Anderson by Anderson v. Boise Cascade Corp.

ALBERT ANDERSON, Deceased Employee, by DALE ANDERSON, v. BOISE CASCADE CORP. and SEDGWICK JAMES OF MINN., INC., Employer-Insurer/Appellants.

PERMANENT PARTIAL DISABILITY; DEPENDENCY BENEFITS - HEIRS. Where the employer stipulated that the employee=s work-related asbestos exposure substantially contributed to the employee=s lung disease and permanent partial disability, but argued that no permanent partial disability benefits were payable since no claim was made or filed before the employee=s death, the employee=s heirs are entitled to payment of permanent partial disability benefits because permanent partial disability vests and is payable to the estate of a deceased employee where permanent partial disability is ascertainable before the date of death.

The self-insured employer appeals from the compensation judge=s award of permanent partial disability benefits and payment of partial reimbursement of attorney fees pursuant to Minn. Stat. ' 176.081, subd. 7, to the estate of the deceased employee. We affirm.

The facts in this matter are not in dispute. The employee, Albert Anderson, worked for the Boise Cascade Corporation, the self-insured employer, from 1967 through 1981. The parties stipulate that during that period of time the employee was exposed to asbestos, and that the employee=s work-related exposure to asbestos through May 31, 1981, was a significant factor in his development of asbestos-related pleural and parenchymal lung disease.

In June 1988, the employee experienced noticeable shortness of breath and treated at the Duluth Clinic in International Falls, where a CT scan revealed a large right pleural effusion. Further treatment at the Mayo Clinic in Rochester, Minnesota, resulted in a diagnosis of fibrothorax, pleural fibrosis and pleural plaque. Those studies were negative for cancer; it was thought that the employee might be suffering from mesothelioma, an asbestos-related cancer. Pulmonary function studies in August 1998 showed that the employee=s forced vital capacity was 53 percent of predicted level, and his FEVI was 56 percent of predicted level. Additional tests showed an increase in his pleural thickening. On December 10, 1999, the employee died. Posthumous pathological studies and an autopsy indicated that the employee=s pleura, the lining of his right lung, was extensively thickened and showed diffused pulmonary interstitial fibrosis accompanied by asbestos bodies. Pathologist Dr. Steven Dikman, who reviewed samples of the employee=s lung tissue, diagnosed pulmonary asbestosis with extensive pleural fibrosis and plaquing and opined that these conditions substantially contributed to the employee=s death.

At the time of his death, the employee was a widower and his three children were non-dependent adults. In October of 2000, the decedent employee=s children filed a claim petition seeking reimbursement of various medical expenses, funeral expenses, permanent total disability benefits between June 23, 1998 and December 9, 1999, and permanent partial disability to the extent of 50% of the whole body. The claim petition named four employers, including the Boise Cascade Corporation/Self-insured, two insurers, and the Special Compensation Fund, all of whom initially denied primary liability for the claimed benefits. Medicare filed a motion to intervene.

The self-insured employer scheduled an independent medical record review with Dr. Ronald Vessey which occurred on April 10, 2001. Dr. Vessey essentially agreed with the employee=s expert, Dr. Dikman. Dr. Vessey stated that the employee suffered from an asbestos-caused pneumothorax and agreed that the employee died from a complex pattern of asbestos fiber-related diseases. Dr. Vessey also agreed that the Rochester Mayo pulmonary function test of August 20, 1998, would have entitled the employee to a 50% whole body disability rating in accord with Minn. R. 5223.0560, subd. 2, Class IV, based on the employee=s forced vital capacity of 53 percent of predicted level. Dr. Vessey concluded that the employee=s asbestos-related disease was a substantial cause of his 50% whole body disability.^[1]

In December 2001, a partial settlement was reached between the parties. Pursuant to that agreement, the Medicare intervention claim and all of the petitioners= claims with the exception of the claims for permanent total disability and 50 percent permanent partial disability of the whole body were closed. The stipulation for settlement provided that the petitioners could continue to pursue claims for permanent total disability and for permanent partial disability against the Boise Cascade Corporation/Self-insured. The stipulation was approved by an order dated January 7, 2002. Later, prior to trial, the claim for permanent total disability benefits was withdrawn, and the parties agreed that the sole remaining claim for payment of 50 percent permanent partial disability would be submitted to the compensation judge.

This matter was set for hearing before a compensation judge on October 25, 2002, and was presented by stipulated facts with no appearances at hearing. The employer admitted primary liability and notice relative to the decedent employee=s asbestos-related occupational disease. The employer also admitted that the decedent employee sustained a disablement, within the meaning of the workers= compensation law, on August 20, 1998, based upon pulmonary function testing performed on that date, and that the employee survived that date by more than thirty days, both of which are statutory factors pertinent to determination of a deceased employee=s entitlement to permanent partial disability benefits.

The issue to be decided by the compensation judge was whether the non-dependent heirs of the deceased employee were entitled to payment of the claimed permanent partial disability benefits. In Findings and Order issued on December 27, 2002, the compensation judge found that the employee sustained a permanent partial disability of 50 percent to the whole body, which was ascertainable on August 20, 1998, at the time of pulmonary function testing. The judge found that the employee=s benefit entitlement was vested 30 days after August 20, 1998, and therefore that he was entitled to payment of permanency benefits as of that date. Accordingly, she awarded the employee=s estate payment of benefits based on a rating of 50 percent permanent partial disability of the whole body, along with partial reimbursement of attorney=s fees pursuant to Minn. Stat. ' 176.081, subd. 7, and reasonable and necessary costs and disbursements. The employer appeals.

The sole legal issue on appeal is whether the compensation judge correctly determined that the employee=s entitlement to payment for permanent partial disability benefits had vested before his death and that those benefits were payable to the employee=s estate. We review that issue on a de novo basis, as a Adecision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo." Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

The employer argues that, where there was no claim for workers= compensation benefits made until after the employee=s death, the employee=s non-dependent heirs are not entitled to payment of permanent partial disability benefits. Effective October 1, 1995, certain sections of the Minnesota workers= compensation statutes dealing with payment of permanent partial disability benefits following the death of an employee were repealed. Specifically, Minn. Stat. ' 176.101, subd. 3r, was repealed in its entirety; this subdivision outlined the way in which compensation benefits were payable upon the death of an injured employee. Following the repeal of that section, the only remaining reference in the statutes to that issue was contained in Minn. Stat. ' 176.021, subd. 3, which provides in relevant part

the right to receive permanent partial compensation vests in an injured employee at the time the disability can be ascertained provided that the employee lives for at least 30 days beyond the date of the injury. Upon the death of an employee who is receiving economic recovery compensation or impairment compensation, further compensation is payable pursuant to section 176.101.

The statutory revision was addressed in Owens v. Water Gremlin Co., 605 N.W.2d 733, 60 W.C.D. 36 (Minn. 2000), where the supreme court held that, if the disability had been ascertained, the employee had lived at least thirty days beyond the date of injury, and the employee was receiving economic recovery compensation or impairment compensation at the time of death, the full amount of the employee=s permanent partial disability benefits was payable to the employee=s estate.

In Oswald v. Boise Cascade Corp., 62 W.C.D. 166 (W.C.C.A. 2001), summarily aff=d (Minn. Mar. 27, 2002), this court considered the application of Owens to a case in which primary liability had been admitted and workers= compensation benefits, including permanent partial disability benefits to the extent of the existing rating, 50 percent of the body as a whole, had been paid to the decedent prior to his death. In Oswald, after benefits based on that 50 percent rating had been completely paid, the employee was assigned a higher permanency rating, 95% of the body as a whole, but the employee died before any additional permanent partial disability benefits were paid. The WCCA determined that, since the decedent would have been entitled to receive the additional permanent partial disability benefits, his surviving heirs were likewise entitled to receive them. The court noted that,

We conclude that the only reasonable way to construe Awho is receiving@ is to construe it to mean Awho is receiving or entitled to receive@ economic recovery compensation or impairment compensation. Clearly, an employer should not be able to avoid liability for significant permanent partial disability benefits by simply placing itself in a position where benefits are not being paid at the time an employee dies.

Oswald, 62 W.C.D. at 176 (emphasis in original).

This issue was most recently discussed in Walker v. Boise Cascade Corp., 63 W.C.D. 286 (W.C.C.A. 2003). In Walker, the employee was diagnosed with malignant mesothelioma in December 1999 and filed a claim petition in April 2000, alleging his condition was work-related. The self-insured employer denied primary liability for the employee=s condition. The employee died in September 2000; thereafter, the employee=s dependents filed a claim petition, seeking dependency benefits and 75% permanent partial disability to the whole body. Prior to hearing, the parties reached a partial settlement of the issues in the case, reaching agreement for a lump sum compromise payment of dependents benefits, and agreed that the employee had sustained a 75 permanent partial disability as a result of his work injury. The dispute submitted to a compensation judge was whether the employee=s permanent partial disability benefits were payable after his death. The judge determined, and this court affirmed, that the employee=s right to receive permanent partial disability benefits had vested before his death and that those benefits were payable to the employee=s estate.

In Walker, the employer argued that, because primary liability was in dispute at the time of the employee=s death, the claim for PPD benefits could not have vested and was not payable. This court determined that the rationale of the Oswald decision applied to the facts of that case, in that the employee had met the first two conditions of the Owens decision (permanent partial disability was ascertainable before the employee=s death and the employee had lived for more than thirty days after his date of injury). We agreed with the compensation judge=s conclusion that but for the employer=s denial of primary liability, which was later withdrawn, the employee was Aentitled to receive@ permanent partial disability benefits at the time of his death. His rights survived his death and his claim was payable to his estate.

The employer contends that the facts of this case are very different from those in Owens and Oswald because no claim for workers= compensation benefits had been made prior to the death of the employee. It argues that in each of those cases, it was simply a question of whether additional permanent partial disability benefits would be payable to the employee=s surviving heirs or dependents. The employer argues that here, since no claim was made prior to the employee=s death, there was no admission of primary liability prior to death, and no payment of workers= compensation benefits of any kind had been made prior to the employee=s death, the heirs= claim should fail since at the time of the employee=s death no further compensation was payable. We are not persuaded.

We see little distinction between the facts of this case and those in Walker. In both cases, the employee met the first two conditions set forth in the Owens decision: the level of permanent partial disability benefits was ascertainable before the employee=s death, and the employee lived for more than thirty days after his date of injury. In Walker, the employer eventually accepted primary liability for the employee=s work-related condition; in this case, the employer withdrew its initial denial of primary liability and admitted that the employee=s work-related exposure to asbestos was a significant factor in his development of asbestos-related lung disease. The only distinction between the cases is the timing of the claim petition. In Walker, the employee had filed a claim petition for payment of medical expenses and permanent partial disability benefits prior to his death. That claim petition was amended following the employee=s death, for dependents benefits and additional permanent partial disability benefits. In this case, the claim petition was filed posthumously by the employee=s heirs.

The employee=s heirs argue that the filing of a claim petition is simply a formal request for payment of benefits and does not, in itself, create an entitlement to the benefits claimed. They argue that, following the Owens rationale, vesting triggers an entitlement to receive, and that an entitlement to receive has the same effect as the actual receipt of benefits. The employee=s heirs argue that the employer is attempting to read into the statute an additional requirement: that a claim for payment of vested permanent partial disability benefits to heirs must be made prior to an employee=s death in order for that claim to go forward. There is no such requirement in the wording of the statute, nor is there any requirement in the decisions that have interpreted the current statute. See Owens, Oswald, and Walker. We therefore affirm the compensation judge=s award of payment of permanent partial disability benefits to the heirs of the employee.^[2]

^[1] Background information was obtained from the parties= stipulated facts, submitted to the compensation judge, as well as from their appellate briefs; the record does not contain the cited medical records.

^[2] Although the employer appealed from the compensation judge=s award of partial reimbursement of attorney fees pursuant to Minn. Stat. ' 186.081, subd. 7, and payment of reasonable costs and disbursements, they did not address these issues in their brief on appeal. We will not decide those issues, as issues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court. Minn. R. 9800.0900, subp. 1.