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Davis v. Bendix Corp.

filed: April 15, 1996.

DONALD L. DAVIS, APPELLANT
v.
BENDIX CORPORATION, RESPONDENT.



Superior Court County: Skagit. Superior Court Cause No: 90-2-00253-8. Date filed in Superior Court: September 2, 1994. Superior Court Judge Signing: Hon. Stanley Bruhn.

Written by: Coleman, Concurred by: Kennedy, Becker

Author: Coleman

COLEMAN, J. -- Appellant Donald L. Davis appeals the granting of summary judgment for Bendix Corporation. He argues that Bendix did not sufficiently raise the issue upon which basis the court granted summary judgment. Davis also claims that he is entitled to loss of earning power benefits under RCW 51.32.090 for losses incurred from April 7, 1987, through June 28, 1988, (hereinafter "the aggravation period") because his earning power was less than that at the time of his injury. We affirm.

Davis became employed at Bendix in June 1980 as a drill press operator. During his employment, Davis also earned approximately four to five hundred dollars per month selling insurance. At Bendix, Davis worked forty-eight hours per week and earned $11.40 per hour plus double overtime. In September 1980, he sustained an occupational disease called bilateral carpal tunnel syndrome affecting the hands and wrists. On December 23, 1980, Davis had corrective surgery for this condition and returned to the company in January 1981. He was still having problems with his hands, however, and was later laid off. Davis brought a claim to receive disability benefits.

On October 15, 1984, Davis's industrial insurance claim was closed. At this time, he was awarded $3,240 in permanent partial disability for a five percent amputation value for both lower arms. Davis's claim was reopened on April 7, 1987, because of an aggravation of his injury. He was working full-time in insurance then but claimed that he could have been earning more as a machinist. He argued that he was entitled to loss of earning power compensation from the date his claim was reopened on April 7, 1987, through June 28, 1988, because his earning power was less than at the time of his injury in September 1980. The Department of Labor & Industries denied his application, finding that Davis had not demonstrated an earning

capacity reduction during his aggravation period as compared to the time of claim closure on October 15, 1984. Following the denial, Davis had a hearing in front of the Board of Industrial Insurance Appeals.

Davis testified that he earned $9,138 in 1987 and $23,048 in 1988. He claimed that his insurance business required him to drive several hours and that this driving and the extensive writing associated with his work caused pain in his hands. From April 7, 1987, through June 28, 1988, he had to split his commission with another agent who had to drive Davis to see clients because Davis's hand pain prevented him from doing so. Three doctors also testified concerning Davis's hand condition, his ability to drive, and his ability to work as an insurance agent.

In its proposed decision and order of January 22, 1990, the Board determined loss of earning power by comparing Davis's earning power during the aggravation period to that at the time of his original injury in September 1980, not at the time of claim closure in October 1984. The Board determined Davis's permanent partial disability award was irrelevant, as such payment compensates one for loss of physical function, not loss of future earnings. Nevertheless, the Board ruled that the evidence presented was insufficient to conclude that the aggravation of the industrial injury was responsible for Davis's diminished earnings during the aggravation period. The Board found that Davis had failed to distinguish between "loss of earnings" and "loss of earning power."

Davis appealed the Board's decision to Superior Court. In a motion for summary judgment, Bendix argued that even if the court found that Davis's earning power had been diminished, loss of earnings should be compared with the date Davis's claim was originally closed in October 1984, not the date of his original injury in September 1980. Bendix further argued that Davis did not present a prima facie case that he suffered a reduction in earning power as a result of an aggravation of his injury.

The court granted summary judgment for Bendix, finding

insufficient facts on the record that plaintiff sustained a loss of earning power. The court did not, however, determine which date to use ...


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