Bunker v. National Gypsum Co.

Decision Date26 October 1982
Docket NumberNo. 1082S403,1082S403
Citation441 N.E.2d 8
PartiesRichard D. BUNKER, Appellant, v. NATIONAL GYPSUM COMPANY, Appellee.
CourtIndiana Supreme Court

M. Robert Benson, Ronald E. James, Sowers & Benson, Fort Wayne, for appellant.

Geoffrey Segar, Edward J. Ohleyer, James L. Petersen, Ice, Miller, Donadio & Ryan, Indianapolis, for appellee.

Michael A. Bergin, Locke, Reynolds, Boyd & Weisell, Indianapolis, for amicus curiae The Indiana Legal Foundation.

PIVARNIK, Justice.

This cause comes to us on a Petition for Transfer from the Third District Court of Appeals. Plaintiff-Appellant-Respondent, Richard D. Bunker, discovered in July, 1976, that he was afflicted with asbestosis. On June 17, 1978, he applied to the Industrial Board of Indiana for disability benefits under the "Indiana Workmen's Occupational Diseases Act." He alleged that his permanent disability was due to his work-related exposure to asbestos dust. The Industrial Board held that Respondent's claim was barred by the statute of limitations provision of the Occupational Diseases Act. Specifically, the Board found that Respondent's disability had not arisen within three years of the date of his last job-related exposure and therefore was not compensable. On appeal, two of the three judges for the Third District found the statute of limitations unconstitutional and reversed the Industrial Board. Defendant-Appellee-Petitioner, the National Gypsum Company, subsequently brought this Petition for Transfer. We find the Court of Appeals in error and accordingly vacate their opinion and affirm the Industrial Board.

The material facts in this case are not in dispute. They show that Mr. Bunker was first employed by the National Gypsum Company in February, 1949. From that time until November, 1950, he was regularly In Respondent's appeal of a companion action sounding in negligence, the Third District held that Respondent's exclusive remedy lay under Indiana's Occupational Diseases Act. Bunker v. National Gypsum Co., (1980) Ind.App., 406 N.E.2d 1239, 1241. The Court of Appeals also noted that no benefit claim can accrue unless and until an occupational disease actually causes disablement or death. Id. In adjudging Respondent's instant action under the Occupational Diseases Act, the Third District found that the Act's three year statute of limitations represents a violation of Respondent's constitutional right to due process and therefore must be nullified. That Court held:

exposed to asbestos fibers while supervising a blending process for the manufacture of an accoustical treatment product. In November, 1950, he was permanently transferred to other work not involving asbestos. Mr. Bunker voluntarily left National Gypsum's employ in March, 1966. In July, 1976, Mr. Bunker underwent exploratory surgery and was diagnosed as suffering from asbestosis.

"In view of the discovery of this factual information about the disease since the legislature imposed the three-years-from-exposure limitation in 1937, it appears to us that the statute can no longer stand. To impose its ban is to violate the classic constitutional mandate, because to do so amounts to a practical denial of the very right to recovery that the statute was intended to provide."

Bunker v. National Gypsum Co., (1981) Ind.App., 426 N.E.2d 422, 425.

The section of the "Indiana Workmen's Occupational Diseases Act" at issue is Ind.Code Sec. 22-3-7-9(e) (Burns 1974):

"(e) No compensation shall be payable for or on account of any occupational diseases unless disablement, as herein defined, appears within two years after the last day of the last exposure to the hazards of the disease except in cases of occupational diseases caused by the inhalation of silica dust or asbestos dust and in such cases, within three years after the last day of the last exposure to the hazards of such disease: Provided, That in all cases of occupational disease caused by the exposure to radiation, no compensation shall be payable unless disablement, as herein defined, occurs within two years from the date in which the employee had knowledge of the nature of his occupational disease or, by exercise of reasonable diligence, should have known of the existence of such disease and its causal relationship to his employment." (emphasis added).

Ind.Code Sec. 22-3-7-9(e) (Burns 1974) provides that compensation will be payable for a disability resulting from an exposure to asbestos only if the disability arises within three years of the date of last exposure. This legislation is very explicit. For example, the statute distinguishes asbestos-related disabilities from disabilities due to occupational disease caused by radiation exposure. In radiation cases, compensation is payable only if disability occurs within two years of the date on which the employee discovers or reasonably should have discovered his disease and its relationship to his employment.

Since the undisputed facts before the Industrial Board show that Respondent's last job-related exposure to asbestos dust was in November, 1950, the statute of limitation in this case began to run at that time. The facts also show that Respondent discovered his disability in July, 1976, leading us to the conclusion that his disability arose approximately twenty-three years after the deadline dictated by the Occupational Diseases Act. The facts clearly indicate, therefore, that Respondent's asbestos-related disability arose after the expiration of the statutory period within which all asbestos-related disability claims must have been brought.

Respondent seeks to avoid the direct application of the three year limitation period and to circumvent a foreclosure of his claim by arguing that "it would abridge his constitutional right to a remedy to say that the time for claiming the remedy had passed even before it accrued." He offers this due process argument as a reason for finding the limitation provision unconstitutional.

The Court of Appeals essentially adopted Respondent's argument. In so doing, they took it upon themselves to independently consider and evaluate the nature of asbestosis. The Court of Appeals introduced medical evidence suggesting that the occurrence and causation of asbestosis is not dependent upon a long continued exposure to asbestos. Other evidence was presented, however, which clearly indicates a direct correlation between the number of years of exposure to asbestos and the incidence of asbestosis. They also reported that after a person is exposed to asbestos, there is a long period of latency before asbestosis can be diagnosed. Based upon these findings, the Court of Appeals deemed Respondent entitled to protection under the Occupational Diseases Act.

We now find that the Court of Appeals must be reversed because they erred in the following two respects:

1. they erred by finding the statute of limitations imposed by the Occupational Diseases Act to be unconstitutional; and

2. they erred by using medical evidence found outside the record of this case to justify their opinion.


Our duty in construing an Indiana statute is to give effect to the intention of our legislature. This is because the Indiana Constitution explicitly vests in the General Assembly the exclusive power to legislate. Ind.Const. art. 4, Sec. 1. This Court has repeatedly warned that the judiciary must not usurp the constitutional function of the legislature. We have held:

"A statute is not unconstitutional simply because the court might consider it born of unwise, undesirable or ineffectual policies."

Johnson v. St. Vincent Hospital, (1980) Ind., 404 N.E.2d 585, 591. This Court and the Court of Appeals must not, therefore, substitute judicial judgment for legislative judgment in legislative matters that neither affect fundamental rights nor proceed along suspect lines. Short v. Texaco, Inc., (1980) Ind., 406 N.E.2d 625, 632, aff'd, --- U.S. ----, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982); see also: Indiana Aeronautics Commission v. Ambassadair, Inc., (1977) 267 Ind. 137, 147, 368 N.E.2d 1340, 1346, cert. denied, 436 U.S. 905, 98 S.Ct. 2235, 56 L.Ed.2d 403 (1978). Further, an act of the legislature must be afforded a presumption of constitutionality. Accordingly, the burden to rebut this presumption is upon any challenger and all reasonable doubts must be resolved in favor of an act's constitutionality. Dague v. Piper Aircraft Corp., (1981) Ind., 418 N.E.2d 207, 214, reh. denied. These are well established rules. This Court has repeated and elaborated upon these rules in Sidle v. Majors, (1976) 264 Ind. 206, 208, 341 N.E.2d 763, 766, reh. denied, as follows:

"In approaching a consideration of the constitutionality of a statute, we must at all times exercise self restraint. Otherwise, under the guise of limiting the Legislature to its constitutional bounds, we are likely to exceed our own. That we have the last word only renders such restraint the more compelling. We, therefore, remind ourselves that in our role as guardian of the constitution, we are nevertheless a court and not a 'supreme legislature.' We have no right to substitute our convictions as to the desirability or wisdom of legislation for those of our elected representatives. We are under a constitutional mandate to limit the General Assembly to its lawful territory of prohibiting legislation which, although enacted under the claim of a valid exercise of police power, is unreasonable and oppressive. Nevertheless, we recognize that the Legislature is vested with a wide latitude of discretion in determining public policy. Therefore, every statute stands before us clothed with the presumption of constitutionality, and such presumption continues until clearly overcome by a showing to the contrary. In the deliberative process, the burden is upon the challenger to overcome such presumption, and all doubts are resolved against his charge." (Emphasis added.)

See also: Shettle v. McCarthy, (1981) Ind., 423 N.E.2d 594, 597; Dept. of Financial As...

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