Frisbie v. Sunshine Mining Co., 10292

• Decision Date: 09 July 1969
• Docket Number: No. 10292,10292
• Citation: 457 P.2d 408,93 Idaho 169
• Parties: Amos O. FRISBIE, Claimant-Appellant, v. SUNSHINE MINING COMPANY, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 408

457 P.2d 408

93 Idaho 169

Amos O. FRISBIE, Claimant-Appellant, v. SUNSHINE MINING COMPANY, Defendant-Respondent.

No. 10292.

Supreme Court of Idaho.

July 9, 1969.

Rehearing Denied Aug. 18, 1969.

Cox & Powell, Coeur d'Alene, for appellant.

H. J. Hull & Sons, Wallace, for respondent.

McFADDEN, Chief Justice.

From 1947 until 1954 the claimant-appellant, Amos O. Frisbie, worked for the respondent Sunshine Mining Company as an underground miner. Upon learning in 1954 that the appellant was suffering from grade three silicosis, the respondent transferred him to surface work as boiler tender and watchman. The appellant worked the night shift, working two shifts per week as a watchman and at other times tending the boilers. As watchman, it was his duty to tour the plant at various intervals throughout the night.

On March 11, 1966 the appellant left work due to his severe respiratory problem, which was diagnosed by physicians as silicosis complicated by several related factors. Appellant suffered at least two serious lung collapses and various other medical problems. Following his disability, and prior to his formal retirement in November 1966, the appellant received certain disability benefits pursuant to a group insurance policy maintained by joint contribution of miners and the respondent. After these benefits were exhausted in September 1966, and following a serious lung collapse in December of that year, the appellant attempted to meet with officials of the Sunshine Mining Company in regard to obtaining additional compensation for his disability. It appears from the record that there were several communications between appellant and respondent and at least two meetings were held to discuss appellant's request for compensation. These meetings culminated in an offer of settlement proposed by the company in July 1967. Appellant, however, rejected the offer and finally filed his claim for compensation with the Industrial Accident Board on September 7, 1967.

Medical testimony introduced at the hearing conducted by the board on appellant's claim establishes that the appellant is suffering from silicosis, which is the direct result of his employment with the respondent. Doctors testified that the appellant has great difficulty breathing and also in walking and that for these reasons he is totally disabled and unable to perform his job as night watchman.

On the basis of the testimony and evidence introduced, the board found that appellant was not injuriously exposed to silica dust after he was transferred to the night watchman job and that his last injurious exposure to the dust was prior to June 9, 1954 while he was employed underground as a hard rock miner. The board further found that appellant became totally disabled for any work on March 11, 1966 and that this disability is the direct result of his injurious exposure to silica dust prior to June 1954. These findings of fact are supported by substantial competent, although conflicting, evidence, and consequently are binding on this court on appeal. Woodall v. Idaho Potato Processors, Inc., 91 Idaho 626, 428 P.2d 943 (1967); Davis v. Schmidt Bros., Inc., 92 Idaho 312, 442 P.2d 448 (1968); McBride v. J. R. Simplot Co., 92 Idaho 274, 441 P.2d 723 (1968).

The board denied appellant's claim for compensation on the ground that under I.C. § 72-1209 as it existed in 1954 (S.L. 1939 Ch. 161, § 2, p. 290), disability in silicosis cases was compensable only if disability followed within two years of the claimant's last injurious exposure to silica dust. The board reasoned that since the last injurious exposure in the present case occurred in June 1954, the appellant's claim for compensation became barred when disability did not occur before June 1956. The appellant argued that under I.C. § 72-1209 as it existed at the time of his disability in 1966 (S.L.1965 Ch. 152, § 3, p. 294), ¹ his claim is compensable because the two year limitation contained in the earlier law had been deleted, and no limitation between the time of last injurious exposure and disability was imposed. The board held, however, that appellant's claim for compensation was governed by the law in effect at the time of the last injurious exposure and that to apply I.C. § 72-1209 as amended in 1965 (S.L.1965, Ch. 152, § 3, p. 294) would be to give the 1965 amendment retroactive effect in violation of Idaho Const. Art. 1, § 13, and Art. 11, § 12. Following this determination appellant appealed to this court.

Appellant's first assignment of error is that the board exceeded its jurisdiction in ruling upon the constitutionality of applying I.C. § 72-1209 (S.L.1965, Ch. 152, § 3, p. 294). Relying upon Wanke v. Ziebarth Constr. Co., 69 Idaho 64, 202 P.2d 384 (1949), the appellant argues that the board has no power to rule upon the constitutionality of a law and consequently should have applied I.C. § 72-1209, as amended, to the present case, leaving the issue of the constitutionality of such application to the courts on appeal. Although Wanke v. Ziebarth Constr. Co., supra, supports appellant's position, it is our opinion that appellant has misinterpreted the action of the board in the present case. The board did not rule upon the constitutionality of the statute; rather, the board only decided that appellant's claim could be sustained only by giving retroactive effect to the 1965 amendment of I.C. § 72-1209. The board held that the statute was not retroactive, and merely pointed out that to construe it otherwise would render it unconstitutional. The decision was not based upon the constitutionality of the statute, but rather upon the inapplicability of the statute to appellant's case, and consequently Wanke v. Ziebarth Constr. Co., supra, is inapposite.

Appellant also assigns as error, however, the board's determination that S.L.1965, Ch. 152, § 3, p. 294 is inapplicable to his claim and that to apply it would involve a retroactive application of the amendment. The appellant contends that his cause of action did not accrue until the time of his disability and consequently the law in effect at that time governs the rights of the parties. He argues that since his disability occurred after the effective date of the 1965 amendment, the amendment is the law applicable to his case and is not retroactive.

The respondent, on the other hand, relies heavily upon I.C. § 72-1206 which provides that

'Law not retroactive.-The provisions of this chapter (Ch. 12, Title 72, I.C.) shall apply only to cases of occupational disease in which the last injurious exposure in an occupation subject to the hazards of such disease occurred on or after the date on which this chapter shall have taken effect.'

The respondent argues that this provision limits application of the Occupational Disease Compensation Law, and of necessity also application of any amendments to the law, to cases in which the injurious exposure to the disease occurred after the effective date of the law or amendment.

It is our opinion that appellant's contention is correct. A law is not retroactive merely because part of the factual situation to which it is applied occurred prior to its enactment; rather, a law is retroactive only when it operates upon transactions which have been completed or upon rights which have been acquired or upon obligations which have existed prior to its passage. 2 Sutherland, Statutory Construction, § 2202, p. 117 (3d ed. 1943); 82 C.J.S. Statutes § 412, p. 980. In cases such as the present, the right to compensation does not accrue and the rights of the parties do not become fixed until the occurrence of the event, in this case appellant's disability, which gives rise to a cause of action. Peterson v. Federal Mining & Smelting Co., 67 Idaho 111, 170 P.2d 611 (1946); Silver King Coalition Mines Co. v. Industrial Commission, 2 Utah 2d 1, 268 P.2d 689 (1954); Belanowitz v. Travelers Ins. Co., 123 N.J.S. 574, 10 A.2d 178 (1940); King v. St. Louis Steel Casting Co., 353 Mo. 400, 182 S.W.2d 560 (1944). Consequently, application of the law in effect at the time the disability occurred to a claim arising from that disability does not involve a retroactive application of the law.

This court was faced with a similar question in Peterson v. Federal Mining & Smelting Co., supra, in which the claimant sought compensation for the death of her husband, contending that the rate of compensation should be computed under a 1945 amendment to I.C.A. 43-2119. The employer argued that although the decedent died after passage of the amendment (S.L.1945, Ch. 138), to apply the amendment would involve a...