Wyoming Refining Co. v. Bottjen

CARDINE, Justice,

dissenting, with whom ROSE, Justice, joins.

I dissent.

*651Appellant was an insulator employed at appellee’s refinery at Newcastle, Wyoming. For fifteen years he insulated pipelines at the refinery using asbestos materials. His last exposure to asbestos was in 1971. He was first diagnosed as suffering from asbestosis in December 1982. It was undisputed that his condition resulted from and during the course of his employment.

The statute governing the filing of worker’s compensation claims in effect in 1971, § 27-12-503, W.S.1977, required that his claim be filed within three years after the last exposure to the substance causing injury or within one year after its diagnosis and communication to the worker, “whichever occurs first.”

Justice Raper, in State, ex rel. Director, Worker’s Compensation Division v. Tallman, Wyo., 589 P.2d 835, 838 (1979), discussing the statute, stated:

“The limitation is two-pronged. Under the first prong, an employee may file his claim within one year after the diagnosis of injury is communicated to him. Under the second prong, he may file his claim within three years from the last injurious exposure to the condition causing the injury. The crucial language is then ‘whichever occurs first.’ What did occur first in this case was the ‘expiration of three (3) years from the last injurious exposure to the condition causing the injury.’ Under this second prong, employee’s claim is barred.”

And Justices Rose and McClintock, in a specially concurring opinion, stated:

“[Employee] in this case does suffer from an occupational disease of which he could have had no possible knowledge until after the statute of limitations had run. I cannot conceive of legislation which is more unfair. I would hope the Wyoming Legislature .would address the problem — forthwith.”

The legislature did address the problem when it amended § 27-12-503, W.S.1977, to provide for the filing of a claim of this kind within three years after the last exposure or one year after diagnosis and communication of the fact of injury, whichever occurred last. This amendment became effective May 27, 1983. On June 17, 1983, which was within one year after the diagnosis of appellant’s injury and after the effective date of the amendment to the statute, appellant filed his claim for worker’s compensation. The trial court allowed the claim and awarded the worker compensation for his injury.

I would affirm the trial court’s decision. Section 27-12-503(b), W.S.1977, as amended and in effect prior to appellant filing his claim, provided as follows:

“The right of compensation for injury which occurs over a substantial period of time is barred unless a claim for benefits is filed with the clerk of the district court within one (1) year after a diagnosis of injury is first communicated to the employee, or within three (3) years from the date of last injurious exposure to the condition causing the injury, whichever occurs last * * (Emphasis added.)

What occurred last in this case was the diagnosis and communication of the fact of injury to the worker during December 1982. The amended statute, § 27-12-503(b), supra, became effective May 27, 1983. The statute provided that a claim such as the one presented by appellant could be filed within one year from the date of diagnosis and communication of the fact of injury. Appellant filed his claim on June 17, 1983, which was after the effective date of the statute and within the one-year period provided by the State for filing.

It seems clear to me that this holding would be in accord with the intent of the legislature, that is that legitimate claims for injuries to workers in their employment be paid by worker’s compensation. It afforded the worker one year from the date he became aware of his injury to file his claim. Appellant here became aware of his injury during December 1982 and filed his claim June 17, 1983. The claim was filed within the one-year period allowed. It seems plain that the legislature amended the statute at our urging to provide worker’s compensation coverage in the very sit*652uation presented by this case. This claim and all other claims diagnosed and made known to a worker in the future will be governed by the amended statute, § 27-12-503(b), supra, and subject to a new one-year limitation period for filing. This proposed construction of the amended statute is just and reasonable.

The general law, as stated in 51 Am. Jur.2d Limitation of Actions § 57, in discussing the legislative intent and the adoption of a statute relating to periods of limitation, provides:

“[I]t is within the power of the legislature to pass a statute of limitations, or to change the period of limitation previously fixed, and to make such statute or changes applicable to existing causes of action, provided a reasonable time is given by the new law for the commencement of suit before the bar takes effect.”

The analysis of the majority opinion would require that appellant’s claim be filed during 1974 or be forever barred. In 1974, appellant’s injury had not been diagnosed; he was not aware that he would in the future be suffering from asbestosis, and he could not have filed a claim which at that time did not exist. This result does not comport with the intent of the legislature when it amended § 27-12-503(b), supra.

“In the construction of statutes of limitation, the courts may, where the legislature has not sufficiently manifested its intention, consider the reasonableness of the result of a particular construction in the light of the practical effect of the adoption of a different construction.” 51 Am.Jur.2d Limitation of Actions § 52.

This amended statute is clear on its face and provides for the filing of claims for a period of one year from diagnosis of the injury and communication of that fact to the worker. This claim was filed within that period of limitation. The statute, as I construe it, operates presently upon claims still alive and within one year of May 27, 1983, but does not operate retroactively because any injury discovered and diagnosed prior to May 27, 1982, would be barred and not subject to filing with the clerk of court under the provisions of § 27-12-503(b), as amended.

For the reasons stated, I would affirm the decision of the trial court.