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JOHN R. GIBBONS, DEC'D,                                    No. 72335-9-1
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THE BOEING COMPANY, AND                                    UNPUBLISHED OPINION                                   on          •^' I
DEPARTMENT OF LABOR AND
INDUSTRIES OF THE STATE OF
WASHINGTON,

                              Respondents.                 FILED: August 17, 2015

       Schindler, J. — Under the Washington Industrial Insurance Act, Title 51 RCW, a

surviving spouse of an injured worker is entitled to death benefits under RCW 51.32.067

if the worker is permanently and totally disabled at the time of death, or under RCW

51.32.050 if the worker dies as a result of an industrial injury. Vivian Gibbons, the

surviving spouse of John R. Gibbons, appeals summary judgment dismissal of her claim

for death benefits under RCW 51.32.067 and RCW 51.32.050. We affirm.

       John R. Gibbons worked as a carpenter for The Boeing Company. On

September 24, 1988, John1 twisted his back at work. John filed a claim with the

Washington State Department of Labor and Industries (Department) for time-loss




            We refer to John Gibbons and Vivian Gibbons by their first names for clarity. No disrespect is
intended.
No. 72335-9-1/2


compensation benefits. In 1993, John returned to work at Boeing doing computer data

entry.

         On September 1, 1993, John retired from Boeing. One month later, the

Department issued an order awarding John payment for a "Category 3" low back

impairment permanent partial disability and closed his time-loss compensation claim.

The Department affirmed the closing order. John did not appeal.

         At John's request, the Department reopened the claim in 1995 for authorized

medical treatment. John also sought additional time-loss compensation. The Industrial

Appeals Judge (IAJ) found that John had voluntarily retired and was therefore not

entitled to time-loss compensation benefits under former RCW 51.32.090(8) (1993).

The Board of Industrial Insurance Appeals (Board) affirmed. John appealed the order

denying time-loss compensation benefits to superior court. This court affirmed the

Board and held that John was ineligible for time-loss compensation because he was

voluntarily retired, Gibbons v. Boeing Co., 107 Wn. App. 1029 (2001).

         John's claim remained open for medical treatment until he died of lung cancer on

August 1, 2005. On June 2, 2006, the Department issued an order closing John's claim

and awarding permanent partial disability for "category 3" low back impairment in the

amount of $9,000.

         John's spouse Vivian Gibbons appealed the June 2 closing order and filed a

claim for spousal death benefits. After a scheduling conference, the Board identified the

sole issue as, "Whether for conditions proximately caused by the September 24, 1988

industrial injury, the claimant (now deceased) is entitled to an increased permanent

partial disability award." At the July 2007 administrative hearing, Vivian's attorney
No. 72335-9-1/3


agreed that the issue was whether John was "entitled to an increased permanent partial

disability award." Vivian presented medical evidence that in addition to low back

impairment, the industrial injury caused bowel and erectile dysfunction.

       The Board reversed the closing order and awarded an additional permanent

partial disability payment. The Board concluded the weight of the evidence

demonstrated that the permanent partial disability on June 2, the date the Department

issued the second order of closure, "was best represented by Category 6, WAC 296-20-

280, and that the June 2, 2006 order must be reversed to provide the correct category

of impairment." In June 2008, Vivian and Boeing both filed an appeal of the decision.

      At the conclusion of a jury trial in March 2011, the jury found that as of June 2,

2006, John had a "Category 3" permanent partial disability of the low back and a

"Category 2" permanent partial disability of the lower digestive tract. Following entry of

the judgment on the jury verdict, the Department issued an order directing Boeing to

pay a "category 3" permanent partial disability award for the low back impairment and a

"category 2" permanent partial disability award for the lower digestive tract impairment.

       On January 13, 2012, the Department issued an order denying Vivian's claim for

death benefits. Vivian filed a request for reconsideration of the order denying her claim

for death benefits. The Department affirmed the order. Vivian appealed the decision to

the Board.

       Boeing filed a motion for summary judgment arguing Vivian was not entitled to

death benefits under RCW 51.32.067 because John voluntarily retired and was not

permanently and totally disabled at the time of his death. In opposition, Vivian argued
No. 72335-9-1/4



there were issues of material fact as to whether she was entitled to death benefits.

Vivian submitted a number of documents including John's death certificate.

       The IAJ issued a proposed decision and order affirming the decision of the

Department to deny death benefits. The IAJ concluded Vivian was not entitled to death

benefits under either RCW 51.32.067 or RCW 51.32.050. On April 1, 2013, the Board

granted Vivian's petition for review "solely to correct a typographical error," and affirmed

the proposed decision and order.

       Vivian filed an appeal of the Board's final order. The superior court adopted the

Board's findings and affirmed the decision granting Boeing's motion for summary

judgment. The amended findings of fact state, in pertinent part:

       B.   The Claimant, John R. Gibbons, was injured on September 24, 1988
            while in the course of his employment with The Boeing Company
            when he twisted his back while exiting a vehicle. That injury
            proximately caused low back and lower digestive tract conditions.
       C.   John R. Gibbons voluntarily retired and removed himself from the
            labor force on September 1, 1993. He remained voluntarily retired
            through August 1, 2005.
       D.   On August 1, 2005, John R. Gibbons died of lung cancer, a condition
            unrelated to his September 24, 1988 industrial industry.
       E.   Vivian Gibbons is John R. Gibbons' surviving spouse.
       F.   On August 1, 2005, John R. Gibbons was permanently partially
            disabled, but was not permanently totally disabled, as a result of his
            September 24, 1988 industrial injury.

       Vivian appeals. Vivian contends the court erred in affirming summary judgment

dismissal of her claim for death benefits. Vivian asserts there are genuine issues of

material fact as to whether she is entitled to death benefits under RCW 51.32.067 or

RCW 51.32.050.
No. 72335-9-1/5



Standard of Review

        In an appeal from a decision of the Board, the superior court acts in an appellate

capacity, reviewing the decision de novo. Ruse v. Dep't of Labor & Indus., 138 Wn.2d

1, 5, 977 P.2d 570 (1999). The Board decision is prima facie correct, and the burden of

proof is on the party attacking the decision. RCW 51.52.115;2 Ruse. 138 Wn.2d at 5.

RCW 51.52.140 governs our review of the superior court decision. RCW 51.52.140

states that an "[a]ppeal shall lie from the judgment of the superior court as in other civil

cases."


       We review summary judgment de novo, viewing the facts and reasonable

inferences in the light most favorable to the nonmoving party. Pearson v. Dep't of Labor

& Indus., 164 Wn. App. 426, 431, 262 P.3d 837 (2011).3 Summary judgment is proper

when there is no genuine issue of material fact and the moving party is entitled to

summary judgment as a matter of law. CR 56(c). If reasonable minds could reach only

one conclusion, summary judgment is appropriate. Hansen v. Friend, 118 Wn.2d 476,

485, 824 P.2d 483 (1992). "A party may not rely on mere allegations, denials, opinions,

or conclusory statements, but, rather must set forth specifics indicating material facts for

trial." Int'l Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co.. 122 Wn. App. 736, 744, 87



        2 RCW 51.52.115 states, in pertinent part:
        The hearing in the superior court shall be de novo, but the court shall not receive
        evidence or testimony other than, or in addition to, that offered before the board or
        included in the record filed by the board in the superior court as provided in RCW
        51.52.110. . . . In all court proceedings under or pursuant to this title the findings and
        decision of the board shall be prima facie correct and the burden of proof shall be upon
        the party attacking the same. Ifthe court shall determine that the board has acted within
        its power and has correctly construed the law and found the facts, the decision of the
        board shall be confirmed.
        3 Because we review summary judgment de novo, the superior court's findings of fact are
superfluous and need not be considered. Hubbard v. Spokane County, 146 Wn.2d 699, 706 n.14, 50
P.3d 602 (2002). Accordingly, we do not address Vivian's argument that the superior court's findings of
fact are not supported by substantial evidence.
No. 72335-9-1/6



P.3d 774 (2004) (citing CR 56(e); Grimwood v. Univ. of Puqet Sound, Inc., 110 Wn.2d

355, 359, 753 P.2d 517 (1988)).

Death Benefits under the Industrial Insurance Act


       A surviving spouse has a separate right to death benefits under Washington's

Industrial Insurance Act, Title 51 RCW. A surviving spouse of an injured worker eligible

for permanent total disability is entitled to death benefits under RCW 51.32.067 or, if the

death is the result of an industrial injury, RCW 51.32.050.

       RCW 51.32.067


       Under RCW 51.32.067, a surviving spouse may receive death benefits if the

injured worker "dies during a period of permanent total disability from a cause unrelated

to the injury." RCW 51.32.067(1).

       Vivian argues there are genuine issues of material fact as to whether John was

permanently and totally disabled at the time of his death. However, there is no dispute

that the jury found John permanently partially disabled as of June 2, 2006. There is

also no dispute Vivian did not appeal the 2011 superior court judgment on the jury

verdict finding that John had a "permanent partial disability." The finding of partial

disability is res judicata as to the extent of the injury as of June 2, 2006. See Dinnis v.

Dep't of Labor & Indus., 67 Wn.2d 654, 657, 409 P.2d 477 (1965) (fact of permanent

partial disability determined in prior proceeding is res judicata as to worker's condition

on that date); Weyerhaeuser Co. v. Farr, 70 Wn. App. 759, 766, 855 P.2d 711 (1993)

(same): see also Marlev v. Dep't of Labor & Indus., 125Wn.2d 533, 538, 886 P.2d 189

(1994) ("[Fjailure to appeal an order, even one containing a clear error of law, turns the

order into a final adjudication, precluding any reargument of the same claim."). Vivian is



                                              6
No. 72335-9-1/7



bound by the law of the case and cannot challenge that finding after failing to file a

timely appeal. Because John was only partially disabled and not permanently totally

disabled at the time of his death, the court did not err in concluding Vivian is not eligible

for benefits under RCW 51.32.067 and affirming summary judgment dismissal of her

claim for benefits on that ground.

       RCW 51.32.050

       Under RCW 51.32.050, the surviving spouse is eligible for death benefits

"[w]here death results from the [industrial] injury." RCW 51.32.050(2). A surviving

spouse's death benefits under RCW 51.32.050 have "a separate character" from a

worker's wage replacement benefits. Mason v. Ga.-Pac. Corp., 166 Wn. App. 859, 866-

67, 271 P.3d 381 (2012) (citing Kilpatrick v. Dep't of Labor & Indust.. 125 Wn.2d 222,

228, 883 P.2d 1370 (1994) (noting a "survivor's claim is independent from the worker's

claim to the extent the worker cannot waive the survivor's rights to benefits [under RCW

51.32.050].")). Consequently, a spouse may file a separate claim for death benefits

under RCW 51.32.050 even if the worker's claim for benefits has been closed. Dep't of

Labor & Indust. v. Shirley. 171 Wn. App. 870, 883-84, 288 P.3d 390 (2012).

       There is no dispute that John died of lung cancer in 2005. The death certificate

states the cause of death as "metastatic nonsmall cell lung cancer." The certifying

physician notes that "tobacco use" contributed to John's death. The certifying physician

does not list any "significant conditions contributing to death," and there was no

evidence the 1988 twisting low-back injury caused the lung cancer.

       Mason is inapposite. In Mason, it was undisputed that the worker died as a

result of a lung condition related to chemical exposure during his employment. Mason,
No. 72335-9-1/8


166 Wn. App. at 862. The Department found that an occupational^ related condition

caused the worker's death and awarded the surviving spouse death benefits under

former RCW 51.32.050 (1986). Mason, 166 Wn. App. at 862. The employer appealed

the benefit amount arguing the surviving spouse was entitled to only the statutory

minimum survivor pension rate because the worker voluntarily retired before

manifestation of his lung condition. Mason, 166 Wn. App. at 862. The court concluded

that under former RCW 51.32.050 and the statute defining occupational disease, RCW

51.32.180, the surviving spouse's death benefits should be based on the worker's

wages at the time of his retirement. Mason, 166 Wn. App. at 870-71.

       Here, unlike in Mason, there is no evidence that John died as a result of an

industrial injury. The superior court did not err in concluding that Vivian is not eligible for

death benefits under RCW 51.32.050 and affirming summary judgment dismissal on

that ground.

       We affirm the superior court decision affirming the Board's decision on summary

judgment to deny Vivian's claim for death benefits under RCW 51.32.067 and RCW

51.32.050.




                                                   %i
WE CONCUR:




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