Luckau v. Board of Review of Indus. Com'n of Utah, 910715-CA

• Decision Date: 16 October 1992
• Docket Number: No. 910715-CA,910715-CA
• Citation: 840 P.2d 811
• Parties: Becky LUCKAU, In the Matter of Rodney Luckau, Deceased, Petitioner, v. BOARD OF REVIEW OF the INDUSTRIAL COMMISSION OF UTAH; Workers' Compensation Fund; and Broadway Shoe Rebuilders, Respondents.
• Court: Utah Court of Appeals

Page 811

840 P.2d 811

Becky LUCKAU, In the Matter of Rodney Luckau, Deceased, Petitioner, v. BOARD OF REVIEW OF the INDUSTRIAL COMMISSION OF UTAH Workers' Compensation Fund; and Broadway Shoe Rebuilders, Respondents.

No. 910715-CA.

Court of Appeals of Utah.

Oct. 16, 1992.

Edward B. Havas, Salt Lake City, for petitioner.

Richard G. Sumsion, Salt Lake City, for respondents.

Before BENCH, BILLINGS and GREENWOOD, JJ.

OPINION

GREENWOOD, Judge:

Petitioner Becky Luckau appeals the Industrial Commission's denial of occupational disease death benefits. We reverse and remand.

BACKGROUND

Petitioner's husband, Rodney Luckau (decedent), died in 1990 of mesothelioma, a cancer usually caused by asbestos exposure. Petitioner filed a claim with the Industrial Commission alleging that decedent was exposed to injurious amounts of asbestos while employed at Broadway Shoe Rebuilders (Broadway). She sought occupational disease death benefits under the Occupational Disease Disability Act.

Decedent held numerous jobs during his life. Of relevance to this proceeding are his jobs in a boiler room in Colorado, where he removed and installed asbestos pipe lining, and as a sales clerk for Broadway. Consistent with the typical latency period for mesothelioma, decedent was most likely to have contracted the cancer while employed in Colorado and/or by Broadway. He worked in Colorado for fifteen to sixteen months in the early 1960s, and at Broadway for six to nine months in 1964. Petitioner contends that Broadway is liable for occupational disease death benefits under the Last Injurious Exposure Rule, as codified in Utah Code Annotated section 35-2-14 (1988).

A hearing was held before an Administrative Law Judge (ALJ) on May 24, 1991. Petitioner called two witnesses, Kevin Potts and Jeffrey Throckmorton, both of whom had inspected Broadway's premises for asbestos, conducted air sampling tests, and compiled a report indicating that they had found asbestos in the basement and on a pipe in the shop. Petitioner also introduced depositions of her husband, taken before his death, and her husband's doctor.

Respondents also called Potts and Throckmorton, as well as Joe Bollinger, President of Broadway, and Dr. Attilio Renzetti, a mesothelioma expert. Dr. Renzetti testified that in his opinion, decedent's mesothelioma was caused by his exposure to asbestos while working in Colorado, not at Broadway. He agreed, however, that there could have been a cumulative dose effect between the Colorado and Broadway exposures.

In his findings of fact, the ALJ stated that "there is no doubt that [decedent's] mesothelioma was caused by asbestos exposure," and that his exposure both in Colorado and at Broadway "comport well with the latency period for mesothelia [sic]." The ALJ also determined that an injurious exposure required a "substantial dosage of exposure, and/or duration of exposure." He denied petitioner benefits, however, because he concluded that she had failed to meet her burden of proving that decedent was exposed to injurious amounts of asbestos at Broadway, as required under Utah Code Annotated section 35-2-14 (1988).

Petitioner filed a motion for review with the Board of Review. The Board denied her motion and this appeal followed. On appeal, petitioner argues that the Commission erred in determining that she was not entitled to benefits under section 35-2-14. Specifically, petitioner claims that the ALJ erred in interpreting and in applying the statute.

STANDARD OF REVIEW

Section 63-46b-16(4) (1988) of the Utah Administrative Procedures Act (UAPA) outlines "the circumstances under which a reviewing court may grant relief from formal agency action." Anderson v. Public Serv. Comm'n, 839 P.2d 822, 824 (Utah 1992). "Under [section] 63-46b-16(4)(d), we may grant relief if 'the agency has erroneously interpreted or applied the law.' " Id. (quoting Utah Code Ann. § 63-46b-16(4)(d) (1988)).

" '[A]bsent a grant of discretion, a correction of error standard is used in reviewing an agency's interpretation or application of a statutory term.' " Stokes v. Board of Review, 832 P.2d 56, 58 (Utah App.1992) (quoting Morton Int'l, Inc. v. Auditing Div., 814 P.2d 581, 588 (Utah 1991)). However, where the legislature either expressly or implicitly grants the agency discretion to interpret or apply a statutory term, we review the agency's interpretation or application under a reasonableness standard. Anderson, 839 P.2d at 824 (citing Morton, 814 P.2d at 587); Stokes, 832 P.2d at 58.

Respondents claim the applicable standard of review is an "[i]ntermediate standard of reasonableness and rationality with appropriate deference to the decision of the administrative agency." Petitioner contends that this court should apply a correction of error standard to the ALJ's interpretation of the law and application of the facts to the law, and a substantial evidence test to the ALJ's factual findings. Neither party provides any detailed discussion or analysis. The disparity between these claims, however, demonstrates why "parties would be wise to assist this court in properly determining our standard of review." Bhatia v. Department of Employment Security, 834 P.2d 574, 581 (Utah App.1992) (Bench, J., concurring). In appeals under UAPA, it would be helpful for parties to "distinguish between grants of discretion to apply the law and grants of discretion to interpret a statute," id., to specify whether the statute contains an explicit or implicit grant of discretion, id., and to specifically identify the grant of discretion if one is claimed.

The Occupational Disease and Disability Act does not expressly grant the Commission discretion to interpret the 1988 Last Injurious Exposure Rule. The Commission has not articulated any sound reason under Morton why we should find an implicit grant of discretion. Because we can ascertain the Rule's meaning by applying traditional rules of statutory construction, we find no implicit grant of discretion. See Morton, 814 P.2d at 589; Nucor Corp. v. Utah State Tax Comm'n, 832 P.2d 1294, 1296-1297 & n. 5 (Utah 1992); Ferro v. Utah Dep't of Commerce, 828 P.2d 507, 510 (Utah App.1992). We accordingly apply a correction of error standard in reviewing the Commission's interpretation of this statute.

STATUTORY INTERPRETATION

Petitioner brought her claim under the Occupational Disease Disability Act which imposes liability upon an employer to compensate the dependents of an employee who dies from an occupational disease. Utah Code Ann. § 35-2-13(b) (1988). Section 35-2-13(b) states in pertinent part:

There is imposed upon every employer a liability for the payment of compensation to the dependents of every employee in cases where death results from an occupational disease.

Section 35-2-14 (1988) contains what is known as the Last Injurious Exposure Rule. It states in pertinent part ¹:

Where compensation is payable for an occupational disease the only employer liable shall be the employer in whose employment the employee was last injuriously exposed to the hazards of such disease....

Petitioner claims that in denying her benefits, the ALJ erroneously interpreted the phrase "injuriously exposed to the hazards of such disease" to require a "substantial dosage of exposure, and/or duration of exposure."

The phrase "injuriously exposed to the hazards of such disease" has been variously interpreted. Although it is clear that "there must have been some exposure of a kind contributing to the condition, ... once the requirement of some contributing exposure has been met, the question remains: Was this enough of an exposure to be deemed injurious?" 4 Arthur Larson, Workmen's Compensation Law § 95.26(a) (1990). Traditionally, courts

have not gone on past the original finding of some exposure to weigh the relative amount or duration of exposure under various carriers and employers. As long as there was some exposure of a kind which could have caused the disease, the last insurer at risk is liable for all disability from that disease. Thus, insurers or employers who have been at risk for relatively brief periods have nevertheless been charged with full liability for a condition that could only have developed over a number of years.

Id. For example, in Meyer v. SAIF, 71 Or.App. 371, 692 P.2d 656 (1984), review denied, 299 Or. 203, 700 P.2d 251 (1985), claimant suffered from asbestosis and sought benefits from his last employer, for whom he had worked only six days removing asbestos insulation from pipes. He had been exposed to asbestos throughout his life as a pipe-fitter and plumber for several different employers and had exhibited signs of the disease for over twelve years. Medical evidence showed that his exposure during the six-day employment was not the actual cause of the disease, but the court nevertheless held the employer liable for benefits. The court stated that "the appropriate inquiry under the last injurious exposure rule is not whether the conditions of the last employment actually caused the disease, but whether those conditions were of a kind which could have caused the disease over some indefinite period of time." Id. 692 P.2d at 658; see also, Osteen v. A.C. & S., Inc., 209 Neb. 282, 307 N.W.2d 514, 520 (1981) (last of forty employers held liable for claimant's mesothelioma because exposure to asbestos was of type that could have caused the disease had he been exposed for a "long time"); Union Carbide Corp. v. Industrial Comm'n, 196 Colo. 56, 581 P.2d 734, 738 (1978) (en banc) (employer for whom employee worked for eight days during which he was exposed to radiation which amounted to one-ten-thousandth of his total exposure during his mining career was liable for death benefits on the basis that there was sufficient evidence that, had he worked in those conditions for a year, the concentration would have exceeded federal exposure standards); Wood v. Harry Harmon Insulation, 511 So.2d 690, 693 (Fla.App.1987), review...