Osteen v. A. C. and S., Inc.

• Decision Date: 26 June 1981
• Docket Number: No. 43692,43692
• Citation: 307 N.W.2d 514,209 Neb. 282
• Parties: Connie L. OSTEEN, widow of Albert S. Osteen, et al., Appellees, v. A. C. AND S., INC., et al., Appellees, Peter Diewit Sons' Company, Appellant.
• Court: Nebraska Supreme Court

Page 514

307 N.W.2d 514

209 Neb. 282

Connie L. OSTEEN, widow of Albert S. Osteen, et al., Appellees, v. A. C. AND S., INC., et al., Appellees, Peter Diewit Sons' Company, Appellant.

No. 43692.

Supreme Court of Nebraska.

June 26, 1981.

Syllabus by the Court

1. Workmen's Compensation: Statute of Limitations. Where an occupational disease results from the continual absorption of small quantities of some deleterious substance from the environment of the employment over a considerable period of time, an afflicted employee can be held to be injured only when the accumulated effects of the substance manifest themselves, which is when the employee became disabled and entitled to compensation; and the date of injury, within the meaning of the Workmen's Compensation Act, is the date when the disability is first incurred and the period of limitations runs from that date.

2. Workmen's Compensation: Liability. Where a worker has contracted an occupational disease by exposure to a harmful substance over a period of years in the course of successive employments, the employer who most recently exposed the worker to the harmful substance is liable to pay the entire award.

3. Workmen's Compensation. The policy of liberal construction of the Workmen's Compensation Act for the benefit of the claimant is the rule in Nebraska.

4. Workmen's Compensation: Liability. Where the employment at the time of disability was not of a kind contributing to the disease, the employer at the time of the most recent exposure which bears a causal relation to the disability is generally liable for the entire compensation.

5. Workmen's Compensation: Liability. An injurious exposure must be of the type which could cause the disease, given prolonged exposure, and once the requirement of some contributing exposure has been met, courts will not go on to weigh the relative amount or duration of the exposure under various employers.

6. Workmen's Compensation: Appeal and Error. In a workmen's compensation case, the findings by the Workmen's Compensation Court have the force and effect of a jury verdict and will not be set aside unless clearly wrong.

7. Workmen's Compensation: Evidence. In determining the sufficiency of evidence necessary to sustain an award of the Nebraska Workmen's Compensation Court, such evidence must be considered most favorably to the successful party, every controverted fact must be resolved in his or her favor, and he or she must receive the benefit of every inference reasonably deducible from it.

8. Workmen's Compensation. All calculations to be made under the provisions of Neb.Rev.Stat. § 48-121 (Reissue 1978), and amendments thereof, have reference to wages, percentages, and results as of the time of injury.

Holtorf, Kovarik, Nuttleman & Ellison, P. C., and James M. Mathis and M. J. Javoronok, Gering, for appellant.

Michael Kelley of Kelley & Kelley, Omaha, for appellee Osteen.

Neil W. Schilke, P. C. of Sidner, Svoboda, Schilke, Wiseman & Thomsen, Fremont, for appellee Vaughn Insulation.

Michael P. Cavel of Sodoro, Johnson, Daly, Stave, Cavel & Coffee, Omaha, for appellee Taylor Insulation.

Richard D. Sievers of Marti, Dalton, Bruckner, O'Gara & Keating, P. C., Lincoln, for appellee Johns-Manville.

Barlow, Johnson, DeMars & Flodman, Lincoln, for appellee Inseco, Inc., Central Insulation & Engineering Co., and Thermal Products, Inc.

Norman H. Wright of Fraser, Stryker, Veach, Vaughn, Meusey, Olson & Boyer, P. C., and Theodore J. Stouffer of Cassem Tierney Adams, Gotch & Douglas, Omaha, for appellee Owens-Corning Fiberglas Corp.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

WHITE, Justice.

Appellant, Peter Kiewit Sons' Company, appeals from an award on rehearing by the Nebraska Workmen's Compensation Court awarding compensation based on Neb.Rev.Stat. §§ 48-101 et seq. (Reissue 1978) to appellee, Connie L. Osteen, surviving spouse of Albert S. Osteen. Mr. Osteen died on March 18, 1977, of peritoneal mesothelioma, a rare form of abdominal cancer caused by exposure to asbestos particles. Mr. Osteen was a member of Insulators and Asbestos Workers Local 39 and worked as an insulator from 1941 until a few weeks prior to his death. His employment was by the "union hall" method wherein an employer contacts the union agent requesting workers for a particular job, and the agent then assigns available workers to the requested job. Mr. Osteen worked for many employers during his years as an insulator and appellee brought her claim against approximately 40 of these employers, including appellant. After a hearing before the one-judge workmen's compensation court, the court found that mesothelioma was an occupational disease and, therefore, appellee was entitled to compensation under Neb.Rev.Stat. § 48-122 (Reissue 1978) in the amount of $100 per week, the amount to be divided between appellee and the then minor child, Mark, until Mark reached his majority. Thereafter, appellee would receive $100 per week for the remainder of her widowhood. Applying the so-called "last injurious exposure" rule, Judge Paul E. LeClair ordered Vaughn Insulation to pay the entire award. On rehearing, the three-judge Workmen's Compensation Court affirmed the award in all respects except that it ordered appellant, Kiewit, to pay the entire award. Appellant assigns numerous errors. We affirm.

Appellant first argues that appellee's claim is barred by the statute of limitations which was in effect at the time Mr. Osteen was employed by Kiewit in 1974 and 1975. Those limitations, appearing at Neb.Rev.Stat. §§ 48-133 and 48-137 (Reissue 1968), bar claims for compensation not filed within 6 months of the occurrence of an injury or within 6 months after death and suits for compensation not filed within 1 year after the accident. In 1977 the statutes were changed to provide that notice of a claim to an employer be given "as soon as practicable after the happening thereof" and for a 2-year time limit on filing suits for compensation. §§ 48-133 and 48-137 (Reissue 1978).

Apparently, appellant is urging that the Workmen's Compensation Court's finding that appellant is liable amounts to a finding that Mr. Osteen's "injury" occurred while he was employed by Kiewit and, thus, the claim was not filed within 6 months of the "injury" since notice was not given of a claim until June 24, 1977. However, as will be more fully developed elsewhere in this opinion, the rule under which appellant was found liable is applied in cases where the onset of the occupational disease cannot be pinpointed as stemming from a distinct incident and, thus, the finding of liability by the lower court is not a finding that Mr. Osteen's "injury" occurred while he was in Kiewit's employ for statute of limitation purposes. The correct interpretation of the statute of limitations to be applied in this case appears in Hauff v. Kimball, 163 Neb. 55, 61, 77 N.W.2d 683, 687 (1956): " 'Where an occupational disease results from the continual absorption of small quantities of some deleterious substance from the environment of the employment over a considerable period of time, an afflicted employee can be held to be "injured" only when the accumulated effects of the substance manifest themselves, which is when the employee becomes disabled and entitled to compensation; and the "date of injury", within the meaning of the Workmen's Compensation Act, is the date when the disability is first incurred, and the ... period of limitations runs from that date ....' "

On February 1, 1977, Mr. Osteen ceased working and entered the hospital for diagnosis of an abdominal disorder. Cancer was subsequently discovered during surgery and Mr. Osteen died on March 18, 1977. An autopsy on that date disclosed that the cause of death was peritoneal mesothelioma, and claimant first became aware that the cause of death was employment related. Notice was given on June 24, 1977, and the petition was filed in the Workmen's Compensation Court on January 27, 1978. The earliest date upon which we could hold that the disease manifested itself in disability was February 1, 1977. Using that date as the "date of injury," it is plain that claimant gave notice and filed her petition within the statutory time limits.

Appellant next argues that there is no competent medical evidence that peritoneal mesothelioma is a compensable occupational disease under the Nebraska Workmen's Compensation Act. According to Neb.Rev.Stat. § 48-151 (Reissue 1978), "(t)he term occupational disease shall mean only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process or employment and shall exclude all ordinary diseases of life to which the general public are exposed." The Workmen's Compensation Court found that peritoneal mesothelioma is a compensable occupational disease, and its findings of fact have the force and effect of a jury verdict and will not be set aside unless clearly wrong. Scamperino v. Federal Envelope Co., 205 Neb. 508, 288 N.W.2d 477 (1980).

The evidence demonstrates that the incidence of peritoneal mesothelioma is almost negligible in the population at large, but approaches 7 percent in asbestos workers. According to one of appellee's expert medical witnesses, the incidence of this disease in the population in general "is very, very small, so small that it's hard to put a number on it. A number that you commonly see in the scientific literature is perhaps one in 10,000 deaths may be due to mesothelioma in the general population. But even that number, it's kind of a guess, because the incidence is so low." However, a study cited by the same witness, in which initially healthy asbestos workers were "followed" by researchers "to see what happened to them," found that approximately 7 percent eventually died of mesothelioma. Conversely, several studies which traced the employment history of men who...