WA Supreme Court: DLI Can't Seek Reimbursement from Pain and Suffering Moneys
Tobin suffered an injury on the job. In addition to his worker's comp. benefits, he also pursued a third party action. In WA, you're prevented from suing your employer unless they do something REALLY bad. The big case for this was Birklid v. Boeing, which held the employer had to engage in intentional conduct before that could happen. However, that doesn't prevent you from going after other responsible parties. But when that happens, the Department of Labor and Industries can come back for monies paid on your behalf. In this case, DLI paid nothing for Tobin's pain and suffering, but still used that money in calculating what it was entitled to recover under their formula:
The legislature amended the definitional section of the statute that codified the explicit holding of Flanigan: the term "recovery" excludes third party damages for "loss of consortium." However, the legislature did not revise RCW 51.24.060(1)(c), the section restricting the Department to recovery "to the extent necessary . . . for benefits paid" or clearly define what types of damages the statute intends to provide compensation for. Because Flanigan's reasoning rested on this unaltered section of the statute, damages for "pain and suffering," like loss of consortium, constitute noneconomic damage that the workers' compensation statutes do not compensate for. The Department did not pay out benefits for pain and suffering; therefore it cannot be "reimbursed" from amounts recovered for pain and suffering. We hold that an award for pain and suffering may not be used by the Department in its distribution calculation.