Roller v. Basic Const. Co.

• Citation: 238 Va. 321,384 S.E.2d 323
• Decision Date: 22 September 1989
• Docket Number: No. 870400,870400
• Parties: Edna H. ROLLER v. BASIC CONSTRUCTION COMPANY, et al. Record
• Court: Supreme Court of Virginia

Page 323

384 S.E.2d 323

238 Va. 321

Edna H. ROLLER v. BASIC CONSTRUCTION COMPANY, et al.

Record No. 870400.

Supreme Court of Virginia.

Sept. 22, 1989.

Robert R. Hatten, Christopher D. Cerf (Joel I. Klein, Richard Glasser, Patten, Wornom & Watkins, Onek, Klein & Farr, and Glasser & Glasser, on brief), for appellant.

Brian N. Casey (Gerald E.W. Voyer and Taylor & Walker, P.C., on brief), for appellees.

Present: All the Justices.

RUSSELL, Justice.

In this workers' compensation case, we must determine whether the claimant's right to benefits was affected by a legislative change in the statute of limitations. Ordinarily, in cases originating before the Industrial Commission, a decision of the Court of Appeals is final, Code § 17-116.07(A)(2), but we granted this appeal because it involves "matters of significant precedential value." Code § 17-116.07(B).

Clyde F. Roller was employed by Basic Construction Company (Basic), first as a carpenter and later as a carpenter foreman, from 1949 to 1977. He lived with his wife in Newport News until his 1977 retirement, and thereafter the couple made their home in Waynesville, North Carolina. During his employment, Mr. Roller repeatedly worked on jobs involving the installation of asbestos insulating materials. His exposure to asbestos continued until his retirement.

Mr. Roller complained of pain in his left side in 1977 and consulted a physician in Newport News who detected rales in both lungs. In 1981 and 1982, Mr. Roller's health deteriorated markedly, and he consulted physicians in North Carolina. Chest x-rays taken in those years showed abnormalities indicative of pulmonary fibrosis, but no evidence of pneumonia or tumors. He was admitted to hospitals on several occasions but was given no diagnosis suggesting occupational disease.

In January 1983, Mr. Roller was referred to Dr. William R. Domby, a physician in Asheville, North Carolina, who was board-certified in pulmonary medicine. By means of a needle biopsy, Dr. Domby diagnosed Mr. Roller's condition as a necrotizing squamous cell carcinoma of the right lower lobe. His examination also revealed diffuse interstitial fibrosis of both lungs. Because the patient had been continuously exposed to asbestos fibers, aggravated by heavy smoking in the past, Dr. Domby regarded his condition as probably related to industrial exposure to asbestos. The deteriorated condition of the lungs rendered the cancer inoperable, and Dr. Domby informed Mr. Roller that his condition was terminal.

Because of the devastating psychological effect of that information, Dr. Domby chose not to tell Mr. Roller at that time of the causal link between his industrial exposure to asbestos and his cancer. Dr. Domby testified positively that he did not then communicate a diagnosis of asbestosis to Mr. Roller. By June 1983, the Rollers evidently suspected the existence of such a causal link, because they employed an attorney who wrote Basic to the effect that he was investigating "the possibility of litigation against suppliers of asbestos." Nevertheless, the unrefuted testimony of Mrs. Roller, who recorded the event in a diary which she kept during these years, was that Dr. Domby first communicated to the Rollers a diagnosis of asbestosis, and a causal connection between Mr. Roller's exposure to asbestos and his lung cancer, on August 22, 1983.

Mr. Roller died on December 24, 1983, of cardiac arrest caused by lack of a sufficient oxygen supply from his impaired lungs. On August 6, 1985, Mrs. Roller filed a claim for workers' compensation benefits, including death benefits, based upon Mr. Roller's occupational disease. Basic and its insurance carrier defended the claim on the grounds, among others, that the claim was not filed within five years after Mr. Roller's last injurious exposure to asbestos in his employment, and that the claim was not filed within two years after the diagnosis of the disease was first communicated to him.

The deputy commissioner who heard the case made a factual determination from the conflicting evidence that the claim had been filed within two years after the diagnosis of the occupational disease was first communicated to Mr. Roller. The deputy commissioner also decided that the five-year limitation was inapplicable because of the amendment of the statute discussed below, resolved the remaining issues in the claimant's favor, and entered an award of compensation.

Basic appealed to the full commission, which reversed, holding that the five-year limitation was applicable and barred the claim. For this reason, the Industrial Commission did not reach the remaining issues.

Mrs. Roller appealed to the Court of Appeals, which, by order entered March 25, 1987, affirmed the decision of the Industrial Commission. The Court of Appeals held that the claim was controlled by the statute of limitations in effect prior to July 1, 1983, that the applicable statute contained a limitation period expiring five years after the claimant's "last injurious exposure in employment," and that the amendment of the statute "did not, and could not, revive a claim that was already barred by the statute of limitations."

Mrs. Roller argues that the claim is governed by the statute of limitations in effect after July 1, 1983. Alternatively, she contends that even if the rights and duties of the parties were fixed before that date, the legislature intended the 1983 amendment to have retrospective effect and there is no constitutional reason why it should not be so applied.

Basic contends that the statute of limitations governing workers' compensation claims is substantive, and limits the claimant's right rather than merely barring his remedy. As a corollary, Basic argues, when the limitation period has run the employer acquires a right of immunity from the time-barred claim, a right which we will refer to as a right of repose. Such a right of repose, the argument continues, is vested or at least substantive in nature and may not constitutionally be impaired by subsequent legislation. Therefore, Basic contends, retrospective application of the 1983 amendment would unconstitutionally deprive Basic of a right of repose which had accrued in 1982, when the five-year limitation expired.

Prior to July 1, 1983, Code § 65.1-52 provided, in pertinent part:

The right to compensation under this chapter shall be forever barred unless a claim be filed with the Industrial Commission within one of the following time periods:

1. For coal miners' pneumoconiosis, three years ...

2. For byssinosis, two years ...

3. For all other occupational diseases, two years after a diagnosis of the disease is first communicated to the employee or within five years from the date of the last injurious exposure in employment, whichever first occurs.

...

The limitations imposed by this section as amended shall be applicable to occupational diseases contracted before and after July 1, 1962....

(Code of Va. 1950, 1980 Repl.Vol. 9A, 1982 cum. supp.) (emphasis added).

Effective July 1, 1983, the General Assembly amended Code § 65.1-52 by inserting, between subsections 2 and 3, quoted above, a new subsection 2a:

For asbestosis, two years after a diagnosis of the disease is first communicated to the employee; ...

The effect of the 1983 amendment was to remove the five-year limitation contained in the italicized language of the former statute as it related to asbestosis claims, while retaining its effect upon all other unspecified occupational diseases. ¹

To recapitulate the pertinent dates:

Last injurious exposure to asbestos -- 1977

Five-year limitation expires -- 1982

Effective date of amendment deleting five-year -- July 1, 1983

limitation

Diagnosis of occupational disease first communicated to -- August 22, 1983

employee

Death of employee -- December 24, 1983

Claim filed -- August 6, 1985

Two-year limitation expires -- August 22, 1985

Without question, Mrs. Roller's right to compensation is barred by the lapse of five years from the date of her husband's last "injurious exposure in employment" if the earlier version of the statute is controlling. On the other hand, if the case is controlled by the amendment effective July 1, 1983, the claim was timely filed within the two-year period after communication of the diagnosis, which was the only limitation then applicable. We resolve the question by reference to the fundamental nature of the workers' compensation scheme.

As frequently stated, the Workers' Compensation Act (the Act) is based upon a quid pro quo, a societal exchange wherein employees are provided a purely statutory form of compensation for industrial injuries. The remedy is modest, but relatively certain. Claimants are free from the necessity of proving negligence and resisting such affirmative defenses as contributory negligence and assumption of the risk. In exchange, employers under the canopy of the Act are sheltered from common-law liability in tort. See, e.g., Whalen v. Dean Steel Co., 229 Va. 164, 170-71, 327 S.E.2d 102, 106 (1985). Where the statutory scheme of workers' compensation applies, it entirely replaces the common-law tort system. Code § 65.1-40. Because the General Assembly, in fashioning the statutory scheme, created a new right to compensation, unknown at common law, it could, and did, impose upon the new right such limitations as it deemed just. See Winston v. City of Richmond, 196 Va. 403, 407, 83 S.E.2d 728, 731 (1954). Such statutory limitations become an integral part of the new right, defining and controlling it; they pre-empt common-law principles that might otherwise apply.

In a common-law setting, a cause of action is a set of operative facts which, under the substantive law, may give rise to a right of action. A right of action belongs to some definite person; it is the remedial right accorded that person to enforce a cause of action. It arises only when that person's rights are infringed. Unless otherwise provided by st...