Jim Tobin was injured while working on switching out a fuel tank at a cellular tower site. While Mr. Tobin and a co-worker were placing straps on the old tank so that it could be removed, the crane operator began to raise the load. Since the straps were not yet properly placed, the load shifted and swung, crushing Mr. Tobin against a bollard. Mr. Tobin was airlifted to a hospital with a crushed pelvis and injuries to his back and leg. He was left with severe permanent problems.
Mr. Tobin filed a workers’ compensation claim. He was eventually found to be totally and permanently disabled as a result of his injury and was placed on a pension.
In the meantime, Mr. Tobin had elected to pursue a third party recovery against the company that employed the crane operator. This claim was eventually settled for $1,400,000. In the settlement it was specified that $793,083.16 of the settlement was to compensate Mr. Tobin for his pain and suffering. The Department of Labor and Industries signed off on this settlement agreement.
The Department of Labor and Industries then issued an order distributing the entirety of the settlement under the formula set out in RCW 51.24.060 (the third party distribution statute). The effect of this calculation was that Mr. Tobin would not be entitled to his pension benefits for well over a decade.
Mr. Tobin’s counsel appealed this order and argued that the Department did not have a right to include the pain and suffering portion of the third party recovery in the distribution formula since the Department does not compensate injured workers for pain and suffering.
The Board of Industrial Insurance Appeals ruled against Mr. Tobin. However, on appeal to Superior Court, the judge ruled that the Department could not include the pain and suffering portion of the third party recovery in its distribution calculation since they do not pay such benefits. The Department then appealed to the Court of Appeals where that decision was affirmed. Tobin v. Dep’t of Labor & Indus., 145 Wn.App. 607, 187 P.3d 780 (2008). The Department petitioned the Supreme Court for review and this was granted. Mr. Tobin’s attorney is awaiting the Supreme Court's decision.
When a tragic life-altering event such as this occurs, injured workers’ rights need to be protected. When an unfairness occurs, having the ability to file a lawsuit is key to ensuring that justice prevails. Happily, Mr. Tobin’s legal journey is nearing an end and justice is well in sight.