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McIndoe v. Department of Labor and Industries of the State of Washington3/23/2000
e only restriction relevant here is that the physical partial disability must be incurred before total disability is pronounced.
Loss of Function versus Loss of Earning Power.
The Department argues that all benefits for permanent disability, whether partial or total, ultimately compensate for loss of earning power. Both statutes and case law suggest otherwise.
PPD reflects only the loss of bodily function; it is not measured by the loss of earning power. Hubbard v. Department of Labor & Indus., 92 Wn. App. 941, 947, 965 P.2d 1136 (1998), rev'd on other grounds, Wn.2d , 992 P.2d 1002 (2000); Franks v. Department of Labor & Indus., 35 Wn.2d 763, 774, 215 P.2d 416 (1950). An award of the maximum possible PPD does not mean the worker cannot engage in some form of gainful employment. Id. at 776.
Permanent partial disability is: 'Any anatomic or functional abnormality or loss after maximum rehabilitation has been achieved . . . . Under Washington law disability awards are based solely on physical or mental impairment due to the accepted injury or conditions without consideration of economic factors.' WAC 296-20-01002 (emphasis in original); RCW 51.08.150. This means that permanent partial disability is not proved with reference to whether the person is able to work. Clauson, 130 Wn.2d at 585.
Total permanent disability, on the other hand, is: '{L}oss of {body part or function} permanently incapacitating the worker from performing any work at any gainful occupation.' RCW 51.08.160; WAC 296-20-01002.
CONCLUSION
Here, the workers suffered their hearing loss before the date of the injury which resulted in their pension. They timely filed claims. By the term pending, the Clauson court meant pre-existing and, therefore, necessarily included claims discovered and filed within the statute of limitation. There is then no legal reason why the filing of an unrelated pension claim should prevent these workers from recovering for their hearing loss.
ATTORNEY FEES
Mr. McIndoe, Mr. Krabbenhoft and Mr. Herrera request costs and fees pursuant to RAP 2.4(g), RAP 14.2, and RCW 51.52.130. Reasonable attorney fees may be claimed on appeal when provided for by applicable law. RAP 18.1(a). RCW 51.52.130 provides for fees on appeal if the worker prevails. We therefore reverse the trial court's decision in McIndoe and affirm the trial court's decisions in Krabbenhoft and Herrera. The workers' reasonable attorney fees and costs are granted.
Sweeney, J.
WE CONCUR:
Kurtz, C.J.
Kato, J.
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