptible to the contraction of tuberculosis (which he did contract) had not been the victim of an unexpected or sudden happening) WASH. LAWS, ch. 310, 2. The reader should note that the word injury stands for both the cause and effect of a work-related disability. See supra note Seattle Can Co., 147 Wash. 303, 265 P. 739 (1928). See also Polson Logging Co. v. Kelly, 195 Wash. 167, 171, 80 P.2d 412, 414 (1938) (employer not liable for workers' compensation premiums because, under the statute in force at that time, his industry had no diseases peculiar to it) WASH. LAWS, ch. 310, 4 (compensation is allowed only to the workman who is injured in the course of his employment). 1988] Occupational Disease sonal injury suits against their employers. Consequently, the Washington courts had yet another tort crisis to deal with. 36 At this time, the courts allowed recovery solely to workers whose diseases were peculiar to their occupations. '37 This requirement prevented the extension of liability to the employers for the everyday ailments and communicable diseases contracted by their workers.' Faced with an ever-increasing number of such suits, in 1937 the legislature extended workers' compensation coverage to include occupational disease. 39 This gave employers immunity from actions filed by disabled workers who were pleading common law negligence. 4 In that first occupational disease statute, 4 ' the legislature provided for compensation for disability or death caused by any one of a list of 21 specified diseases if acquired in certain employments specified for each disease. ' 2 For example, the legislature specified that anthrax was considered an occupational disease (only if contracting it resulted in disability) of handlers of wools, hair, hides, bristles, or skins. 43 That first occupational disease statute did not stand unchanged for long. The realities of the workplace, where a multitude of disabilitycausing occupational diseases could be contracted under an endless variety of working conditions, soon made it apparent 36. See supra note 28 and accompanying text. 37. Department of Labor and Indus. v. Kinville, 35 Wash. App. 80, 84-85, 664 P.2d 1311, (1983). See infra note The peculiar to the occupation requirement results in the worker having a higher burden of proof tha
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