Facts: Respondent Donald Harry filed a permanent partial disability claim pursuant to Washington Revised Code §51.32.180(b) against his former employer, petitioner Buse Timber & Sales, Inc., after it was revealed that he had suffered permanent hearing loss as a result of workplace exposure to loud noise during his employment at Buse Timber & Sales. The Department of Labor and Industries ordered Buse Timber & Sales to compensate Harry according to the schedule of benefits in place in 1974, the date when an audiogram first revealed that Harry was suffering hearing loss. Harry appealed the order, asserting that he should be compensated according to the schedule of benefits in place in 2001, the date when it was revealed that the hearing loss was partially disabling. After both the Board of Industrial Appeals and the superior court affirmed the Department of Labor and Industries’ order, the Washington Court of Appeals reversed, holding that progressive hearing loss should be treated as multiple injuries rather than a single injury, with compensation determined according to the schedule of benefits in place at the time of each incremental loss. Buse Timber & Sales appealed this decision to the Supreme Court of Washington.

Question(s): Which schedule of benefits governs compensation under §51.32.180(b) for disabilities such as hearing loss that are the cumulative result of working under injurious conditions over an extended period of time?

Conclusion: Justice Madsen’s opinion for the Court concluded that rather than applying multiple schedules of benefits for multiple incremental hearing losses, §51.32.180(b) requires that Harry be compensated according the schedule of benefits in place at the time of Harry’s last exposure to loud noise in the workplace as it was at this date that Harry’s injury was complete. Thus, the Court ordered that Harry be compensated according to the schedule of benefits in place at the time of his retirement in 2001.

Docket No. 79613-1 (from Court of Appeals Division I Case No. 55902-8)

Petitioner: Buse Timber & Sales, Inc. & Dep't of L&I

Respondent: Donald Harry

Briefs:

Argument: Tuesday, January 22, 2008 9:00am

[Source: TVW, http://tvw.org]

Decided: Thursday, February 26th, 2009

Prevailing Party: Donald Harry (Respondent)

Vote: 6-3

Opinion: 166 Wn.2d 1 (2009)

Court: Alexander4 Court (2008-2009)

Alexander

Johnson

Madsen

Sanders

Chambers

Owens

Fairhurst

Johnson

Stephens

Opinion

Dissent