Luckau v. Board of Review of the Industrial Commission

BENCH, Presiding Judge

(dissenting):

I respectfully dissent. While I generally agree with the standard set forth, I disagree with the analysis used by the majority. I also believe that the AU properly applied the standard set forth and that Luckau will not receive a more favorable outcome on reconsideration. Therefore, I would affirm the Commission's decision.

I write primarily to address the majority’s analytical approach to this ease. The majority sets forth an expansive collection of legal propositions, but then fails to apply many of them to this case. I join Justice Wolfe in “deploying] the setting out of many abstract propositions of law ... which plague one critically reading an opinion and require endless time to analyze when they do not seem necessary to a decision of the case.” Hess v. Robinson, 109 Utah 60, 70, 163 P.2d 510, 514 (1945) (Wolfe, J., concurring in the result). Since *817the majority does not utilize many of the legal principles it recites, readers are left to guess how they apply. In order to avoid future confusion, the principles cited should have been either used or deleted from the opinion.

STANDARD OF REVIEW

While the majority has attempted to set forth the standard of review found in Morton International, Inc. v. State Tax Commission, 814 P.2d 581, 588-89 (Utah 1991), it has not precisely followed the supreme court’s directions. When a petitioner claims that an agency has misinterpreted a statute, the first question to be answered is whether the statute is ambiguous. Id. “If the statute is clear and unambiguous, there is no implicit grant of discretion possible because there is no interpretation required by the agency.” Ferro v. Department of Commerce, 828 P.2d 507, 510 (Utah App.1992). “Where statutory language is plain and unambiguous, this Court will not look beyond to divine legislative intent.” Allisen v. American Legion Post No. 134, 763 P.2d 806, 809 (Utah 1988). Rather, “the plain language of the statute must be taken as the expression of the Legislature’s intent.” P.I.E. Employees Fed. Credit Union v. Bass, 759 P.2d 1144, 1151 (1988).

“A statute is ambiguous if it can be understood by reasonably well-informed persons to have different meanings.” Tanner v. Phoenix Ins. Co., 799 P.2d 231, 233 (Utah App.1990). The majority in this case seems to hold that Utah Code Ann. § 35-2-14 (hereinafter section 14) is ambiguous because it sets forth two interpretations, or “definitions,” of the last injurious exposure rule. It also purportedly utilizes the rule that the entire statute should be considered when interpreting ambiguous statutory language.1 The majority, however, never identifies the different plausible interpretations of section 14 that render it ambiguous.

Identifying the ambiguous language at issue, and its plausible interpretations, is the threshold question when statutory language does not have a plain meaning. If the majority would attempt to articulate the plausible interpretations of the specific language actually used by the legislature in section 14, rather than focus on general policy considerations, it would find that section 14 is not ambiguous.2

ANALYSIS

Plain Meaning

The phrase “last injuriously exposed to the hazards of such disease” has only one plausible meaning. It refers to the last time the employee was exposed to the hazards of the disease in a manner that injured the employee. The plain meaning of the term “injuriously exposed” logically requires a showing that the exposure injured the employee by causing or contributing to the employee’s disease. The exposure therefore must either be in an amount or over a period of time sufficient to cause or contribute to the disease in order for it to be deemed injurious. “[T]he duration and extent of exposure must have some significance or the plain meaning of the words lose their significance.” Larson, Workmen’s Compensation Law, § 95.26(a). The majority may therefore reach its stan*818dard by simply looking to the plain meaning of the language used by the legislature in section 14.

There is additional plain language in section 14 that makes it clear that the last injurious exposure rule only applies after a causal connection has been otherwise established. Section 14 begins with the following precondition: “When compensation is payable_” As is clear from this language, Luckau must show that compensation is otherwise payable by Broadway for a covered exposure before she may invoke the last injurious exposure rule to place full liability on Broadway. Section 35-2-27 (hereinafter section 27) of the Act makes it clear that compensation is not payable unless causation is established. It therefore follows, as a matter of logic, that before section 14 may be applied, Luckau must prove that the exposure at Broadway could have directly caused or contributed to the mesothelioma as required by section 27.

Resolving Ambiguity

Subsequent to the initiation of this matter, but prior to hearing, the legislature amended section 14 by adding a clarifying provision clearly describing the degree of injurious exposure required. The amendment provides that in order for the last injurious exposure rule to apply, the employer’s exposure must have been “a substantial contributing medical cause of the alleged occupational disease.” Utah Code Ann. § 35-2-105 (Supp.1992) (effective April 29, 1991).

If the majority is correct in assuming that section 14 is ambiguous, it fails to properly interpret it in light of the clarifying amendment. Under traditional rules, “[w]hen a statute is amended, the amendment is persuasive evidence of the legislature’s intent when it passed the former, unamended statute.” State v. Bishop, 753 P.2d 439, 486 (Utah 1988). See also Foil v. Ballinger, 601 P.2d 144, 150 (Utah 1979) (amendment clarified original legislative intent by adding language explaining when original language is applicable); Okland Constr. Co. v. Industrial Comm’n, 520 P.2d 208, 210-11 (Utah 1974) (amendment dealing with “clarification or amplification as to how the law should have been understood” prior to the amendment should be applied retroactively); State v. Davis, 787 P.2d 517, 523 (Utah App.1990) (legislature clarified its original intentions by subsequently adding prohibition); Larson v. Overland Thrift and Loan, 818 P.2d 1316, 1320 n. 3 (Utah App.1991); Shelter America Corp. v. Ohio Cas. and Ins. Co., 745 P.2d 843, 845 (Utah App.1987). If the majority were to consider the 1991 amendment, there would be no debate as to the legislature’s intended standard.3

PREJUDICE

Before we may grant relief from an agency action, we are statutorily required to find that a petitioner would have likely received a more favorable outcome had an alleged error not been made. Morton, 814 P.2d at 584 (interpreting Utah Code Ann. § 63-46b-16(4) (1989)). Luckau alleges that the AU misinterpreted, section 14 by stating that the last injurious exposure rule requires a “substantial dosage of exposure, and/or duration of exposure.” The majority remands because it holds that this statement was an erroneous statement of the law. Luckau, however, has not shown how this statement has prejudiced her claim.

A review of the record reveals that despite the apparent indication of a more demanding standard, the AU actually applied the very standard set forth today, and found against Luckau. The AU expressly found that decedent’s death was not covered because any exposure to asbestos suf*819fered by the decedent at Broadway was not a “conjunctive cause of the decedent’s fatal mesothelioma.” The AU expressly found that decedent’s exposure to asbestos at the shop was “only a de minimis exposure, of no more consequence on this 6 to 9 month daily basis, than what we are all exposed to in a non-industrial, ambient air setting.”4 These factual findings have not been challenged and therefore remain undisturbed. Consequently, when the Commission reconsiders the facts in light of the standard identified today, it will necessarily deny benefits.

A further review of the record also reveals that Luckau is not entitled to compensation because she has not satisfied other requirements found in section 27. In particular, there is no showing that the decedent’s mesothelioma was “incidental to the character of the business” as required by subsection 27(5). In Palmer v. Del Webb’s High Sierra, 838 P.2d 435 (Nev.1992), the Nevada Supreme Court held that an employee’s lung disease that resulted from exposure to environmental smoke at the casino where the employee worked was not an occupational disease because the disease was not related to the nature or character of the job. The court reasoned that the requirement that the disease-causing conditions be “incidental to the character of the business” makes it “apparent that the legislature intended that there must be a connection between the kind of job and the kind of disease. Mere causation is not enough.” Id. at 435-436. Luckau has not made any claim, nor presented any evidence, that the nature or character of the shoe repair business creates a risk that shoe repairers will contract mesothelioma. The record is unequivocal that decedent’s exposure to asbestos, if any, was caused by the physical structure wherein the shoe repair business was located, not by the character of shoe repair. Since the decedent’s alleged exposure to asbestos was purportedly caused by his structural surroundings, and not by the nature or character of his occupation, it appears that even if the alleged exposure was a contributing cause, it was not covered under the Act.

It also appears that section 35-2-13(b)(4) of the Act requires that decedent’s death occur within three years from the last date on which he actually worked for Broadway in order to be covered. Since decedent passed away more than three years after he worked for Broadway, any claim is apparently barred under the express terms of the Act. Tisco, 744 P.2d at 1342.

CONCLUSION

Under the plain language of the Act, the last injurious exposure rule only applies when the exposure caused by the target employer is shown to have caused or contributed to the disease. The Commission found that the decedent’s exposure to asbestos at Broadway was not a contributing cause of the disease. Since Luckau has not made any showing of the likelihood of a different result on remand, the majority errs in reversing.

I would therefore affirm the Commission’s decision to deny benefits.

. The majority purports to “analyze the act in its entirety,” but it never considers any other provision of the Act. Instead, it quotes Tisco Intermountain v. Industrial Commission, 744 P.2d 1340, 1343 (Utah 1987), also a mesothelioma case, for the proposition that "[plolicy considerations in workers’ compensation cases dictate that statutes should be liberally construed in favor of an award.” The majority omits the next sentence in Tisco: “However, policy considerations have no application in the absence of any evidence to support an award, nor can they be used to controvert the clear meaning of the statutory requirements upon which an award must be based.” Id. (emphasis added).

. Under the analysis set forth in Morton, it is improper for this court to embark on a policy quest. If section 14 is ambiguous and we are unable to identify the legislature’s policy determinations by using the rules of statutory construction, we must defer to the agency’s policy determination as evidenced by its interpretation. 814 P.2d at 589 (we are to assume the legislature intended that the agency apply its expertise to resolve any questions where legislative intent is not discernible).

. The majority fails to provide any justifiable reason for not applying the clarifying amendment retroactively. It erroneously relies upon the "presumption of change” rule. The presumption of change rule, however, only applies to material changes in the original language, not to mere additions that only add explanatory language. Singer, Sutherland Statutory Construction, Vol. 1A § 22.30 at 265 (4th ed. 1985). “An amendment of an unambiguous statute indicates a purpose to change the law, whereas no such purpose is indicated by the mere fact of an amendment of an ambiguous provision." Id. at 266 (emphasis added). If the majority finds section 14 to be ambiguous, it clearly errs in relying upon the presumption of change rule.

. The last sentence of section 27 explicitly provides that: "No disease or injury to health shall be found compensable where it is of a character to which the general public is commonly exposed.”