In November of 2009, the Washington State Supreme Court heard oral arguments regarding Tobin v. Dep’t of Labor & Indus., 145 Wn. App. 607; 187 P.3d 780; 2008 Wash. App.
Jim Tobin, a Washington State worker, was permanently disabled after being hit by a crane boom. He sued the crane operator, settling for 1.4 million in damages. The majority of the damages awarded were for pain and suffering.
Under the Revised Code of Washington (RCW 51.24.030), an injured worker is required to repay a portion of their third-party recovery to the Department of Labor and industries, in order to reimburse them a for their payment of workers compensation benefits.
A judgment of the Pierce County Superior Court, found that the Department of Labor and Industries could not seek reimbursement from the portion of Mr. Tobin’s third party recovery, which compensated him for pain and suffering. Appellant Washington Department of Labor and Industries sought review of that judgment.
The Department argued that the statutory reimbursement use of the term recovery included all damages, except loss of consortium. They claimed they were entitled to seek reimbursement for the pain and suffering portion of Mr. Tobin’s damages.
On appeal, the court held that because the Department did not compensate the injured worker for his pain and suffering, it could not be reimbursed from that portion of the employee’s award. The pain and suffering portion of the employee’s third party damages was therefore not a “recovery,” as defined under the Revised Code of Washington (RCW 51.24.030(5)).
The court further noted that the legislative history did not provide evidence that the legislature intended to allow the Department to recover the pain and suffering portion of a worker’s third party recovery as reimbursement of money paid to compensate his/her other losses.
The court concluded that RCW 51.24.030 did not give the employee adequate notice that third party settlement funds, earmarked as compensation for their personal pain and suffering, were subject to distribution (under RCW 51.24.060) for reimbursement of payments for other losses.
David Lauman, at Small, Snell, Weiss & Comfort, P.S., are attorneys for Respondent, Jim A. Tobin. A final decision from the Washington State Supreme court is pending.