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McIndoe v. Department of Labor and Industries of the State of Washington3/23/2000
These three consolidated workers' compensation cases present one question. Can a worker receive an award for permanent partial disability (PPD) for a pre-existing condition if the claim is filed after a pension for an unrelated permanent total disability has already been awarded? Two trial courts allowed the claims. One denied the claim. We hold that the worker is entitled to both the PPD and the pension.
FACTS
The parties stipulated to the following facts:
Robert McIndoe. Mr. McIndoe was employed for many years in the construction industry. He suffered a severe back injury in a Caterpillar accident on February 9, 1994. On June 24, 1996, the Department of Labor and Industries (Department) found him totally permanently disabled and awarded a pension.
Two weeks later, on July 5, Mr. McIndoe timely filed a claim for benefits for occupational hearing loss rated at 19.56 percent binaural, which he attributed to long term exposure to construction noise. The Department allowed the hearing loss claim, but closed it without an award of PPD because it had already awarded a pension for total disability. Mr. McIndoe appealed to the Board of Industrial Insurance Appeals (Board). It affirmed the Department's denial of compensation for the hearing loss. On April 30, 1998, Mr. McIndoe appealed to the Adams County Superior Court. The judge granted summary judgment to the State and affirmed the Board's affirmance of the Department's denial of PPD for the hearing loss. Mr. McIndoe appeals.
Edward Krabbenhoft. During 19 years of employment with Lehigh Portland Cement Company, Mr. Krabbenhoft sustained several injuries for which he received PPD awards. On December 21, 1989, he seriously injured his knee and was found permanently totally disabled and awarded a pension effective January 6, 1994.
In November 1996, he filed a claim for 29 percent binaural hearing loss. On May 9, 1997, the Department allowed the claim and closed it without a PPD award. Mr. Krabbenhoft appealed to the Board which affirmed the Department. The Pend Oreille County Superior Court reversed the Board and the Department, and awarded summary judgment to the worker. The Department appeals.
John J. Herrera. Mr. Herrera also worked for Lehigh for 16 years. And he also received several PPD awards over the years. On October 13, 1987, he injured his knee. On November 16, 1993, he was awarded a pension for total permanent disability, effective January 16, 1994.
On July 1, 1996, Mr. Herrera filed a hearing loss claim for 39.06 percent binaural impairment. The disability was present before or contemporaneously with his last exposure to occupational noise on October 13, 1987. Again, the Department allowed the claim but closed it without a PPD award because of the previously awarded total permanent disability pension. The Board affirmed. The Pend Oreille County Superior Court reversed the Board and granted summary judgment for Mr. Herrera. The Department appeals.
DISCUSSION
The dispositive question raised here is whether the Workers Compensation Act (Act) permits compensation for a permanent partial disability if the claim is filed after a pension has been awarded for an unrelated permanent total disability injury .
Relying primarily on Harrington v. Department of Labor & Indus., the Department contends that a worker would recover twice if awarded partial disability benefits under a new claim filed after the same worker has received a pension for permanent total disability. Harrington v. Department of Labor & Indus., 9 Wn.2d 1, 113 P.2d 518 (1941). This, it argues, is because a person who is permanently tota
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