Henson v. Department of Labor and Industries

• Decision Date: 12 November 1942
• Docket Number: 28741.
• Citation: 130 P.2d 885,15 Wn.2d 384
• Parties: HENSON v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

130 P.2d 885

15 Wn.2d 384

HENSON v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 28741.

Supreme Court of Washington

November 12, 1942

Department 2.

Proceeding by Albert Henson, claimant, opposed by the Department of Labor and Industries of the State of Washington, to recover compensation for disability sustained by the contraction of an occupational disease of silicosis. From a judgment of the superior court reversing order of the supervisor and joint board of the department rejecting claim on ground that it had not been filed within one year after day upon which injury occurred, the department appeals.

Affirmed.

Appeal from Superior Court, King County; Chester A. batchelor judge.

Smith Troy, Edward S. Franklin, and Roy A. Huse, all of Olympia for appellant.

Vanderveer Bassett & Geisness, of Seattle, for respondent.

SIMPSON Justice.

March 3, 1941, Albert Henson filed a claim with the department of labor and industries for compensation for disability sustained by contraction of an occupational disease known as silicosis while in the employ of the Trade Dollar Lease Company of Republic, Washington.

The claim was made under the provisions of Rem.Rev.Stat. (Sup.) § 7679-1, Laws of 1939, chapter 135. He certified that the date of his first exposure was October 1926, and the last was of January 1, 1940.

The supervisor of industrial insurance refused to consider the claim on its merits and rejected it for the reason that 'no claim has been filed for or on behalf of said workman within one year after the day upon which the injury occurred.'

The claimant then appealed to the joint board of the department. That board, after a hearing, sustained the order of the supervisor.

Claimant's appeal to the superior court resulted in the entry of a judgment reversing the order of the supervisor and the joint board.

The trial court reversed the order upon the ground that the one-year statute of limitations provided by Rem.Rev.Stat. (Sup.) § 7686(d), applied only to traumatic injuries and not to occupational diseases. The department has appealed.

The evidence submitted to the joint board brought forth the following facts: Respondent is forty-six years of age. Prior to coming to the state of Washington in 1930, he had been employed in the copper mines of Montana and the lead and zinc mines of Idaho for approximately eight years. His first employment in Washington was in 1936 and involved silica exposure.

August 27, 1936, he was examined by a doctor for the Veterans' Bureau. That examination did not disclose evidence of silicosis. During the month of October, 1936, he obtained employment with the Eureka Mining & Milling Company of Republic, for whom he worked for about eighteen months. Thereafter, he worked for the Mountain Lion Mining Company for six months, and was later employed by the Trade Dollar Lease Company for one year, ending his employment with that company January 1, 1940. He then opened a beer parlor in Burke, Idaho and conducted that business until the latter part of December, 1940, at which time he decided to return to mining at Wallace, Idaho.

He was examined for that employment by Dr. Mowry of Wallace, Idaho. After the examination, the doctor reported that respondent had 'a bad case of silicosis,' which would preclude the performance of any hard manual labor. That was the first intimation respondent had that he had contracted silicosis or any other lung disease. Shortly thereafter the doctors for the Veterans' Bureau examined respondent and confirmed the diagnosis made by Dr. Mowry.

The disease suffered by claimant is a type of pneumoconiosis known as silicosis.

'The clinical symptoms of silicosis are shortness of breath, decreased chest expansion and lessened capacity for work, these due to a diffuse nodular fibrosis rather evenly distributed throughout both lungs, which reduces the lung air space and lessens the elasticity of the pulmonary tissues. This process may be well advanced Before the patient becomes aware of any discomfort. The shortness of breath seldom reaches a degree sufficient to disturb the patient, except when sudden violent exercise by creating a sudden demand for large amounts of oxygen causes dyspnea. The dizziness, general weakness and headache often mentioned as symptoms of silicosis are indirect results of this dyspnea. There is no fever.

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'Silica dust inflicts injury to the lungs, not because of the physical properties of the individual particles, as the hard, sharp particles of quartz and carborundum; but its danger lies purely in its poisonous chemical action. Because of this, it causes tiny areas of necrosis in the walls of the lymph spaces of the alveoli in which it is deposited, at which necrotic points, by ways of healing, there develops fibrosis and a proliferation of the surrounding epithelial cells, the latter explaining the nodule formation.

'Silicosis is a progressive disease, the lung changes continuing to develop for one or two years after complete removal of the individual from the silica hazard, this advance probably due to the continued chemical action of the silica stored in the lung tissues.' Reed & Emerson, The Relation Between Injury and Disease, p. 183.

Accord, Bulletin No. 13, United States Department of Labor, Division of Labor Standards, Summary Reports of National Silicosis Conference Submitted to the Secretary of Labor by Conference Committees, February 3, 1937.

It is evident, as shown by the authority just quoted, that in most if not all cases, the symptoms of the disease do not manifest themselves until after a long period of exposure to silica dust and that an individual may not become aware of any disability until long after he has ceased work.

The only question for determination in the case at bar is whether a claim for the occupational disease of silicosis is barred when filed more than one year after the last exposure to silica dust. The answer to this question must be determined from an examination of our statutes relating to industrial insurance.

The trial judge in a well considered memorandum opinion stated:

'After a careful consideration of the authorities, I am of the opinion,

'1. That subdivision (d) of § 7686, Rem.Rev.Stat., has no application to claims for disability resulting from occupational diseases.

'2. That, having in mind the previous decisions of the supreme court construing § 7675 and § 7686, Rem.Rev.Stat., the legislatures of 1937 and 1939 expressly failed to either amplify or extend the meaning of the word 'injury' so as to include occupational diseases. On the contrary, such 1937 and 1939 laws evidence a legislative intent that claims for disability resulting from occupational diseases should be limited only as provided in such later enactments. Had the legislature intended otherwise, it would have been so provided. None of the language in either the 1937 or 1939 occupational disease laws evidences any legislative intent to bar a claim unless it is filed within one year from the date of last injurious exposure. On the contrary, the provisos recognize the medical fact that such diseases may be quiescent and nondisabling for over a year after exposure.'

We are in accord with the conclusion reached by the trial court.

The department was of the opinion that claims of this nature could not be considered unless filed within one year after the last exposure to silica dust which caused the disease. The opinion was based upon Rem.Rev.Stat. § 7686(d).

Prior to 1927, Remington's Compiled Statutes, § 7686(d) read: 'No application shall be valid or claim thereunder enforceable unless filed within one year after the day upon which the injury occurred or the right thereto accrued.'

At that time, Remington's Compiled Statutes, § 7675, provided: 'The words 'injury' or 'injured' as used in this act refer only to an injury resulting from some fortuitous event as distinguished from the contraction of disease.'

This court construed the provisions to which we have just referred in the cases of Stolp v. Department of Labor & Industries, 1926, 138 Wash. 685, 245 P. 20; Depre v. Pacific Coast Forge Co., 1927, 145 Wash. 263, 259 P. 720; and Fee v. Department of Labor & Industries, 1929, 151 Wash. 337, 275 P. 741.

In those cases it was held that injury was the result of a fortuitous event and that an injured employee had one year within which to file a claim after the injury had developed.

Subsequent to those decisions, the legislature in 1927, Laws of 1927, chapter 310, pp. 818, 847, amended these two sections to read as follows:

'The word 'injury' as used in this act means a sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without, and such physical condition as results therefrom.'

'No application shall be valid or...