John R. Gibbons v. The Boeing Company And Dept. Of L&i ( 2015 )

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JOHN R. GIBBONS, DEC'D, No. 72335-9-1
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THE BOEING COMPANY, AND UNPUBLISHED OPINION on •^' I
DEPARTMENT OF LABOR AND
INDUSTRIES OF THE STATE OF
WASHINGTON,
Respondents. FILED: August 17, 2015
Schindler, J. — Under the Washington Industrial Insurance Act, Title 51 RCW, a
surviving spouse of an injured worker is entitled to death benefits under RCW 51.32.067
if the worker is permanently and totally disabled at the time of death, or under RCW
51.32.050 if the worker dies as a result of an industrial injury. Vivian Gibbons, the
surviving spouse of John R. Gibbons, appeals summary judgment dismissal of her claim
for death benefits under RCW 51.32.067 and RCW 51.32.050. We affirm.
John R. Gibbons worked as a carpenter for The Boeing Company. On
September 24, 1988, John1 twisted his back at work. John filed a claim with the
Washington State Department of Labor and Industries (Department) for time-loss
We refer to John Gibbons and Vivian Gibbons by their first names for clarity. No disrespect is
intended.
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compensation benefits. In 1993, John returned to work at Boeing doing computer data
entry.
On September 1, 1993, John retired from Boeing. One month later, the
Department issued an order awarding John payment for a "Category 3" low back
impairment permanent partial disability and closed his time-loss compensation claim.
The Department affirmed the closing order. John did not appeal.
At John's request, the Department reopened the claim in 1995 for authorized
medical treatment. John also sought additional time-loss compensation. The Industrial
Appeals Judge (IAJ) found that John had voluntarily retired and was therefore not
entitled to time-loss compensation benefits under former RCW 51.32.090(8) (1993).
The Board of Industrial Insurance Appeals (Board) affirmed. John appealed the order
denying time-loss compensation benefits to superior court. This court affirmed the
Board and held that John was ineligible for time-loss compensation because he was
voluntarily retired, Gibbons v. Boeing Co., 107 Wash. App. 1029 (2001).
John's claim remained open for medical treatment until he died of lung cancer on
August 1, 2005. On June 2, 2006, the Department issued an order closing John's claim
and awarding permanent partial disability for "category 3" low back impairment in the
amount of $9,000.
John's spouse Vivian Gibbons appealed the June 2 closing order and filed a
claim for spousal death benefits. After a scheduling conference, the Board identified the
sole issue as, "Whether for conditions proximately caused by the September 24, 1988
industrial injury, the claimant (now deceased) is entitled to an increased permanent
partial disability award." At the July 2007 administrative hearing, Vivian's attorney
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agreed that the issue was whether John was "entitled to an increased permanent partial
disability award." Vivian presented medical evidence that in addition to low back
impairment, the industrial injury caused bowel and erectile dysfunction.
The Board reversed the closing order and awarded an additional permanent
partial disability payment. The Board concluded the weight of the evidence
demonstrated that the permanent partial disability on June 2, the date the Department
issued the second order of closure, "was best represented by Category 6, WAC 296-20-
280, and that the June 2, 2006 order must be reversed to provide the correct category
of impairment." In June 2008, Vivian and Boeing both filed an appeal of the decision.
At the conclusion of a jury trial in March 2011, the jury found that as of June 2,
2006, John had a "Category 3" permanent partial disability of the low back and a
"Category 2" permanent partial disability of the lower digestive tract. Following entry of
the judgment on the jury verdict, the Department issued an order directing Boeing to
pay a "category 3" permanent partial disability award for the low back impairment and a
"category 2" permanent partial disability award for the lower digestive tract impairment.
On January 13, 2012, the Department issued an order denying Vivian's claim for
death benefits. Vivian filed a request for reconsideration of the order denying her claim
for death benefits. The Department affirmed the order. Vivian appealed the decision to
the Board.
Boeing filed a motion for summary judgment arguing Vivian was not entitled to
death benefits under RCW 51.32.067 because John voluntarily retired and was not
permanently and totally disabled at the time of his death. In opposition, Vivian argued
No. 72335-9-1/4
there were issues of material fact as to whether she was entitled to death benefits.
Vivian submitted a number of documents including John's death certificate.
The IAJ issued a proposed decision and order affirming the decision of the
Department to deny death benefits. The IAJ concluded Vivian was not entitled to death
benefits under either RCW 51.32.067 or RCW 51.32.050. On April 1, 2013, the Board
granted Vivian's petition for review "solely to correct a typographical error," and affirmed
the proposed decision and order.
Vivian filed an appeal of the Board's final order. The superior court adopted the
Board's findings and affirmed the decision granting Boeing's motion for summary
judgment. The amended findings of fact state, in pertinent part:
B. The Claimant, John R. Gibbons, was injured on September 24, 1988
while in the course of his employment with The Boeing Company
when he twisted his back while exiting a vehicle. That injury
proximately caused low back and lower digestive tract conditions.
C. John R. Gibbons voluntarily retired and removed himself from the
labor force on September 1, 1993. He remained voluntarily retired
through August 1, 2005.
D. On August 1, 2005, John R. Gibbons died of lung cancer, a condition
unrelated to his September 24, 1988 industrial industry.
E. Vivian Gibbons is John R. Gibbons' surviving spouse.
F. On August 1, 2005, John R. Gibbons was permanently partially
disabled, but was not permanently totally disabled, as a result of his
September 24, 1988 industrial injury.
Vivian appeals. Vivian contends the court erred in affirming summary judgment
dismissal of her claim for death benefits. Vivian asserts there are genuine issues of
material fact as to whether she is entitled to death benefits under RCW 51.32.067 or
RCW 51.32.050.
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Standard of Review
In an appeal from a decision of the Board, the superior court acts in an appellate
capacity, reviewing the decision de novo. Ruse v. Dep't of Labor & Indus., 138 Wash. 2d
1, 5, 977 P.2d 570 (1999). The Board decision is prima facie correct, and the burden of
proof is on the party attacking the decision. RCW 51.52.115;2 Ruse. 138 Wash. 2d at 5.
RCW 51.52.140 governs our review of the superior court decision. RCW 51.52.140
states that an "[a]ppeal shall lie from the judgment of the superior court as in other civil
cases."
We review summary judgment de novo, viewing the facts and reasonable
inferences in the light most favorable to the nonmoving party. Pearson v. Dep't of Labor
& Indus., 164 Wash. App. 426, 431, 262 P.3d 837 (2011).3 Summary judgment is proper
when there is no genuine issue of material fact and the moving party is entitled to
summary judgment as a matter of law. CR 56(c). If reasonable minds could reach only
one conclusion, summary judgment is appropriate. Hansen v. Friend, 118 Wash. 2d 476,
485, 824 P.2d 483 (1992). "A party may not rely on mere allegations, denials, opinions,
or conclusory statements, but, rather must set forth specifics indicating material facts for
trial." Int'l Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co.. 122 Wash. App. 736, 744, 87
2 RCW 51.52.115 states, in pertinent part:
The hearing in the superior court shall be de novo, but the court shall not receive
evidence or testimony other than, or in addition to, that offered before the board or
included in the record filed by the board in the superior court as provided in RCW
51.52.110. . . . In all court proceedings under or pursuant to this title the findings and
decision of the board shall be prima facie correct and the burden of proof shall be upon
the party attacking the same. Ifthe court shall determine that the board has acted within
its power and has correctly construed the law and found the facts, the decision of the
board shall be confirmed.
3 Because we review summary judgment de novo, the superior court's findings of fact are
superfluous and need not be considered. Hubbard v. Spokane County, 146 Wash. 2d 699, 706 n.14, 50
P.3d 602 (2002). Accordingly, we do not address Vivian's argument that the superior court's findings of
fact are not supported by substantial evidence.
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P.3d 774 (2004) (citing CR 56(e); Grimwood v. Univ. of Puqet Sound, Inc., 110 Wash. 2d
355, 359, 753 P.2d 517 (1988)).
Death Benefits under the Industrial Insurance Act
A surviving spouse has a separate right to death benefits under Washington's
Industrial Insurance Act, Title 51 RCW. A surviving spouse of an injured worker eligible
for permanent total disability is entitled to death benefits under RCW 51.32.067 or, if the
death is the result of an industrial injury, RCW 51.32.050.
RCW 51.32.067
Under RCW 51.32.067, a surviving spouse may receive death benefits if the
injured worker "dies during a period of permanent total disability from a cause unrelated
to the injury." RCW 51.32.067(1).
Vivian argues there are genuine issues of material fact as to whether John was
permanently and totally disabled at the time of his death. However, there is no dispute
that the jury found John permanently partially disabled as of June 2, 2006. There is
also no dispute Vivian did not appeal the 2011 superior court judgment on the jury
verdict finding that John had a "permanent partial disability." The finding of partial
disability is res judicata as to the extent of the injury as of June 2, 2006. See Dinnis v.
Dep't of Labor & Indus., 67 Wash. 2d 654, 657, 409 P.2d 477 (1965) (fact of permanent
partial disability determined in prior proceeding is res judicata as to worker's condition
on that date); Weyerhaeuser Co. v. Farr, 70 Wash. App. 759, 766, 855 P.2d 711 (1993)
(same): see also Marlev v. Dep't of Labor & Indus., 125Wn.2d 533, 538, 886 P.2d 189
(1994) ("[Fjailure to appeal an order, even one containing a clear error of law, turns the
order into a final adjudication, precluding any reargument of the same claim."). Vivian is
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No. 72335-9-1/7
bound by the law of the case and cannot challenge that finding after failing to file a
timely appeal. Because John was only partially disabled and not permanently totally
disabled at the time of his death, the court did not err in concluding Vivian is not eligible
for benefits under RCW 51.32.067 and affirming summary judgment dismissal of her
claim for benefits on that ground.
RCW 51.32.050
Under RCW 51.32.050, the surviving spouse is eligible for death benefits
"[w]here death results from the [industrial] injury." RCW 51.32.050(2). A surviving
spouse's death benefits under RCW 51.32.050 have "a separate character" from a
worker's wage replacement benefits. Mason v. Ga.-Pac. Corp., 166 Wash. App. 859, 866-
67, 271 P.3d 381 (2012) (citing Kilpatrick v. Dep't of Labor & Indust.. 125 Wash. 2d 222,
228, 883 P.2d 1370 (1994) (noting a "survivor's claim is independent from the worker's
claim to the extent the worker cannot waive the survivor's rights to benefits [under RCW
51.32.050].")). Consequently, a spouse may file a separate claim for death benefits
under RCW 51.32.050 even if the worker's claim for benefits has been closed. Dep't of
Labor & Indust. v. Shirley. 171 Wash. App. 870, 883-84, 288 P.3d 390 (2012).
There is no dispute that John died of lung cancer in 2005. The death certificate
states the cause of death as "metastatic nonsmall cell lung cancer." The certifying
physician notes that "tobacco use" contributed to John's death. The certifying physician
does not list any "significant conditions contributing to death," and there was no
evidence the 1988 twisting low-back injury caused the lung cancer.
Mason is inapposite. In Mason, it was undisputed that the worker died as a
result of a lung condition related to chemical exposure during his employment. Mason,
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166 Wash. App. at 862. The Department found that an occupational^ related condition
caused the worker's death and awarded the surviving spouse death benefits under
former RCW 51.32.050 (1986). Mason, 166 Wash. App. at 862. The employer appealed
the benefit amount arguing the surviving spouse was entitled to only the statutory
minimum survivor pension rate because the worker voluntarily retired before
manifestation of his lung condition. Mason, 166 Wash. App. at 862. The court concluded
that under former RCW 51.32.050 and the statute defining occupational disease, RCW
51.32.180, the surviving spouse's death benefits should be based on the worker's
wages at the time of his retirement. Mason, 166 Wash. App. at 870-71.
Here, unlike in Mason, there is no evidence that John died as a result of an
industrial injury. The superior court did not err in concluding that Vivian is not eligible for
death benefits under RCW 51.32.050 and affirming summary judgment dismissal on
that ground.
We affirm the superior court decision affirming the Board's decision on summary
judgment to deny Vivian's claim for death benefits under RCW 51.32.067 and RCW
51.32.050.
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WE CONCUR:
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