Fossum, Matter of

• Citation: 289 Or. 787,619 P.2d 233
• Parties: In the Matter of the Compensation of James E. FOSSUM, Deceased. Helen FOSSUM, Petitioner, v. STATE ACCIDENT INSURANCE FUND, Argonaut Insurance Company and Underwriters Adjusting Co., Respondents. CA 14961; SC 26965.
• Decision Date: 23 December 1980
• Court: Supreme Court of Oregon

Page 233

619 P.2d 233

289 Or. 787

In the Matter of the Compensation of James E. FOSSUM, Deceased.

Helen FOSSUM, Petitioner, v. STATE ACCIDENT INSURANCE FUND, Argonaut Insurance Company and Underwriters Adjusting Co., Respondents.

CA 14961; SC 26965.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 25, 1980.

Decided Oct. 21, 1980.

Opinion on Denial of Rehearing Dec. 23, 1980.

Allen T. Murphy, Jr., Portland, argued the cause for petitioner. With him on the brief was Richardson, Murphy, Nelson & Lawrence, Portland.

Darrell E. Bewley, Associate Counsel, State Acc. Ins. Fund, Salem, argued the cause for respondent State Acc. Ins. Fund. With him on the brief were K. R. Maloney, Chief Counsel, and James A. Blevins, Chief Trial Counsel, State Acc. Ins. Fund, Salem.

Margaret H. Leek Leiberan, Portland, argued the cause for respondent Argonaut Ins. Co. With her on the brief was Lang, Klein, Wolf, Smith, Griffith & Hallmark, Portland.

Jerard S. Weigler, Portland, argued the cause for respondent Underwriters Adjusting Co. With him on the brief was Lindsay, Nahstoll, Hart, Neil & Weigler, Portland.

TONGUE, Justice.

This is a workers' compensation proceeding brought by the widow of a worker who died from asbestos-caused cancer. The issue to be decided is whether, by reason of the provisions of ORS 656.807, the claim of the widow for widow's benefits is barred by passage of five years after his last exposure in employment to asbestos. ¹ In early 1977 Mr. Fossum learned that he had mesothelioma, a form of lung cancer caused by asbestos. He filed occupational disease claims with several prior employers for whom he had worked in positions that involved possible exposure to asbestos. He died in August 1977. His widow then promptly filed death benefit claims with her husband's prior employers. Evidence offered at the hearing before the referee included medical testimony that mesothelioma does not develop generally until 25 to 40 years after exposure to asbestos.

The referee found that Mr. Fossum's death was caused by his employment in the shipyards in the early 1940's and that Kaiser Company, as his last employer in the shipyards, is the employer responsible for his condition. The referee also held that the failure of Mr. Fossum to file a claim for compensation within five years after last exposure, as required by ORS 656.807(1), did not bar a claim by his widow for widow's benefits filed within 180 days after the date of his death.

The Workers' Compensation Board, on de novo review, found that claimant's widow had failed to establish either legal or medical causation and therefore is not entitled to a claim for widow's benefits.

On appeal by claimant's widow to the Court of Appeals, that court did not decide whether or not the Board was correct in rejecting the claim of the widow for lack of evidence of causation, but held that the claim was properly denied for the reason that it was not timely filed and was barred as a matter of law because it was not filed within five years after the last exposure in employment to asbestos, as provided by ORS 656.807(1). 45 Or.App. 77, 607 P.2d 773 (1980). We allowed appellant's petition for review because of the importance of this question to dependents of workers who die from occupational diseases.

In support of the opinion by the Court of Appeals and in opposition to the claim of Mr. Fossum's widow for widow's benefits, it is contended, as stated by the dissenting opinion in this case, that:

(1) The five-year limitation provided by ORS 656.807(1) commences to run upon the occurrence of 'the last exposure in employment.' The statute makes an express allowance for delayed discovery in the clause regarding filing within 180 days of disablement or discovery. It makes no such provision for delayed discovery in the five-year ultimate limitation clause. Therefore, the worker's claim, had he survived, would have been barred under subsection (1) by the passage of five years between last exposure and filing even though he discovered the illness thereafter. Neither he nor his family would have had the benefits of compensation had the worker been disabled but lived.

(2) The provisions of ORS 656.807(2) do not 'eliminate' the five-year bar in cases of claims for widow's benefits because:

(a) In 1959 the legislature amended ORS 656.807 to extend the limitations to their present duration and to add what now appears as subsections (2) and (3). Oregon Laws 1959, ch. 351, § 2. There is no recorded legislative history which reflects the purpose of subsection (2). In the absence of some legislative evidence to the contrary, it must be assumed that the legislature intended that the statute in its amended form continue to accomplish the objective of statutes of limitation, finality and repose.

(b) Claimant's contention that a literal reading of subsection (2) would allow a beneficiary 180 days from death in which to file a claim for widow's benefits, regardless of how many years have passed since the last exposure to the injurious condition, would obviate the finality function performed by the five-year ultimate limitation.

(c) The more reasonable reading of subsection (2) is that the legislature intended to liberalize the time after death in which a widow could file such a claim, rather than to revive past liability. Under subsection (1) the worker may, within five years of his last employment exposure, file a claim within 180 days of disablement or discovery. Before the 1959 amendment, in case of death, a beneficiary was subject to the same time constraints to which the worker would have been subject had he not died. The effect of the 1959 amendment was to alleviate the harshness of that restriction by extending a grace period of 180 days to the beneficiary which would not be foreshortened by the expiration of the time 'provisions' of subsection (1), (i. e., either the five-year or the worker's 180-day period) during the 180 days after death.

We may agree that such reading of ORS 656.807 is not an unreasonable interpretation of that statute. We feel constrained, however, to reject such an interpretation for the following reasons:

(1) ORS 656.807(2), by clear and unambiguous words, provides that the claim of a widow for widow's benefits may be filed within 180 days after the date of the death.

(2) If ORS 656.807(2) is not considered to be clear and unambiguous to that effect, then at the least it is ambiguous and subject to the rule that any such ambiguity must be resolved in favor of compensation.

(3) The effect of the interpretation of ORS 656.807 by the Court of Appeals is to make claims by widows for widow's benefits dependent upon and derivative from claims by deceased workers for compensation, contrary to the rule previously recognized by this court that claims by widows for widow's benefits are independent claims.

(4) Such an interpretation of ORS 656.807 would also require a result contrary to the overwhelming majority of decisions by courts of other states.

(1) ORS 656.807(2) is clear and unambiguous.

ORS 656.807(2) provides:

'If the occupational disease results in death, a claim may be filed within 180 days after the date of the death; and the provisions of subsection (1) of this section do not limit the filing of a claim in fatal cases to less than 180 days from the date of death.'

Despite those clear and unambiguous words and despite the fact that the 'occupational disease result[ed] in [the] death' of James Fossum, the dissent would hold that a claim may not be filed 'within 180 days after the date of death' because, according to it, the provisions of subsection (1) 'limit the filing of a claim in fatal cases.' ² The effect of such a holding would be to make claims filed after death not only limited by the five-year provision of subsection (1), but also restricted by that subsection's 180 day limitation.

The widow of Mr. Fossum had no claim to assert for widow's benefits until such time as her spouse died. Her claim arose upon his death. Her claim does not derive from any claim of the deceased worker, but is an independent claim granted by the legislature to her. ORS 656.807(2), in defining her right to a claim under the Occupational Disease Law, provides in clear and unambiguous terms that she may file that claim within 180 days of the death of her spouse. She did so.

(2) If ORS 656.807(2) is not clear and unambiguous, any ambiguity must be resolved in favor of compensation.

It may be that subsection (1) of ORS 656.807, when read together with subsection (2) results in some ambiguity. In our opinion, however, any such ambiguity must be construed in favor of compensation, just as ambiguous provisions of insurance policies are construed in favor of the beneficiaries, particularly in view of the long-established rule in Oregon that the Workers' Compensation Law must be liberally construed in favor of the worker and compensation. See, e. g., Burkholder v. SIAC, 242 Or. 276, 282-83, 409 P.2d 342 (1965); Newell v. Taylor, 212 Or. 522, 527-28, 321 P.2d 294 (1958).

(3) The interpretation of ORS 656.807 by the Court of Appeals is contrary to the rule that claims by widows are endependent claims.

Of equal importance is the fact that the clear effect of the decision by the Court of Appeals in its holding that the failure of Mr. Fossum during his lifetime to make a claim for compensation within five years of last exposure in employment, as required by subsection (1), bars his widow from filing a claim for widow's benefits within 180 days of his death, as apparently permitted by subsection (2), is to hold that the claim of a widow to benefits under the Workers' Compensation Act is a claim that is derivative from and dependent upon the claim of a deceased husband for compensation during his lifetime. Again, this is contrary to the established rule in Oregon.

The leading Oregon case on the subject of the independent status claims filed after death is Mikolich...