Fall 2008 SBH Quarterly Newsletter
PDF FormatWashington Court Decisions
Department's right to reimbursement for workers' compensation benefits paid to claimant does not extend to third-party recovery for pain and suffering.
This case came before the appellate court on the Department's appeal of the lower court's finding that it cannot seek reimbursement from a worker's third party recovery compensating him for pain and suffering. The Department argued the statutory reimbursement term "recovery" includes "all damages except loss of consortium." The Court rejected that argument, holding that, because the Department did not - and will not - pay pain and suffering damages, the pain and suffering portion of the worker's third party damages is not a "recovery" under RCW 51.24.030(5). Tobin v. Department of Labor & Industries, 187 P3d 780 (Wash. App. Div. 2 July 1, 2008).
Two year limitations period for widow to file a claim for surviving spouse benefits began to run from the date of worker's death where worker and widow received notice and made a claim for benefits during worker's lifetime. RCW 51.28.055 (2003).
The worker's surviving spouse appealed the Superior Court dismissal of her claim for benefits filed four years after the death of her husband. The trial court found the two year statute of limitations lapsed because she had knowledge of her husband's prior industrial insurance benefits and of the cause of his death. The surviving spouse argued the statute requires written notice that the death was job-related. The Court disagreed.
The Department allowed Mr. Purdy's asbestos exposure claim. After claim closure, Mr. Purdy was advised he could seek reopening if his condition worsened. The parties stipulated Mr. Purdy told his surviving spouse he had been exposed to asbestos, she believed the successful claim for benefits during his life was for asbestosis, and she filed a claim for spousal benefits based on the same exposure. The parties further stipulated the surviving spouse never received written notice regarding her right to file a claim within two years of Mr. Purdy's death. Former RCW 51.28.055 (2003) provided:
Claims for occupational disease or infection to be valid and compensable must be filed within two years following the date the worker had written notice from a physician: (1) Of the existence of his or her occupational disease, and (2) that a claim for disability benefits may be filed. * * *
The Court concluded, by stepping into Mr. Purdy's shoes, his surviving spouse had the same notice already given to her late husband. In re Purdy, 189 P3d 826 (Wash. App. Div. 3 July 31, 2008).
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