Jones v. Morrison-Knudsen Co., Inc.

• Decision Date: 29 June 1977
• Docket Number: MORRISON-KNUDSEN,No. 12192,12192
• Citation: 567 P.2d 3,98 Idaho 458
• Parties: Donald R. JONES, Claimant-Appellant, v.CO., INC., Employer, and Argonaut Northwest Insurance Company, Surety, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 3

567 P.2d 3

98 Idaho 458

Donald R. JONES, Claimant-Appellant, v. MORRISON-KNUDSEN CO., INC., Employer, and Argonaut Northwest Insurance Company, Surety, Defendants-Respondents.

No. 12192.

Supreme Court of Idaho.

June 29, 1977.

Nels T. Sahl, of Sahl & Risley, St. Anthony, for claimant-appellant.

John W. Barrett, of Moffatt, Thomas, Barrett & Blanton, Boise, for defendants-respondents.

BAKES, Justice.

This appeal involves a maze of limitations provisions under the Workmen's Compensation Act governing the compensability of claims and when claims for additional compensation may be filed. The Industrial Commission dismissed claimant appellant Donald R. Jones' application for hearing, ruling that his workman's compensation claim is barred under four different statutory limitations provisions.

Jones was employed as a construction worker by the Morrison Knudsen Company, Inc., in the construction of the ill-fated Teton Dam for various periods from September, 1972, through November, 1974. From September 28, 1972, through December 1, 1972, he was employed in and around wet cement. On November 10, 1972, he experienced a skin burn, attributed to the cement, which was treated by the first aid station at the damsite. Jones did not work for Morrison Knudsen from December through February, but went back to work at the damsite, again around wet cement, on February 27, 1973, this period lasting through June 8, 1973. On March 15, 1973, he reported to the first aid station with a more severe flare-up of the skin burn from cement. Over the next several weeks, Jones was treated for the cement burns at the first aid station, but his condition worsened and finally he was referred to a physician and he was also transferred away from cement work. The physician's report filed with the Industrial Commission on April 25, 1973, describes Jones' affliction as allergic contact dermatitis, and this was subsequently attributed to chromate in the cement.

Jones gave a written Notice of Injury and Claim For Benefits to his employer on April 4, 1973 (the Notice appears to have actually been made out by the employer), which was filed with the Industrial Commission on April 19, 1973. Thereafter the employer's surety, Argonaut Insurance Co., paid his medical bills on May 2, 1973, and August 20, 1973. Jones continued receiving medical treatment through 1973 but the dermatitis never completely cleared up.

In the latter part of 1973, Jones worked for other employers where he was also exposed to wet cement, and in late 1973, his dermatitis flared up and became progressively worse through early 1974. He continued receiving medical treatment and referred medical bills to Argonaut Insurance Co. The surety did not pay these subsequent medical expenses. Jones went back to work for Morrison Knudsen in March, 1974, although he did not work around wet cement. A claims investigator for Argonaut interviewed Jones in May, 1974, but it was not until September 13, 1974, that the surety informed Jones by letter that it did not consider his current dermatitis condition attributable to his March, 1973, flare-up. Upon receipt of this letter, Jones went to an attorney and on November 27, 1974, filed an application for a hearing, claiming additional compensation.

In its answer to Jones' application the surety asserted that the claim was barred under three different statutory limitations provisions: (1) I.C. § 72-448(1) ¹ because Jones failed to filed his claim for disability within one year after the disablement; (2) I.C. § 72-448(3) ² because this claim for further compensation was made more than one year after the last payment of compensation by the surety; and (3) I.C. § 72-439 ³ because Jones' disablement did not result within one year after his last injurious exposure to cement. The surety subsequently asserted a fourth limitations defense based on the last paragraph of I.C. § 72-439, arguing that Jones had not been exposed to the hazard of dermatitis for a period of sixty days while employed by Morrison Knudsen.

A hearing was held before the Industrial Commission on February 6, 1975. A dermatologist, Dr. George Brown, testified on Jones' behalf. Jones first contacted Dr. Brown on February 11, 1974, when the dermatitis condition covered his entire body. Dr. Brown's diagnosis was that Jones had allergic contact dermatitis and auto-excema caused by his allergy to chromates which are found in cement. Brown explained that this allergy develops slowly and that the sensitivity to chromates worsens with repeated exposures to the substance. He declared that once a person becomes allergic to chromates, the allergy is permanent and the only effective cure is avoidance of exposure to chromates. He also stated that chromate is found in many other substances, including paints, gasoline, and bleaching agents. Dr. Brown identified the initial cement burn of November, 1972, as Jones' first allergic reaction to chromate and the March, 1973, flare-up as the onset of chromate contact dermatitis.

In his testimony, claimant Jones stated that he had been working for Morrison Knudsen for about five weeks when the first reaction occurred in November, 1972, and the condition has not since entirely cleared up. He had never worked around wet cement prior to his employment in 1972 for Morrison Knudsen. He also testified that he had never had any previous skin disorders.

In its findings of fact and conclusions of law, the Industrial Commission ruled that Jones' application for hearing for additional compensation was barred under the statutory provisions as asserted by the surety in its answer. The Commission ruled: (1) the claim was barred under I.C. § 72-448(3) because more than one year had passed between the last payment to Jones by Argonaut on August 20, 1973, and the filing of his claim for further compensation on November 25, 1974; (2) the claim was barred under I.C. § 72-448(1) because no claim for disability was made within five months after his employment ceased and no claim for disability was made within one year after disablement; (3) the claim was barred under I.C. § 72-439 because the disablement did not result within one year from the date of the last injurious exposure to chromates in cement; and (4) the claim was barred under I.C. § 72-439 because the claimant had not proved that he was exposed to the hazards of the disease for sixty days prior to the two manifestations of the dermatitis on November 10, 1972, and March 16, 1973.

I.C. § 72-439 : We begin with this section because it defines the compensability of claims. This statute provides that an employer shall not be liable for any compensation unless disablement results within one year after the last injurious exposure to such disease in its employment. Disablement is defined for purposes of the Occupational Diseases Act as:

"(T)he event of an employee's becoming actually and totally incapacitated because of an occupational disease from performing his work in the last occupation in which injuriously exposed to the hazards of such disease, . . ." I.C. 72-102(17)(c).

Read together with I.C. § 72-439, this means that a claimant can receive no compensation for an occupational disease unless he is "totally incapacitated . . . from performing his work in the last occupation in which (he was) injuriously exposed to the hazards of such disease . . . ." While it is evident from the record that the claimant can no longer work in any occupation which exposes him to chromates, the Industrial Commission did not find when the claimant was last exposed, nor did it find a date of disablement. Without these findings, we cannot determine whether his claim is compensable under I.C. § 72-439, and therefore we must remand this case to the Industrial Commission for findings on these issues.

I.C. § 72-439 also conditions the compensability of a claim resulting from a non-acute occupational disease on the claimant's exposure to the hazards of the disease for a period of sixty days while working for the employer. The Industrial Commission appears to have interpreted this provision as requiring that the claimant prove that he had been exposed to the hazards of the disease for sixty days prior to the first manifestation of the disease (Conclusion of Law IV, Clk.Tr., p. 35). This was error. Not only is there nothing in the language of this statute requiring that the sixty days of exposure must be prior to the first manifestation of the disease, nor does it require that the exposure be continuous, but such a reading of this provision appears to be contrary to the typical behavior of this occupational disease. The dermatologist who testified before the Industrial Commission, Dr. Brown, stated that dermatitis starts as a slowly developing hypersensitivity to a substance after initial exposures, intensifying after repeated exposures to the substance. The first "manifestation" of the disease, therefore, might typically not be a full blown flare-up but a minor irritation the cause of which might not be known to the unsuspecting victim and could frequently occur in less than sixty days. Further, there is no reason to require as the Industrial Commission did that the claimant's exposure to the hazardous substance be continuous. The statute only requires sixty days of exposure to the hazardous conditions while in Morrison Knudsen's employment, and therefore in computing the sixty day requirement the Industrial Commission must count Jones' exposures to cement occurring during both the September-December, 1972, period and from February, 1973, to the time he was transferred away from cement work. Because of the lack of evidence to support the Commission's finding in this regard, and the erroneous interpretation of the statute upon which it was based, the finding is set aside and the issue is remanded to the Commission for further proceedings.

I.C. § 72-448(1) : This subsection governs the time periods when a notice of manifestation of...