dissenting.
The majority opinion demonstrates the type of improper analysis which can flow from a failure to understand the purpose and intent of statutory language.
Specifically involved is the second paragraph of I.C. § 72-439:
72-439. LIMITATIONS. — An employer shall not be liable for any compensation for an occupational disease unless such disease is actually incurred in his employment and, unless disablement or death results within four (4) years in case of silicosis, or one (1) year in case of any other occupational disease, after the last injurious exposure to such disease in such employment, or, in case of death, unless death follows continuous disability from such disease, commencing within the period above limited for which compensation has been paid or awarded or claim made as provided in this chapter, and results within four (4) years after the last injurious exposure.
An employer shall not be liable for any compensation for a non-acute occupational disease unless the employee was exposed to the hazard of such disease for a period of sixty (60) days for the same employer.
The genesis of the above language and similar statutes in other states was to address the situation where, for example, a coal miner developed black lung disease or a hard-rock miner developed silicosis while working for a series of two or more employers.. Since in such occupational diseases medical science was not able to determine which employment caused the disease, the policy was that as to those slowly developing diseases (non-acute), either (1) the last employer for whom the workman had worked at least 60 days would be responsible; or (2) responsibility would be apportioned among all employers for whom the man had worked at least 60 days. Larson Workmen’s Compensation Law, Volume 4, Section 95, contains the following bold face which explains the origin and purpose of statutes of this nature:
§ 95.00 When a disability develops gradually, or when it comes as the result of a succession of accidents, the insurance carrier covering the risk at the time of the most recent injury or exposure bearing a causal relation to the disability is usually liable for the entire compensation. In some jurisdictions apportionment has been worked out by judicial decision, or provided for by express statute, when events within the coverage periods of successive insurers contribute causally to the final disability.
*123Typical statutes are that of Oregon1 and West Virginia. In McClanahan vs. Workmen’s Compensation Commission, 158 W.Va. 161, 207 S.E.2d 184 (1974), the court commented:
This Court notices that silicosis is an occupational disease which develops from protracted exposure to dust. However, the Legislature has determined that charges for silicosis disability shall be apportioned among employers for whom the claimant-worked for at least sixty days within three years of the last exposure, W.Va. Code, 23-4-1 (1971), and that the date of injury shall be considered the date of last exposure. (207 S.E.2d at 186).
In the cases of both Bint and Dalton, the evidence is undisputed that their claimed disabilities resulted from inhaling cedar dust and the only employment where they were exposed is Creative Forest Products.
Thus, in terms of its purpose, the paragraph and its 60-day exposure requirement is inapplicable.
However, even if the Commission were required to give meaning to the statute, it should be interpreted in a manner which would not result in its being unconstitutional by setting up arbitrary and unreasonable classifications.
From the record it is clear that neither the Commission nor the doctors testifying clearly understood the meaning of “acute” or “non-acute” as used in statute.
The surety argues that under this Court’s ruling in Jones v. Morrison-Knudson Co., 98 Idaho 458, 567 P.2d 3 (1977), we implicitly recognized that “non-acute” refers to the method of onset (cause?) of a disease, and the surety now urges that position. Yet here the doctors testifying herein defined non-acute, not in terms of causation but in terms of length of time it takes the symptomatology of the disease to develop.2
The absurdity of the application of the statute to cases of this nature can be illustrated by one example: Suppose a worker was employed at the Idaho National Engineering Lab for only 15 days and, during that employment, inhaled a particle of radioactive dust on one occasion which caused lung disease three years later. Radiation exposure being an occupational disease, *124was this disease acute or non-acute? Under the Commission’s ruling (and the decision of this Court), it would be non-compensable.
In Mr. Bint’s case it is agreed he had worked 59 days. On the 59th day he had an appointment (set up by the employer) with Dr. Venning for the subject problem. Dr. Venning instructed Bint to not go back to work in the cedar dust environment.
Thus, the rule sought by the surety and adopted by the Commission means that if an employee contracts a disease at his employment with serious effects within, say 45 days, to get compensation the employee must stay for instance on the job and suffer 15 more days of exposure before qualifying for coverage. Clearly, neither the acute/ non-acute dichotomy nor the 60-day requirement itself have any relationship to whether or not a person has contracted an occupational disease from a specific employment. To deny a claimant workman’s compensation benefits simply because his onset of symptoms was non-acute, and because he did not work for more than 60 days, has no relationship to the stated policy under I.C. § 72-201 of providing sure and certain relief for workmen contracting occupational diseases, and therefore clearly represents an arbitrary and unreasonable classification in violation of the equal protection clauses under the Federal and Idaho Constitutions.
I would reverse with instructions providing a constitutional gloss on the statute, that is that it applies to circumstances where there are successive employments causing the occupational disease but that it is inapplicable where the evidence establishes only one causative employment.
BISTLINE, J., concurs. BISTLINE, Justice,dissenting separately-
A fact of life is that the fines of red cedar dust do not exit an employee’s respiratory system the instant the employee leaves the place of employment. Other than for those fines expelled by coughing or sneezing, these disease producing particles are thereafter with the employee — doing him bodily damage whether he is working or is not working. Here, as Justice Bakes in his special concurrence concedes, two working men were rendered disabled in less than 60 working days. This will suggest to any reasonable mind that the ravages of cedar dust against the unfortunately susceptible move swiftly and relentlessly. Although the employee does not work a 24-hour daily shift, the dust in his system does.
All of which leads me to say that the case relied upon by the Commission, McLean v. Hecla Mining Co., 62 Idaho 75, 108 P.2d 299 (1940), was either poorly decided or erroneously decided, or both. The short opinion in that case shows that it was released on December 10, 1940, based only on the authority of Habera v. Polaris Mining Co., 62 Idaho 54, 108 P.2d 297, also released that very same December 10, 1940, which is remarkable. Especially when, as the practicing bar has long known, this Court seemingly goes into a veritable frenzy of releasing opinions near the end of the year when statistics are important because the legislature is about to convene.
Equally remarkable, in both cases the claimant-respondent was not represented in proceedings before this Court, either by counsel or in person. The grounding of the McLean decision on Habera was not sound. Habera, a miner as was McLean, was only employed by Polaris a total of 20 days. We are not talking about working days, but the total period of employment! Obviously Habera had not been at Polaris exposed to the hazards of the disease for 60 days. Moreover, as the opinion discloses, . he had gone to work on a conditional basis, the condition being that he was required to take and pass a physical examination. He was given the examination at the end of two weeks, with x-rays revealing “a moderate degree of silicosis, scaling of both apices with evidence of tuberculosis.” 62 Idaho at 55, 108 P.2d at 298. This conditional employment was terminated five days later. Where Habera had only been in the employ of Polaris for 20 days, the Court *125could readily say as it did that he had not been exposed to the hazards of the disease by employment with Polaris for 60 days.
McLean, however, is a different matter. After reciting the provisions of the law, “ ‘An employer shall not be liable for any compensation for a non-acute occupational disease unless such claimant was exposed to the hazard of such disease for a period of sixty days for the same employer,’ ” McLean, supra, at 77, 108 P.2d at 300, the Court, inadvertently one would hope, by changing the language of the law it had just recited, was able to say, and hold:
While more than sixty days elapsed between the date on which respondent was hired by appellant and the date on which he was discharged from his employment in appellant’s mine, he was exposed to the hazards of the employment forty-five days, at most. The law, above quoted, prohibits the recovery of compensation in this case. (Habera v. Polaris Mining Co. and State Insurance Fund, 62 Ida. 54, 108 Pac. (2d) 297).
Id., at 77, 108 P.2d at 300.
McLean, as with Habera, had also been conditionally hired, having been told by Hecla before he commenced work that “he would be required to take a physical examination later and whether or not he would continue in the employment ... would depend on the results of the examination.” Id. He was given a physical examination by physicians about the eighth or ninth of December, and was discharged because it showed him to be suffering from silicosis.
It takes but little deduction to conclude that the Court could see no reason for McLean to fare any better than Habera simply because Hecla allowed McLean to continue work through the Christmas holidays before discharging him, and in that manner went beyond the 60 days. This result was readily accomplished by declaring that he had only been exposed to the hazards of employment for 45 days, whereas the law spoke in terms of “exposure to the hazard of such disease.” Both Habera and McLean were largely bottomed also on the circumstance of conditional employment.
I know not what course others may take, but if there was ever a case for overruling it is McLean, where the employer was able to prevail against an unrepresented claimant by the Court’s misuse of another decision released the same day, and by the Court's confusing hazard of disease with hazard of employment.
Axiomatically, Jones v. Morrison-Knudsen Co., Inc., 98 Idaho 458, 567 P.2d 3 (1977), though not controlling, is likewise highly suspect, where our opinion, at page 462 of 98 Idaho, 567 P.2d 7, first speaks of the statute’s 60 days of exposure to hazard of disease, and further on in the same paragraph speaks of the statute’s requirement of “sixty days of exposure to the hazardous conditions of employment.
A reading of the Commission’s order denying reconsideration makes rather self-evident the Commission’s feeling that its ruling was based primarily on McLean, and that its decision adverse to Bint was based not on its own view, but in obedience to the command of a poor decision handed down 44 years ago:
In this case, even though the claimant might have carried the cedar dust in his lungs subsequent to his last exposure or in time periods between exposure, those times cannot be considered in calculating the necessary 60 days of exposure to the hazards of the disease. See McLean v. Hecla Mining Co., supra; Jones v. Morrison-Knudsen Co., Inc., supra.
The claimant’s Motion for Reconsideration is hereby denied.
Order Denying Claimant’s Motion for Reconsideration, R., p. 29.
Quare: Will this Court rise to the occasion and overrule the McLean case which stands as a barrier precluding the Commission from administering the Worker’s Compensation Law fairly as well as liberally?
ADDENDUM
After the foregoing was written, the Clerk’s Office was able to retrieve and hand me the Habera and McLean files. If *126it be that any members of the Court require factual justification for overruling McLean, these interesting files provide it.
Habera. In proceedings before the Industrial Accident Board (as the Industrial Commission was then called), Polaris responded to Habera’s pro se claim with this answer:
Come now the defendants and as a joint and several Answer to the Application for Hearing herein and Claim for Compensation, admit, deny and allege as follows:
I.
The defendants deny each and every allegation therein contained except as hereinafter admitted in this Answer. The defendants admit that the claimant worked for the various period of time and for the various employers named in said Application and said Claim; the defendants further allege that the claimant did not given said employer written, or other notice of the manifestation of the alleged silicosis within 60 days after the alleged first manifestation, if any, thereof, and in that respect the defendants allege that claimant never gave said employer written or other notice of the manifestation of the alleged silicosis until April 29, 1940.
WHEREFORE, the defendants herein having fully answered claimant’s Application for Hearing and Claim for Compensation pray that the claims be denied and the Application be dismissed.
It is at once observed that Polaris did not plead the 60-day exposure requirement of I.C.A. § 43-2109 (now I.C. § 72-439). Nor did Polaris plead the similar requirement of I.C.A. § 43-2107, which fixed liability in silicosis cases solely upon the last employer where “the employee was last injuriously exposed to the hazards of the disease during a period of sixty days or more after the effective date of this chapter.” 1
The only affirmative defense pleaded was the requirement of 60-day notice of I.C.A. § 43-2126, which bars a claim for occupational disease compensation “unless written notice of the manifestation of an occupational disease shall be given by the workman to the employer within sixty days after the first manifestation thereof ...” which is the exact language found in the Polaris answer. The Industrial Accident Board made findings and conclusions in favor of Habera, and awarded him total compensation of $240, computed at $12 per week for twenty weeks.
Only on the appeal from the Board’s award did Polaris for the first time raise the 60-day exposure requirement by a specification of error that the “findings of fact do not show ... that respondent had been in injuriously exposed to the hazards of an occupational disease, silicosis or otherwise, during a period of sixty days while in the employment of said employer.”
As Point and Authority No. VII, Polaris stated:
Since respondent had been employed by his employer herein for a period of only 20 days (from October 15, 1939, to November 5, 1939), prior to respondents’ discharge, under no circumstances could appellants be liable for any compensation for non-acute silicosis, because the employment had not been for a period of 60 days prior to such discharge.
I.C.A. secs. 43-2109; 43-2107; 43-2121; 43-2122;
(Emphasis original.)
It also cited In re Jeffries, 105 Ind.App. 349, 14 N.E.2d 751, which was also cited in the Habera opinion.
Further elaboration is unnecessary. The Court simply broke the rules in deciding the case on an issue which had not been submitted to the Industrial Accident Board. In doing so it treated the unrepresented workman unjustly. What does appear from reading the Polaris brief is that counsel correctly read the statute as requiring a 60-day period of employment, not 60 work*127ing days of exposure in the mines. Why did the Court break the rules?
McLean. McLean was submitted to the Industrial Accident Board at Wallace one day after Habera. The McLean decision and award were made on the same date as Habera. There was more at stake in McLean, however, than the $450 total award. Counsel for Hecla, now deceased but well-known to us few remaining older practitioners, Chas. A. Horning, in a three and one-half page answer filed with the Board, affirmatively alleged I.C.A. § 43-2107, and further alleged the unconstitutionality of 1.C.A. § 43-2122 by reason of ambiguity, uncertainty, and indefiniteness — which would be the main premise of his appeal to this Court — to challenge the 1939 Act which provided benefits for people contracting occupational diseases. The Court in McLean, supra, 62 Idaho at 78, 108 P.2d at 300, accurately states Hecla’s constitutional specification of error, and on the same page ducks the issue by reason only of having first allowed itself to be confused concerning 60 days of exposure to the hazards of the disease and 45 days of exposure to the hazards of employment, based, of course, on Habera.
To which should be added that Mr. Horning, in hot pursuit of an answer to his important constitutional issue2 did not in his appeal brief specify as error the Board’s failure to apply I.C.A. § 43-2109 in the manner which the Court would gratuitously do it for Hecla. The specifications of error are appended.
In ARGUMENT, Mr. Horning opened his brief thusly:
My principal contention upon this appeal is going to be that Section 43-2122, I.C.A., under which the respondent’s claim for compensation was filed and upon which the award in respondent’s favor was based, is unconstitutional and void. I shall discuss this question first and shall then discuss the other points which I have raised, upon the assumption, for the sake of argument only, that Section 43-2122 is not void.
Nothing in argument even touched upon the applicability of I.C.A. § 43-2109.
Moreover, returning to proceedings before the Board, the very short reporter’s transcript reveals that the 60-day requirement issue pleaded in Hecla’s answer was not pursued in the slightest. In clarifying what issues were before the Board, Accident Board Member Suppiger stated:
We understand this application is under Section 43-3133 I.C.A. or under what • is known as the Occupational Disease Compensation Law. We understand further that there are only three main issues involved, which we understand to be the question as to whether the man has a non-disabling silicosis, was he discharged from his employment because he had such non-disabling silicosis and did he by reason of that discharge suffer a wage loss. We would like to have you confine the matter as closely as you can to that.
Later on, the third issue — whether McLean suffered a wage loss — was stipulated to in the affirmative, leaving Mr. Suppiger to state: “All right. Now then, as we understand it, it leaves but two issues. Did he have a non-disabling silicosis and was he discharged on account thereof and the amount of his wage loss.”
Thus, the first time that the statement that Idaho's Occupational Disease Act requires 60 working days of exposure to hazards of disease surfaces is found in the body of the McLean opinion; it was never argued before the Accident Board in either Habera's or McLean’s hearings, nor before this Court on the two appeals. And then, the McLean Court can only cite to Habera for authority, which citation is misfounded, since it is readily apparent that Habera held nothing of the sort. McLean has no validity.
APPENDIX
SPECIFICATIONS OF ERROR
1. The Industrial Accident Board erred in assuming jurisdiction to conduct a hear*128ing upon respondent’s claim for compensation, and in assuming jurisdiction and power to make and enter an award in favor of respondent and against appellant, for the reasons:
(1) — That in his claim for compensation and his application for hearing the respondent did not allege, and at the hearing upon said claim he did not offer any evidence whatsoever to prove that while in the employ of the appellant he had ever at any time been exposed to the inhalation of silica dust or in anywise exposed to the hazards of silicosis, and did not, therefore, state a cause of action.
(2) — That in his claim for compensation and his application for hearing the respondent did not allege, and at the hearing upon said claim he did not offer any evidence whatsoever to prove that he had silicosis, or that he was in anywise disabled.
(3) — That Section 43-2122, I.C.A.. under which respondent's claim was filed, is void and of no effect for the reasons: that it violates Section 17 of Article 3 of the constitution of Idaho, in that said section is not plainly worded; that it is so indefinite, ambiguous, uncertain and unintelligible that it is impossible to understand said section or to comply with it or enforce it; that said section contains provisions which are in such irreconcilable conflict with the intent of the legislature that it is invalid and inoperative; that said section contains within itself such conflicting and irreconcilable provisions that, with or without regard to other sections of the Occupational Disease Compensation Law, said section is not understandable, and is void.
2.The Industrial Accident Board erred in making and entering its finding of fact numbered “VI” to the effect that by reason of his discharge by appellant, the respondent suffered a weekly wage loss of $31.25, for the reason that such finding is not supported by any evidence whatsoever, the undisputed testimony, and the testimony of respondent himself, being (as found by the Board in its findings of fact numbered “III” and “IV”) that respondent was employed by appellant upon the express condition that respondent would be required to take a “pre-employment examination” by a physician and that his employment would cease if such examination should not be satisfactory, and that he was discharged strictly in accordance with his contract of employment.
3. The Board erred in making and entering its finding of fact numbered “VII” for the reason that Section 43-2122, I.C.A. is void and of no effect for the reasons herein above stated.
4. The Board erred in making and entering its ruling of law to the effect that respondent was entitled to an award against appellant for weekly compensation commencing with the 9th day of January, 1940, to the date of the award, for the reason that neither the evidence in the case nor the Board’s findings of fact numbered “HI” and “IV” support such ruling, the undisputed testimony and the Board’s said findings of fact numbered “HI” and “IV” being as set out in the foregoing specification of error numbered “2”; and for the further reason that there is no evidence whatsoever in the record to the effect that respondent was ever exposed to the inhalation of silica dust or to the hazards of silicosis while he was in appellant’s employ, and for the further reason that Section 43-2122, I.C.A. is void and of no effect for the reasons hereinabove stated.
5. The Board erred in making and entering its ruling of law to the effect that the respondent was entitled to an award against appellant for weekly compensation from and after the date of the award in the amount of the difference between respon*129dent’s average weekly wages earned by him prior to January 9, 1940, and the “amount of his weekly earnings, if any, thereafter, not to exceed $12.00 a week until he shall have received as compensation a sum equal to, but not to exceed $450.00 in all,” for the reasons:
(1) That neither the evidence in the case nor the Board’s findings of fact numbered “HI” and “IV” support or permit any such award, the undisputed testimony and the Board’s said findings of fact being as set out in the foregoing specification of error numbered “2”.
(2) That no evidence whatsoever was offered to show that respondent was ever at any time exposed to the inhalation of silica dust or in anywise exposed to the hazards of silicosis while he was in appellant’s employ.
(3) That Section 43-2122, I.C.A. is void and of no effect for the reasons herein-above stated.
(4) That such award is void for the reason that it is not based upon any evidence whatsoever and is not based upon nor supported by any finding of fact by said Board, there being no evidence and no finding of fact to the effect that respondent’s earnings subsequent to the date of the award would be equal to or in excess of his earnings prior to January 9, 1940; and such award is void for the further reason that it is so undefinite and uncertain as to the amount which the Board intended to award to the respondent and as to the amount which appellant should pay to respondent, or as to whether under the terms of such award anything at all would ever become payable from appellant to respondent, or as to how or by whom the amount, if any, to be paid by appellant to respondent should be determined and fixed, that such award could neither be complied with nor enforced.
. 3. Permanent Partial Disability. Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall alone be liable therefore, without right to contribution from any prior employer or insurance carrier, provided, however, that in the case of silicosis or asbestosis, the only employer and insurance carrier liable shall be the last employer in whose employment the employee was last exposed to harmful quantities of silicon dioxide (S1O2) dust on each of at least sixty (60) days or more, and the insurance carrier, if any, on the risk when the employee, was last so exposed under such employer. (85 O.S.1971, § 11(3)).
. Dr. Torrington testified as follows regarding the onset of the claimant’s disease:
Q. Doctor, in your specialty, do you diagnose between acute and non-acute disease processes?
A. Yes.
Q. And in Mr. Dalton’s case based on the history he related to you about his employment with Creative Forest Products and the onset of his symptoms, do you regard his condition as being acute or non-acute?
******
A. It — the question is another difficult one. I believe that the symptoms as they initially progressed began as a very sub-acute or indolent or chronic-type of progression but, by the time after he had been working for several months — with the planer and sanding equipment, I think he had acute asthma.
And I think that he was acutely ill by that time he was sick, and he needed treatment. Is that—
Q. Well, let me ask you this one: when you use the term acute in this sense of acute asthma, are you referring to the degree of the symptomatology that one experiences?
A. Yes.
Q. Alright. In terms of the disease process and how the process develops, do you regard that disease process in Mr. Dalton’s case as having [been] acute or non-acute?
A. I would have to say inasmuch as this allergy developed over a period of months that the disease process occurred in a non-acute manner in terms of the symptomization that ultimately related to the asthma.
. I.C.A. §§ 43-2109 and -2107 were so designated in Idaho Sess.Laws, ch. 161, which created the Occupational Disease Compensation law. The enactment became effective July 1, 1939.
. The Court 62 Idaho at page 78, 108 P.2d 299 saw merit in his contentions, but passed the problem on to the legislature, which was to convene within a month.