EMMETT J. JOHNSON, Respondent, v. TRADEWELL STORES, INC., Petitioner. ELIZABETH A. MAXWELL, Petitioner, v. ST. REGIS PAPER COMPANY, Respondent.
Nos. 46770, 46914-8
En Banc.
July 2, 1981
Reconsideration denied September 30, 1981.
739 | 740 | 741 | 742 | 743 | 744 | 745 | 746 | 747 | 748 | 749 | 750 | 751 | 752 | 753
Although I believe the new community may, given a proper hearing and factual finding, be held liable in part for the support obligation of the “encumbered” spouse, I also believe, under the facts of this case, that the seizure of Sallie Van Dyke‘s wages violated due process and would therefore affirm the trial court for the reasons I have stated.
WILLIAMS, J., concurs with UTTER, J.
Gary W. Rentel and Rebecca Lacy, for petitioner Maxwell.
Graham & Cohen, by Norman W. Cohen, for respondent Johnson.
Eisenhower, Carlson, Newlands, Reha, Henriot & Quinn, by Richard A. Jessup, for respondent St. Regis Paper.
Plaintiff Emmett Johnson was injured while in the employ of defendant Tradewell Stores, Inc., a self-insured employer under
Tradewell appealed. The Court of Appeals, Division One, reduced the amount of the award, but sustained the allowance of attorney and medical witness fees to be paid from the Department‘s administrative fund on the basis of
Plaintiff Elizabeth Maxwell sustained an industrial injury while employed by respondent St. Regis Paper Company, a self-insured employer. The Department awarded her permanent partial disability and the award was affirmed by the Board. On appeal to the Superior Court, Maxwell received an increased award but was denied attorney and medical witness fees against St. Regis.
Maxwell appealed. The Court of Appeals, Division Two, affirmed the trial court on all issues on the basis of
The relevant portions of
If, on appeal to the court from the decision and order of the board, said decision and order is reversed or modified and additional relief is granted to a worker . . . a reasonable fee for the services of the worker‘s . . . attor-
ney shall be fixed by the court. . . . If the decision and order of the board is reversed or modified and if the accident fund is affected by the litigation then the attorney‘s fee fixed by the court for services before the court only, and the fees of medical and other witnesses and the costs shall be payable out of the administrative fund of the department.
In Washington, an employer may secure the payment of workers’ compensation by “(1) Insuring and keeping insured the payment of such benefits with the state fund; or (2) Qualifying as a self-insurer under this title.”
Contrary to the assertion of the employers, this case does concern benefits. Although the term “benefit” is nowhere defined in the industrial insurance statutes (
Once the real nature of
Statutes should receive a sensible construction, such as will effect the legislative intention, and, if possible, so as to avoid unjust or absurd consequences. State ex rel. Thorp v. Devin, 26 Wn.2d 333, 173 P.2d 994 (1946). A thing which is within the object, purpose and spirit of an enactment is as much within the act as if it were within the letter. In re Estates of Donnelly, 81 Wn.2d 430, 502 P.2d 1163, 60 A.L.R.3d 620 (1972).
We do not believe it reasonably can be claimed that the “object, purpose and spirit” (Whitehead, at 269) of the industrial insurance act is to exclude workers whose only deficiency is the chance that their employers choose to be self-insured.
As we observed 50 years ago when construing the industrial insurance act:
This court is committed to the doctrine that our workmen‘s compensation act should be liberally construed in favor of its beneficiaries. It is a humane law and founded on sound public policy, and is the result of thoughtful, painstaking and humane considerations, and its beneficent provisions should not be limited or curtailed by a narrow construction.
Hilding v. Department of Labor & Indus., 162 Wash. 168, 175, 298 P. 321 (1931).
The next question to be considered is whether there is
The legislature has wide discretion in designating classifications. But these classifications may not be “manifestly arbitrary, unreasonable, inequitable, and unjust” (State ex rel. O‘Brien v. Towne, 64 Wn.2d 581, 583, 392 P.2d 818 (1964)), and reasonable grounds must exist for making a distinction between those within and those without the class. Moran v. State, 88 Wn.2d 867, 568 P.2d 758 (1977). Plaintiffs contend there is no reasonable basis for a classification between those workers whose employers are under the state system and those whose employers are self-insured, and that this classification is unconstitutional. We agree.
Is it reasonable to say that two workers, both of whom are entitled to industrial insurance, may be classified as to the receipt of benefits merely because one works for an employer covered by the state system and the other works for a self-insured employer? We think not.
There is a hazard in all employment and it is the purpose of this title to embrace all employments which are within the legislative jurisdiction of the state.
This title shall be liberally construed for the purpose of reducing to a minimum the suffering and economic loss arising from injuries and/or death occurring in the course of employment.
In both of the cases before us, the awards to plaintiffs were increased. If their employers had been covered under the state system, the attorney and witness fees would have been paid by the administrative fund. Under our foregoing analysis, the employees of self-insured employers are entitled to the same benefits. Since self-insured employers do in fact pay into the administrative fund (
The Court of Appeals, Division One, is affirmed on Johnson.
ROSELLINI, UTTER, WILLIAMS, and DIMMICK, JJ., concur.
STAFFORD, J.-I dissent. The majority has achieved its end by asserting the statute should be liberally construed. However, “liberal construction” does not entitle a court to ignore a statute‘s plain language to reach a subjectively desired result. Unfortunately, in an effort to “do good” the majority has ignored the statute‘s key phrase. Such is not a proper judicial function. If, in fact, the statute should be amended to reach a more “just” result it should be done by the legislature, not by judicial legislation.
This court has consistently held reasonable attorney‘s and expert witness fees are recoverable only “when authorized by a private agreement of the parties, a statute, or a recognized ground of equity.” Crane Towing, Inc. v. Gorton, 89 Wn.2d 161, 176, 570 P.2d 428 (1977) (attorney‘s fees); Hsu Ying Li v. Tang, 87 Wn.2d 796, 801, 557 P.2d 342 (1976) (attorney‘s fees and expenses); Fiorito v. Goerig, 27 Wn.2d 615, 619-20, 179 P.2d 316 (1947) (attorney‘s fees and expert witness fees). All parties agree that if attorney‘s and medical witness fees are to be awarded on appeal to superior court they must fall within the purview of
If, on appeal to the court from the decision and order of the board, said decision and order is reversed or modified and additional relief is granted to a worker . . . a reasonable fee for the services of the worker‘s . . . attorney shall be fixed by the court. . . . If the decision and order of the board is reversed or modified and if the accident fund is affected by the litigation then the attorney‘s fee fixed by the court for services before the court only, and the fees of medical and other witnesses and the costs shall be payable out of the administrative fund of the department.
(Italics mine.)
Clearly the first and second requirements have been met. However, it is equally clear the requirement that the accident fund be affected by the litigation has not been satisfied. Indeed the majority states as much: “The accident fund is not affected under these circumstances and is not affected in the cases before us.” Majority opinion, at 742.
In Washington, employers may guarantee payment of employee compensation benefits either by insuring with the state fund or by qualifying as a self-insurer.
Unlike the State accident fund which is supported by statutorily required premiums from all State insured employers, the escrow account authorized by
The lack of analogy is evident in another way. In the case of State insured employers, increased benefits are paid directly from the State accident fund. On the other hand, the escrow account may be invaded only when and if a self-insured employer defaults on an order to compensate an employee.
In the instant case we are not informed whether either self-insured employer had an escrow account, and if they did whether the self-insured employers failed to pay any ordered benefits or increases thereto. Thus, even if the analogy were tenable, we do not know whether any escrow account was affected in these cases.
The analogy fails for still another reason. A careful review of
In support of the employees’ position, it is argued that
I am aware of no provision in the act and have been informed of no decisions wherein attorney‘s and witness fees are treated as either “benefits” or “compensation“. Those terms normally refer to monetary awards for death, disability, medical treatment and vocational rehabilitation. See
Since attorney‘s and witness fees have not been equated with “benefits” or “compensation” by either statute or case law (prior to this case),
The majority suggests that to deny injured workers the fees in question would be unfair and contrary to the legislative purpose of
It should not be overlooked that the language at issue in
I would hold that Maxwell and Johnson, employees of self-insured employers, are not entitled to recover attorney‘s and medical witness fees. The increased benefits obtained on appeal to superior court did not affect the accident fund as required by
Such a holding has not been shown by the employees or the majority opinion to deny equal protection in violation of the fourteenth amendment to the federal constitution or
First, that issue is not properly before us for review. Employee Johnson has furnished us with no facts, law or argument on this issue. Instead, we are presented with a bare, undeveloped assertion. It is not our function to construct an argument on his behalf when he has failed to do so himself. In re Marriage of Croley, 91 Wn.2d 288, 294, 588 P.2d 738 (1978); State v. Wood, 89 Wn.2d 97, 569 P.2d 1148 (1977). Further, to do so would be fundamentally unfair to the other party which was never given a meaningful opportunity to refute that argument. Employee Maxwell
Second, I cannot agree that the employees have sustained the burden of showing the classification fails to rest upon a reasonable basis and is essentially arbitrary. As this court has said many times:
It is recognized that classifications must be made and that in making them, dividing lines must be drawn some place. Thus, the question is not whether there is in fact some discrimination, but rather whether the discrimination is justified.
Neither the equal protection clause nor the privileges and immunities clause requires perfection in legislative classification. Within the limits of the restrictive rules that have been enumerated, the legislature has a wide measure of discretion in designating classifications. A statutory enactment cannot be successfully attacked unless the discrimination or inequality produced by the particular classification is manifestly arbitrary, unreasonable, inequitable and unjust.
When a statutory classification is challenged, if any state of facts reasonably can be conceived that will sustain it, there is a presumption that such facts exist. The burden is upon the one who assails the classification of showing that it fails to rest upon any reasonable basis and is essentially arbitrary.
(Citations omitted.) See Markham Advertising Co. v. State, 73 Wn.2d 405, 439, 439 P.2d 248 (1968); Sparkman & McLean Co. v. Govan Inv. Trust, 78 Wn.2d 584, 478 P.2d 232 (1970); and Caughey v. Employment Security Dep‘t, 81 Wn.2d 597, 503 P.2d 460 (1972).
(Italics mine.) Washington State School Directors Ass‘n v. Department of Labor & Indus., 82 Wn.2d 367, 376-77, 510 P.2d 818 (1973), quoting from State v. Persinger, 62 Wn.2d 362, 368-69, 382 P.2d 497 (1963). See also Yakima County Deputy Sheriff‘s Ass‘n v. Board of Comm‘rs, 92 Wn.2d 831, 601 P.2d 936 (1979); Moran v. State, 88 Wn.2d 867, 568 P.2d 758 (1977).
[E]qual protection does not require that a state choose between attacking every aspect of a problem and not attacking the problem at all. Washington Statewide Organization of Stepparents v. Smith, 85 Wn.2d 564, 571, 536 P.2d 1202 (1975). The legislature has the discretion not to deal with an evil or class of evils all within the scope of one enactment, but to approach the problem piecemeal and learn from experience.
State v. Kent, 87 Wn.2d 103, 111, 549 P.2d 721 (1976). Accordingly, the legislature‘s failure to award attorney‘s and witness fees to all employees covered by the act does not necessarily result in an invalidation of
Finally, it should be noted that the legislature unambiguously distinguishes between employees of state-insured employers and self-insured employers in the industrial insurance act. Under
Employees of self-insured employers are also given the right to exact a 25 percent penalty against the employer if there is an “unreasonable delay or refusal” to pay benefits,
I respectfully dissent.
BRACHTENBACH, C.J., HICKS, J., and RYAN, J. Pro Tem., concur with STAFFORD, J.
Reconsideration denied September 30, 1981.