Opinion
C.A. No. 03A-04-001 RRC.
Submitted: May 20, 2004.
Decided: July 13, 2004.
Upon Appeal from a Decision of the Industrial Accident Board.
Affirmed.Richard T. Wilson, Esquire, Law Offices of Peter G. Angelos, P.C., Wilmington, Delaware, Attorney for Employee/Appellant.
Scott L. Silar, Esquire, Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, Delaware, Attorney for Employer/Appellee.
MEMORANDUM OPINION
INTRODUCTION
This is an appeal from a decision of the Industrial Accident Board ("IAB") denying Appellant William Smolka's ("Smolka") claim for workers' compensation benefits for lung cancer due to his alleged exposure to asbestos while he was employed by Appellee DaimlerChrysler Corporation ("DaimlerChrysler"). The IAB held that Smolka was not entitled to workers' compensation benefits because his claim was time-barred under 19 Del. C. § 2342, which states in part that "notice . . . shall be given within a period of six months after the date on which the employee first acquired such knowledge that the disability was, could have been caused or resulted from the employee's employment."
The IAB also rejected Smolka's claim on the grounds that he "failed to demonstrate, by a preponderance of the evidence, that `the employer's working conditions produced the ailment as a natural incident of the employee's occupation in such a manner as to attach to that occupation a hazard distinct from and greater than the hazard attending employment in general'." IAB Decision at 10 (quoting Diamond Fuel Oil v. O'Neal, 734 A.2d 1060, 1064 (Del. 1999); Anderson v. General Motors Corp., 442 A.2d 1359, 1361 (Del. 1982)). This Court need not reach this issue because it has affirmed the IAB's decision on independent grounds. The Court has thus not set forth in this opinion the medical testimony presented to the IAB in greater detail because it has decided the case on other grounds.
The IAB found that the operative date for when Smolka "acquired the requisite knowledge concerning his disease" was October 29, 2001, the date when Smolka received a diagnosis of asbestosis from a physician hired by Smolka's counsel to interpret his 1997 chest x-rays. On August 13, 2002, another physician determined that Smolka's lung cancer was caused by asbestos exposure. Smolka then notified DaimlerChrysler on August 20, 2002 of his disease. The IAB alternatively found that even if the operative day (for purposes of notice to the employer) was February 15, 2002 (the date that the petition was filed with the IAB), the claim was still time barred pursuant to 19 Del. C. § 2342.
IAB Decision at 9. The actual date of diagnosis was October 26, 2001; however, the IAB allowed three days for mailing of the results to Smolka from the physcian.
This Court affirms the decision of the IAB to deny Smolka's petition for workers' compensation benefits because he did not comply with the notice requirement of 19 Del. C. § 2342. Substantial evidence was presented to the IAB to support its determination that Smolka, as a reasonable person, should have recognized the "nature, seriousness and probable compensable character" of his lung cancer allegedly caused by asbestos exposure before February 20, 2002 such that his notice to DaimlerChrysler of his disease on August 20, 2002 was outside the six month notice requirement of 19 Del. C. § 2342. The IAB did not otherwise commit an error of law.
Cf. Willis v. American Original, 1991 Del. Super. LEXIS 383 (holding that the test Delaware uses to determine if a workers' compensation claim is time-barred is whether the "claimant, as a reasonable person, should have recognized the nature, seriousness and probable compensable character of [his/her] injury . . . [and] whether substantial evidence exists to support the [IAB's] determination that the claimant as a reasonable person, should have recognized the nature, seriousness and probable compensable character of [his/her] injury").
Chrysler was given notice on August 20, 2002 when Smolka's petition was filed; therefore, in order for Smolka to have given proper notice under § 2342, he could not have had the requisite knowledge of his disease before February 20, 2002.
FACTS
Smolka was employed by DaimlerChrysler from 1965 until 1980 when he retired. He had previously worked sandblasting engine parts, building "Liberty" ships, working for Electric Hose and Rubber and serving in the United States Navy. While at DaimlerChrysler Smolka worked "all over the assembly lines . . . because [he was] a member of the pool" and he would do different jobs as needed. As part of his work at DaimlerChrysler, Smolka installed heater covers and hood pads, cleaned windshields and installed hood ornaments. He asserted that as part of his job he was required to work in close proximity to steam pipes in which the insulation had torn away in some instances. Smolka asserted that he was never exposed to asbestos prior to working at DaimlerChrysler.
Hr'g. Tr. at 80-83.
Id. at 84.
Id. at 85.
Id. at 89.
Smolka was diagnosed with lung cancer in 1996 and had part of one lung removed. As part of a follow up exam in 1997, x-rays were taken of Smolka's lungs. The x-rays were examined in October 2001 by Dr. Orin Eliasson at the request of Smolka's counsel. Dr. Eliasson found that "the x-ray[s] shows bilateral interstitial fibrosis and bilateral pleural plagues, consistent with asbestosis [and] [a] subsequent x-ray from September 1, 2001 showed similar findings."
Dr. Eliasson is board certified in internal medicine, pulmonary medicine and critical care. He is also board eligible in occupational health and a NIOSH certified B-reader of x-rays. Claimant's Ex. #9.
Record at Claimant's Exhibit # 9 (Letter from Dr. Eliason).
On February 15, 2002 Smolka filed a complaint in Superior Court against twelve defendants. In his complaint Smolka alleged, inter alia, that:
Plaintiffs' Complaint, Smolka v. AC and S, Inc. et. al., C.A. No. 02C-02-134 ASB (Del.Super.Ct. 2002) (hereinafter "Pls' Compl. at ____"). DaimlerChrysler was not one of the defendants.
"[t]he Defendants and/or their predecessors-in-interest (hereinafter referred to as "Defendants") have all manufactured, distributed, sold, supplied, installed and/or removed asbestos-containing products, or have used asbestos-containing products on their premises, or at plants under their control and management in which they had an ownership interest . . . [and that] Plaintiff William J. Smolka routinely worked with, around, or around those working with asbestos-containing products manufactured, distributed, sold, supplied, installed and/or removed by the Defendants and was so exposed to asbestos containing products while working on the premises of certain Defendants . . . [and] [a]s a direct and proximate result [he has] . . . contracted asbestos-related pleural disease, asbestosis and asbestos-related lung carcinoma".
Pls' Compl at ¶¶ 3, 5, 7.
On August 13, 2002, Smolka's lung cancer was diagnosed by Dr. Edward Gabrielson as having been caused by Smolka's exposure to asbestos. Seven days later, on August 20, 2002, Smolka filed his petition for workers' compensation benefits with the IAB and notice was then given to DaimlerChrysler for the first time of the claim.
Dr. Gabrielson is on the faculty of Johns-Hopkins University School of Medicine and his specialty is pathology. He is board certified in anatomic and clinical pathology. Hr'g Tr. at 107-8.
The IAB heard Smolka's petition on February 13, 2003. Smolka testified that he had smoked cigarettes for over fifty years at a rate of a pack to a pack and half a day. Smolka also testified that since his operation to remove part of one lung he has suffered from shortness of breath and that it is "hard breathing, hard, awful hard." Smolka further testified that he did not know there was asbestos in the DaimlerChrysler plant until after talking to another DaimlerChrysler employee, Hal Crump. Smolka testified that Crump told him of possible asbestos exposure in the plant and Crump suggested that Smolka seek legal counsel from Crump's attorneys.
Hr'g. Tr. at 90.
Id. at 93.
Id. at 88.
Hr'g. Tr. at 88. Smolka subsequently retained the same law firm representing Crump, which is Smolka's current counsel.
Testimony was also given by several medical experts. Dr. Susan Daum, testifying for Smolka, and Dr. Paul Epstein, testifying for DaimlerChrysler, gave their opinions about causation related to significant asbestos exposure. Dr. Gabrielson, testifying for Smolka, and Dr. Ronald Schwarting, testifying for Chrysler, testified about causation relating to the number of asbestos bodies or fibers found in Smolka's lung tissue. William Simmons, a former Chrysler employee, testified about the presence of asbestos in the Chrysler plant and his actions as a union shop steward.
Dr. Daum is on the faculty of Mount Sinai School of Medicine. She is board certified in internal medicine and occupational medicine. Hr'g. Tr. at 33.
Dr. Epstein is on the faculty of the University of Pennsylvania Medical School where he is a clinical professor of medicine. He is board certified in internal medicine and pulmonary disease. Dr. Epstein is also a NIOSH certified B-reader for x-rays. Epstein Dep. at 4.
Dr. Schwarting is on the faculty of Thomas Jefferson School of medicine as an associate professor of pathology. He is board certified in anatomic and clinical pathology as well as hematopathology. Schwarting Dep. at 3-4.
The amount of asbestos fibers, or fiber burden, found in a patient's tissue can be used to determine if the fiber burden fell within the range of normal, background asbestos exposure unrelated to any occupational exposure. IAB Decision at 12.
Hr'g Tr. at 4-29.
The IAB rendered its decision on March 24, 2003 in which it denied Smolka's petition because he failed meet the employer notification requirement of 19 Del. C. § 2342. The IAB also found that Smolka had failed "to demonstrate any exposure to asbestos while employed at [DaimlerChrysler]."
IAB Decision at 10.
STANDARD OF REVIEW
The Supreme Court and this Court have repeatedly emphasized the limited appellate review of the factual findings of an administrative agency. The function of the reviewing Court is to determine whether the agency's decision is supported by substantial evidence. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. The reviewing Court must view the facts in a light most favorable to the party prevailing below; therefore, it merely determines if the evidence is legally adequate to support the agency's factual findings. When factual determinations are at issue, the reviewing Court should defer to the experience and specialized competence of the Board. If the decision is supported by substantial evidence, the Court must affirm the decision of an agency even if the Court might have, in the first instance, reached an opposite conclusion. Whether a claim is barred by a statute of limitations is a mixed question of law and fact that requires the Court to determine: (1) whether the IAB applied the correct legal standard and if so, (2) whether the factual findings of the IAB were supported by substantial evidence. Statutory interpretation is ultimately the province of the courts and "[a] reviewing court may accord due weight, but not defer, to an agency's interpretation of a statute administered by it."In the instant case the parties disagree as to the proper standard of review. Smolka argues for the applicability of an error of law and abuse of discretion standard, while DaimlerChrysler argues for a substantial evidence standard. Neither party addressed the differing contention of the other side as to the correct standard of review and neither party explained why its position on the proper standard of review was correct. This Court finds that the proper standard of review is whether the IAB was presented with sufficient evidence on the record to support its decision to deny Smolka's petition and that the IAB properly applied that evidence to the applicable law.
Willis, 1991 Del. Super. LEXIS 383 (holding that when the IAB denies a claim as time-barred this Court "must determine whether substantial evidence exists to support the Board's findings"); Geroski, 1996 Del. LEXIS 38 (holding that if a Superior Court's decision to affirm a decision of the IAB, in which the IAB denied the claimant's petition as time-barred, "is correct in concluding that the factual findings of the Board are supported by substantial evidence . . . [and] the Board's decision is free from legal error, [then] the Superior Court's decision must be affirmed").
THE IAB'S DECISION
The IAB initially examined the question of whether Smolka's petition had been timely filed within the statute of limitations provided for IAB claims pursuant to 19 Del. C. § 2361(c) and it determined that the petition had been timely filed. 19 Del C. § 2361(c) states, in part, that "[a]ll claims for compensation for compensable occupational disease . . . shall be forever barred unless a petition is filed . . . with the Department within one year after the date on which the employee first acquired such knowledge that the disability was or could have been caused or had resulted from employment." The IAB held that because Smolka had filed his petition on August 20, 2002 he was required "as a reasonable person, [to know] or should have know[n] of the nature, serousness and probable compensable nature of his injury prior to August 20, 2001 as required by 19 Del. C. § 2361(c)." The IAB charged Smolka with knowledge of "the nature, seriousness and probable compensable nature" of his disease as of October 29, 2001, the date that he received from Dr. Gabrielson the diagnosis that he had asbestosis. Because Smolka filed his petition within one year of August 29, 2001, the IAB held that the petition was deemed timely filed for the purpose of meeting the statute of limitations imposed by § 2361.However, the IAB next determined that Smolka was not entitled to workers' compensation benefits because he did not notify his employer DaimlerChrysler of his illness within six months of acquiring "the requisite knowledge concerning his disease" as required by 19 Del. C. § 2342. 19 Del C. § 2342 states:
Id. at 9.
Unless the employer during the continuance of the employment has actual knowledge that the employee has contracted a compensable occupational disease or unless the employee, or someone in the employee's behalf, or some of the employee's dependents, or someone on their behalf, gives the employer written notice or claim that the employee has contracted one of the compensable occupational diseases, which notice to be effective shall be given within a period of 6 months after the date on which the employee first acquired such knowledge that the disability was, could have been caused or had resulted from the employee's employment, no compensation shall be payable on account of the death or disability by occupational disease of such employee.
Having held that Smolka acquired "the requisite knowledge concerning his disease" on October 29, 2001, the IAB held that Smolka was required to provide notice to DaimlerChrysler within six months of that date. The IAB also considered Smolka's allegation, contained in his petition, that his disease first manifested itself on February 15, 2002 as the operative date of acquiring "the requisite knowledge of his disease" but it found that this date was also (barely) more than six months before Smolka notified Chrysler.
IAB Decision at 9.
The August 20, 2002 IAB petition, with its date of "2/15/02" on page one, has been the subject of some confusion. The date appears in the IAB petition of record (as part of the response "cumulative detrimental effect" to question number 4, "Date of Accident,") on the petition and apparently in the pretrial memorandum filed by Smolka on August 20, 2002. At the IAB hearing, however, Smolka testified that he had no idea where that date came from when he was questioned about it on cross-examination. The copy of the petition that was included as Exhibit B in Smolka's appendix to the opening brief does not contain the "2/15/02" date (referencing a "Date of Accident"); however, the copy of the petition included in the record sent up by the IAB does state "2/15/02" as part of the response to question 4, "Date of Accident."
Hr'g Tr. at 106.
In response to the Court's inquiry to Smolka's counsel about this possible discrepancy, Smolka's counsel informed the Court that he believed that he had supplied that date to the IAB shortly after the filing of the petition by telephone or by letter. Counsel advises that he was contacted by the IAB and told that the response "cumulative detrimental effect" to question number 4, "Date of Accident," on the petition was not acceptable to the IAB as an answer to the question of when the accident occurred. Counsel further stated that he prepared the pretrial memorandum and used the February 15, 2001 date as the date of manifestation of Smolka's disease. Counsel stated that the date was the date that an asbestos case was filed on behalf of Smolka in Superior Court.
Appellant's Counsel's Letter to the Court of May 26, 2004.
Id.
Id.
Id.
CONTENTIONS OF THE PARTIES
Smolka's ArgumentSmolka argues that the IAB abused its discretion and erred as a matter of law in finding that his claim for workers' compensation benefits was time-barred because he did not comply with 19 Del. C. § 2342. Smolka concedes that he was diagnosed with asbestosis on October 26, 2001 by Dr. Eliasson; however, he argues that it was not until August 13, 2002, when Dr. Gabrielson diagnosed his lung cancer as having been caused by his exposure to asbestos, that he had the "the requisite knowledge of his disease." Smolka argues that asbestosis and lung cancer are "two separate and distinct asbestos diseases and each is controlled by a separate statute of limitations." He further argues that the IAB "lump[ed] the triggering of the notice period and/or the statute of limitations for the lung cancer with the triggering of the same as it potentially relates to nonmalignant asbestos lung disease."
Smolka mentions almost in passing in his opening brief that the standard of review on appeal to this Court is "whether there is substantial evidence on the record to support the Board's factual findings and that the decision is free from legal error." Op. Br. at 13. However, this standard is never further embraced by Smolka and he later asserts that the applicable standard of review is whether the IAB "abused its discretion" in holding that Smolka's claim was time-barred and whether the IAB erred as matter of law.
Op. Br. at 13.
Id. at 14.
Appellant's Counsel's Letter to the Court of April 5, 2004.
DaimlerChrysler's Response
DaimlerChrysler argues that Smolka did not notify it of his alleged asbestos related disease until after the expiration of the 6-month notice requirement of 19 Del. C. § 2342. DaimlerChrysler contends (as the IAB in fact held) that Smolka learned of his asbestos related disease on October 29, 2001 and failed to notify DaimlerChrysler until August 20, 2002. DaimlerChrysler's argument is premised on the letter to Smolka from Dr. Eliasson stating Dr. Eliasson's diagnosis of asbestosis. DaimlerChrysler also argues that Smolka's argument that he did not have notice until August 20, 2002 is undercut by his assertion, contained in his petition, that the date of the first manifestation of his disease was February 15, 2002. This date, DaimlerChrysler argues, would still be outside the 6 month window in which Smolka had to notify DaimlerChrysler of his disease because the petition and notice to DaimlerChrysler was first given on August 20, 2002.
DaimlerChrysler argues that the correct standard of review is whether "there was substantial evidence sufficient to support" the findings of the IAB. Ans. Br. at 9.
DISCUSSION
The issue on appeal is whether there was substantial evidence presented to the IAB to support its determination that as a reasonable person, Smolka should have recognized the nature, seriousness and probable compensable nature of his disease and that he did not notify DaimlerChrysler within six months of the date on which he first acquired such knowledge that his disease "was [caused], could have been caused or had resulted from [his] employment." In order to deny Smolka's petition under 19 Del. C. § 2342, the IAB had to have substantial evidence presented to determine that Smolka had knowledge that his disease prior to February 20, 2002, which is six months prior to the filing of his petition and the giving of notice to DaimlerChrysler. This Court holds that there was sufficient evidence for the IAB to have determined that Smolka recognized the nature, seriousness and probable compensable nature of his diseases and that he had acquired the knowledge that his disease "was [caused], could have been caused or had resulted from [his] employment" more than 6 months before his giving of notice to DaimlerChrysler. The IAB did not otherwise commit an error of law. The Court, therefore, affirms the decision of the IAB denying Smolka workers' compensation benefits because he failed to comply with 19 Del. C. § 2342.
Although the lung cancer in the instant case is alleged to have resulted from asbestos exposure, this claim is a workers' compensation claim and not a personal injury tort case. Smolka primarily relies upon two cases to support his contention that the notice period did not begin to run until his lung cancer was diagnosed by a doctor. The two cases relied upon, Brown v. E.I. DuPont de Nemours Co., 820 A.2d 363 (Del. 2003) and Shepperd v. A.C. S. Co., 498 A.2d 1126 (Del.Super. 1985), are cases that interpret 10 Del. C. § 8119, which is the statute of limitations for personal injury tort cases. Neither of these cases, nor any cases based on § 8119, are directly applicable to the instant case because the Workers' Compensation Act has its own statute of limitations and companion case law. Further, the IAB did not treat Smolka's lung cancer and his non-malignant disease as being the same disease with the same triggering dates for the running of the notice requirement. The IAB used the date, October 29, 2001, as the operative date because it found that by that date (after Smolka had talked with Crump, received the diagnosis from Dr. Eliasson and had conferred with his counsel) Smolka had received enough information to have put him on notice that his lung cancer was probably work-related.
In Delaware the statute of limitations and notice requirements to employers for occupational disease for workers' compensation claims are governed by 19 Del. C. §§ 2342 and 2361. The legislature provided for a one year statute of limitations in which to file a petition for worker's compensation benefits under 19 Del. C. § 2361 and six month notice to employers limitation in 19 Del. C. § 2342. The Supreme Court has held that "there is no statutory provision for the tolling of the limitations period" for claims under 19 Del. C. § 2361. The Supreme Court, however, found that "several unreported Superior Court decisions have engrafted onto the statutory language [of § 2361] a provision that the limitations period be tolled until a reasonable plaintiff would discover the injury flowing from the accident." There are three characteristics of the claimant's condition that if recognized by the claimant will cause the statutory period under § 2361 to run: (1) the nature of the injury or disease, (2) the seriousness of the injury or disease and (3) the probable compensable character of the injury or disease. Some of these characteristics will overlap such as nature of disease and compensability.
Anderson v. State, 610 A.2d 723, 723 (Del. 1992).
Id. at 723.
Id.; see Willis, 1991 Del Super. LEXIS 383 *2.
Id.; Geroski v. Playtex Family Products, 1996 Del. LEXIS 38 *3 (Del.Supr.)
While Delaware courts have had occasion to decide cases that have implicated the interpretation of 19 Del. C. § 2461, there is a lack of case law interpreting the notice provision of 19 Del. C. § 2342. Professor Larson states that "[u]nder most acts, there are two distinct limitations periods that must be observed: The period for notice of injury, and the period for claiming compensation." Larson further states that the "purposes [of the notification period are] to enable the employer to provide immediate medical diagnosis and treatment with a view to minimize the seriousness of the injury and second to facilitate the earliest possible investigation of the facts surrounding the injury." This Court finds that the case law relating to the statute of limitations of § 2361 is instructive when interpreting § 2342. The legislative intent appears to have been that §§ 2342 and 2361 should be read together, insofar as the date of acquiring knowledge, because the language of the two sections is nearly identical:
7 Arthur Larson Lex K. Larson, Larson's Workers' Compensation Law § 126.01 (2000).
Id.
19 Del. C. § 2361: All claims for compensation for compensable occupational disease . . . shall be forever barred unless a petition is filed . . . within 1 year after the date on which the employee first acquired such knowledge that the disability was or could have been caused or had resulted from employment;
19 Del. C. § 2342: Unless the employer . . . has actual knowledge that the employee has contracted a compensable occupational disease or unless the employee, or someone in the employee's behalf, or some of the employee's dependents, or someone on their behalf, gives the employer written notice or claim that the employee has contracted one of the compensable occupational diseases, which notice to be effective shall be given within a period of 6 months after the date on which the employee first acquired such knowledge that the disability was, could have been caused or had resulted from the employee's employment. (Emphases added).
This Court notes that the language of the statutes emphasizes that knowledge of the disease being work-related can be either definite ("the disability was or had resulted") or indefinite ("could have been caused"). The sufficiency of evidence needed to support an IAB decision depends on the level of knowledge, and the manner in which the knowledge is acquired. Additionally, the requirements of both statutes must be met in order for a workers' compensation claim to be heard by the IAB.
In Mergenthaler v. Asbestos Corp. of America the Superior Court set forth a brief survey of workers' compensation law in Delaware. The Court noted that prior to 1955 "all requirements relating to occupational disease claims were determined with reference to the time of last exposure to the disease-producing condition." The 1955 amendment to the Act permitted a claim for occupational disease compensation to be filled within one year after acquiring knowledge that the disease could have been job-related, if filed within five years after the last exposure." A 1959 amendment to the Act "permitted notice of the disease to be given to the employer within six months after the worker acquired knowledge that the disease could have been job related." In 1974 the Act was amended to eliminate the remaining references to time of exposure [and] making the date of acquiring knowledge that the disease could have been related to employment the determinant for all purposes."
Mergenthaler v. Asbestos Corp. of America, 534 A.2d 272 (Del.Super. 1987).
Mergenthaler, 534 A.2d at 275.
Mergenthaler, 534 A.2d at 275.
Id.
Id.
This Court holds that the date of Smolka's acquisition of the knowledge that his disease may have been work-related in order to meet the time limit under 19 Del. C. § 2361 is same date as his acquisition of the knowledge that his disease may have been work-related in order to meet the time limit under the notice requirement of 19 Del. C. § 2342.
The IAB had sufficient evidence to determine that Smolka recognized the nature of his disease on or about October 29, 2001. In terms of recognizing the nature of the disease, a claimant should not be expected to display greater diagnostic skill than any other "uninformed layperson confronted with the early symptoms of a progressive condition." The claimant does not need to know the exact diagnosis or medical name for the condition if he or she knows enough about its nature to realize that it is both serious and work-related. The evidence before the IAB showed that between 1996 and when Smolka talked to Crump, sometime before the diagnosis of Dr. Elaisson in October 2001, he did not understand the nature of his disease because he did not know he had been exposed to asbestos. After talking to Crump, Smolka realized that he may have been exposed to asbestos while working for Chrysler. Smolka engaged the same law firm handling Crump's asbestos related complaint and in October 2001 Smolka learned through Dr. Eliasson's diagnosis, which was requested by Smolka's legal counsel, that he had asbestosis. Smolka filed his own asbestos complaint against various non-employer entities in Superior Court on February 15, 2002.
7 Arthur Larson Lex K. Larson, Larson's Workers' Compensation Law, § 126.05[4] (2000).
Id.
The IAB had sufficient evidence to determine that Smolka recognized the seriousness of his disease on or about October 29, 2001. In recognizing the seriousness of the disease it is not sufficient evidence that the claimant is suffering from symptoms that could potential be serious "if the claimant had no reason to believe the condition [was actually] serious. However, if the symptoms are sufficiently extreme, the claimant will be found to have recognized the seriousness of the disease, even where a doctor has told the claimant that the symptoms were trivial. The evidence before the IAB showed that in 1996 Smolka was diagnosed with lung cancer and had part of his lung removed. In October 2001 Smolka was told that he had asbestosis. Smolka also testified that after the surgery he has had trouble with shortness of breath and it is "hard breathing, hard, awful hard."
7 Arthur Larson Lex K. Larson, Larson's Workers' Compensation Law, § 126.05[5] (2000).
Id.
Hr'g Tr. at 93.
The IAB had sufficient evidence to determine that Smolka recognized that his disease was probably compensable on or about October 29, 2001. The claim period will not begin to run until "the claimant has reason to understand not only the nature and gravity of the injury but its relation to employment." In Smith v. Chrysler, the Superior Court found that an injury or disease is "compensable only if there is a causal relation between the employment and the injury or disease" and that the employee recognized that the symptoms were work related and the condition was compensable. The Superior Court in Willis found that the mere fact that an employee is suffering from an injury or illness "does not constitute substantial evidence that [he or she] recognized the problem was work-related and probably compensable." Professor Larson instructs that "[t]he claimant need not necessarily have positive medical information linking his or her condition to the employment if there is sufficient information from any source to put him or her on notice." The Superior Court held that knowledge can be imputed from "educational programs initiated by the employer or from other knowledge of co-workers experiencing similar problems."
7 Arthur Larson Lex K. Larson, Larson's Workers' Compensation Law, § 126.05[6] (2000).
Smith v. Chrysler Corp., 1987 Del. Super. LEXIS 1285 *6 (Del.Super.Ct.)
Willis, 1991 Del Super. LEXIS 383 *7.
7 Arthur Larson Lex K. Larson, Larson's Workers' Compensation Law, § 126.05[6] (2000).
Willis, 1991 Del Super. LEXIS 383 *7.
The evidence before the IAB showed that Smolka knew of the possible compensable nature of his disease at least by the time he filed his complaint in Superior Court on February 15, 2002 (if not by October 29, 2001) alleging injury from exposure to asbestos. Smolka testified that he was told by Crump that he had filed a complaint alleging asbestos related injury and that Smolka should seek advice about his own possible claim. Smolka retained the same firm that was handling Crump's complaint. In contemplation of litigation, counsel sent Smolka's chest x-rays to a doctor for a diagnosis and Smolka was informed that he had asbestosis.
In his February 15, 2002 complaint Smolka alleged that:
"[t]he Defendants and/or their predecessors-in-interest (hereinafter referred to as "Defendants") have all manufactured, distributed, sold, supplied, installed and/or removed asbestos-containing products, or have used asbestos-containing products on their premises, or at plants under their control and management in which they had an ownership interest . . . [and that] Plaintiff William J. Smolka routinely worked with, around, or around those working with asbestos-containing products manufactured, distributed, sold, supplied, installed and/or removed by the Defendants and was so exposed to asbestos containing products while working on the premises of certain Defendants . . . [and] [a]s a direct and proximate result [he has] . . . contracted asbestos-related pleural disease, asbestosis and asbestos-related lung carcinoma". (Emphasis added).
Pls' Compl at ¶¶ 3, 5, 7.
In order for Smolka to make these allegation, through his counsel, he was required by Superior Court Civil Rule 11 to certify that to the best of his knowledge, information and belief, formed after an inquiry reasonable under the circumstances the claims and other legal contentions are warranted and the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
Superior Court Civil Rule 11(b)(2)(3).
Contrary to Smolka's argument, in order for the IAB to charge Smolka with knowledge of his disease it is not necessary for Smolka to have actual knowledge through a medical diagnosis that his disease was work-related. In order to file his petition, Smolka was under at least the same requirements as Rule 11 in terms of his obligation of honesty and good faith. Further, the notice requirement is not a filing with the IAB, or any other judicial body, but rather it is only to provide notice to the employer of an impending workers' compensation claim. There is nothing in the statute that requires the notice and the petition to be filed together. The purpose of the notice requirement as explained by Larson and the fact that it has a shorter time period compared to the statute of limitation indicates that the notice requirement should be given before the filing of the petition.
The statute governing workers' compensation petition does not appear to have a requirement or rule like Superior Court Civil Rule 11; however, given the purpose behind Rule 11, it is reasonable to presume that any judicial filing must at a minimum meet the standard of Rule 11.
In addition, actual knowledge is not the only method under 19 Del. C. § 2342 by which a claimant acquires the requisite knowledge of the nature, seriousness and compensability of his disease. In Smith v. Chrysler a claim for carpal tunnel syndrome was dismissed by the IAB because it found that the claimant had knowledge under § 2341 because he knew his symptoms were exacerbated by his work. The Superior Court in Smith held that there needed to be more evidence to show that the claimant knew his injury was work related such as a diagnosis from a doctor. The Court in Willis, however, declined to read Smith as requiring that a claimant "must be told by his or her doctor the problem is work related. The Willis Court rejected the argument, which is similar to the argument in instant case by Smolka, that the knowledge required by § 2342 must be acquired through a diagnosis by a doctor that a disease is work-related. The Superior Court held that a doctor's diagnosis was just one way to acquire the requisite knowledge.
Willis, 1991 Del. Super. LEXIS *5.
Id. *6.
Id. *6.
Smolka argues that he had two distinct diseases each with potentially different times from which the statute of limitations would begin to run and that the IAB "lumped" together the two diseases. The IAB, however, did not "lump" together the notice requirement for his lung cancer with the notice requirement of the nonmalignant asbestos lung disease." The IAB used the date, October 29, 2001, as the operative date because it found that by that point Smolka had received enough information to have put him on notice that his lung cancer was probably work-related.
Appellant's Counsel's Letter to the Court of April 5, 2004.
A recent case in this Court is supportive of the Court's holding in the instant case. In Persinger v. DaimlerChrysler, the Superior Court reversed the IAB's decision denying the claimant's petition because it found that there was not sufficient evidence in the record to determine what, if any, information on hearing loss was provided to the claimant. The claimant alleged that he suffered permanent hearing impairment caused by his work at DaimlerChrysler. The Superior Court held that "the fact that no doctor informed Claimant that his hearing loss was work-related is certainly important, [but] it is not conclusive."
Persinger v. DaimlerChrysler Corp., 2000 Del. Super. LEXIS 431 *8 (Del.Super.Ct.).
The IAB had denied the claimant's petition in Persinger as time barred under § 2361(a). It held that the claimant should have known his injury was compensable in 1995 when a company administered hearing test revealed he had a hearing loss; however, he was not told that the hearing loss was work related. It was not until a hearing test in 1999 revealed further hearing loss and the claimant was referred to an otolaryngologist that his hearing loss was diagnosed as work related. Neither the claimant nor the employer disputed the fact that the claimant recognized the nature and seriousness of his hearing loss in 1995; the only dispute was whether the claimant should have realized the probable compensable nature of his hearing loss. The IAB held, erroneously, that the claimant should have known his hearing loss was probably compensable in 1995 because he testified that the hearing tests started in 1989 as a result of an OSHA program on hearing safety.
Persinger stands for the proposition that a medical diagnosis that a disease is work-related is not required when there is other evidence sufficient to support the IAB's decision. The Persinger court held that "the reasonable person standard does not require that a claimant must be told by his or her doctor that an injury is work related." The Court further held that instead of a medical diagnosis that "there must exist in the record some evidence to establish that the claimant should have been aware that the injury for which compensation is sought was probably compensable. Unlike the facts in Persinger, in the instant case Smolka had received information from another DaimlerChrysler employee and legal advice from counsel regarding the probable compensability of his disease.
Persinger, 2000 Del. Super. LEXIS 431 *8.
Id.
Occupational diseases with long latency periods have traditionally presented statute of limitations problems for plaintiffs in personal injury tort actions. Layton v. Allen created an exception to the running of the statute of limitations period in circumstances where the claimant has been exposed to a toxic substance with a prolonged latency period, which is commonly referred to as the "time of discovery rule". Sheppard v. A.C. S. Co., also relied upon by Smolka, held that asbestos exposure falls under the "time of discovery rule".
Layton v. Allen, 246 A.2d 794, 798 (Del. 1968).
Sheppard v. A.C. S. Co., 498 A.2d 1126, 1134 (Del.Super. 1985).
The "time of discovery rule", established in Layton, and relied upon by Smolka, is not directly applicable to the instant case because it is an exception to the statute of limitations found in 10 Del. C. § 8119, and carved out for personal injury tort cases and not workers' compensation cases. In Anderson, the Delaware Supreme Court declined to decide whether the "time of discovery" rule applies to workers' compensation cases. The Delaware Supreme Court in Benge v. Davis held that in medical malpractice claims the "time of discovery" rule has been codified by the legislature when it changed 18 Del. C. § 6856 to include a provision for "inherently unknowable" injuries. This Court finds that the same reasoning should apply to § 2342, which contains a statutory provision for occupational diseases with a long latency period. This Court finds that the "time of discovery" rule also has been legislatively codified in 19 Del. C. § 2342 and this Court has looked to that statute to determine the date upon which Smolka should be charged with knowledge of the nature, seriousness and probable compensability of his disease.
Anderson, 610 A.2d at 723.
This Court affirms the decision of the IAB to deny Smolka's petition for workers' compensation benefits because he did not comply with the notice requirement of 19 Del. C. § 2342. This Court has accorded due weight, but not deferred, to the IAB's interpretation of a statute that it regularly administers. This Court has looked at the record in a light favorable to DaimlerChrysler. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This Court finds that substantial evidence was presented to the IAB to support its determination that Smolka, as a reasonable person, should have recognized the nature, seriousness and probable compensable nature of his disease before February 20, 2002 and his notice to DaimlerChrysler of his disease on August 20, 2002 was outside the six month notice requirement of 19 Del. C. § 2342. The IAB did not otherwise commit an error of law.
Industrial Rentals, Inc., 2000 Del. Super. LEXIS 105 *9.
Cf. Willis v. American Original, 1991 Del. Super. LEXIS 383 (Del.Super.Ct.)
CONCLUSION
For the reasons stated above, the IAB's decision to deny workers' compensation benefits to Appellant is AFFIRMED.