dissenting.
I must respectfully dissent from the majority’s disposition of National Gypsum Company’s petition to transfer, wherein that company sought review of the Court of Appeals’ opinion found at Bunker v. National Gypsum Co., (1981) Ind.App., 426 N.E.2d 422 (Hoffman, P.J., dissenting). In the context and posture of the case before us, it is not appropriate for this Court to rule on the constitutionality of the three-year statute of limitations imposed on claims for asbestos-related disablement. In reaching that question and finding the statutory limitation “constitutional in all respects,” the majority has ignored the doc*15trine of judicial restraint in circumstances which exemplify the wisdom of that venerable principle. The majority’s broad ruling is both advisory in nature and obiter dictum in effect.
The doctrine of judicial self-restraint is a quintessential concept in American jurisprudence — one rooted in the landmark decision of Marbury v. Madison, (1803) 5 U.S. (1 Cranch) 137, 2 L.Ed. 60. In short, the doctrine precludes gratuitous judicial review of constitutional questions, thereby perpetuating the delicate principles of “checks and balances” and “separation of powers” which are fundamental to our constitutional system of government. Id.; see also, Rescue Army v. Municipal Court, (1947) 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666.
The case law of this jurisdiction reflects its long-standing adherence to the doctrine. Typical of our precedent is Indiana Ed. Employment Bd. v. Benton Community Sch., (1977) 266 Ind. 491, 365 N.E.2d 752, where Justice Prentice explained the basic concept of the doctrine:
“It is true, as argued by Intervenor that courts do not pass on the constitutionality of a statute until a constitutional determination is necessarily and directly involved in a justiciable controversy and is essential to the protection of the rights of the parties concerned. Bush v. Texas, (1963) 372 U.S. 586, 83 S.Ct. 922, 9 L.Ed.2d 958; Roth v. Local Union No. 1460 of Retail Clerks Union, (1939) 216 Ind. 363, 24 N.E.2d 280. A constitutional question will not be anticipated in advance of the necessity of deciding the constitutional issue. Poer, Trustee v. State, ex rel., (1918) 188 Ind. 55, 121 N.E. 83; N.Y. Cent. R.R. Co. v. Pub. Ser. Comm, of Ind., (1958) 237 Ind. 544, 147 N.E.2d 547.” Id., 266 Ind. at 495-6, 365 N.E.2d at 754.
Justice DeBruler elaborated on the fundamental nature of the doctrine in Board of Commissioners of Howard Co. v. Kokomo City Plan Comm., (1975) 263 Ind. 282, 287-8, 330 N.E.2d 92, 96:
“Without essential legal argument and factual matter, the court, particularly in a civil case, is justified in refusing to adjudge whether the statute complies with the commands of the constitutions, for in such ease it does not ‘appear from the record that there is a substantial foundation for the allegation.’ Ex Parte Sweeney, (1890) 126 Ind. 583, 587, 27 N.E. 127; Stout v. Hendricks, 228 F.Supp. 568 (S.D.Ind.1964). In the ordinary case, the party will carry this burden by formally requesting the court to consider relevant facts of which the court may take judicial notice. State v. Griffin, (1948) 226 Ind. 279, 79 N.E.2d 537. If the court may not take judicial notice of the necessary factual determinations, such facts must be presented and fully developed in a suitable adversary atmosphere. Whitcomb v. Chavis, (1971) 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363; Tinder v. Clarke Auto Co., (1958) 238 Ind. 302, 149 N.E.2d 808; Hardin v. State, (1970) 254 Ind. 56, 257 N.E.2d 671; Note, Admission of Extrinsic Evidence in Cases Involving the Validity of Statutes and Ordinances in Indiana, 35 Ind.L.J. 100 (1959). Even if the quality of the litigation is sufficient to support a constitutional determination, such determination will not be made if the case can be disposed of justly on non-constitutional grounds. Passwater v. Winn, (1967) 248 Ind. 404, 229 N.E.2d 622; State ex rel. Codding v. Eby, Judge, (1944) 223 Ind. 302, 60 N.E.2d 527; Roth v. Local Union # 1460 of Retail Clerks Union, (1939) 216 Ind. 363, 24 N.E.2d 280.”
Here, Bunker’s claim for compensation “can be disposed of justly on nonconstitutional grounds.” Id. The majority has erred by instead addressing the constitutional question, even though we lack the full presentation and development of necessary facts which we properly deemed vital in Board of Commissioners of Howard Co. v. Kokomo Plan Comm., supra.
The nonconstitutional grounds upon which this Court should have disposed of this case are readily apparent in the record; there, it is revealed that claimant Bunker was not “disabled” at the time of the hearing and therefore was not eligible for bene*16fits under the Occupational Diseases Act. Ind.Code § 22-3-7-1 et seq. (Burns 1974). To be sure, the record reveals that Bunker suffered from asbestosis, an often fatal lung disease.
As has been recognized, however, health insurance is not among the humanitarian purposes of the Act. The fact that a Hoosier worker contracts an occupational disease does not trigger the availability of benefits. “The sine qua non is disablement.” Durham Mfg. Co. et al. v. Hutchins, (1945) 115 Ind.App. 479, 483, 58 N.E.2d 444, 446; accord, Martinez v. Taylor Forge and Pipe Works, (1977) 174 Ind.App. 514, 368 N.E.2d 1176.
“Disablement,” as is necessary to trigger the recovery of benefits, is defined in subsection “e” of Ind.Code § 22-3-7-9 (Burns 1982 Supp.):
“(e) The term 'disablement' means the event of becoming disabled from earning full wages at the work in which the employee was engaged when last exposed to the hazards of the occupational disease by the employer from whom he claims compensation, or equal wages in other suitable employment and ‘disability’ means ■the state of being so incapacitated.”
The cross-examination of claimant Bunker by counsel for National Gypsum Company was directed solely to the question whether he was “disabled” within the meaning of the Act. That cross-examination, which follows in its entirety, reveals that Bunker was not disabled:
CROSS EXAMINATION
QUESTIONS BY MR. OHLEYER:
Q. “Mr. Bunker, you terminated your employment with National Gypsum on March 31, 1966?”
A. “Yes.”
Q. “How old are you now, sir?”
A. “Fifty-five (55).”
Q. “Have you been employed since March 31, 1966?”
A. “Yes, with Grain Processing Corporation.”
Q. “I’m sorry, what’s the name of the company?”
A. “Grain Processing Corporation.”
Q. “And where are they located?”
A. “Muscatine, Iowa.”
Q. “And when did you go to work for them?”
A. “May 1st or something or other.”
Q. “Shortly after — ”
A. “Yes, right from the one job to the other.”
Q. “How did your termination at National Gypsum come about, did you voluntarily quit?”
A. “Yes.”
Q. “For better employment at Grain Processing?”
A. “Yes, true.”
Q. “And what type of work do you do at Grain Processing?”
A. “I’m a technical salesman.”
Q. “And you are still working there today?”
A. “Yes.”
MR. OHLEYER: “I have no further questions.”
Although suffering from asbestosis, Bunker obviously was not disabled from “earning full wages” equal to those he enjoyed at National Gypsum Company. He continued to work as a technical salesman for Grain Processing Corporation, the same “better employment” which had prompted him to voluntarily leave National Gypsum’s employ thirteen years earlier. Not surprisingly, the record reveals that one basis for National Gypsum Company’s motion to dismiss was Bunker’s lack of disablement.
The majority ignores the availability of this alternative disposition and instead focuses on the constitutionality of the three-year limitations period imposed on claims for asbestos-related disablement. Even if it could be said that Bunker’s lack of disablement is not an appropriate basis on which to resolve his claim, it yet remains that the facts relevant to the constitutional question have not been “presented and fully developed in a suitable adversary atmosphere,” as emphasized in Board of Commissioners *17of Howard Co. v. Kokomo City Plan Comm., supra.
That dearth of evidence is not the fault of the parties. Rather, it is the product of our own case precedent.
In Wilson v. Review Board of Ind. Emp. Sec. Div., (1979) 270 Ind. 802, 385 N.E.2d 438, this Court recognized that the exhaustion of administrative remedies is not a prerequisite to obtaining judicial review of a constitutional question. Justice Pivarnik explained:
“In the present case, the question presented is of constitutional character. With all due respect, we think that the resolution of such a purely legal issue is beyond the expertise of the Division’s administrative channels and is thus a subject more appropriate for judicial consideration.
“In sum, we hold that given the constitutional character of the issue presented by Wilson’s complaint, it was not necessary for her to press the issue through administrative channels as a precondition to judicial review. We therefore conclude that the trial court had jurisdiction over this matter and erred by dismissing Wilson’s complaint.” Id., 270 Ind. at 305, 385 N.E.2d at 441.
Our statements in Wilson are mirrored in rulings of the United States Supreme Court. Califano v. Sanders (1977) 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192, 201-2 (“Constitutional questions obviously are unsuited to resolution in administrative hearing procedures ...”); Public Utilities Commission v. United States, (1958) 355 U.S. 534, 539, 78 S.Ct. 446, 450, 2 L.Ed.2d 470, 475 (“That issue is a constitutional one that the Commission can hardly be expected to entertain”).
This Court can hardly decry the “scant medical evidence” relative to the constitutional question when the parties no doubt approached the hearing with the understanding that the constitutional question was not at issue before the Industrial Board. It should be noted that our decision in Wilson was handed down only eight months prior to the hearing in the instant case. Bunker certainly was entitled to rely on Wilson and envision a court challenge to the constitutionality of the statute following the Board’s ruling on his claim as necessary to render the constitutional issue ripe for review.
The record reveals that Bunker’s claim was predicated solely on the argument that because the asbestos fibers remained in situ within his lungs his “exposure” to the asbestos was a continuing one which brought his claim within the statute of limitations. The evidence presented at the hearing was directed toward that contention.
Consequently, the one-half inch thick record before us is void of the development and presentation of facts which, in Board of Commissioners of Howard Co. v. Kokomo City Plan Comm., supra, this Court deemed vital to our resolution of constitutional issues. Although the majority finds it appropriate to reach the constitutional question, its analysis reflects a lack of the direction which is provided by a complete presentation of relevant facts in an adversarial posture. The majority focuses its evidentiary analysis primarily on the relationship between the incidence of asbestosis and the duration and amount of exposure. That is not at issue here. If a worker is disabled by reason of a job-related exposure to asbestos, he has an exclusive remedy in the recovery of benefits under the Occupational Diseases Act.
The subject matter is the statute of limitations which governs the exclusive remedy — assuming disablement occurs. Medical authorities relied on by our Court of Appeals established that very rarely does asbestosis manifest itself within three years of exposure; rather, the asbestos fibers remain within the lungs and the tissue response, although indolent, is both progressive and irreversible. The Court of Appeals based its conclusion that the statutory period was unconstitutional on this latency period between exposure to asbestos and its adverse physical manifestations and ultimate disablement of the worker. The Court of Appeals reasoned that the statute of limitations was invalid due tc the normal latency period:
*18“In view of the discovery of this factual information about the disease since the legislature imposed the three-year-from-exposure limitation in 1937, it appears to us that the statute can no longer stand. To impose its ban is to violate the classic constitutional mandate, because to do so amounts to a practical denial of the very right to recovery that the statute was intended to provide.
“We therefore conclude that IC 22-3-7-9(f) is unconstitutional as applied to appellant Bunker and similarly situated workers.” Bunker v. National Gypsum Co., supra, 426 N.E.2d at 425 [footnote omitted].
In other words, within three years after an exposure to asbestos, no manifestation of the disease, let alone disablement, would be present to justify the claim. After three years, when the manifestations and disablement normally occurs, the statute of limitations would bar the claim. Ultimately, the worker’s only hope to exercise his exclusive remedy would lie in continuing the exposure to asbestos until a date within three years ' of his ultimate disablement. That “Catch-22” predicament for the would-be claimant not only would defy due process and the privileges and immunities guaranteed our citizens — it would be an affront to an Act which is characterized as humanitarian in purpose. Harbison-Walker Refractories Co. v. Turk, (1942) 110 Ind.App. 563, 39 N.E.2d 791.
Assuming the Court of Appeals improperly relied on the medical evidence and conclusions contained in the professional journals, it yet remains that the evidence and conclusions and the treatises and journals all exist. Other jurisdictions have relied on these studies, examined the evidence and conclusions therein, and reached decisions in accord with the Court of Appeals. See, e.g., Borel v. FibreBoard Paper Products, (5th Cir. 1973) 493 F.2d 1076; Insurance Co. of North America v. Forty-Eight Insulations, Inc., (E.D.Mich.1978) 451 F.Supp. 1230; Louisville Trust Co. v. Johns-Manville Products Corp., (Ky.1979) 580 S.W.2d 497, overruling Columbus Mining Co. v. Walker, (Ky.1954) 271 S.W.2d 276; Harig v. Johns-Manville Products Corp., (1978) 284 Md.App. 70, 394 A.2d 299, 1 A.L.R. 4th 105; cf. Urie v. Thompson, (1949) 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (latent disease silicosis). See generally, Note, The Causation Problem in Asbestos Litigation: Is There an Alternative Theory of Liability? 15 Ind.L.Rev. 679 (1982).
Because the constitutional question is an arguable one of such significant import for victims of asbestos exposure, this Court should have exercised the doctrine of judicial self-restraint instead of broadly declaring the “statute of limitations provision of the Occupational Diseases Act to be constitutional in all respects.”1 Majority Opinion, supra. Before us is “scant medical evidence,” as the majority characterizes it; that evidence does not concern the constitutional question decided by the majority. Inasmuch as this Court has not considered any medical evidence concerning the latency of asbestosis, its broad ruling must be regarded as obiter dictum. Any other construction of its effect would lead the doctrine of stare decisis beyond its bounds.
For all the foregoing reasons, I dissent. Consistent with the doctrine of judicial self-restraint, as embodied in Board of Commissioners of Howard Co. v. Kokomo City Plan Comm., supra, this Court should have refused to address the constitutionality of the statute of limitations imposed on asbestos-related claims. If the question must be addressed in the context of this case, Bunker should be provided his right to be heard; consistent with Wilson v. Review Board of *19Ind. Emp. Sec. Div., supra, he should be allowed to seek a trial de novo on the constitutionality of the statute, where a development of the facts could occur.
I dissent.
. The majority perhaps feels compelled to reach the question because it was addressed by the Court of Appeals. That motivation is misplaced, however, for pursuant to Ind.R.App.P. 11(B)(3), this Court, in granting transfer, “has jurisdiction of the appeal as originally filed” in the Court of Appeals. We may sustain a judgment on any proper grounds, of course, even if the basis for our decision was not embraced below. Cain v. State, (1973) 261 Ind. 41, 300 N.E.2d 89. If it was not appropriate for our Court of Appeals to address the constitutional question, our rules would make little sense if this Court was required to compound that error.