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Baugh Enterprises Inc. v. Preti

April 28, 1997

BAUGH ENTERPRISES, INC., APPELLANT,
v.
MARIO S. PRETI AND THE DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON, RESPONDENTS.



Appeal from Superior Court of King County. Docket No: 94-2-30947-1. Date filed: 08/28/95. Judge signing: Hon. James D. McCutcheon.

Authored by H. Joseph Coleman. Concurring: Faye C. Kennedy, Walter E. Webster.

The opinion of the court was delivered by: Coleman

COLEMAN, J. -- Baugh Enterprises, Inc., appeals a jury verdict affirming the Board of Industrial Insurance Appeal's (Board) decision to reopen Mario Preti's workers' compensation claim. After sustaining a back injury while working for Baugh, Preti filed the claim with the Department of Labor and Industries. Although Preti's back condition had grown progressively worse through subsequent work for another employer, the Department ordered that Preti's claim against Baugh be closed. When Preti appealed, an Industrial Appeals Judge (IAJ) reversed and reopened the claim because Preti's condition had not been fixed and stable when the claim was closed. The Board, and subsequently the Superior Court, affirmed the order to reopen. Baugh argues that the trial court erred by refusing to apply the "last injurious exposure" rule, which would relieve it of all responsibility for Preti's condition. But the industrial insurance act's purpose of affording sure and certain relief to injured workers would be frustrated by requiring Preti to seek compensation from the subsequent employer when he successfully challenges the premature closure of his original claim against Baugh. We therefore hold that the last injurious exposure rule does not apply here and affirm.

Years of work as a cement mason for various employers has left Preti with a severe back condition. In July 1990, Preti performed cement finishing work for Baugh. As he was attempting to put on his shoes the day after his July 20 shift, Preti was immobilized with back pain. He filed an industrial injury claim against Baugh which the Department allowed. Preti's attending physician saw no need for surgery but recommended physical therapy and work hardening to treat Preti's central disc protrusion at L3-4 and central canal narrowing.

In August 1993, while the claim against Baugh was still open, Preti performed light cement masonry work for the construction company of Lease Crutcher Lewis (LCL). The work exacerbated Preti's back injury, and Preti developed a new pain in his hip. Despite progressively worsening pain, Preti continued to work for LCL.

On September 13, 1993, a panel of independent physicians examined Preti as part of the Department's claim closure process. The panel concluded that Preti's low back condition was fixed and stable and that he had a permanent partial disability. The Department issued an order closing Preti's claim against Baugh on October 5, 1993.

On November 30, 1993, Preti sought medical treatment from another doctor. The doctor concluded that the major cause of Preti's condition was the 1990 injury even though his 1993 work activities may have exacerbated the condition. He recommended further treatment but found no evidence of radiculopathy or need for surgery.

Preti then returned to his attending physician, who diagnosed Preti as suffering from radiculopathy and a herniated disc. Although he felt that this deterioration of Preti's condition may have been worsened by his work for LCL, the doctor believed that it was causally related to his 1990 injury rather than being the result of a new injury. He recommended surgery to decompress Preti's nerve root.

On January 12, 1994, Preti appealed the Department's order closing his claim against Baugh. The IAJ found that Preti had injured his back on July 20, 1990, while working for Baugh and "never suffered any injury or specific trauma while working with Lease Crutcher Lewis nor did he suffer any injury of any kind following the 1990 industrial injury." Finding that Preti's resulting condition had not been fixed and stable when his claim against Baugh was closed, the IAJ reopened the claim and ordered Baugh to provide necessary and proper treatment. The Board denied Baugh's petition for review, adopting the IAJ's decision and order.

Baugh appealed to the Superior Court, and the case was tried before a jury. The court precluded Baugh from arguing that LCL should be solely liable for Preti's injuries under the "last injurious exposure" rule because LCL was not a party to the dispute. As an administrative appeal, the evidence consisted solely of the record from the hearing before the IAJ. The court instructed the jury that Preti could recover from Baugh if the 1990 industrial injury was a proximate cause of his continuing condition. The jury concluded that Preti's claim was incorrectly closed on October 5, 1993, because the 1990 injury was not fixed and stable and required further treatment as of that date. Accordingly, the court entered a judgment affirming the IAJ's decision to reopen Preti's claim against Baugh.

We are asked to decide whether aggravation of a preexisting back injury by work-related trauma triggers the last injurious exposure rule. But it is not necessary to reach that broad issue on the facts of this case. While we acknowledge the continued validity of the rule, we hold that it does not apply when it would preclude the injured worker from receiving compensation under a claim that should otherwise remain open.

Washington's industrial insurance act (act), RCW Title 51, is designed to afford injured workers "sure and certain relief . . . regardless of questions of fault[.]" RCW 51.04.010; see also Dennis v. Department of Labor & Indus., 109 Wash. 2d 467, 469, 745 P.2d 1295 (1987). The act is remedial in nature and is to be liberally construed to provide compensation to employees injured in the course of their employment. RCW 51.12.010; 51.32.010. "Injury" is defined as "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.

When a worker's injury occurs over the course of successive employment settings, it would be difficult to apportion liability for an industrial insurance award. In order to avoid this problem and make the worker's recovery easier, the courts have adopted the last injurious exposure rule, which assigns total responsibility to the last employer with a causal relationship to the worker's disability. See Department of Labor & Indus. v. Fankhauser, 121 Wash. 2d 304, 311, 849 P.2d 1209 (1993). The rule has been applied most often in occupational disease cases because apportioning liability is particularly difficult when a worker receives multiple exposures to aggravating work conditions over a long period of time. E.g., Fankhauser, 121 Wash. 2d at 311. Thus, the rule was codified as follows:

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 during employment within the coverage of Title 51 RCW which gave rise to the claim for compensation. WAC 296-14-350(1). By assigning responsibility to the last employer whose conditions aggravated the worker's disease, the last injurious exposure rule essentially requires that employers take their workers as they are, with all their ...


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