noting worker's compensation benefits "cannot take into account noneconomic damages, such as an employee's own pain and suffering"
How later courts described this case
- noting worker's compensation benefits "cannot take into account noneconomic damages, such as an employee's own pain and suffering"
- because the Department’s payment of benefits does not cover damages for loss of consortium, a beneficiary receiving these damages from a third party does not receive a double recovery
- benefits calculations do not take into account non-economic damages such as pain and suffering or a spouse’s loss of consortium
Written by the judges who cited it.
The opinion
Andersen, C.J.
(concurring in the dissent) — I concur in the result of the dissent. I write separately to underscore my serious concern about the violence the majority opinion visits upon state industrial insurance policy.
Our industrial insurance system is not something that "just happened”; it was carefully and painfully crafted by our State Legislature over a period of many years.
*429 The Attorney General’s brief makes these strong points. This decision will directly or indirectly affect every employee and employer in the state. Both employees and employers pay taxes into the medical aid fund and employers pay taxes into the accident fund. Money reimbursed to the Department of Labor and Industries is paid back into these funds, respectively, and thereby lowers the taxes owed by each group. In addition, the experience rating of the employer of an injured worker is retroactively adjusted based upon the money reimbursed.
Allowing loss of consortium recoveries to be set apart from other third party recoveries eliminates the fund’s right to reimbursement to the extent that it remains liable for payment of benefits, or to the extent that other portions of the recovery are insufficient to reimburse the funds for benefits already paid. As we recently declared in Clark v. Pacificorp, 118 Wn.2d 167, 184-85 , 822 P.2d 162 (1991):
An elimination of the right to reimbursement is contrary to the longstanding purposes of the Industrial Insurance Act. . . .
. . . The underlying purposes of the act are defeated if the right is eliminated, and the plaintiff may be made more than whole at the expense of the compensation fund.
In Mrs. Flanigan’s case, for example, she will receive her loss of consortium award in addition to workers’ compensation pension benefits.
The majority’s decision also opens the door to abuse and manipulation with respect to the funds’ reimbursement from third party recoveries. In the settlement context, parties may allocate the recovery, by agreement, less to the worker and more to the worker’s spouse for loss of consortium, in order to defeat the funds’ reimbursement right. The worker or beneficiary might then keep a greater portion of the recovery than RCW 51.24.060(1) entitles them to keep, and then may be made more than whole at the expense of the compensation fund.
It may be that the nature of recoveries for loss of consortium damages are of such unique nature that they should be accorded special treatment. If that is so, however, any *430 response to such uniqueness should be hammered out in the legislative arena wherein public hearings could be afforded and input obtained from labor, management and all others concerned.
For the foregoing reasons, I dissent.