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Kirkland v. Fred Meyer Inc.

September 9, 1996

ROSIE KIRKLAND, RESPONDENT,
v.
FRED MEYER, INC., APPELLANT.



Authored By Walter E. Webster. Concurring: Susan R. Agid, Mary K. Becker.

The opinion of the court was delivered by: Webster

WEBSTER, J.-- Industrial insurance law has some curious rules. One of them, the last injurious exposure rule, imposes responsibility for all disability from an occupational disease, regardless of the length of the employee's service, on the employer with whom the worker suffered the last injurious exposure. In this case, Rosie Kirkland initially developed a painful skin condition while working over nine months for Marriott as a dishwasher. After treatment, the condition subsided, and she went on to work for Fred Meyer. Although she started as a cashier, Fred Meyer switched her to dishwashing. And just two or three weeks into her new job, she suffered a permanent aggravation of her pre-existing skin condition. When awarding Kirkland a permanent partial disability, the superior court imposed the entire responsibility on Fred Meyer. Fred Meyer appeals from this $22,500 disability obligation, contending that Kirkland did not suffer an exposure while its employee. Because Kirkland's physician, who treated her over thirteen times, testified to a causal relationship between her Fred Meyer employment and her condition, substantial evidence supports the trial court's findings. Fred Meyer also contends that some portion of the disability award should be levied against Marriott. But the injurious exposure rule does not allow segregation of disease claims between employers. Consequently, we affirm.

FACTS

The claimant, Rosie Kirkland, is a 54 year old Bellevue resident who has been employed primarily in labor intensive jobs, such as dishwasher, kitchen helper, sandwich maker, wrapper, and bread bagger. From November 1988 through June 1989, Kirkland worked for Marriott Concession as a dishwasher. In February 1989, she developed paronychia, for which she sought treatment in March 1989. Paronychia is painful swelling and inflammation of the area just below the nail plate. Dermatological specialists consider paronychial infection to be an occupational hazard of workers who have their hands in wet environments. In April 1989, Kirkland was referred to Dr. Frank Baron, a dermatologist. Dr. Baron treated Kirkland until June 1989, during which her condition did not improve. Kirkland then sought treatment from Dr. Hanna Ragaz, and in September 1989, a Ragaz letter identifies Kirkland's condition as having "markedly improved." Kirkland filed a claim for benefits in summer 1989. The Department of Labor and Industries awarded her time loss, and closed the claim in July 1990 without a disability award.

On October 29, 1989, Kirkland began working at Fred Meyer as a cashier in the delicatessen. One week later, Fred Meyer assigned her to wash dishes. She had to stop working on November 16, 1989, after an onset of chronic paronychia, and she returned to Dr. Ragaz for treatment. Kirkland returned to Dr. Baron for treatment four times in 1990 and six times in 1991-92. Her chronic paronychia continued, with some improvement. Finally, in summer 1992, Kirkland filed a occupational disease claim, listing Fred Meyer as the employer. The Department initially rejected the claim, then allowed it as a temporary aggravation of a pre-existing condition, and awarded no permanent disability.

The hearing before an Industrial Appeals Judge was a battle between two experts. In the end, the IAJ found Kirkland's treating physician to be more credible. His Decision and Order held that Kirkland suffered a permanent aggravation of a pre-existing condition consistent with category 4 of skin impairment. See WAC 296-20-480(2). Applying the last injurious exposure rule, the IAJ found Fred Meyer responsible for the entire permanent partial disability award. Fred Meyer sought review from the Board of Industrial Insurance Appeals , but the Board declined review, adopting the IAJ's Proposed Decision and Order. RCW 51.52.106. Fred Meyer appealed to superior court, which entered findings and Conclusions reaching the same result as the BIIA.

Discussion

I. STANDARD OF REVIEW

The superior court acted as the trier of fact and entered findings and Conclusions. This court reviews the factual findings to determine whether they are supported by substantial evidence, and whether the court's Conclusions of law flow from the findings. Young v. Department of Labor and Industries, 81 Wash. App. 123, 128, 913 P.2d 402 (1996).

II. OCCUPATIONAL DISEASE AND THE LAST INJURIOUS EXPOSURE RULE

Occupational disease is "such disease or infection as arises naturally and proximately out of employment." RCW 51.01.140. A claimant establishes the proximate element by competent medical testimony which shows that the disease is probably, as opposed to possibly, caused by the employment. Dennis v. Department of Labor and Industries, 109 Wash. 2d 467, 477, 745 P.2d 1295 (1987). The claimant establishes the naturally arising out of employment element by showing that his or her particular work conditions more probably caused his or her disease-based disability than conditions in everyday life. Dennis, 109 Wash. 2d at 481. Even when a pre-existing condition is symptomatic, a work-caused aggravation can constitute either an aggravation (allowing the claimant to reopen the original claim, pursuant to RCW 51.32.160) or justify filing a new occupational disease claim. Dennis, at 476. The causation issue in such cases concerns whether the condition worsened over time as a natural consequence of the preexisting condition, or whether injurious exposure to an element (i.e. noise) caused a new (although perhaps only heightened) onset of occupational disease (i.e. hearing loss).

When a claimant changes employers, and a condition is aggravated, or a new occupational disease has manifested itself, the issue arises as to which entity is responsible for benefits and whether a subsequent employer can segregate the extent of a previous disability when fixing the amount of compensation due for the second onset of occupational disease. Washington adheres to the last injurious exposure rule:

The liable insurer in occupational disease cases is the insurer on risk at the time of the last injurious exposure to the injurious substance or hazard of disease which gave rise to the claim for compensation. WAC 296-14-350(1).

Speaking generally, the last injurious exposure rule encompasses two related concepts. One aspect relates to the difficulty which workers suffering from occupational diseases have in proving that a specific exposure contributed to the development of the disease. Weyerhaeuser Co. v. Tri, 117 Wash. 2d 128, 135 n. 8, 814 P.2d 629 (1991) (referred to as the "proof problem"). It is unclear whether Washington's adoption of the last injurious exposure rule includes relaxing standards applicable to causation. See, e.g., Safeway v. Martin, 76 Wash. App. 329, 885 P.2d 842 (1994) (as will be discussed below, this case does not involve application of the proof aspect because causation has been established using traditional principles). The second aspect of the last injurious exposure rule imposes responsibility for all disability from an occupational disease, regardless of the length of the employee's service, on the employer with whom the worker suffered the last injurious exposure. Department of Labor and Industries v. Fankhauser, 121 Wash. 2d 304, 316, 849 P.2d ...


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