Drake v. Raybestos-Manhattan, Inc.

• Decision Date: 05 September 1962
• Docket Number: INC,No. 17962,RAYBESTOS-MANHATTA,17962
• Citation: 127 S.E.2d 288,241 S.C. 116
• Court: South Carolina Supreme Court
• Parties: Mamie DRAKE, Respondent, v.and U. S. Casualty Company, Appellants.

Page 288

127 S.E.2d 288

241 S.C. 116

Mamie DRAKE, Respondent, v. RAYBESTOS-MANHATTAN, INC. and U. S. Casualty Company, Appellants.

No. 17962.

Supreme Court of South Carolina.

Sept. 5, 1962.

Mitchell & Horlbeck, Sinkler, Gibbs & Simons, Charleston, for appellants.

J. Louis Lempesis, Charleston, for respondent.

LEWIS, Justice.

This case involves a claim by the respondent-employee for benefits under the South Carolina Workmen's Compensation Act for total and permanent disability resulting from an occupational disease. The claim of the respondent was resisted before the Industrial Commission on the grounds that (1) timely notice of her claim had not been given as required by Sections 72-301 and 72-303 of the 1952 Code of Laws and (2) the disability of the respondent did not arise out of and in the course of her employment. The Industrial Commission decided both issues in favor of the respondent, and the employer and insurance carrier appealed from such decision to the Circuit Court. The Circuit Court affirmed the findings of the Commission as to the disability of the respondent and its connection with her employment, but remanded the case to the Commission for further and more specific findings of fact relative to the timeliness of the giving of notice and filing of respondent's claim, taking the position that the Commission had failed to make essential specific findings of fact relative thereto. The employer and insurance carrier have appealed from the order of the lower court remanding the case to the Commission. It is the position of appellants that the award of the Commission made adequate findings of fact in regard to all issues and that under such findings and the facts it clearly appears that respondent failed to comply with the foregoing statutory provisions relative to notice and filing of her claim.

The issue to be decided in this appeal is whether or not the lower court erred in remanding the case to the Industrial Commission for further and more specific findings of fact relative to the timeliness of the notice and filing of respondent's claim for benefits.

The respondent was employed by the appellant Raybestos-Manhattan Company for a period of approximately thirty years, being discharged from such employment on or about March 23, 1954. In April, 1958, about four years later, she concluded that she had some serious ailment and consulted a specialist in internal medicine. As a result of a thorough physical examination, including the review of x-ray films made of her chest in 1952 while employed by appellant, the physician concluded that she was totally disabled from the disease known as asbestosis which had its inception in her employment with the appellant. Upon then being informed by the physician of her condition and the nature of the disease from which she was suffering, claim was filed with the Industrial Commission on November 18, 1958 for benefits under the Workmen's Compensation Act for total and permanent disability resulting from such occupational disease. The record does not show the date when the physician notified respondent of the nature of the disease from which she was suffering. The only written notice of the claim of respondent was that filed with the Industrial Commission on November 18, 1958, approximately four years and eight months after she last worked for the appellant. It is this fact which is the basis for the contention of the appellant that respondent's claim is barred for failure to give the notice and file the claim as required by Sections 72-301 and 72-303 of the Code.

To determine the necessity for remand of the case for further factual findings by the Commission, it is necessary to first determine the limitations placed by the law upon the filing of claims in occupational disease cases.

Section 72-301 of the Code provides that every injured employee or his representative shall immediately on the occurrence of an accident or as soon thereafter as practicable give to the employer a written notice thereof, unless it can be shown that the employer had knowledge of the accident, or that the giving of such notice was excused by conditions not here applicable. This section then contains the provision that 'no compensation shall be payable unless such written notice is given within thirty days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the Commission for not giving such notice and the Commission is satisfied that the employer has not been prejudiced thereby.'

Section 72-303 provides that the right to benefits under the Workmen's Compensation Act 'shall be forever barred unless a claim is filed with the Commission within one year after the accident.'

Sections 72-251 through 72-269 of the 1952 Code of Laws relate to compensation under the Workmen's Compensation Act for occupational diseases. The sections pertinent to our inquiry were recently set forth in the case of Glenn v. Columbia Silica Sand Co., 236 S.C. 13, 112 S.E.2d 711 and will not be repeated in full here. However, Section 72-253 provides that 'disablement or death of an employee resulting from an occupational disease shall be treated as an injury by accident and the employee, or in case of death his dependents, shall be entitled to compensation as for an injury under this Title,' etc.

Section 72-255 deals with pulmonary diseases, such as was contracted by the respondent, and is as follows: 'No compensation shall be payable for any pulmonary disease arising out of the inhalation of organic or inorganic dusts unless the claimant shall have been exposed thereto by his employment for a period of at least one year and unless he suffers a total disability therefrom.'

In the Glenn case it was held that the Code provisions relating to occupational diseases must be construed together, and in relation to other provisions of the Workmen's Compensation Act which deal with compensation for disability or death resulting from accident arising out of and in the course of the employment. And in that case the Court said: 'So construing them we conclude that in occupational disease cases compensability accrues when disability (in case of pulmonary disease arising out of the inhalation of organic or inorganic dust, total disability) or death occurs.'

The respondent was suffering from a pulmonary disease which arose out of and in the course of her employment and compensability, therefore, accrued when she became totally disabled.

However, the date of the accrual of compensability does not necessarily establish the date when the statute of limitations for the giving of notice or the filing of a claim begins to run in such cases. While our statutes, Sections 72-301 and 72-303, date the running of the limitation period from the 'accident', such term as used in reference to occupational disease means, as we have pointed out above, 'disablement' from such disease and, in case of a pulmonary disease as here involved, 'total disability'. In determining the occurrence of disability in occupational disease cases we are dealing usually with a period of time over which the disease progresses to the point of disablement. An employee may contract the disease from exposure in his employment and for a long time not know that he has it. Usually diagnosis can only be made by a physician and diagnosis, even by a physician, in many instances is most difficult and delayed. It is because of this latent character of the disease and the inability of the employee to diagnose and appreciate the nature and character of his illness that many courts have adopted the rule that the limitation periods prescribed in Workmen's Compensation Acts, in occupational disease cases, for notice to the employer and for the filing of a claim for compensation begin to run when the disease has culminated in disability and when the claimant by reasonable diligence could have discovered that his condition was a compensable one. Quoted with approval in the Glenn case is the following from Larson's Workmen's Compensation Law, Volume 2, Section 95.21:

'Occupational disease cases typically show a long history of exposure without actually disability, culminating in the enforced cessation of work on a definite date. In the search for an identifiable instant in time which can perform such necessary functions as to start claim periods running, establish claimant's right to benefits, and fix the employer and insurer liable for compensation, the date of disability has been found the most satisfactory. Legally, it is the moments at which the right to benefits accrues; as to limitations, it is the moment at which in most instances the claimant ought to know he has a compensable claim; * * *.' (Emphasis added).

Sections 78.41 and 78.52, Vol. 2 of Larson's Workmen's Compensation Law, and the cases therein cited, also deal with the question here involved. In Section 78.52, Professor Larson concludes that the best rule in occupational disease cases is that which starts the limitation periods to run from the time 'when the disease has culminated in disability and when by reasonable diligence the claimant could have discovered that his condition was a compensable one'. The same conclusion was reached by the annotator in 11 A.L.R.2d 297, 302, where cases dealing with the subject are collected.

The foregoing accords with our view of a proper interpretation of our statutes and the beneficient purposes for which they were enacted.

In determining the propriety of remand, the question of the power of the court to remand is involved.

With reference to matters in dispute before the Commission, Section 72-354 of the Code provides that the Commission shall hear the parties at issue and file an award, 'together with a statement of the findings of fact, rulings of law and other matters pertinent to the questions at issue'. The duty to determine the factual issues is placed solely on the Commission, and neither this Court,...