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Cowlitz Stud Company v. Clevenger3/22/2005
Concurring: C. C. Bridgewater, Christine Quinn-Brintnall
PUBLISHED OPINION - Motion to publish granted May 24, 2005
In 1997, Dana Clevenger sustained an industrial injury while employed by Cowlitz Stud Company, a lumber mill. Cowlitz paid her medical benefits and closed her claim. In 2000, while employed by Hampton Lumber Company, Clevenger reopened her 1997 claim. The Department of Labor and Industries (L&I) ordered Cowlitz to pay her time loss compensation . But the superior court reversed because reasonable minds could not differ that Clevenger's 1997 injury had worsened while she worked at Hampton and the 'last injurious exposure rule' applied rendering Hampton and not Cowlitz responsible for these benefits. Both Clevenger and L&I raise issues on appeal. We affirm.
FACTS
From 1995 through May 1999, Clevenger worked at Cowlitz, a self-insured employer. On May 2, 1997, she injured her back and on July 2, Cowlitz paid her medical benefits and closed her claim.
In November 1999, shortly after the lumber mill changed owners, Clevenger began working for Hampton, the new owner. From November 1999 through May 2000, she experienced pain and sensory problems radiating down both legs. As a result, on July 7, 2000, she applied to reopen her 1997 L&I claim. L&I denied the application. She requested reconsideration and on December 20, 2000, L&I reopened her claim effective May 30, 2000. On January 8, 2001, per L&I's order, Cowlitz paid Clevenger time loss benefits for July 5 through July 6, July 10 through July 16, and August 1 through August 14, 2000. Cowlitz did not appeal this order.
On April 5, 2001, L&I directed Cowlitz to pay Clevenger time loss compensation for the period January 16 through April 4, 2001. L&I also directed Cowlitz to address Clevenger's employability as determined by a vocational consultant. On April 25, 2001, Cowlitz filed a protest and requested reconsideration. L&I affirmed its order.
Cowlitz appealed L&I's order. Cowlitz also requested that Clevenger file a claim with Hampton because she developed increased low back problems while working at Hampton's mill. Clevenger declined to do so.
After a hearing on Cowlitz's appeal, an industrial appeals judge (IAJ) entered a proposed decision affirming L&I's order. Cowlitz sought review before the Board of Industrial Appeals (Board), arguing that, under the last injurious exposure rule, the responsibility for Clevenger's condition should be shifted to Hampton. L&I did not respond to the petition.
The Board affirmed the IAJ's proposed order. Cowlitz appealed to the superior court. Cowlitz moved for summary judgment, arguing lack of material fact and application of the last injurious exposure rule. L&I did not participate in the proceeding. The trial court granted Cowlitz's motion because (1) the last injurious exposure rule applied and, (2) based on the record, reasonable minds could not differ that Clevenger's Hampton employment proximately caused her worsened back condition.
ANALYSIS
Standard of Review
When reviewing an order for summary judgment, we engage in the same inquiry as the trial court. Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994) (citing Syrovy v. Alpine Resources, Inc., 122 Wn.2d 544, 548-49 n.3, 859 P.2d 51 (1993)). We affirm summary judgment if no genuine issue of any material fact exists, entitling the moving party to judgment as a matter of law. CR 56(c); Dep't of Labor & Indus. v. Fankhauser, 121 Wn.2d 304, 308, 849 P.2d 1209 (1993). We consider all
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