WA Legal Roundup
One new opinion out of the Washington Supreme Court today. Three new opinions out of Division III.
Washington Supreme Court
Worker suffers hearing loss gradually over time. The question becomes, when is the partial disability compensable. The court, in a 5-4, held that the worker is "partially disabled" as of the date of last exposure to noise. In the case at hand, Harry had documented hearing loss throughout his career via audiograms. However, he only consulted a doctor after his retirement several years after the first audiogram. The Department had initially granted disability according to the 2001 schedule with 38.13 percent disability payment. The Department, after argument by Buse, revised the order to utilize the 1974 schedule, instead of the 2001 schedule.
The court of appeals, in reversing, had reasoned "occupational hearing loss is appropriately analyzed as multiple diseases rather than a single disease, with compensation determined according to the schedule of benefits in effect at the time of each documented incremental loss. The result was both sides appealing, of course.
The standard for determining the date is provided in RCW 51.32.180:
Every worker who suffers disability from an occupational disease in the course of employment . . . shall receive the same compensation benefits . . . as would be paid and provided for a worker injured or killed in employment under this title, except as follows . . . (b) . . . the rate of compensation for occupational diseases shall be established as of the date the disease requires medical treatment or becomes totally or partially disabling, whichever occurs first, and without regard to the date of the contraction of the disease or the date of filing the claim.
The court rejected the proposition that since a claim could be filed at the initial hearing loss, that the it could be progressively compensable, largely concerned with practicability of adjudicating multiple claims. In doing so, the court had to explain and differentiate an earlier, seemingly contrary position:
Harry declined to advance this reading of the statute because he assumed it was foreclosed by our decision. Dep't of Labor & Indus. v. Landon, 117 Wn.2d 122, 127, 814 P.2d 626 (1991); see Suppl. Br. of Resp't, Donald Harry at 7-8 n.1 ("RCW 51.32.180 . . . specifically prohibits the establishment of the rate of compensation as of the date of last exposure" (citing Landon, 117 Wn.2d at 127)).
In Landon, we explained that in adopting the 1988 amendment to RCW 51.32.180(b), the legislature rejected the last injurious exposure rule in favor of the date of manifestation rule as applied to long-latency diseases such as asbestosis and silicosis. Under the date of manifestation rule, the date the disease actually requires medical treatment or interferes with a worker's job performance, not the date of contraction, controls the schedule of benefits.
. . .
The legislative history of RCW 51.32.180(b) and our case law support the conclusion an occupational disease may be compensable according to the date of last injurious exposure when that date coincides with the date of manifestation, as in the case of cumulative trauma injuries like occupational hearing loss.
The dissent, authored by Justice Fairhurst, with Justices Alexander and Jim Johnson concurring, argued that the majority's pragmatic argument framed as absurd results given the aim to provide a single relief, was really an end-run around the legislature.
Protective orders under the Domestic Violence prevention act are limited to violence between "family or household members." See RCW 26.50.030. Family or household members is defined as people over sixteen years of age. Thus, a bout of battery between a seventeen year old and his fourteen year old girlfriend was not between "family or household members" and a protective order was not warranted in the case at bar.
I foresee (hopefully) a quick fix by the legislature.
King argues that imposition of consecutive sentences by the judge was improper. However, its a completely discretionary decision. King's equal protection argument also fails, because physical liberty, in the context of an offender already serving for one crime when being sentenced for another, is not fundamental. Thus, only rational basis is necessary. The rational basis was to provide judges with flexibility to tailor the punishment to the specific circumstances of the crime. Affirmed.
Drake was convicted of failing to register and argued insufficiency. Now, here's the shocker! The court actually AGREED!
Drake is pedophile. He moved into a place April 4 and registered May 4. His rent was paid through May 6. He was ousted May 7 when he didn't pay rent, and someone picked up his belongings May 30. An information was filed May 22 for failing to register, after the police learned of his ouster.
Under the statutes, the sex offender must register within 72 hours, and, if without an address, must check in once a week with the sheriff. The court turned to the WRLTA to show that there was no proof of a proper ouster, or that Drake was aware that he had been ousted and had changed his residence. Simply put, there was no evidence presented that he never intended to return to the apartment that he may or may not have known he was ousted from.