Bainbridge v. Boise Cascade Plywood Mill

HUNTLEY, Justice,

dissenting.

I respectfully dissent and my reasons therefor require a statement of facts slightly expanded from that presented by the majority opinion.

At the beginning of her employment, Ms. Bainbridge did her patching work at what was known as “glue station No. 2,” but soon switched to “glue station No. 4,” where she worked for the remainder of her employment with Boise Cascade.

Ms. Bainbridge alleges that she regularly inhaled chemical fumes containing formaldehyde from the agent used in the gluing process and sawdust emitted from the machines located directly behind her which cut the plywood boards.

Soon after beginning work at Boise Cascade, Ms. Bainbridge developed a persistent, hacking cough and congestion in her lungs which she attributed to the flu. She eventually consulted a physician, Dr. MeConnel, about the cough and congestion. Dr. MeConnel prescribed general antibiotics which had limited effect.

Dr. MeConnel began to suspect that Ms. Bainbridge’s condition might be work-related in July and August of 1981, but he *84testified that he did not tell Ms. Bainbridge of such suspicions until October 31st, 1981, after he had conducted extensive pulmonary testing and confirmed his opinion. On October 31st, 1981, Dr. McConnel gave Ms. Bainbridge a note to take to her employer, stating “No work indefinitely. Has asthma reaction to dust and chemical fumes. Could work in a clean environment.” Ms. Bainbridge took this note the same day to Deanna Martin, a personnel coordinator at the plant.

Deanna Martin admits that she received Dr. McConnel’s note on that date, but claims that the note did not give her notice of an occupational disease or possible Worker’s Compensation claim. In short, she stated that there was “no way” that such could be understood from the note.

Deanna Martin forwarded the note to Mr. Walsh, a personnel director for the plant. Mr. Walsh wrote to Dr. McConnel on December 9,1981, requesting a clarification of the contents of the note of October 31st, 1981. Dr. McConnel, in his response dated December 17th, 1981, reiterated that “she will need to work in a clean environment ... that would mean no dust, no smoke, no petroleum product, particles in the air [sic]____”

Despite Dr. McConnel’s reiteration of Ms. Bainbridge’s condition, Boise Cascade did not file a “notice of injury and claim for benefits” (hereinafter “Form 1”), as required by I.C. § 72-602.1

Ms. Bainbridge permanently ceased working for Boise Cascade in September 1981, but remained on the roll as an employee until May of 1982. During that approximate eight month period, Ms. Bainbridge’s medical expenses were paid under the employee Blue Shield disability benefit plan which paid for all medical payments without a deductible required, with Boise Cascade also paying all premiums. Ms. Bainbridge continued to have her medical expenses covered until August of 1982, more than three months after she had officially ceased to be employed by Boise Cascade.

Ms. Bainbridge contends that it was not until the insurance payments stopped that she realized that Boise Cascade was not assuming responsibility for her condition. She then contacted an attorney. Ms. Bainbridge’s workers’ compensation claim and notice for hearing were filed simultaneously on November 26, 1982, one year and twenty-six days after she first learned that her disease was caused by her work environment. Boise Cascade filed a motion to dismiss on the basis of Ms. Bainbridge’s failure to file within one-year from the date of learning her condition was job-related as required by I.C. § 72-448(l).2 The Industrial Commission found that, while Ms. Bainbridge had proved a prima facie case of industrial causation of an occupational disease, her claim was barred by that statute of limitations.

Ms. Bainbridge appeals the Industrial Commission’s statute of limitations ruling, while Boise Cascade and Northwestern Na*85tional Insurance Company cross-appeal on the issue of whether Ms. Bainbridge has proven a prima facie case for industrial causation of an occupational disease. I would reverse as to the former ruling, and affirm the latter.

THE STATUTE OF LIMITATIONS ISSUE

In deciding whether the Industrial Commission correctly applied I.C. § 72-448(1) to the facts of this case, one must analyze several related sections of the Worker’s Compensation Law.

Two general rules of interpretation aid in this analysis; specifically, the rule favoring the construction which appears from the latest expression of the legislature, taking into account the statute’s history and evolution through amendment, (See Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983); Mix v. Gem Investors, Inc., 103 Idaho 355, 647 P.2d 811 (Ct.App.1982); Jones v. Morrison-Knudsen Co., Inc., 98 Idaho 458, 567 P.2d 3 (1977); Beard v. Lucky Friday Silver-Lead Mines, 67 Idaho 135, 173 P.2d 76 (1946).) and the rule requiring that the Worker’s Compensation Law be construed liberally in favor of claimants. (See Horton v. Garrett Freightlines, Inc., 106 Idaho 895, 684 P.2d 297 (1984); Miller v. Amalgamated Sugar Company, 105 Idaho 725, 672 P.2d 1055 (1983); Jones v. Morrison-Knudsen Company, Inc., 98 Idaho 458, 567 P.2d 3 (1977); In re Haynes, 95 Idaho 492, 511 P.2d 309 (1973); Burch v. Potlatch Forests, Inc., 82 Idaho 323, 353 P.2d 1076 (1960).)

Ms. Bainbridge bases her appeal on the contention that I.C. § 72-604 operates to toll the statute of limitations provided in I.C. § 72-448(1). I.C. § 72-604 reads:

72-604. Failure to report tolls employee limitations. — When the employer has knowledge of an occupational disease, injury, or death and willfully fails or refuses to file the report as required by section 72-602(1), Idaho Code, the notice of change of status required by section 72-806, Idaho Code, the limitations prescribed in section 72-701 and section 72-706, Idaho Code, shall not run against the claim of any person seeking compensation until such report or notice shall have been filed.

Conversely, Boise Cascade contends that I.C. § 72-604 specifically limits its application to I.C. §§ 72-701 and 72-706 and therefore the one-year limitation period provided by § 72-448(1) is not tolled. At this point, some discussion of these various sections, including their relevant legislative and case histories is needed.

I.C. §§ 72-701 and 72-706 are general limitations sections, applicable to both accidents and occupational diseases. In 1978, the legislature acted to delete from § 72-701 the words “except in cases of occupational diseases specially provided,” thereby rendering I.C. §§ 72-101 through 72-805 applicable to occupational diseases (See Compiler’s note, I.C. § 72-701) and establishing a general intent that occupational disease claims be treated in the same manner as non-occupational disease claims.

In further ascertaining the general scheme provided by these code sections, it is apparent that the primary goal of the Workers’ Compensation Law is to provide compensation for injured workers unless the employer has been prejudiced by untimely notice. McCoy v. Sunshine Mining Co., 97 Idaho 675, 551 P.2d 630 (1976); Facer v. E.R. Steed Equipment Co., 95 Idaho 608, 514 P.2d 841 (1973); Smith v. Mercy Hospital, 60 Idaho 674, 95 P.2d 580 (1939).

I.C. § 72-704 highlights this axiom and provides:

72-704. Sufficiency of notice— Knowledge of employer. — A notice given under the provisions of section 72-701 or section 72-448, Idaho Code, shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place, nature or cause of the injury, or disease, or otherwise, unless it is shown by the employer that he was in fact prejudiced thereby. Want of notice or delay in giving notice shall not be a bar to proceedings under this law if it is *86shown that the employer, his agent or representative had knowledge of the injury or occupational disease or that the employer has not been prejudiced by such delay or want of notice.

In the case at bar, it is apparent that Boise Cascade did, in fact, have notice of Ms. Bainbridge’s potential claim almost immediately. The fact that Deanna Martin, individually, did not think that a valid claim for occupational disease had been stated in Dr. McConnel’s note of October 31st, 1981, does not vitiate Boise Cascade’s notice in any way.

I.C. § 72-703 provides in pertinent part: 72-703. Giving of notice and making of claim. — Any notice under this law shall be given to the employer, or, if the employer is a partnership, then to any one (1) of the partners. If the employer is a corporation, then the notice may be given to any agent of the corporation upon whom process may be served, or to any officer of the corporation, or any agent in charge of the business at the place where the injury occurred.

Ms. Bainbridge acted correctly in rendering timely notice to Boise Cascade. Having done so, the burden does not remain upon her to convince the employer’s agent that her claim is, in fact, valid. It is sufficient that she provide them with notice that a claim may be forthcoming.

The Industrial Commission found that Dr. McConnel’s note of October 31st, 1981, did, in fact, provide Boise Cascade with notice that Ms. Bainbridge might have a claim for industrial causation of an occupational disease, and found that the notice satisfied the 60 day requirement of I.C. § 72-448(l).3 I concur.

Having notice, Boise Cascade was then obligated under I.C. § 72-602 to file Form 1, which it did not do. I.C. § 72-604 specifically provides that wilful failure by the employer to file Form 1 results in the statute of limitation being tolled.

In a two-prong argument, Boise Cascade urges that the statute of limitation is not tolled. First, Boise Cascade contends that its failure to file Form 1 was not “willful,” as required by § 72-604, and second, that in any event, the limitations period in § 72-448(1) governs. I deal with each argument in turn.

I disagree with Boise Cascade’s argument that its failure to file Form 1 was not “willful.” It is a tenet of long-standing that the law does not require malicious intent to create a conscious wrong. Archbold v. Huntington, 34 Idaho 558, 201 P. 1041 (1921). Moreover, the fallacy in Boise Cascade’s argument is well articulated in the recent Industrial Commission decision of Garza v. Shaw Auto Parts, Inc., 85 IWCD 40, p. 875 (1985).

In Garza, the commission interpreted the application of the word “willful” in I.C. § 72-604, correctly noting that, if an argument similar to that posited by Boise Cascade in the instant case were accepted, a failure to file Form 1 would only be “willful” and in violation of § 72-604 where the employee could prove a malicious intent to frustrate a claim. The commission then stated, “[S]uch reasoning places upon a claimant a burden of proof greater than could have been intended by the legislature under the provisions of I.C. Section 72-604.” Id. at 876.

The Industrial Commission correctly ruled that such a result is not in keeping with the general intent of the Worker’s Compensation Law. Indeed, such an interpretation would place employees in the position of being wholly dependent on either the employer’s largesse or stupidity in admitting its true motives in failing to file Form 1. Boise Cascade’s interpretation of § 72-604 would reduce that section to an absurdity and is surely not in keeping with the intent of the legislature in enacting the section.

Once Deanna Martin, as an agent of Boise Cascade, received notice of Ms. Bain*87bridge’s possible claim for industrial causation of an occupational disease, Boise Cascade was obligated to file Form 1. Its failure to file such form, even when it had received timely notice of Ms. Bainbridge’s claim, was “willful” under § 72-604.

I turn now to Boise Cascade’s second contention, that violation of § 72-604 tolls only §§ 72-701 and 72-706, not § 72-448(1), and that Ms. Bainbridge’s claim remains barred under that latter statute.

A reading of § 72-604 establishes the legislature’s obvious intent to toll statutes of limitation where an employer has failed to file Form 1 and has “knowledge of an occupational disease, injury, or death ____” (Emphasis added.) However, § 72-448(1) provides in pertinent part:

[Ujnless claim for disability or death shall be made within one (1) year after manifestation of the disease or death respectively, all rights to compensation for disability or death from injury due to an occupational disease shall be forever barred.

The plain language of § 72-604 is, then, in direct conflict with the mandate of § 72-448(1).

In the past, this Court has held that where there is a conflict among code sections in the Worker’s Compensation Law, we use the most recent pronouncements of the legislature and the stated objective of affording claimants a liberal, favorable construction of the code sections in guiding our resolution of the conflict. Jones v. Morrison-Knudsen, 98 Idaho 458, 567 P.2d 3 (1977).

In Jones, this Court held that where §§ 72-448(3) and 72-706(2) conflicted concerning how soon action must be taken by the claimant, § 72-706(2) would be controlling,

[T]he legislative history of these statutes convinces us that I.C. § 72-706(2) should be controlling.
I.C. § 72-448(3) was a part of the original Occupational Disease Act of 1939 and was unchanged except for its citation by the 1972 recodification of the Workmen’s Compensation Code. On the other hand, I.C. § 72-706(2) was amended by the legislature in the 1972 codification, specifically extending its applicability to occupational diseases.
We have also frequently stated that the Workmen’s Compensation Act is to be construed liberally in favor of claimants. Id. at 464, 567 P.2d at 9.

In applying the precepts in Jones to the case at bar, I note that in 1978, legislative amendments extended the application of § 72-604 to include the tolling of § 72-706, a statute covering the tolling of statutes of limitation for both non-occupational disease claims and occupational disease claims where compensation to claimants has been discontinued. And, as already noted, the legislature acted to delete the exclusion of occupational disease claims from the general limitations scheme of the Workers’ Compensation Law, as embodied in § 72-701.

Paradoxically, § 72-448(1) remained unchanged. I cannot, however, view the language of § 72-448(1) in a vacuum. Instead, it is incumbent upon this Court to read together all sections of applicable statutes to determine the legislative intent. County of Bannock v. City of Pocatello, 110 Idaho 292, 715 P.2d 962 (1986); Umphrey v. Sprinkel, 106 Idaho 700, 682 P.2d 1247 (1983); Magnuson v. Idaho State Tax Commission, 97 Idaho 917, 556 P.2d 1197 (1976).

The legislature has recently acted to provide a scheme whereby both non-occupational disease claims and occupational disease claims follow essentially the same filing process. In addition, the legislature has specifically provided for a five-year statute of limitations for the filing of claims where the claimant has had compensation for an accident or occupational disease discontinued, under § 72-706(2).4

*88In the instant case, Ms. Bainbridge received disability benefits through Blue Shield of Idaho, with all premiums and deductibles paid by Boise Cascade, until August 26, 1982, almost four months after her formal termination of employment at Boise Cascade. The payments were roughly between $148 and $160 per week, closely approximating worker’s compensation disability payments.

Had Boise Cascade filed Form 1, as required by § 72-602, and had the payment been from Northwestern and not Blue Shield, their discontinuation in August 1982 would have activated the extended five-year statute of limitations under § 72-706(2).

An employer’s actions can serve to estop its assertion of a bar under a statute of limitations. Bottoms v. Pioneer Irrigation District, 95 Idaho 487, 511 P.2d 304 (1973); Frisbie v. Sunshine Mining Company, 93 Idaho 169, 457 P.2d 408 (1969); Harris v. Bechtel Corp., 74 Idaho 308, 261 P.2d 818 (1953). Since it was Boise Cascade’s violation of § 72-602 and failure to initiate payments from the worker’s compensation surety which foreclosed the application of § 72-706(2) in the instant case, Boise Cascade should be estopped from asserting the bar of § 72-448(1).

Moreover, and most importantly, in view of the intent evidenced by the legislative amendments of 1978 that § 72-604 apply to both occupational disease claims and nonoccupational disease claims alike, the restrictive interpretation of § 72-448(1) sought by respondent would frustrate the overall scheme of the Workers’ Compensation Law when its provisions are read as a whole.

Accordingly, Ms. Bainbridge’s claim is not barred by the statute of limitations.

THE CROSS-APPEAL

Boise Cascade and Northwestern National Insurance Company have cross-appealed from the Industrial Commission’s finding that Ms. Bainbridge did prove a prima facie case for industrial causation of an occupational disease.

It is well settled that findings of the Industrial Commission which are supported by substantial, competent evidence will not be reversed on appeal. Miller v. Amalgamated Sugar Company, 105 Idaho 725, 672 P.2d 1055 (1983); Griffin v. Potlatch Forests, Inc., 93 Idaho 174, 457 P.2d 413 (1969); Kiger v. Idaho Corporation, 85 Idaho 424, 380 P.2d 208 (1963).

The record indicates that Ms. Bainbridge presented uncontested evidence that the combination of formaldehyde and sawdust particulates can, and often does, cause respiratory problems such as bronchial asthma. Ms. Bainbridge further presented uncontroverted evidence that, prior to her employment with Boise Cascade, a physical examination showed her lungs to be clear and that she was asymptomatic to bronchial asthma. Evidence that both formaldehyde resin fumes, at a level where they could be detected by smell, and sawdust particulates were present in and around “Glue Booth 4” was presented. Finally, Dr. Rupert Burtan testified that, in his expert opinion, Ms. Bainbridge’s asthmatic condition was, “within a medical probability,” caused by her work environment.

In light of this accumulation of evidence, one cannot conclude that the Industrial Commission did not have substantial, competent evidence upon which to base their finding that Ms. Bainbridge had presented a prima facie case of industrial causation of an occupational disease.

Boise Cascade urges that Ms. Bainbridge has not presented a prima facie case because NIOSH air quality standards permit formaldehyde levels of up to one part per million and the record provides no evidence indicating that the formaldehyde levels at *89the situs either reached or exceeded that level. However, to rest its case, as Boise Cascade does at this point, does not negate the prima facie case. The NIOSH standard only sets a parameter for measuring the toxicity of formaldehyde fumes alone. It does not purport to establish a safe level for the combination of formaldehyde and wood particulates. Indeed, Boise Cascade never addressed the issue of whether formaldehyde, at whatever level of concentration in the air, would be absorbed into the wood dust particulates thereby increasing either the concentration of formaldehyde or the toxic effect of the combination. Moreover, evidence was presented indicating that highly susceptible individuals could contract such asthma at a level below the NIOSH standard.

In response, Boise Cascade further argues that causation cannot be proven since Ms. Bainbridge never presented evidence indicating that she falls into the special category of persons hyper-susceptible and highly sensitive to formaldehyde fumes. Again, such an evidentiary omission does not negate the prima facie case. Indeed, such a showing would have been redundant, given the evidence put forth showing Ms. Bainbridge to have had clear lungs and to have been asymptomatic to bronchial asthma prior to working for Boise Cascade, and to have contracted an acute, chronic form of bronchial asthma within two months of beginning work at Boise Cascade.

Finally, Boise Cascade contends that the testimony of Dr. Burtan was impeached on cross-examination, since he then testified that even if the NIOSH level was not exceeded, there was causation to a very strong medical “possibility.” Boise Cascade urges that Dr. Burtan’s failure to state that a “medical probability,” as opposed to “possibility,” of causation would exist under such a scenario, coupled with claimant's failure to show whether NIOSH levels were in fact exceeded, render his opinion on causation untenable.

The fallacy in Boise Cascade’s contention lies, again, in its assumption that claimant cannot prove her case in the absence of a definitive showing that NIOSH levels were exceeded. For reasons already stated, it was not incumbent upon Ms. Bainbridge to introduce NIOSH readings into evidence in order to prove a prima facie case. Hence, Boise Cascade cannot rely upon her failure to do so without first demonstrating that the NIOSH standards apply to the particular facts of this case. As already noted, Boise Cascade has shown no link between NIOSH standards covering formaldehyde concentrations alone and toxicity when wood particulates are found in conjunction with formaldehyde resin fumes. Accordingly, the Industrial Commission’s determination on causation should be affirmed.

I would reverse in part, affirm in part, and remand for further proceedings consistent with this dissent.

. I.C. § 72-602 provides:

72-602. Employers’ notice of injury and reports. — (1) First report — Notice of injury or occupational disease. As soon as practicable but not later than ten (10) days after the occurrence of an injury or occupational disease, requiring treatment by a physician or resulting in absence from work for one (1) day or more, a report thereof shall be made in writing by the employer to the commission in the form prescribed by the commission; the mailing to the commission of the written report within the time prescribed shall be compliance.

. 72-448. Notice of contraction of disease and claim for compensation. — (1) Except in cases of silicosis for which notice of contraction and claim for compensation may be given at any time within the four (4) year limitation provided in section 72-439, unless written notice of the manifestation of an occupational disease shall be given by the employee to the employer within sixty (60) days after the first manifestation thereof, and within five (5) months after the employment has ceased in which it is claimed the disease was contracted, and, in case of death, unless written notice of such death be given within ninety (90) days after the occurrence and unless claim for disability or death shall be made within one (1) year after manifestation of the disease or death respectively, all rights to compensation for disability or death from injury due to an occupational disease shall be forever barred.

. However, having ruled that the October 31, 1981 notice satisfied the 60-day notice requirement of I.C. § 72-448(1), the commission nevertheless found the claim barred by that same section’s one-year statute of limitations for filing a claim.

. I.C. section 72-706(2) provides:

(2) When compensation discontinued. When payments of compensation have been made and thereafter discontinued, the claimant shall have five (5) years from the date of the accident causing the injury or date of first *88manifestation of an occupational disease, or, if compensation is discontinued more than five (5) years from the date of the accident causing the injury or the date of first manifestation of an occupational disease, within one (1) year from the date of the last payment of compensation, within which to make and file with the commission an application requesting a hearing for further compensation and award.