Arndt v. Workers' Comp. Appeals Bd.

• Decision Date: 10 March 1976
• Court: California Court of Appeals Court of Appeals
• Parties: Eria M. ARNDT, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Western Asbestos Company et al.,, Respondents. Civ. 36864.

Page 250

128 Cal.Rptr. 250

56 Cal.App.3d 139

Eria M. ARNDT, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Western Asbestos Company et al.,, Respondents.

Civ. 36864.

Court of Appeal, First District, Division 1, California.

March 10, 1976.

Hearing Denied May 6, 1976.

Rockwell, Fulkerson & Barry and Richard F. Barry, San Rafael, for petitioner.

T. Groezinger, James J. Vonk, George S. Bjornsen, Glenn W. Groenewold, Richard A. Krimen, San Francisco, for respondent State Compensation Ins. Fund.

California Applicants' Attys. Assn. and Yale I. Jones, San Francisco, amicus curiae on behalf of petitioner.

ELKINGTON, Associate Justice.

We review an order of the Workers' Compensation Appeals Board ¹ (hereafter 'Board') dismissing petitioner Erla M. Arndt's application for death benefits following the death of her husband, John H. Arndt, from a claimed occupational disease.

In the proceedings before the Board petitioner established, or offered to establish, the following facts.

The deceased had been employed for many years until April 28, 1967, at an occupation in which he was exposed to minute asbestos components in the air. He then changed to a different type of employment at which he worked until August 11, 1970. On February 3, 1971, his death was brought about by a cancerous tumor of the lung called mesothelioma, a disease, at that time, of unknown etiology. Petitioner learned during April of 1973 that mesothelioma was an occupational disease of persons who in the course of their employment are exposed to asbestos dust or related substances in the air. Until then she had no knowledge or information that deceased's death, or the mesothelioma, was related to his employment. She filed her application for workers' compensation death benefits with the Workers' Compensation Appeals Board three months later, on July 5, 1973.

Mesothelioma is a rare disease, and only recently had 'research scientists (begun) noting the frequency of this disease in asbestos workers.' Tumor specialists were only in the 'early Seventies' becoming 'aware of the relationship between asbestos and mesothelioma.' This knowledge was even then 'far from common among most physicians, not the least because the disease itself was so rare.' The deceased's attending physician 'had no knowledge that Mr. Arndt's death was directly attributable to his occupational exposure to asbestos until early 1973, despite (the doctor's) exposure to current medical events as a practicing internist,' and he opined that 'neither Mr. or Mrs. Arndt (was) aware of the occupational nature of his illness.'

For reasons which will hereafter appear, we emphasize the fact that petitioner's application for workers' compensation benefits was filed more than One year after the date of her husband's death, and more than 240 weeks after he had last been exposed to the toxic asbestos substances.

The Board dismissed petitioner's application for the stated reasons that it was filed (1) more than one year after Mr. Arndt's death, and (2) more than 240 weeks after the date of his injury.

The ruling was purportedly based upon Labor Code section 5406 which, as here relevant, provides:

'The period within which may be commenced proceedings for the collection of (workers' compensation death benefits) is one year from: (a) The date of death where death occurs within one year from date of injury; . . . ( ) No such proceedings may be commenced more than one year after the date of death, nor more than 240 weeks from the date of injury.' ² (Emphasis added.)

It will be noted that section 5406's several statutes of limitations have two commencement points; one is the 'date of death' and the other, the 'date of injury.' (Emphasis added.)

We first consider the validity of the Board's conclusion that the application was barred because it was filed more than 240 weeks after the 'date of injury.'

The Board had obviously considered the 'date of injury' to be the last day of deceased's exposure (April 28, 1967) to the disease-causing asbestos substances.

In Marsh v. Industrial Acc. Com. (1933) 217 Cal. 338, 18 P.2d 933, three workers had become disabled through illness and had terminated their employment. Thereafter two of them died as a result of their illness. At a time beyond the fixed periods of the appropriate statutes of limitations for workers' compensation, the survivor of them, and the dependents of those who were deceased, learned that the workers' illness was a disease of the lungs due to silica dust, called pneumoconiosis silicosis, or silicosis, which had been caused by the inhaling of such dust by the workers in the caurse of their employment. The surviving worker, and the dependents of the others, then promptly filed applications for workers' compensation benefits.

The applicable statutes of limitations of Marsh provided, as does the present Labor Code section 5406, that proceedings for workers' compensation death benefits were permitted only where the 'death ensued within one year from the date of the injury,' and where proceedings were commenced 'within one year from the date of death, and in any event within two hundred forty weeks from the date of the injury.' ³ (Emphasis added.)

The claim of the widow of one of the deceased workers, Marsh, was made within one year of his death, and within 240 weeks of his last exposure to silica dust. However, his death had not 'ensued within one year from the date' of such last exposure. At issue was the question whether that date was the statute's 'date of injury.' If it was, the claim was barred.

After exhaustively reviewing broad authority on the subject the Marsh court concluded (217 Cal. p. 351, 18 P.2d p. 938):

"(I)n the case of a latent and progressive disease, such as pneumoconiosis, it cannot reasonably be said that the injury dates necessarily from the last day of exposure to a dust-laden atmosphere and that the prescriptive period begins to run from that day. Rather, according to our view, should the date of the injury be deemed the time when the accumulated effects culminate in a disability traceable to the latent disease as the primary cause, and by the exercise of reasonable care and diligence it is discoverable and apparent that a compensable injury was sustained in performance of the duties of the employment." (Emphasis added.)

This rule was applied to the application of the widow of Marsh. It was held that if, upon remand, it should appear that the applicant neither knew, nor reasonably should have known, the cause of her husband's disability until after his death, the Date of such discovery, for the purpose of the statute of limitations, should be fixed as the statute's 'date of injury.'

This rule of Marsh has been uniformly followed throughout the years. ⁴ It disposes of the Board's conclusion, and the instant respondents' contention, that the date of Mr. Arndt's last exposure to the mesothelioma-causing substance was the 'date of injury.'

More difficulty is encountered in resolving the question whether petitioner's claim was barred, as found by the Board, by Labor Code section 5406 in that it was filed more than one year after the 'date of death.'

On this question also, Marsh v. Industrial Acc. Com., supra, 217 Cal. 338, 18 P.2d 933, has spoken.

As has been pointed out, the court in that case, as to the worker Marsh's widow, applied the rule that the date on which it became known, or reasonably should have, that the death was of industrial causation, was for the purpose of death benefits the 'date of injury.' The claim had been filed within one year of the 'date of death,' so there was no issue on that point.

However, in Marsh the claim of the widow of the other deceased worker, Woods, was filed more than one year after the 'date of death.' As to that application, and without further discussion, the court said (217 Cal. p. 352, 18 P.2d 933, 939): 'There is therefore no escape from the mandatory provisions of section 11(b), subdivision (2), of said act and the action of the Commission in denying relief was clearly correct. The order in this case is affirmed.'

Implicit in this ruling of Marsh is the holding that an application for compensation benefits following a worker's death from disease of industrial causation must, in any event, be filed within one year of the death. And this requirement was held to exist even though, as in the case before us, the dependent neither knew, nor reasonably should have known, of the death's industrial causation until after the expiration of the one-year period.

Unlike the previously discussed ruling of Marsh, we find no appellate decisions of this state following, or even considering, the unelaborated ruling instantily under discussion. On the other hand, we observe that a recent decision of the same court casts considerable doubt upon the ruling's current validity. That case is Fruehauf Corp. v. Workmen's Comp. App. Bd., supra, 68 Cal.2d 569, 68 Cal.Rptr. 164, 440 P.2d 236.

Fruehauf says (p. 577, 68 Cal.Rptr. p. 169, 440 P.2d p. 241):

'It would be unreasonable to hold that although an employee who has suffered an injury resulting from several minor traumas is deemed not to be injured for the purposes of the statute of limitations until the minor traumas result in disability, once the injury has ripened into disability he is required to know immediately that such disability was caused by his employment. ⁵ As Marsh and other authorities have held, an employee is not to be deprived of compensation merely because he fails to make a correct medical diagnosis. (Citations.)

'Limitations provisions in the workmen's compensation law must be liberally construed in favor of the employee unless otherwise compelled by the language of the statute, and such enactments should not be interpreted in a manner which will result in a right being lost before it accrues. (Citations.) To hold that an employee who has suffered an injury due to a series of latent, insidious,...