dissenting: I am unable to agree with the basis and the result of the court’s decision in this case. The majority opinion disregards the fundamental differences between a physical injury covered by the workmen’s compensation act and a disease as recognized in the occupational disease sections of the act. The majority decision is reached by engrafting the concept of disability in physical injury cases into the occupational disease sections of the act and by disregarding the specific distinction recognized in the occupational disease section of the act (K. S. A. 44-5a04).
When a physical injury occurs it is immediate and apparent. The date of injury and the employer liable are relatively certain. The injury by accident can readily be determined to arise out of and in the course of the employment. The disability begins at the time of the physical injury. (See Shepherd v. Gas Service Co., 186 Kan. 699, 352 P. 2d 48.)
When a workman contracts dermatitis or other occupational disease such certainty is not possible. The onset of a disease is usually precipitated by conditions not immediately discernible. It may or may not appear to have resulted from the nature of the employment. In event the workman has worked for different employers while being subjected to the conditions giving rise to the disease it becomes difficult to fix the liability for disablement. The exact date the disability occurred may be questionable.
These fundamental differences are recognized and treated in the occupational disease sections of the act. K. S. A. 44-5a01 extends the provisions of the workmen’s compensation act to certain occupational diseases listed under K. S. A. 44-5a02. The disease covered must have resulted from the “nature of the employment” and there must be “a particular hazard” of that disease in the employment. The disablement must result within one year after the last injurious exposure to the hazard.
The definitions of disablement and disability in occupational disease cases are quite different from the meanings of those terms in physical injury cases. (See K. S. A. 44-5a04.) In disease cases the disability is attributed to the work in which the workman was last *577injuriously exposed, and the statute recognizes that the incapacity may prevent the workman from performing a particular work although body functions may not otherwise be impaired. The date a workman can no longer perform the work in which he was last exposed is arbitrarily taken as the date of the injury. (See Knight v. Hudiburg-Smith Chevrolet, Olds., Inc., 200 Kan. 205, 435 P. 2d 3, and Ochoa v. Swift & Co., 200 Kan. 478, 436 P. 2d 412.) However, he may have suffered from the disease for weeks or months prior thereto.
These important differences are recognized in K. S. A. 44-5a06. The date of disablement is arbitrarily fixed and liability is placed upon the last employer in whose employment the workman was last injuriously exposed to the hazards without any right to obtain contribution from prior employers.
The provisions of K. S. A. 44-5a03 build into the act certain protections for the employer so he may obtain a written statement from the employee before hiring him and thereby know and guard against claims based upon recurring occupational disease. There is no contention in the present case that the claimant made any false representations as to previous disablement and it appears doubtful if the first occurrence of the disease was of such nature and duration as to make him aware of any future disablement. The disease cleared up in five days and he continued to work for approximately a month without suffering a recurrence.
I have no quarrel with the cases cited in the majority opinion. These cases, beginning with Richardson v. National Refining Co., 136 Kan. 724, 18 P. 2d 131 and continuing through Shepherd v. Gas Service Co., supra, are based upon the obvious, i. e. that payment of medical expenses is a payment of compensation under the act. The cases do not hold, however, that the term “compensation for medical” is synonymous with “compensation for disability” as used in K. S. A. 44-5al6.
The section of the workmen’s compensation act relating to compensation (K. S. A. 44-510) provides for compensation to be paid (1) in the treatment and care of injured employees, (2) where death results from the injury and (3) where death does not result from the injury but there is disability.
In 2 Larson’s Workmen’s Compensation Law § 57.10 it is said:
“Workmen’s compensation benefits fall initially into two categories: benefits to the workman for physical injury, and benefits to dependents in case of death. *578Benefits for physical injury, in turn, are of two kinds; wage-loss payments based on the concept of disability; and payment of hospital and medical expenses occasioned by any work-connected injury, regardless of wage loss or disability." (Emphasis supplied.)
The legislative purpose in adopting K. S. A. 44-5al6 as part of the occupational disease sections of the act was not directed towards payments for the care and treatment of employees (medical compensation). It refers only to persons who have suffered disability from dermatitis and have received compensation for disability, as distinguished from compensation for care and treatment. Once having received disability compensation (wage-loss payments) a subsequent employer should not be subjected to a claim for additional disability or wage-loss compensation unless the employee has worked for him at least sixty (60) days.
Such a requirement gives protection to the employer from the effects of the “last injurious exposure” rule which arbitrarily fixes the date of the injury and removes any right of contribution from prior employers. It gives the last employer some assurance that the disability was incurred from a substantial sixty day exposure to the hazard.
Other states require a sixty day exposure with any employer before subjecting the employer to payment of compensation for disability from occupational disease. (2 Larson’s Workmen’s Compensation Law § 95.24.) Idaho is one of those states and their statute requires the employer in any event to provide reasonable medical treatment. (Idaho Code 72-1210.)
The construction placed upon K. S. A. 44-5al6 in the majority opinion makes this statute harsh and unjust. A workman afflicted with dermatitis for the first time will seldom recognize that the cause of the disease stems from his employment. He will consider it to be a temporary ailment. If he receives medical treatment through his employer he is thereafter precluded from recovering compensation on a second occurrence of the disease. Such was not the intent of the legislature as expressed in the statute. I would reverse the case and remand it to the district court with instructions to determine compensation due for disablement as provided in K. S. A. 44-5a06.
O’Connor, J., joins in the foregoing dissent.