dissenting.
The issue is whether the claim of the beneficiary of the deceased worker is barred by passage of five years after the last exposure to the employment causing the fatal occupational disease. The controlling statute of limitations is ORS 656.807:
"(1) Except as otherwise limited for silicosis, all occupational disease claims shall be void unless a claim is filed with the State Accident Insurance Fund Corporation or direct responsibility employer within five years after the last exposure in employment subject to the Workers’ Compensation Law and within 180 days from the date the claimant becomes disabled or is informed by a physician that he is suffering from an occupational disease whichever is later.
"(2) If the occupational disease results in death, a claim may be filed within 180 days after the date of the death; and the provisions of subsection (1) of this section do not limit the filing of a claim in fatal cases to less than 180 days from the date of death.”
*806The majority declines to give to ORS 656.807(1) the basic effect of any statute of limitations: to provide finality or repose after a period of access to adjudication. By allowing filing of an occupational disease claim within 180 days of disablement or discovery and within a five-year period following industrial exposure, the legislature has made adjudication available in most cases; by barring claims after five years, it has provided for repose. In Johnson v. Star Machinery Co., 270 Or 694, 700-701, 530 P2d 53 (1974), we stated the twofold "rationale behind the enactment of a statute of ultimate repose” such as the five-year provision of this statute:
"* * * In general, there are usually two reasons which are advanced as justification for the imposition of such statutes. The first concerns the lack of reliability and availability of evidence after a lapse of long periods of time. This rationale primarily protects defendants who, without prior notice of pending claims, would necessarily find it extremely difficult, if not impossible, to mount a defense because of the nonpreservation of evidence and the disappearance or death of witnesses after a long lapse of time. However, the reliability of plaintiff’s evidence relating to long-past occurrences, transactions or conditions is also a relevant feature.
'The second rationale concerns the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability; e.g. Pearson v. Northeast Airlines, Inc., 309 F2d 553, 559 (2d Cir 1962) (dictum), cert. denied 372 US 912, 83 S Ct 726, 9 L Ed 2d 720 (1963).
"These rationales are obviously applicable without regard to whether or not undetected damage had occurred at the time of the original negligence. The existence of such damage at the time of the original negligence is irrelevant to the application of the statute and its underlying policies, and we so held in Josephs [v. Burns & Bear, 260 Or 493, 491 P2d 203 (1971)]. * * * ”
Although Johnson speaks of "negligence,” the rationale is equally applicable to employment exposure.*8071 The majority assumes the legislature ignored this fundamental rationale of limitations.
In other statutory settings, this court has properly extended limitations where the pertinent statutes permit liberal judicial construction. For example, ORS 12.010 provides generally that, unless a statute provides a different limitation, actions of law shall be commenced within various time periods "after the cause of action shall have accrued.” For limitation purposes, we have held that a cause of action does not accrue until discovery of injury, Berry v. Branner, 245 Or 307, 421 P2d 996 (1966), and of the causation of the injury, U S. National Bank v. Davies, 274 Or 663, 548 P2d 966 (1976), or until those matters should reasonably have been learned, Schiele v. Hobart Corporation, 284 Or 483, 587 P2d 1010 (1978). Similarly, we construed the limitation in the Tort Claims Act which runs from the date of "such accident or occurrence,” ORS 30.275(3), to run from discovery of the injury because "there is no 'accident or occurrence’ unless the result is injury capable of compensation in an action for damages.” Dowers Farms v. Lake County, 288 Or 669 at 678, 607 P2d 1361 (1980).
The language of ORS 656.807(1) is finite; it does not allow for expansive judicial construction. The five-year ultimate limitation commences to run upon the occurrence of a specific évent, "the last exposure in employment.” The statute makes an express allowance for delayed discovery in the clause regarding filing within 180 days of disablement or discovery; it makes no such provision for delayed discovery in the five-year ultimate limitation clause. Therefore, the *808worker’s claim, had he survived, would have been barred under subsection (1) by the passage of five years between last exposure and filing even though he discovered the illness thereafter. Neither he nor his family would have had the benefits of compensation had the worker been disabled but lived.
In contrast, where the statute is definite, we do not enlarge it. For example, we literally construed the more precise language of an earlier workers’ injury statute in the case of Rosell v. State Ind. Acc. Com., 164 Or 173, 95 P2d 726 (1940). That statute provided:
"No application shall be valid or claim thereunder enforceable * * * in fatal cases unless such claim is filed within 1 year after the date upon which the fatal injury occurred * *
The injury occurred in 1930, the death in 1936 and the widow’s claim was filed within a year of death. We held her claim to be barred because the statute so provided:
"The Oregon workmen’s compensation law makes provision for the injured workman or, in case of his death, for his beneficiaries, unknown to the common law. The legislature had a right to append such conditions as it chose to the privilege of receiving compensation: Lough v. State Industrial Accident Commission, supra [104 Or 313, 207 P 354]; Demitro v. State Industrial Accident Commission, 110 Or. 110, 223 P. 238; Pine v. State Industrial Accident Commission, 148 Okla. 200, 298 P. 276, 78 A.L.R. 1287 and annotations. One of the conditions the law imposes on the right to receive compensation is that applications therefor must be filed within certain designated time. Neither the commission nor the courts have authority to waive this requirement of the statute. * * *”
The next question is whether subsection (2) eliminates the five-year bar in cases of beneficiaries’ claims. The history of the statute demonstrates that it does not. Prior to 1959, ORS 656.807 existed in this form:
"Except as otherwise limited for silicosis, all occupational disease claims shall be void unless filed *809within three years after the last exposure and within three months from the date the claimant becomes disabled or is informed by a physician that he is suffering from an occupational disease.”
Under the plain words of former ORS 656.807, "all claims,” whether by the worker or a beneficiary, were void if not filed within the statutory notice period and ultimate limitation. The statute provided no exception to its absolute application.
In 1959 the legislature amended ORS 656.807 to extend the limitations to their present duration and to add what now appears as subsections (2) and (3). Oregon Laws 1959, ch 351, § 2. We find no recorded legislative history which reflects the purpose of subsection (2). In the absence of some legislative evidence to the contrary, I assume that the legislature intended that the statute in its amended form continue to accomplish the objective of statutes of limitation, finality and repose. Petitioner’s contention that a literal reading of subsection (2) would allow a beneficiary 180 days from death in which to file a claim regardless of how many years have passed since the last exposure to the injurious condition, would obviate the finality function performed by the five-year ultimate limitation. There is no reason for the majority to conclude that the legislature intended to abandon the ultimate limitation so that even after the passage of five years, or, for that matter, over 30 years later an employer’s financial exposure would be revived.
The more reasonable reading of subsection (2) is that the legislature intended to liberalize the time after death in which a beneficiary could file a claim rather than to revive past liability. Under subsection (1) the worker may, within five years of his last employment exposure, file a claim within 180 days of disablement or discovery. Before the 1959 amendment, in case of death, a beneficiary was subject to the same time constraints to which the worker would have been subject had he not died. For example, if the five years or 180 days passed on the day of the funeral without a claim having been filed, the beneficiary was *810barred from benefits. The effect of the 1959 amendment was to alleviate the harshness of that restriction by extending a grace period of 180 days to the beneficiary which would not be foreshortened by the expiration of the time "provisions” of subsection (1), (i.e., either the five year or the worker’s 180-day period) during the 180 days after death. Reviewing the words of subsection (2) in that light, that purpose is evident:
"(2) If the occupational disease results in death, a claim may be filed within 180 days after the date of the death; and the provisions of subsection (1) of this section do not limit the filing of a claim in fatal cases to less than 180 days from the date of death.”
The majority adopts a different construction of the limitation because of the rale under other statutes that the beneficiary’s death claim is independent rather than derivative from the worker’s claim. See Mikolich v. State Ind. Acc. Com., 212 Or 36, 316 P2d 812, 318 P2d 274 (1957), which applies a different statute. Neither the case nor the theory is dispositive, however, because the limitation of ORS 656.807 applies to "all claims,” and the five-year limitation starts to ran from the same event, "last exposure in employment,” regardless of whether the claim is independent or derivative.
The majority and the claimant cite 3 Larson, Workmen’s Compensation Law § 78.62 and many cases for the proposition that after death, the beneficiary has a new and independent claim which is not prejudiced by the failure of the worker to have filed a claim within the limitation periods. All of the cases upon which Larson and the majority rely are either based on statutes which, unlike ORS 656.807, provide for separate periods of limitation for the decedent and the beneficiary, or are decided on other grounds.2 The *811sole exception is Hovey v. General Construction Co., 242 Mich 84, 218 NW 768 (1928) which allowed a late beneficiary’s claim filed after the statutory period on the ground that the legislature, despite its words to the contrary, must not have intended otherwise. Hovey is therefore in direct opposition to the holding of this court 12 years later in Rosell v. State Ind. Acc. Com., supra. See also Johnson v. Compensation Department, 246 Or 449, 452, 425 P2d 496 (1967). Hoveyis inconsistent with both the words of ORS 656.807 and with Oregon case law and is therefore not persuasive.
The Court of Appeals reasoned that subsection (2) did not operate to eliminate the five-year ultimate limitation for a beneficiary, but only protected the beneficiary’s entitlement to 180 days for claim filing from premature expiration due to the passage of the time period under subsection (1). Because in this case more than five years had passed since the last exposure in employment, it held that this claim was limited by ORS 656.807. That conclusion was correct and I would affirm.
Denecke, C. J., and Peterson, J., join in this dissenting opinion.See also James and Hazard, Civil Procedure 165-166, § 5.7 (2d ed 1977), which states a third rationale:
"(1) Protection of a defendant from stale claims— 'from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost.’ [Citation omitted.] (2) Protection of defendant from insecurity, which may be economic or psychological, or both. There comes a time when he ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations.’ [Citation omitted.] (3) Protection of courts from the burden of stale claims which as a class probably contain more than their fair share of groundless and tenuous claims.”
These cases involve statutes with separate claim periods for the worker and the beneficiary. Some also have ultimate limitations, but they are decided on the former ground: Judd v. Rinelli, 75 Idaho 121, 268 P2d 671 (1954); American Radiator & Standard San. Corp. v. Gerth, 375 SW2d 817 (Ky 1964); Pardeick v. Iron City Engineering Co., 220 Mich 653, 190 NW 719 (1922); Ingalls Shipbuilding Corp. v. Dependents of Harris, 187 *811So 2d 886 (Miss 1966); Fitzgerald v. Fisher Body Shop, 234 Mo 269, 130 SW2d 975 (1939); O’Esau v. E. W. Bliss, 186 App Div 556, 174 NY Supp 739, aff’d without opinion 227 NY 597, 129 NE 921 (1919); Wray v. Carolina Cotton and Woolen Mills, 205 NC 782, 172 SE 487 (1934); Industrial Commission of Ohio v. Kamrath, 118 Ohio St. 1, 160 NE 470 (1928); Moore v. Dodge Steel Co., 206 Pa Super 242, 213 A2d 130 (1965); Segal v. Segal, 201 Pa Super 367, 191 A2d 858 (1963); Holahan v. Bergen Coal Co., 164 Pa Supp 177, 63 A2d 504 (1949); Lambing v. Consolidated Coal Co., 161 Pa Super 346, 54 A2d 291 (1947); American Motorists Ins. Co. v. Villagomez, 398 SW2d 742 (Tex 1966); Beels v. Department of Labor and Industries, 178 Wash 301, 34 P2d 917 (1934).
These cases were decided on grounds unrelated to limitations, such as res judicata, grounds for vacating claims: Magma Copper Co. v. Naglich, 60 Ariz 43, 131 P2d 357 (1942); Wolanin v. Chrysler Corporation, 304 Mich 164, 7 NW2d 257 (1943); Roos v. Mankato, 199 Minn 284, 271 NW 582 (1937); Haco Drilling Company v. Hammer, 426 P2d 689 (Okla 1967); Laird v. State of Vermont Highway Dept., 112 Vt 67, 20 A2d 555 (1941).