URBAN v. DEP'T OF L. INDUS

[1] Workmen's Compensation — Survival of Claim — Unliquidated Disability Claim. Under RCW 51.32.040, which relates to payment of industrial insurance awards after death, a claim for permanent partial disability which is unliquidated (no award having been made by any administrative or judicial body) abates upon the death of the claimant, and his widow is not entitled to pursue the claim thereafter. The portion of the statute applicable to such permanent partial disability claims is distinguishable from that portion dealing with time-loss payments wherein no award is necessary for payments to be made to a widow.

See Ann. 15 A.L.R. 821, 24 A.L.R. 441, 29 A.L.R. 1426, 51 A.L.R. 1446, 87 A.L.R. 864, 95 A.L.R. 254; 58 Am. Jur., Workmen's Compensation (1st ed. §§ 577-579).

HALE and FINLEY, JJ., HUNTER, C.J., and ROSELLINI, J., dissent.

HALE, J. (dissenting)

It does not appear to me that the deceased workman's widow is, as the majority suggests, pursuing an unliquidated claim after her husband's death. Her claim, as I see it, is about as liquidated as a claim can get. As I read this record, Harry J. Urban, before he died, had presented all of his evidence, made all of his arguments, and left nothing undone necessary to establish his right to a permanent partial disability award. That the board, in August, 1964, found he was legally entitled to the award in the amount of $875 for injuries sustained in August, 1962, in my opinion means that his right to the award vested in his lifetime — and he would have received it but for delays in administering the workman's compensation act. His right having vested, it would ordinarily become a part of his estate subject to administration except that the legislature has provided a speedier and more efficient way to get the money to his family. Thus, the question, as I see it, is what happens to the money when, on appeal from an order of denial by the Department of Labor and Industries, the Board of Industrial Insurance Appeals orders a permanent partial disability award only to learn later that, in the meanwhile, the injured workman had died from causes not connected with the industrial injury? Does the award lapse, or should it go directly to the deceased workman's widow or surviving children under RCW 51.32.040?

Harry J. Urban, an injured workman, died from causes unrelated to his industrial injury prior to an award for 10 per cent permanent partial disability granted him by the Board of Industrial Insurance Appeals. The board had granted the award without knowledge of the workman's death and, on the department's appeal, the superior court affirmed the award to his widow. The department appeals. I think a detailed chronology of events will make things clear.

Injured August 8, 1962, Mr. Urban timely filed an accident report with the Department of Labor and Industries alleging that he had sustained an industrial injury. The department considered the claim and on October 5, 1962, ordered it closed with no award for permanent disability. Mr. Urban, thereupon, on October 23, 1962, filed a notice of appeal with the Board of Industrial Insurance Appeals from the department's order denying his claim.

Then, after the appeal had been filed with the board, the Department of Labor and Industries directed that its order of October 5, 1962, closing the claim without award, be held in abeyance pending further investigation. The Board of Industrial Insurance Appeals accordingly denied the appeal November 8, 1962, because it did not then have before it an appealable order.

Between November 8, 1962, the date of the order of abeyance, and February 21, 1963, the department kept jurisdiction of Mr. Urban's claim. On the latter date, it issued a new order, again closing Mr. Urban's claim with no award for permanent partial disability, thus adhering to its first order on October 5, 1962. One week later, February 28, 1963, Mr. Urban filed a notice of appeal with the board; hearings were held; and all evidence was completed March 3, 1964.

Nearly 2 months after the conclusion of the hearing on March 3, 1964, the board's hearing examiner, pursuant to statute, prepared and entered a proposed decision and order on April 24, 1964, sustaining the department order of February 21, 1963, denying any award for permanent partial disability and closing the claim. Mr. Urban, May 5, 1964, filed with the board timely exception to the examiner's proposed decision and order. Next day, May 6, 1964, Mr. Urban died from causes unrelated to his injury, although neither the board nor the department learned of his death until November.

August 18, 1964, unaware of Mr. Urban's death, the board entered an order reversing the examiner's proposed decision and order; it reversed the department's orders of February 21, 1963, and October 5, 1962, denying any permanent partial disability award; and it ruled that, by reason of an industrial injury sustained August 8, 1962, Harry J. Urban was entitled to a permanent partial disability award equal to 10 per cent of the maximum allowable for unspecified disabilities ($875). The department thereupon complied with the board's order and implemented it on September 28, 1964, by granting the 10 per cent award.

Thereafter, counsel notified the department on November 21, 1964, that Mr. Urban had died May 6, 1964, of causes unrelated to his industrial injury. The department canceled its order granting the award, and the board denied an appeal therefrom. Claimant's widow appealed to the superior court the board's order denying the appeal.

Sitting without a jury, the superior court made findings of fact and conclusions of law and filed a judgment reversing the board and in effect directed the department to pay to claimant's widow, Roxy Urban, the 10 per cent ($875) award. From this judgment, the department appeals, contending that claimant's death from causes unrelated to the industrial injury cut off the surviving widow's right to the award because the claimant had not been awarded anything at the time of his death.

The department contends that, at the time of his death, claimant had received no award. The department says that the only determination of claimant's rights prior to his death was an order of the Department of Labor and Industries closing his claim with no award whatever, and an order of the board's hearing examiner sustaining the department's ruling. It insists that, unless the claim for permanent partial disability has ripened into an award before death from extraneous causes occurs, the award will not survive or pass to the claimant's widow. In my judgment, however, this position is untenable under the express language of the pertinent statutes.

An analysis of RCW 51.32.040, first enacted in 1911, with no proviso for the disposition of workman's awards to his surviving widow or children, leads me to the conclusion that subsequent provisos were added by the legislature to cover the very predicament in which claimant's widow is now caught.

As originally enacted, Laws of 1911, ch. 74, § 10, p. 364, was designed to keep all awards out of the reach of a workman's creditors, and to prevent his assigning it. It stated:

No money paid or payable under this act out of the accident fund shall, prior to issuance and delivery of the warrant therefor, be capable of being assigned, charged, nor ever be taken in execution or attached or garnished, nor shall the same pass to any other person by operation of law. Any such assignment or charge shall be void.

In Ray v. Industrial Ins. Comm'n, 99 Wn. 176, 168 P. 1121 (1917), where the workman died before the warrant for his award issued, leaving no widow or children surviving him, this court held that the award did not pass to his administrator as an asset of his estate. The essence of that decision was, of course, to give effect to the statute and to preclude the award, as the statute then said, from passing " to any other person by operation of law." (Italics mine.) We said:

The deceased left no heirs and no estate, other than his claim against the insurance fund; however, there are outstanding debts amounting approximately to $400.

Following Ray, there came before this court on a similar point Zahler v. Department of Labor Indus., 125 Wn. 410, 217 P. 55 (1923), where the department made an award for permanent partial disability compensation to the claimant workman, but the warrant in payment therefor had not been issued when he died. We said then, in denying the widow's claim to this award, that the right to that award did not survive to the widow.

After these decisions, however, the legislature enacted the following provisos to RCW 51.32.040, which I think are controlling in the instant case:

Provided, That if any workman suffers a permanent partial injury, and dies from some other cause than the accident which produced such injury before he shall have received payment of his award for such permanent partial injury, or if any workman suffers any other injury and dies from some other cause than the accident which produced such injury before he shall have received payment of any monthly installment covering any period of time prior to his death, the amount of such permanent partial award, or of such monthly payment or both, shall be paid to his widow, if he leaves a widow, or to his child or children if he leaves a child or children and does not leave a widow: Provided further, That, if any workman suffers an injury and dies therefrom before he shall have received payment of any monthly installment covering time loss for any period of time prior to his death, the amount of such monthly payment shall be paid to his widow, if he leaves a widow, or to his child or children, if he leaves a child or children and does not leave a widow . . .

(Italics mine.)

Thus, having already in 1911 immunized the workman's award from attachments, garnishments or assignments, the legislature enacted the foregoing provisos to RCW 51.32.040 as a simple method of getting the money to the workman's widow or children by the quickest and most direct means and at a time of their apparent greatest need.

I have no difficulty understanding the foregoing statutory provisions nor in ascertaining what the legislature meant by them for the language is clear and precise. Indeed, one would be hard put to express the idea with greater clarity. I think it quite clear that the legislature intended that the award to an injured workman who dies before delivery of the award should go directly to his widow or dependent children and does not survive to his personal representatives for the benefit of creditors, heirs or emancipated children. In re Cassel, 63 Wn.2d 751, 388 P.2d 952 (1964).

Similarly, Lightle v. Department of Labor Indus., 68 Wn.2d 507, 413 P.2d 814 (1966), seems to rest on a rationale of controlling authority in the instant case. There, the husband, injured in the course of his employment, claimed time loss under the Industrial Insurance Act. The department, by order of its hearing examiner, rejected the claim and claimant filed exceptions to the examiner's order and report. Before the board acted upon the exceptions, however, claimant died, and the board thereupon dismissed the appeal on the ground that the time loss claim abated with claimant's death. On eventual appeal to this court, we held that, under RCW 51.32.040, supra, and the proviso pertaining to time loss, the widow was entitled to pursue her husband's unliquidated claim for time loss compensation. Alluding directly to the time loss proviso of that statute — a kindred proviso to the proviso pertaining to permanent partial disability in the same section — we said that "Under the statute, the widow is the real party in interest" and held that the amount of the award should be paid directly to her.

Again, as in Lightle, I would say that the widow is the real party in interest and that the statute directs that the award be paid directly to her. Thus, where a workman dies before he shall have received payment of an award due him by virtue of a claim regularly made prior to his death, the award under the amendatory provisos to RCW 51.32.040 should be paid directly to his widow or dependent children in accordance with statute.

I thus dissent because I believe the majority opinion runs directly counter to the intention and language of the statute it purports to construe. I see no escape from the conclusion that the statute means exactly what it says: When a workman, entitled to a partial disability award, dies before delivery of the warrant, the money shall be paid directly to his widow. Obviously the legislature intended to bypass the delays and expenses of probate and get the money to the widow quickly at a time when presumably she would need it most.

The statute and case law, I think, expressly meet the instant situation and I would hold that the award should go directly to the widow.

HUNTER, C.J., FINLEY and ROSELLINI, JJ., concur with HALE, J.

FINLEY, J. (dissenting)

I concur wholeheartedly in Justice Hale's dissent.

To the considerations there advanced I would add these observations. Cases such as this require this court to construe the industrial insurance legislation of our state. At risk of stating the obvious, that legislation was intended to be remedial.

The common law system governing the remedy of workmen against employers for injuries received in hazardous work is inconsistent with modern industrial conditions. In practice it proves to be economically unwise and unfair. Its administration has produced the result that little of the cost of the employer has reached the workman and that little only at large expense to the public. The remedy of the workman has been uncertain, slow and inadequate. Injuries in such works, formerly occasional, have become frequent and inevitable. The welfare of the state depends upon its industries, and even more upon the welfare of its wage-worker. The State of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workmen, injured in extra hazardous work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy.

(Italics mine.) Laws of 1911, ch. 74 § 1; RCW 51.04.010.

Mr. Urban was injured on August 8, 1962. The claim was closed October 5, 1962 with no award for permanent partial disability by the Department of Labor and Industries. Mr. Urban appealed. The department then reopened the record, holding the appeal in abeyance until February 21, 1963 — for 4 1/2 months. At that time Mr. Urban's claim was again closed without the award, and he again appealed. The hearing examiner prepared an affirmance, to which exceptions were taken on May 5, 1964. On August 18, 1964, the Board of Industrial Insurance Appeals rejected its examiner's decision and reversed the departmental orders. Mr. Urban, unfortunately, died 3 1/2 months before the glacial administrative process of the department had determined he was entitled to relief.

Had the department not reconsidered its original denial of an award for permanent partial disability, Mr. Urban's widow, assuming the same chronology, would have been some $875 wealthier. Instead, despite the fact that Mr. Urban was found to be entitled to an award for permanent partial disability, and despite a superior court reversal of the board's cancellation of the award due to Mr. Urban's death, the widow is still awaiting payment while the machinery of justice slowly grinds toward final disposition.

The majority treats the existence of an order of award as a condition precedent to the operation of the proviso, which leads me to conclude that the evil which they believe the legislature sought to remedy was the lapse of awards which had been adjudicated but were unpayable because of the decisions in Ray v. Industrial Ins. Comm'n, 99 Wn. 176, 168 P. 1121 (1917) and Zahler v. Department of Labor Indus., 125 Wn. 410, 217 P. 55 (1923). That is, of course, a possible strict construction.

Justice Hale treats the existence of an injury compensable as a permanent partial disability as the condition precedent to the operation of the proviso, making the relief co-extensive with the right. That is the reasonable construction.

The statute requires judicial construction. I am concerned that it should be necessary to restate at this time that the purpose and intent of industrial insurance is remedial and that such legislation should be liberally construed to accomplish its beneficient objectives. As the statute must be construed, realism requires that we recognize the relative ease of access to the legislative process for correction of a possible error in our construction of the so-called legislative intent. The classes of persons affected by this suit are respectively employers making payments into the industrial insurance fund and the widows and children of injured workmen who die during the administrative processing of a permanent partial disability award from causes not related to the original injury. The former class is cohesive, politically active, and well aware of its economic interests. The latter class has no unity of interests apart from the circumstances of this lawsuit, is not politically active as a class, and is less aware of both its legal and political interests. It maintains neither lobbyists nor legislative counsel.

These considerations do not constitute this court a super-legislature. But it is suitable for this court, in a case in which various constructions of a statute contend for recognition, to consider the consequences of its action in the selection of one of those interpretations. As to employers paying into the industrial insurance fund, the effect of this case is, at most, minute. Persons similarly situated to the plaintiff are not found on every street corner. As to the statutory beneficiaries, this case may be of extreme importance. If in weighing the interests involved we discount the cost to the employer by the ease with which he may secure legislative consideration of his interests, and multiply the importance to the statutory beneficiaries of a recovery by the difficulty with which they could obtain legislative redress, I think the balance of justice inclines rather rapidly towards the plaintiff. Such jurisprudential considerations are by no means novel, cf. C. Peck, Role of the Courts and Legislatures in the Reform of Tort Law, 48 Minn. L. Rev. 265 (1963), and I believe that they are appropriate for our consideration in this area of law, which would never have been born had it not been for the failure of the common law of torts and of common law judges to adequately adapt to the realities of modern industrial production. See Laws of 1911, ch. 74, § 1, quoted supra.

One further observation on the merits is in order. The majority has relied upon Curry v. Department of Labor Indus., 49 Wn.2d 93, 298 P.2d 485 (1956), and Albertson v. Department of Labor Indus., 28 Wn.2d 750, 184 P.2d 53 (1947). Albertson characterized a claim prosecuted on behalf of surviving children as one "by operation of law" and excluded the children from the benefit of the provisos. There is no point in discussing the court's rationale because the court failed to express one. It simply ignored the provisos without attempting to analyze them. Curry engages in general discussion as to the relation between assignability and survivability of claims in order to justify a conclusion that the claim would not survive under the statute without benefit of the provisos. It then relies on Albertson for the conclusion that a claim for permanent partial disability does not survive under the first proviso.

Lightle v. Department of Labor Indus., 68 Wn.2d 507, 413 P.2d 814 (1966) (Ott, J.), carefully distinguished the Curry and Albertson cases. The majority is correct that the result of those cases is consistent with the result of Lightle. The rationale of Lightle and its analysis of the legislative intent are, however, utterly irreconcilable with the lack of analysis in Albertson and sterile stare decisis in Curry.

I must therefore join Justice Hale in preferring a recent analogous case, construing the statute with reference to the legislative intent, to cases in point whose lack of rationale and hostility to clearly expressed legislative intent have not improved with age.