Appeal from Superior Court of King County. Docket No: 94-2-29540-3. Date filed: 11/14/95. Judge signing: Hon. Robert J. Wesley.
Authored by Faye C. Kennedy. Concurring: H. Joseph Coleman, Walter E. Webster.
The opinion of the court was delivered by: Kennedy
KENNEDY, A.C.J. -- The Department of Labor and Industries (DLI) awarded time-loss compensation to Herbert Hamilton for a temporary disability he suffered from toxic chemicals in paint while working as a painter for the City of Seattle. The DLI then closed Hamilton's claim without awarding permanent disability benefits; its decision was affirmed by the Board of Industrial Insurance Appeals (Board). Hamilton appealed the closure of his claim without permanent benefits to the King County Superior Court, which granted judgment as a matter of law to the City based on its contention that it was not Hamilton's employer during his "last injurious exposure" to toxic chemicals. Hamilton appeals, contending that the City waived its right to claim that it was not the liable employer under the last injurious exposure rule by withdrawing a 1990 appeal to the Board in which it attempted to defend on that basis. We hold that because the City could have, but did not, fully litigate that issue in the 1990 proceeding before the Board, it was precluded, under the doctrine of res judicata, from raising that issue in the superior court. Accordingly, we reverse.
While working as a painter for the City of Seattle in 1987, Herbert Hamilton was exposed to isocyanate in paints he applied to several buildings over the course of 10 or 11 days. The half-face respirator Hamilton wore during paint application did not prevent paint fumes from entering his lungs. Hamilton suffered an immediate physical reaction to the paint, which melted his gloves and burned his eyes. Hamilton experienced nausea, dizziness, headaches, fatigue and memory loss. The headaches, fatigue and memory loss worsened over time.
In January 1989, shortly after his physician diagnosed him with acute solvent toxicity and possible dementia, Hamilton filed an accident report with the DLI, claiming that he had been poisoned in July and August of 1987 by paint he had used while working for the City. The DLI granted Hamilton's claim in September 1989, ordering the City to pay provisional time-loss compensation from June 6, 1989, forward. The City requested reconsideration of the award on the ground that under the "last injurious exposure rule," it was not liable because it was not the last employer to expose Hamilton to paint products containing isocyanates. The City contended that Hamilton's last injurious exposure occurred, instead, in March 1989, when Hamilton worked temporarily as a painter for King County. When Hamilton opened the can of paint given to him by King County to use and smelled it, he suspected it contained isocyanates and had asked to see the Material Safety Data Sheet. When he read that the paint did, in fact, contain isocyanates, Hamilton immediately quit the job. The DLI denied the motion for reconsideration, without comment.
The City appealed the DLI's order to the Board, contending that under the last injurious exposure rule, it was not the liable employer. The City voluntarily dismissed that appeal in December 1990, however, and paid benefits to Hamilton through July 1992, when Hamilton's claim was closed without an award of permanent partial disability benefits.
Hamilton appealed the closure of his claim without permanent benefits to the Board, contending that he suffered from an occupational disease and was entitled to either a pension or permanent partial disability benefits. The City moved to dismiss the appeal, again contending that under the last injurious exposure rule, it was not liable. An Industrial Appeals Judge (IAJ) affirmed the closure of Hamilton's claim without reaching the issue of the last injurious exposure rule, concluding that Hamilton had failed to establish that the 1987 exposure was the proximate cause of his current disabilities. The Board adopted the IAJ's decision.
Hamilton appealed to the King County Superior Court, seeking a trial de novo. The City moved for summary judgment, again arguing that it was not liable under the last injurious exposure rule. The court initially denied the City's motion for summary judgment, but later reversed that ruling, and granted judgment as a matter of law to the City, "concluding as a matter of law that the City was not the last employer under the last injurious exposure rule." Clerk's Papers at 350.
Hamilton appeals the ruling of the superior court.
Hamilton contends that the court erred in granting judgment as a matter of law to the City on the issue of the last injurious exposure rule. Hamilton argues that because the City abandoned the 1990 appeal in which it attempted to defend against his claim based on the last injurious exposure rule, it was precluded from contesting its liability on that ground in any later proceeding regarding the claim. Hamilton is correct.
The last injurious exposure rule is a rule of law used for the purpose of assigning liability amongst successive employers in cases involving occupational disease. Weyerhaeuser Co. v. Tri, 117 Wash. 2d 128, 140 n. 13, 814 P.2d 629 (1991). The rule, set out in WAC 296-14-350(1) provides:
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 ...