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Rector v. Department of Labor and Industries

April 22, 1991

HERBERT L. RECTOR, RESPONDENT
v.
THE DEPARTMENT OF LABOR AND INDUSTRIES, APPELLANT



Coleman, J. Forrest and Baker, JJ., concur.

Author: Coleman

The Department of Labor and Industries (the Department) appeals (1) from the Superior Court's decision to hear Herbert Rector's motion for reconsideration of the order of summary judgment originally entered in favor of the Department and (2) from the Superior Court's subsequent order for summary judgment in Rector's favor. We reverse.

In 1969 Herbert Rector worked as an ironworker who, in the course of his employment, fell four stories and struck

the back of his head. Rector was unaware of any hearing loss resulting from that fall until early 1986, when he was told by Gordon Thomas, M.D., that he had a complete loss of hearing in his right ear.*fn1 If he were to testify, Dr. Thomas would state that the 100 percent hearing loss in Rector's right ear was more likely than not due to the trauma from his fall in 1969.

On April 22, 1986, Rector filed his initial claim with the Department for occupational hearing loss. The Department granted Rector an award for a 15 percent loss of hearing in the left ear resulting from occupational disease, but denied any responsibility for the 100 percent hearing loss in the right ear because it was a preexisting condition caused by the 1969 trauma. The Department filed its order on February 17, 1987, and closed the case.

Rector appealed the Department's decision to the Board of Industrial Insurance Appeals (the Board) which affirmed the Department, concluding in its October 18, 1989, decision that Rector's 1986 claim was not timely filed pursuant to RCW 51.28.050. That statute reads as follows:

Time limitation for filing application or enforcing claim for injury. No application shall be valid or claim thereunder enforceable unless filed within one year after the day upon which the injury occurred or the rights of dependents or beneficiaries accrued, except as provided in RCW 51.28.055 [which specifies the time for filing claims for occupational disease].

RCW 51.28.050.

Thereafter, Rector appealed the Board's decision to the Superior Court, which granted the Department's motion for summary judgment. The court found that Rector did not comply with the 1-year filing requirement for industrial injuries. In so holding, the court considered the definition of "injury" under the act: "'Injury' means a sudden and tangible happening, of a traumatic nature, producing an

immediate or prompt result, and occurring from without, and such physical conditions as result therefrom." RCW 51.08.100.

After granting Rector's motion for reconsideration, the trial court considered affidavits presented by Rector,*fn2 his attorney, and Dr. Thomas, along with Rector's emergency room medical record from the day of the accident, and granted Rector's motion for summary judgment. Contrary to its initial findings, the court concluded that the facts of Rector's case could not be distinguished from those in Crabb v. Department of Labor & Indus., 186 Wash. 505, 58 P.2d 1025, 105 A.L.R. 964 (1936) (involving the reopening of an earlier, timely claim); Nelson v. Department of Labor & Indus., 9 Wash. 2d 621, 115 P.2d 1014 (1941) (involving the reopening of an earlier, timely claim and an inability of the claimant to have detected the loss sooner); and Leingang v. Department of Labor & Indus., King County cause 86-2-01045-9 (June 27, 1986) (a superior court case, previously heard by the same trial judge, in which the worker failed to file ...


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