dissenting.
I respectfully dissent.
In Stevenson v. Industrial Commission, 190 Colo. 234, 545 P.2d 712 (1976), the Supreme Court determined that § 8-60-110(1)(g), C.R.S.1973, was unconstitutional as an abridgement of claimant’s right to equal protection of the laws. I find the rationale there employed equally applicable to § 8-60-110(l)(e) of the same statute. That rationale points out that: “ ‘While the five year exposure requirement does probably eliminate many claims in which there is no causal connection between the employment and the disease, the category it creates also includes some persons whose exposure for less than five years had induced the disease. The administrative convenience to the state of being able to screen out large numbers of potential applicants who would not be able to show causal connection does not justify denial of an opportunity to show causal connection to those who can make such a showing.’ ”
The appellee’s brief here concedes that in Stevenson, supra, the Supreme Court “agreed with the trial court’s rationale that the five year exposure requirement was not shown to bear a reasonable relation to a legitimate state objective.” Stevenson dealt with only one of the issues which the trial court found made the statute improper, that being the improper distinction between “disabled employees exposed to harmful quantities of silicone dioxide dust (silica) for five years or more and those who have been so exposed for less than five years.” As the court in Stevenson, supra, pointed out, the claimant alleged that § 8-60-110(l)(g) denied him due process and equal protection under both the United States and Colorado Constitutions.
Since I deem § 8-60-110(l)(e), C.R.S. 1973, to be unconstitutional, there is no reason to consider § 2-4-303, C.R.S.1973, as being applicable. Nor does Graber v. Peter Lametti Construction Co., supra, apply.
Although I would hold that § 8-60-110 is not jurisdictional in nature, it is unnecessary to do so because with the elimination of subsection (l)(e) from this statute because of its unconstitutionality there is no further bar under this section.
Here, the referee’s supplemental order found as fact based upon evidence in the record that the claimant had been employed as a uranium miner from October 1945 until November 1960, that he was last employed by respondent employer from August 1957 to November 1960, and that during all periods of that employment he was exposed to silica dust. During his 10½ years of employment beginning in March of 1961, he was not exposed to silica dust. The referee further found that on July 18, 1972, claimant was diagnosed as having silicosis and found to be totally incapacitated for any gainful employment.
In Climax Uranium Co. v. Smith, 33 Colo. App. 337, 522 P.2d 134 (1974), the concept of “last injurious exposure” was defined as “a concentration of toxic material which would be sufficient to cause the disease in the event of prolonged exposure to such concentration.” The Supreme Court in Union Carbide v. Industrial Commission, 196 Colo. 56, 581 P.2d 734 (1978), approved that test. Since the referee here did not make any specific finding that claimant’s disablement from silicosis was as a result of his last injurious exposure during his employment as a uranium miner, I would remand this matter to the Industrial Commission for a hearing on this issue.
I would set aside the order of the Industrial Commission on its ruling that § 8-60-110(l)(e), C.R.S.1973, acts as a bar to claimant’s right to an award and remand for further hearing.