Opinion
W.C. No. 4-580-221.
December 27, 2004.
FINAL ORDER
Respondents Union Carbide Corporation and its insurer, American Motorists Insurance Company (collectively Union Carbide respondents), seek review of an order of Administrative Law Judge Gartland (ALJ) which denied their request for offset of liability to the Subsequent Injury Fund (SIF). The Union Carbide respondents contend the ALJ erred in concluding the SIF was closed at the time the occupational disease of silicosis first "occurred," as that term is used in § 8-46-104, C.R.S. 2004. We affirm.
The Union Carbide respondents do not dispute the ALJ's factual findings, which are summarized as follows. Allen Spencer (decedent) worked as an underground uranium miner from 1959 until 1984. For the last eighteen years of this employment, the decedent worked in mines owned by respondent Union Carbide.
In April 1999, the decedent died of silicosis caused by his work as uranium miner. The decedent's spouse, the claimant, filed a claim for death benefits. The Union Carbide respondents, relying on § 8-41-304(2) as it existed prior to the 1993 statute mandating closure of the SIF to occupational diseases on or after April 1, 1994, sought to offset all but $10,000 in liability to the SIF.
Although the decedent was diagnosed with silicosis before April 1, 1994, the ALJ found the silicosis did not become disabling until after that date. Consequently, the ALJ concluded the silicosis did not "occur" within the meaning of § 8-46-104 until after the closure of the SIF. Hence, the ALJ held that the Union Carbide respondents are solely liable for death benefits owed to the claimant.
On review, the Union Carbide respondents contend the decedent's occupational silicosis "occurred" when he was diagnosed with the disease before April 1, 1994. They argue this interpretation of § 8-46-104 is compelled by the holding in Subsequent Injury Fund v. King, 961 P.2d 575 (Colo.App. 1998). We are not persuaded.
Before the 1993 statutory amendments, § 8-41-304(2) provided that in cases of death caused by silicosis, the last employer in whose employ the claimant sustained an injurious exposure to the disease would be liable for up to $10,000 in compensation and death benefits, with the remainder of the benefits to be paid from the SIF. However, in 1993 § 8-41-304(2) was amended to delete any reference to the SIF, thereby rendering the last employer liable for all compensation attributable to the listed diseases. This amendment was made effective April 1, 1994. 1993 Colo. Sess. Laws, ch. 351, pp. 2140, 2145. In the same legislation, § 8-46-104 was amended to provide that no cases shall be accepted into the SIF "for occupational diseases occurring on or after April 1, 1994." (Emphasis added).
The SIF correctly points out that for many years before the 1993 amendments to § 8-41-304(2) and § 8-46-104, our courts held that a claimant does not sustain an occupational disease for purposes of workers' compensation until the disease becomes disabling. The rationale for this conclusion was explained in Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991), where the issue was whether the decedent's average weekly wage should be based on the wage he earned in 1977, when he was last injuriously exposed to asbestos, or the higher wage the decedent earned in 1983, when he first became disabled by asbestos-induced cancer. The court explained that the Act compensates for disability or death resulting from an occupational disease, not the mere existence of a disease process. Section 8-40-201(2), C.R.S. 2004; Id. at 96. Moreover, the Henderson court cited a list of prior cases holding that rights and liabilities for an occupational disease are governed by the law in effect at the onset of disability caused by the disease. The principles discussed in Henderson remain good law. See City of Colorado Springs v. Industrial Claim Appeals Office, 89 P.3d 504 (Colo.App. 2004); Leming v. Industrial Claim Appeals Office, 62 P.3d 105 (Colo.App. 2002).
It is against this background that we consider the meaning of the term "occurring," as used in § 8-46-104. First, the purpose of statutory construction is to effect the legislative intent. To that end, the words in a statute should be given their plain and ordinary meanings, and the statute should be construed so as to give consistent, harmonious, and sensible effect to all its parts. Pena v. Industrial Claim Appeals Office, ____________________ P.3d ____________________ (Colo.App. No. 03CA0387, November 18, 2004). However, if the statutory language is fairly susceptible to more than one meaning, we may resort to other aids of statutory construction including consideration of the consequences of various constructions and the legislative history. Midboe v. Industrial Claim Appeals Office, 88 P.3d 643 (Colo.App. 2003).
The question of when an occupational disease "occurs" for purposes of workers' compensation is subject to various interpretations, and therefore, the term is ambiguous. As noted in Henderson itself, occupational diseases caused by exposure to dust typically involve long latency periods, such diseases sometimes produce symptoms at times remote from the last exposure, and they often lead to serious disability or death. Thus, a disease might be said to "occur" when the worker is "last injuriously exposed" to the disease, when the disease is first diagnosed, when symptoms first appear, or when the disease becomes disabling so that it entitles the claimant to compensation.
Because the statute is ambiguous, we consider the legislative history. As noted in Subsequent Injury Fund v. King, supra, the SIF was closed because it became insolvent. If we construe the statute to mean that an occupational disease "occurs" when it is diagnosed rather than when it becomes disabling, that interpretation would tend to expand the number of cases subject to SIF liability, and hence the SIF's potential liabilities. Such a construction would be contrary to the legislative intent behind closing the SIF and argues against the interpretation advanced by the Union Carbide respondents.
Moreover, when the General Assembly acts in a particular area, it is presumed to be aware of judicial decisions relevant to the matter under consideration. United States Fidelity Guaranty, Inc. v. Kourlis, 868 P.2d 1158 (Colo.App. 1994). As noted, our courts have long held that an occupational disease "occurs" or "accrues" for purposes of workers' compensation when the disease becomes disabling, and rights and liabilities for such diseases are governed by the law in effect when the disease becomes disabling. Conversely, with one narrow exception, occupational diseases are not held to have occurred on the date of last injurious exposure to the disease. SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App. 1994). In light of this history of cases discussing when an occupational disease "occurs" or accrues for purposes of workers' compensation, we do not believe the General Assembly intended that for purposes of closing the SIF, an occupational disease "occurs" on the "date of diagnosis" rather than the date of the onset of disability. Holding that an occupational disease "occurs" on the date of diagnosis would be inconsistent with established interpretations of the Act and would not promote a harmonious reading of the statute. Indeed, the Union Carbide respondents advance no plausible reason why the legislature would choose to depart from well-established principles when contemplating the occurrence of an occupational disease for purposes of closing the SIF. Had the General Assembly intended such a departure from established law, we believe it would have expressly stated such a rule.
We disagree with the Union Carbide respondents that Subsequent Injury Fund v. King, supra, mandates a different result. First, the precise issue in King was different than the issue here. In King, it was effectively conceded by the SIF that the decedent's occupational disease "occurred" before April 1, 1994. However, the SIF contended that under the "rule of independence," the dependents' separate claim for death benefits did not "occur" until the date of the decedent's death, which occurred after April 1, 1994. The court rejected the SIF's argument, holding that it would be "anomalous to interpret §§ 8-46-104 and 8-41-304(2) as imposing liability on the SIF for disability and medical benefits over $10,000 for those diseases that occurred before April 1, 1994, but not for the benefits resulting when the disease leads to a death after that date." 961 P.2d at 578.
It is true the King court stated that "the Panel found that the SIF was liable for all death benefits in excess of $10,000 because diagnosis of the lung cancer had occurred prior to April 1, 1994." Id. at 577 (Emphasis added). However, the King court was not asked to determine, as we are here, whether an occupational disease first occurs on the date of diagnosis or the date of onset of disability. Consequently, the King court's remarks concern the date of diagnosis are, at most, dictum. In any event, a review of our orders underlying the King decision reflects that in both the King and the Tsosie cases, the decedents experienced an onset of disability before April 1, 1994. See Tsosie v. Cecil Bunker, W.C. No. 3-115-280 (July 8, 1997); King v. Walt Burnett, W.C. No. 4-260-746 (June 3, 1997).
It follows that we perceive no error in the ALJ's reliance on our decision in Lanham v. Martin Marietta Corp., W.C. No. 3-115-867 (November 8, 1996), aff'd., Martin Marietta Corp. v. Industrial Claim Appeals Office, (Colo.App. No. 96 CA2133, August 7, 1997) (not selected for publication). We do note that a close reading of the Lanham decision indicates that all parties in the case agreed that the date of the "onset of disability" established the date the occupational disease "occurred," and the real issue concerned the sufficiency of the evidence to support the ALJ's finding concerning the date of onset. In any event, Lanham is consistent with the result reached here.
IT IS THEREFORE ORDERED that the ALJ's order dated June 15, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Dona Halsey
Dorothy W. Spencer, Sheep Springs, NM, Union Carbide Corporation, Danbury, CT, Deb J. Heisler, American Motorists Insurance Co., Denver, CO, Subsequent Injury Fund, Division of Workers' Compensation — Interagency Mail, Robert C. Dawes, Esq., Durango, CO, (For Claimant).
D. Clay Thornton, Esq., Denver, CO, (For Respondents).
Vincent E. Morscher, Esq., Denver, CO, (For SIF).