Norton v. C.P. Blouin, Inc.

• Decision Date: 25 June 1986
• Parties: William H. NORTON v. C.P. BLOUIN, INC., and Transportation Insurance Company, et al.
• Court: Maine Supreme Court

Page 1056

511 A.2d 1056

William H. NORTON v. C.P. BLOUIN, INC., and Transportation Insurance Company, et al.

Supreme Judicial Court of Maine.

Argued May 6, 1986.

Decided June 25, 1986.

McTeague, Higbee, Libner, Reitman, MacAdam & Case, G. William Higbee, (orally), Brunswick, for plaintiff.

Hunt, Thompson & Bowie, James P. Bowie (orally), Portland, for C.P. Blouin.

Robinson, Kriger & McCallum, Frederick H. Greene, III (orally), Portland, for American Mut.

Norman & Hanson, William LaCasse (orally), Portland, for Bath Iron Works.

Richardson, Tyler & Troubh, Eve Cimmet, Portland, for New England Insulation.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN, and SCOLNIK, JJ.

WATHEN, Justice.

The employee, William H. Norton, appeals from a decision of the Appellate Division of the Workers' Compensation Commission, reversing an award granted against the employer, C.P. Blouin, Inc. In awarding compensation, the single commissioner applied 39 M.R.S.A. § 194-B (Supp.1985-1986) to Norton's claim for an asbestos-related disease. The Appellate Division found his claim to be controlled and barred by the provisions of 39 M.R.S.A. § 194-A (1978), a predecessor statute in effect at the time Norton became incapacitated. We conclude that section 194-B controls the claim and thus, we affirm the award granted by the single commissioner.

I.

Mr. Norton, a sheetmetal worker, was exposed to asbestos during much of his working life while employed by a number of different employers. He was employed by Bath Iron Works Corporation on three occasions between 1937 and 1957. He was twice employed by New England Insulation, Inc., between 1980 and 1983. On three occasions between 1981 and 1983 he worked for C.P. Blouin, Inc. It is alleged that each employment involved exposure to asbestos. Norton became incapacitated on March 23, 1983 from a combination of obstructive lung disease, caused by emphysema and smoking, and restrictive lung disease caused by asbestos exposure. During 1983-1984 he filed four petitions for award-occupational disease against the three employers and four insurance carriers. The petitions were consolidated for hearing and decision. The commissioner granted the petition against C.P. Blouin, Inc. and Transportation Insurance Company after deciding that section 194-B governed Norton's claim. Because section 194-B(4) imposes liability only on the employer responsible for the last injurious exposure, who in this case the commissioner found to be Blouin, all other petitions were denied. The Appellate Division reversed and we granted the employee's petition for appellate review.

II.

The principal question on appeal is whether section 194-B governs this case. The law became effective on September 23, 1983, after the petition was filed against Blouin but prior to hearing. Section 194-B states in relevant part:

§ 194-B. Special provisions for asbestos-related diseases

1. Definition. As used in this section, the term "asbestos-related disease" means a disease caused by exposure to asbestos.

2. Scope. This section applies only to asbestos-related diseases caused or contributed to by a last injurious exposure to asbestos which occurred on or after November 30, 1967. Except as otherwise provided in this section, all provisions of this chapter shall apply to these diseases.

3. Aggravation of condition. Section 185 shall not apply to asbestos-related diseases.

4. Last employer liable; notice. Notwithstanding section 186, the only employer and insurance carrier liable shall be the last employer in whose employment the employee was last injuriously exposed to asbestos, and the insurance carrier, if any, on the risk when the employee was last so exposed under that employer. Notice of incapacity under section 187 shall include the name of that employer and the date when employment with that employer ceased.

5. Disability or death under inadequate prior law. In cases of asbestos-related disease resulting in incapacity or death prior to October 1, 1983, lateness in giving notice or filing a petition shall not be a bar to compensability, as provided in this section, unless the employer can show that his rights were substantially prejudiced by that failure. This subsection is repealed January 1, 1985.

6. Compensation limit. The 3-year limit provided in section 189 shall not apply to asbestos-related diseases.

Nothing in this section shall be construed to require retroactive payments of compensation for periods of incapacity which occurred prior to October 1, 1983, or retroactive payments of death benefits for periods of time prior to October 1, 1983. Compensation for claims permitted under this section shall be payable only for periods of incapacity occurring after October 1, 1983.

....

8. Compensation benefits. Compensation under this section shall be paid as follows.

A. If an employee is determined to be entitled to compensation for periods of total incapacity occurring on or after October 1, 1983, or if a dependent of an employee is determined to be entitled to full death benefits for periods occurring on or after October 1, 1983, and the employee became incapacitated or died on or after November 30, 1967, and before January 1, 1972, then the weekly compensation paid shall be equal to 2/3 of the average weekly wage in the State, as computed by the Bureau of Employment Security, that exists on the date the worker files his claim for compensation. ...

B. If an employee is determined to be entitled to compensation for periods of total or partial incapacity occurring on or after October 1, 1983, or if a dependent of an employee is determined to be entitled to full or partial death benefits for periods occurring on or after October 1, 1983, and the employee became incapacitated or died on or after January 1, 1972, and before October 1, 1983, then the initial weekly compensation paid shall be equal to the compensation that would have been paid had compensation payments begun at the time the employee became incapacitated or died and that compensation had been adjusted annually as provided in former sections 54, 55 and 58, whichever section is applicable. ...

....

9. Section not applicable. This section shall not apply to an asbestos-related disease of any worker who at the time of the last injurious exposure to asbestos was covered by the Longshoremen's and Harbor Workers' Compensation Act of March 4, 1927, c. 509, United States Code, Title 33, Section 901, or the Federal Employees Compensation Act, United States Code, Title 5, Section 8101. A worker shall be considered to be covered by one of those acts if, at the time of his last injurious exposure to asbestos, he was an employee, as therein defined, and was employed in employment which is subject to either of those acts.

The enactment of section 194-B coincided with the repeal of section 194-A, P.L. 1983, ch. 428, §§ 1-2, and implements the following changes in prior law. First, the repeal of section 194-A removed a presumption against the existence of disability due to asbestosis if the employee had not been exposed to asbestos for a period of two out of the preceding 15 years. ¹ Second, section 194-B(4) changed the assignment of liability in multiple employer situations from the last employer responsible for an injurious exposure exceeding 60 days to the last employer responsible for any injurious exposure. ² Third, section 194-B(3) removed from asbestos cases the requirement that incapacity be apportioned between work-related and non-work-related disease and compensation reduced accordingly. ³ Fourth, section 194-B(5) relaxed the notice requirements of the Workers' Compensation Act, making late notice inconsequential absent a showing by the employer that it suffered substantial prejudice. ⁴ Finally section 194-B(6) makes the 3-year statute of limitations set forth in 39 M.R.S.A. § 189 (1978) inapplicable to asbestos related diseases.

In reaching contradictory results the single commissioner and the Appellate Division employed differing analytic approaches on the question of retrospective application. The commissioner viewed the case as presenting an initial question whether section 194-B is procedural or substantive. If procedural, the statute applies to all pending cases and such application is, by definition, prospective rather than retrospective. See Dobson v. Quinn Freight Lines, Inc., 415 A.2d 814, 816 (Me.1980). The single commissioner found section 194-B to be procedural and did not analyze legislative intent or constitutional limitations on retrospective legislation.

The Appellate Division rejected the definitional analysis of Dobson and viewed the question strictly as one of legislative intent and constitutional limitation, citing Langley v. Home Indemnity Co., 272 A.2d 740 (Me.1971) for the proposition that mere labels should not determine the question of retrospective application. The Division panel found no clear expression of legislative intent to support an application of section 194-B to claims involving the onset of incapacity prior to that section's effective date.

We acknowledge that the opinions of this Court, written over a period of years, admit of divergent analytic approaches on the question of retroactive application of statutes. ⁵ In the present case, however, we consider two questions to be dispositive. First, did the Legislature intend that section 194-B apply where the onset of incapacity occurred prior to the effective date of the statute; and, second, whether such an application is permissible under the Contract Clause of the Maine Constitution? ⁶ We answer both questions in the affirmative.

The harmful results of exposure to asbestos are not immediate. Frequently, a number of years pass between injurious exposure and the diagnosis of disease. In enacting section 194-B, the Legislature sought to remove the barriers that existed under the prior law and effectively precluded recovery for any disease process...