Appeal from Franklin Superior Court. Docket No: 11-2-50696-0. Date filed: 08/06/2012. Judge signing: Honorable Robert G Swisher.
David L. Lybbert (of Calbom & Schwab PSC ), for appellant.
Robert W. Ferguson, Attorney General, and Steve Vinyard, Assistant ; and Lawrence E. Mann (of Wallace Klor Mann PC ), for respondent.
AUTHOR: Laurel H. Siddoway, A.C.J. WE CONCUR: Stephen M. Brown, J., Teresa C. Kulik, J.
[177 Wn.App. 442] ¶ 1 The issue in this case is one over which the Department of Labor and Industries and the Board of Industrial Insurance Appeals disagree: Does RCW 51.36.010 provide the supervisor of industrial insurance with discretion to consider extending life-sustaining medical and surgical treatment to workers in all cases tat the department has accepted and then closed, or only cases of permanent total disability?
¶ 2 The conflicting positions of the board and the department are at issue in the case of Donald M. Slaugh, who persuaded the board, although not the department, that the supervisor enjoyed discretion to authorize continued treatment in his case, which was closed in 2009 with an award for permanent partial disability. The department and Mr. Slaugh's employer, Lockheed Martin Hanford Corporation, appealed the board's decision to the Franklin County Superior Court, which construed the statute to limit the supervisor's discretion to cases of permanent total disability.
¶ 3 We conclude that the statute unambiguously has the meaning given it by the department and affirm the trial court.
FACTS AND PROCEDURAL BACKGROUND
¶ 4 In November 2003, the department received an application for benefits filed on behalf of Mr. Slaugh, alleging that he injured his lungs in January 2003 while in the course of his employment with Lockheed Martin, a
self-insured [177 Wn.App. 443] employer. The claim was allowed and Lockheed Martin was directed to pay medical and time-loss compensation benefits to Mr. Slaugh, who was found to have occupational asthma and restrictive airways disease. In September 2009, the department issued an order closing the claim with time-loss compensation previously paid and an award for permanent partial disability.
¶ 5 Mr. Slaugh filed a notice of appeal and after a lengthy process involving a remand, the department issued an order in May 2010, again stating the claim was closed with an award for permanent partial disability. In response to Mr. Slaugh's request that the supervisor exercise its discretion to authorize continued life-sustaining medical treatment for his asthma, the order further stated:
" The law does not permit the Department to consider the discretionary authorization for life-sustaining treatment per the second proviso of RCW 51.36.010 after a claim is closed with a permanent partial disability award."
Clerk's Papers (CP) at 101.
¶ 6 Mr. Slaugh appealed the order to the board. In 2003, the board had held in In re Reichlin that the second proviso in RCW 51.36.010 permits the department to consider extending life-sustaining treatment in all closed cases. Its holding in Reichlin reversed an earlier construction of the statute by the ...