Chevron U. Inc. v. Workers' Comp. Appeals Bd.

• Court: California Court of Appeals
• Writing for the Court: KING; LOW, P.J., and HANING
• Citation: Chevron U. Inc. v. Workers' Comp. Appeals Bd., 268 Cal.Rptr. 699, 219 Cal.App.3d 1265 (Cal. App. 1990)
• Decision Date: 27 April 1990
• Docket Number: No. A047411,A047411
• Parties: CHEVRON U.S.A., INC., Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Lucille Steele, Respondents.

Page 699

268 Cal.Rptr. 699

219 Cal.App.3d 1265

CHEVRON U.S.A., INC., Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Lucille Steele, Respondents.

No. A047411.

Court of Appeal, First District, Division 5, California.

April 27, 1990.

Review Denied July 10, 1990.

Harbinson, Carlson & Tune, Thomas J. Harbinson, Mark H. Tune, Li-Ann Yamashiro, San Francisco, Cal., for petitioner.

William B. Donohoe, WCAB Legal Unit, San Francisco, Kazan & McClain, Victoria Edises, Oakland, for respondents.

KING, Associate Justice.

In this case we hold that where two separate and distinct occupational disease processes resulting from a single period of exposure to asbestos manifest themselves at different times, each is entitled to a different date of injury, consistent with LABOR CODE SECTION 5412¹, for purposes of calculating the applicable rate of statutory death benefits payable under section 4702.

Petitioner Chevron U.S.A., Inc. (hereafter Chevron) seeks review of an order, denying reconsideration, from the Workers' Compensation Appeals Board (hereafter Board) which adopted the report of the workers' compensation judge (hereafter WCJ), holding (1) that the death of Harvey Steele (hereafter Steele) was the result of mesothelioma, a separate and distinct pathology from asbestosis; and (2) that Steele first manifested disability on August 12, 1987, the proper date of injury for purposes of calculating the statutory death benefit. Because the mesothelioma resulted from the same period of exposure to asbestos which previously caused Steele to suffer from asbestosis, Chevron contends that the same date of injury, September 28, 1976, should apply for purposes of calculating the death benefit.

Lucille Steele, Kerry Haggett, and Eric Haggett (hereafter respondents) answer that August 12, 1987, is the proper date of injury under section 5412 because Steele's mesothelioma first manifested disability on that date, and it is a disease distinct from asbestosis.

For the reasons discussed below, we agree with respondents and affirm the Board's decision.

FACTUAL AND PROCEDURAL BACKGROUND

There is no dispute as to material facts. Steele worked as an insulator for Chevron and was exposed to asbestos for the period of 1951 to September 15, 1975. In 1976 Steele was diagnosed with asbestosis ² and filed a claim for workers' compensation benefits.

In 1977 Steele retired because of shortness of breath and heart disease. On November 24, 1981, the Board found that Steele, as a result of occupational exposure to asbestos from 1951 to September 15, 1975, sustained an industrial injury on September 28, 1976, to his lungs resulting in asbestosis, and awarded a permanent disability of 63 percent.

On August 12, 1987, while hospitalized for a urinary problem, Steele was first diagnosed with mesothelioma, also resulting from the earlier occupational exposure to asbestos. ³ On November 13, 1987, Steele died as a result of the mesothelioma.

On December 2, 1987, Steele's widow, Lucille Steele, filed a claim for death benefits, alleging that the mesothelioma was the result of the occupational asbestos exposure. On May 23, 1989, Steele's minor children, Eric and Kerry Haggett, were joined as parties.

The matter proceeded to hearing before the Board regarding the sole issue of the proper date of injury for the purpose of calculating the compensation rate of the death benefit.

On June 7, 1989, the WCJ issued his decision, finding that August 12, 1987, was the date of injury because on that date Steele first manifested disability as a result of the mesothelioma.

On June 30, 1989, Chevron sought reconsideration, arguing that the date of injury for the mesothelioma should be September 28, 1976, the date on which Steele earlier was found to have first suffered compensable disability from asbestosis.

In his report and recommendation on petition for reconsideration (hereafter WCJ report), the WCJ recommended that the Board deny Chevron's petition, opining that Chevron confused the fact of exposure to asbestos with the fact of injury or pathology resulting from said exposure. The WCJ stated, as pertinent: "[I]n Mr. Steele's case, he was exposed to asbestos while working for the defendant herein and that exposure resulted in two separate and distinct injuries. The first injury was that of asbestosis and the second injury was the mesothelioma of the lining of the stomach. Thus, with separate and distinct diseases with different dates of disability, we must have different dates of injury."

On August 21, 1989, the Board, adopting and incorporating the WCJ report, denied reconsideration.

DISCUSSION

Date of Injury

Under the Workers' Compensation Act, "injury" is broadly defined to include both injuries and diseases that arise out of the employment. (§ 3208.)

Section 5411 provides: "The date of injury, except in cases of occupational disease or cumulative injury, is that date during the employment on which occurred the alleged incident or exposure, for the consequences of which compensation is claimed." (Italics added.) The date of injury for an occupational disease is determined under section 5412, which provides: "The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment." ⁴

In Argonaut Mining Co. v. Ind. Acc. Com. (1951) 104 Cal.App.2d 27, 230 P.2d 637, the court held that in addition to identifying the date of injury for purposes of the operation of the statute of limitations, section 5412 "also sets the date for the measurement of compensation payable, and all other incidents of the [worker's] right. Until the disability there is no compensable injury. When the disease results in disability there then comes into existence for the first time a right in the [injured worker] to seek compensation. When the right comes into existence certain rates are applicable. It would seem that these are the rates by which compensation should be payable." (Id. at p. 31, 230 P.2d 637.)

In Dickow v. Workmen's Comp. Appeals Bd. (1973) 34 Cal.App.3d 762, 109 Cal.Rptr. 317, this district, following Argonaut Mining v. Ind. Acc. Com., supra, 104 Cal.App.2d 27, 230 P.2d 637, annulled the Board decision which had held in an occupational disease case that the injured employee was entitled to benefits at the rates in effect at the time of exposure (1954) to the injurious substance, rather than at the time of injury (1960) as defined under section 5412. The injured employee's lung disability did not manifest itself until 1960, reasoned the court, and had the employee filed a claim in 1954, he would not have been awarded any benefits because he was not disabled at that time. (Id. 34 Cal.App.3d at p. 764, 109 Cal.Rptr. 317.)

Following Dickow, this district again had opportunity to address the issue of computing earnings for purposes of determining disability indemnity in an occupational disease case. In Van Voorhis v. Workmen's Comp. Appeals Bd. (1974) 37 Cal.App.3d 81, 112 Cal.Rptr. 208, the court held that "the compensation must be measured by the applicant's earning capacity as it existed at the time he incurred his compensable disability [citation]." (Id. at p. 87, 112 Cal.Rptr. 208.)

After review of the above discussed authorities, it is irrefutable that the "date of injury" for determining both the relevant statute of limitations, as well as the statutory rate of indemnity benefits, in latent occupational disease cases is the date of concurrence of disability and knowledge. Thus, we are left to determine whether one period of exposure to a harmful substance, such as asbestos, can result in more than one "injury" or "disease," and therefore, more than one date of injury under section 5412.

The law is express that there can be no compensable injury until there is disability. (§ 5412; Argonaut Mining Co. v. Ind. Acc. Com., supra, 104 Cal.App.2d at p. 31, 230 P.2d 637.) The fact of injury (exposure) and the date of injury (disability), by definition, are not equivalent in cases involving the latent effects of an occupational disease. (See §§ 5411, 5412; 2 Hanna, Cal.Law of Employee Injuries and Workmen's Compensation (2d rev. ed. 1990) § 18.03, pp. 18-21; cf. J.T. Thorp, Inc. v. Workers' Comp. Appeals Bd. (1984) 153 Cal.App.3d 327, 343-344, 200 Cal.Rptr. 219.)

It necessarily follows from this reasoning that the fact of injury, i.e., exposure, under certain situations may result in more than one date of injury. For example, in the instant case, Dr. Piero Mustacchi, an occupational epidemiologist, identified four different disease processes that have been linked to asbestos exposure: asbestosis, pleural plaques, diaphragmatic calcifications, and malignant mesothelioma. It is not disputed that the mesothelioma was first diagnosed and first manifested disabling symptoms on August 12, 1987. Dr. John R. Balmes, an internal and pulmonary medicine specialist, testified that an individual could have asbestosis without mesothelioma, or also could have mesothelioma without asbestosis. Dr. Balmes further testified that while malignant mesothelioma and asbestosis are often seen together, particularly in individuals with greater asbestos exposure, they are in fact separate and distinct pathological disease processes.

Steele's mesothelioma was not an extension or outgrowth of his earlier pulmonary asbestosis. By statutory definition, decedent's "date of injury" with regard to the mesothelioma could not have occurred until he "first suffered disability therefrom" (§ 5412), which did not occur until August 12, 1987.

Chevron argues, however, that General Foundry Service v. Workers' Comp. Appeals Bd. (1986) 42 Cal.3d 331, 228 Cal.Rptr. 243, 721 P.2d 124, directs that we determine otherwise in the matter before us. Chevron refers specifically...