Hadley v. Industrial Com'n of Colorado, s. 83CA0227

• Decision Date: 12 January 1984
• Docket Number: Nos. 83CA0227,83CA0228 and 83CA0229,s. 83CA0227
• Citation: 677 P.2d 443
• Parties: John HADLEY, Petitioner, v. INDUSTRIAL COMMISSION OF COLORADO, Department of Labor and Employment, State of Colorado, James Galyean and/or Vanadium Corporation of America and/or Climax Uranium Corp., Inc., and State Compensation Insurance Fund, Respondents. Roscoe KINSEL, Petitioner, v. INDUSTRIAL COMMISSION OF COLORADO, Department of Labor and Employment, State of Colorado, Lark Washburn and/or Vanadium Corporation of America/Foote Mineral, and State Compensation Insurance Fund, Respondents. Lewis L. YAZZIE, Petitioner, v. INDUSTRIAL COMMISSION OF COLORADO, Department of Labor and Employment, State of Colorado, Vanadium Corporation of America and/or Keith and Roy Andress d/b/a Andress Bros., and State Compensation Insurance Fund, Respondents. . III
• Court: Colorado Court of Appeals

Page 443

677 P.2d 443

John HADLEY, Petitioner, v. INDUSTRIAL COMMISSION OF COLORADO, Department of Labor and Employment, State of Colorado, James Galyean and/or Vanadium

Corporation of America and/or Climax Uranium Corp., Inc.,

and State Compensation Insurance Fund, Respondents.

Roscoe KINSEL, Petitioner, v. INDUSTRIAL COMMISSION OF COLORADO, Department of Labor and Employment, State of Colorado, Lark Washburn and/or Vanadium

Corporation of America/Foote Mineral, and State Compensation

Insurance Fund, Respondents.

Lewis L. YAZZIE, Petitioner, v. INDUSTRIAL COMMISSION OF COLORADO, Department of Labor and Employment, State of Colorado, Vanadium Corporation of

America and/or Keith and Roy Andress d/b/a Andress Bros.,

and State Compensation Insurance Fund, Respondents.

Nos. 83CA0227, 83CA0228 and 83CA0229.

Colorado Court of Appeals Div. III.

Jan. 12, 1984.

Robert C. Dawes, P.C., Robert C. Dawes, Durango, for petitioner.

Russell A. Stanley, Denver, for respondents other than the Industrial Com'n of Colorado.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Robert Lehnert, Asst. Atty. Gen., Denver, for Industrial Com'n of Colorado.

TURSI, Judge.

This is a review of three final orders of the Industrial Commission, issued contemporaneously, which have been consolidated for consideration by this court. We set aside the orders denying benefits, and remand with directions.

The individual petitioners, John Hadley, Roscoe Kinsel, and Lewis L. Yazzie, each filed claims for compensation claiming that they suffered disability as a result of the occupational disease of silicosis caused by their employment in uranium mines. The various respondents contested liability. Their primary defense was that the claims had not been timely filed.

Hadley's last exposure was in 1967, his onset of disability was in 1977, and his claim was filed in 1980. Kinsel's last exposure was in 1967, his onset of disability was in 1980, and he filed his claim in 1980. Yazzie's last exposure was in 1964, the onset of his disability was in 1979, and his claim was filed in 1981. The same referee heard the three claims. He entered an award for Hadley, but later denied awards for Kinsel and Yazzie. The Industrial Commission vacated the order in Hadley and affirmed the orders in Kinsel and Yazzie.

The adversely affected parties sought review by the Industrial Commission, which considered the individual claims concurrently. The Commission determined the dispositive issue to be whether the time limitation for filing claims, under the common facts of these cases, was controlled by C.R.S.1963, 81-18-10(1)(f), which was in effect at the time of last exposure, or by § 8-52-105(3), C.R.S.1973 (1982 Cum.Supp.), which was in effect at the time of the onset of disability.

C.R.S.1963, 81-18-10, provided:

"(1) An employer shall not be liable for compensation or other benefits under the provisions of this article for disability or death resulting from the diseases specified in section 81-18-9 except where the following conditions are shown to exist:

* * *

"(f) In the case of disability from silicosis, asbestosis or anthracosis, the disablement has resulted within five years from the date of the employee's last injurious exposure to such disease while actually working for the employer against whom compensation is claimed ...."

This statute of limitation, as part of the Occupational Disease Disability Act, was repealed in 1975. The reenactment incorporated much of the former act but added § 8-52-105(3), C.R.S.1973 (1982 Cum.Supp.) which provides:

"In cases of disability or death resulting from ... asbestosis, silicosis, or anthracosis, the right to compensation and benefits shall be barred unless, within five years after the commencement of disability or death, a notice claiming compensation is filed with the division."

In making its determination, the Commission was confronted with two conflicting decisions of this court. These cases are Tucker v. Claimants in re Death of Gonzales, 37 Colo.App. 252, 546 P.2d 1271 (1975), (cert. denied, March 8, 1976), and Stark v. Zimmerman, 638 P.2d 843 (Colo.App.1981).

In Tucker, Gonzales died from lung cancer caused by exposure to radioactivity and mining. His last injurious exposure was in 1958 but his disease was not discovered until after his death in 1967. The Tucker court stated that the issue was whether the claim was subject to the statutory provisions in effect at the time of...