Booker v. Duke Medical Center

• Decision Date: 12 July 1979
• Docket Number: No. 77,77
• Citation: 297 N.C. 458,256 S.E.2d 189
• Parties: Esther B. BOOKER, Widow and Guardian ad Litem for Elizabeth A. Booker, et al. v. DUKE MEDICAL CENTER and Glens Falls Insurance Company.
• Court: North Carolina Supreme Court

Page 189

256 S.E.2d 189

297 N.C. 458

Esther B. BOOKER, Widow and Guardian ad Litem for Elizabeth A. Booker, et al. v. DUKE MEDICAL CENTER and Glens Falls Insurance Company.

No. 77.

Supreme Court of North Carolina.

July 12, 1979.

Dalton H. Loftin, Hillsborough, for plaintiffs.

Newsom, Graham, Strayhorn, Hedrick, Murray, Bryson & Kennon by Robert B. Glenn, Jr., and Josiah S. Murray III, Durham, for defendants.

SHARP, Chief Justice.

For an injury or death to be compensable under our Workmen's Compensation Act it must be either the result of an "accident arising out of and in the course of the employment" or an "occupational disease." The Court of Appeals concluded that Booker's injury was not the result of an "accident" because no specific incident could be identified which led to his contracting the disease. Booker v. Medical Center, 32 N.C.App. 185, 231 S.E.2d 187 (1977). None of the parties to this appeal assigned that conclusion as error. The question before us therefore is whether or not his death was the result of an "occupational disease." Because serum hepatitis is not expressly mentioned in the schedule of diseases contained in G.S. 97-53, it is a compensable injury only if it falls within the general definition set out in G.S. 97-53(13).

Booker was diagnosed as having serum hepatitis on 3 July 1971. He first exhibited symptoms of the disease three or four days prior to the diagnosis. The incubation period for the disease ranges from six weeks to six months. Prior to 1 July 1971 the definition of "occupational disease" set out in G.S. 97-53 included an "(i)nfection or inflammation of the skin, eyes, or other external contact surfaces or oral or nasal cavities or any other internal or external organ or organs of the body due to irritating oils, cutting compounds, chemical dust, liquids, fumes, gases or vapors, and any other materials or substances." 1963 N.C.Sess.Laws ch. 965, formerly codified at N.C.Gen.Stat. § 97-53(13) (1965).

Effective 1 July 1971, and applying "only to cases originating on and after" that date, subsection (13) of G.S. 97-53 was amended to read as follows:

"Any disease, other than hearing loss covered in another subdivision of this section, which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment."

The Court of Appeals concluded that appellants' claim should be governed by the law in effect at the time Booker contracted the disease. It held that to do otherwise "would be to provide Ex post facto coverage for diseases contracted under conditions existing before the statute providing coverage was enacted." 32 N.C.App. at 190, 231 S.E.2d at 191. On the other hand, the full Industrial Commission applied the amended version of G.S. 97-53(13), the statute in effect when Booker died on 3 January 1974.

The first question confronting us is which statute to apply. By its express terms the amended version of G.S. 97-53(13) applies "only to cases originating on and after July 1, 1971." 1971 N.C.Sess.Laws, ch. 547 § 3. A case or claim Originates, in the ordinary understanding of the term, when the cause of action arises.

In Wray v. Woolen Mills, 205 N.C. 782, 172 S.E. 487 (1934), we held that the dependents' right to compensation is "an original right . . . enforceable only after (the employee's) death." Therefore, since the dependents' claim for compensation did not arise until the employee's death, his failure to file a claim for disability compensation within the statutory period did not bar his dependents' claim for death benefits. 205 N.C. at 783-84, 172 S.E. at 488. A majority of states follow this rule. 2 A. Larson, Workmen's Compensation Law § 64.10 (1976).

Among those jurisdictions which, like North Carolina, treat the dependents' right to compensation as separate and distinct from the rights of the injured employee, it is generally held that the right to compensation is governed by the law in force at the time of death. Tucker v. Claimants in Death of Gonzales, 37 Colo.App. 252, 546 P.2d 1271 (1975); Peterson v. Federal Mining & Smelting Co., 67 Idaho 111, 170 P.2d 611 (1946); Cline v. Mayor of Baltimore, 13 Md.App. 337, 283 A.2d 188 (1971), Aff'd 266 Md. 42, 291 A.2d 464 (1972); Schwartz v. Talmo, 295 Minn. 356, 205 N.W.2d 318, Appeal dismissed 414 U.S. 803, 94 S.Ct. 130, 38 L.Ed.2d 39 (1973); Hirsch v. Hirsch Brothers, Inc., 97 N.H. 480, 92 A.2d 402 (1952); McAllister v. Board of Education, 42 N.J. 56, 198 A.2d 765 (1964); Silver King Coalition Mines Co. v. Industrial Commission, 2 Utah 2d 1, 268 P.2d 689 (1954); Sizemore v. State Workmen's Compensation Commissioner, 219 S.E.2d 912 (W.Va.1975). See also 99 C.J.S. Workmen's Compensation § 21c (1958 & Cum.Supp.1978). This rule has been applied even when the effect was to confer upon the dependents substantive rights which were unavailable to the employee during his lifetime. See, e. g., Tucker v. Claimants in Death of Gonzales, supra.

Since the dependents' right to compensation under G.S. 97-38 does not arise until the employee's death, the date of his death logically governs which statute applies. Contrary to the intimation of the Court of Appeals this construction of G.S. 97-53(13) does not make the statute unconstitutional. A statute is not rendered unconstitutionally retroactive merely because it operates on facts which were in existence prior to its enactment. The proper question for consideration is whether the act as applied will interfere with rights which had vested or liabilities which had accrued at the time it took effect. Wilson v. Anderson, 232 N.C. 212, 59 S.E.2d 836 (1950); Hospital v. Guilford County, 221 N.C. 308, 20 S.E.2d 332 (1942); Stanback v. Bank, 197 N.C. 292, 148 S.E. 313 (1929). This is the test which has consistently been applied in construing amendments to our Workmen's Compensation Act. See, e. g., Hartsell v. Thermoid Co., 249 N.C. 527, 107 S.E.2d 115 (1959); Oaks v. Mills Corp., 249 N.C. 285, 106 S.E.2d 202 (1958); McCrater v. Engineering Corp., 248 N.C. 707, 104 S.E.2d 858 (1958).

For an occupational disease to be compensable under the amended version of G.S. 97-53(13) two conditions must be met: (1) It must be "proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment"; and (2) it cannot be an "ordinary disease of life to which the general public is equally exposed outside of the employment."

Before attempting to apply G.S. 97-53(13) to the facts of the instant case, it will be helpful to review briefly the circumstances which led to its enactment. Occupational disease coverage in the United States has always lagged far behind "accident" coverage. 1B A. Larson, Workmen's Compensation Law § 41.20 (1978). The first workers' compensation laws were constructed to afford relief only to those persons who suffered an unexpected, employment-related accident during the working day. Even well-known diseases of the workplace, such as lead and arsenic poisoning, were not covered by the early laws. Solomons, Workers' Compensation for Occupational Disease Victims: Federal Standards and Threshold Problems, 41 Alb.L.Rev. 195, 197 (1977). When North Carolina passed its Workmen's Compensation Act in 1929 it borrowed the phrase "injury by accident" from the original British Act to describe the type of injury covered. Note, Development of North Carolina Occupational Disease Coverage, 7 Wake Forest L.Rev. 341, 342 (1971). No specific coverage was provided for occupational diseases. 1929 N.C.Pub.Laws, ch. 120. In 1935 the General Assembly amended the Act to provide coverage for specified occupational diseases. 7 Wake Forest L.Rev. at 344; 1935 N.C.Pub.Laws, ch. 123. In the thirty-five years following the enactment of G.S. 97-53 only two new occupational diseases (undulant fever and psittacosis) were added to the schedule of coverage. 7 Wake Forest L.Rev. at 352.

The great disadvantage of schedule-type coverage is its failure to keep pace with the development of new disabling exposures in the industrial process. Sears and Groves, Worker Protection Under Occupational Disease Disability Statutes, 31 Rocky Mtn.L.Rev. 462, 467 (1959). While the schedule method was widely used at first, the definite trend has been toward expansion into general coverage, either by abandoning the schedule altogether or by leaving the list intact while providing for coverage of all other occupational diseases. 1B A. Larson, Workmen's Compensation Law § 41.20 (1978). The clear intent of the General Assembly in enacting the current version of G.S. 97-53(13) was to bring North Carolina in line with the vast majority of states by providing comprehensive coverage for occupational diseases. ¹

The Court of Appeals held that an illness is compensable under G.S. 97-53, whether mentioned specifically in the statute or falling within the general definition in subsection (13), only if it also comes within "well understood definitions of the term 'occupational diseases.' " 32 N.C.App. at 192, 231 S.E.2d at 192. The definitions to which the court referred are those found in Henry v. Leather Co., 234 N.C. 126, 66 S.E.2d 693 (1951). In this case, decided long before adoption of the current version of G.S. 97-53(13), this Court made the following remarks:

"The Legislature, in listing those diseases which are to be deemed occupational in character, was fully aware of the meaning of the term 'occupational disease.' Indeed, it in effect, defined the term in G.S. 97-52 as a diseased condition caused by a series of events, of a similar or like nature, occurring regularly or at frequent intervals over an extended period of time, in employment. The term has likewise been defined as a diseased condition arising gradually from the character of the employee's work. These are...