Scott Co. v. Workers' Comp. Appeals Bd.

• Decision Date: 13 January 1983
• Citation: 139 Cal.App.3d 98,188 Cal.Rptr. 537
• Court: California Court of Appeals Court of Appeals
• Parties: , 34 A.L.R.4th 949 SCOTT COMPANY and Liberty Mutual Insurance Company, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and Melvin E. Stanley, Respondents. Civ. 53344.

Page 537

188 Cal.Rptr. 537

139 Cal.App.3d 98, 34 A.L.R.4th 949

SCOTT COMPANY and Liberty Mutual Insurance Company, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and Melvin E. Stanley, Respondents.

Civ. 53344.

Court of Appeal, First District, Division 3, California.

Jan. 13, 1983.

Goshkin, Pollatsek, Meredith & Lee, Inc., Jack A. Pollatsek, San Francisco, for petitioners.

Richard W. Younkin, William B. Donohoe, Dexter W. Young, Valerie L. Westen, San Francisco, for respondents: W.C.A.B.

Pelletreau, Moses, Larson & Alderson, Kenneth Larson, San Pablo, for Melvin E. Stanley.

Dean, Mansell & Manchester, Stafford R. Leland, Los Angeles, Ramos, Herlihy & Broadbeck, Thomas C. Cockle, San Francisco, for Industrial Indem. Co.

SCOTT, Associate Justice.

Petitioners Scott Company and its insurer, Liberty Mutual Insurance Company, seek review of a decision and award of the Workers' Compensation Appeals Board after reconsideration. ¹ The principal question is whether Labor Code section 5500.5 imposes liability for occupational disease or cumulative injury on employers who employed the employee in the occupation exposing him or her to the hazards of such disease regardless of whether the exposure was actually a contributing cause of the disease or injury. We conclude that it does not, and affirm the award.

I

Sixty-five-year-old Melvin Stanley filed an application for workers' compensation benefits in 1979, claiming to have developed mesothelioma as a result of asbestos exposure while working for various employers from 1938 to 1970. At the hearing before the workers' compensation judge, it was stipulated that if Stanley was injured as alleged, that injury caused 100 percent permanent disability as of May 1, 1978.

The medical evidence at the hearing consisted of reports and testimony by two physicians, Lonnie K. Bristow, M.D. and H. Corwin Hinshaw, M.D. Both agreed that Stanley suffered from malignant pleural mesothelioma, a rare tumor, and that the cause of the tumor was his exposure to asbestos fibers during his employment. According to Hinshaw's report, a peculiar feature of mesothelioma is the long interval between first exposure to asbestos and the appearance of the tumor. He cited one study indicating that this latency period varies from at least 15 years to 40 years or more, and another reporting a mean latency period of 37 years, with most deaths occurring 30 to 35 years after first exposure. In this report, Hinshaw also expressed the opinion that Stanley's exposure to asbestos during the last 15 years or so would not have caused, aggravated, or accelerated the disease.

Hinshaw's testimony was more equivocal than his report. He stated, "the last 15 years of [Stanley's] employment, the last more likely 20 years or more of, let's say, a minimum of 15 years, the last 15 years would not have contributed to his present problem in my opinion." Asked again if it was his opinion that the last 20 years of employment before the diagnosis did not contribute to Stanley's present condition, Hinshaw answered, "20 or even 25."

Bristow agreed that the usual latency period was 15 to 20 years, and stated that the only area where he had a "slightly different opinion from Dr. Hinshaw" was that he believed the mesothelioma might have been present in 1976 rather than in 1978. Nevertheless, he also believed that even if Stanley had had no exposure to asbestos after 1955, he would probably still have developed mesothelioma. Hinshaw agreed with the latter statement.

Stanley was first exposed to asbestos when he began work for the Mork Company in 1938, and was frequently exposed to the substance in his work thereafter. Those periods of exposure included his employment from 1959 to 1966 with petitioner (insured by petitioner Liberty Mutual Insurance Co.), in 1967 with Atlas Heating (insured by Industrial Indemnity Co.), and in 1970 with Western Air (insured by Cypress Insurance Co.).

The workers' compensation judge found that Stanley sustained a cumulative injury or occupational disease arising out of his employment, that the injury caused total permanent disability as of May 1, 1978, and that the last date on which he was employed in an occupation exposing him to the hazards of that disease was the last day worked for Western Air in 1970. Based on those findings, the judge entered a joint and several award for benefits, pursuant to Labor Code section 5500.5, ² against the three carriers who insured Stanley's employers during the last 36 months of his employment during which he was exposed to asbestos: Liberty Mutual, Industrial Indemnity, and Cypress Insurance. In an opinion denying reconsideration, the judge rejected the employers' argument that section 5500.5 precludes imposition of liability on employers who exposed their employees to asbestos when there is medical testimony that the exposure was not a contributing cause of the disease. He explained, "Administrative convenience and the best interest of injured workers require that the trier of fact in workers' compensation cases be permitted to impose liability upon the last employer who did, in fact, expose to the hazards of the occupational disease whether that exposure did in fact, cause the occupational disease to manifest itself when it did or not.

"The social cost of the use of asbestos in the working environment should be borne by the industry which profits thereby, not by a single employer who, by chance, was the employer at the time, according to the concensus of medical opinion, that 'harmful exposure' occurred. To impose that social cost on that industry, and to facilitate early delivery of benefits, the Legislature has created a fictional period of injury, and that period is the last one, two, three, four or five years of employment in the industry prior to last day worked in that industry, ..."

The matter was reconsidered by the appeals board en banc. (§ 115.) In a lengthy opinion reviewing the legislative history of section 5500.5, the board concluded that the section does not authorize a judgment of liability against an employer without a finding that the employment injuriously exposed the employee to the hazards of the occupational disease. The board then found that the medical evidence was "consistent in concluding that it is extremely unlikely that any exposure Stanley experienced after 1963 was a contributing cause of his mesothelioma." Accordingly, the board ordered Atlas Heating and Western Air dismissed, and amended the findings of fact to impose liability solely upon petitioner Scott Company, who employed Stanley from 1955-1966. ³

II

First, petitioners contend that the board's decision is inconsistent with the legislative intent underlying section 5500.5. Focusing on amendments to that section which were enacted in part to simplify administrative procedures and promote prompt receipt of benefits, petitioners argue that the Legislature must have intended that all exposure to asbestos should be presumed injurious. We disagree.

Section 5500.5 limits the employers and insurance carriers who may be held liable for an employee's recovery for a cumulative injury or occupational disease. (Flesher v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 322, 325, 152 Cal.Rptr. 459, 590 P.2d 35.) Subdivision (a) of that section limits liability to those employers who employed the employee during a specific period "... immediately preceding ... the last date on which the employee was employed in an occupation exposing him to the hazards of such occupational disease or cumulative injury ...." For Stanley's claim, filed on or after January 1, 1979, but before January 1, 1980, the liability period was three years. ⁴

Because section 5500.5 speaks merely of exposure to hazards, rather than injurious exposure, it is susceptible to the interpretation urged by petitioners. However, section 3600 requires as a condition of compensation that an injury be proximately caused by the employment. (§ 3600, subd. (c); California Comp. & Fire Co. v. Workmen's Comp. App. Bd. (1968) 68 Cal.2d 157, 160, 436 P.2d 67; Ross v. Workmen's Comp. Appeals Bd. (1971) 21 Cal.App.3d 949, 955, 99 Cal.Rptr. 79; State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1982) 133 Cal.App.3d 643, 652, 184 Cal.Rptr. 111.) An "injury" includes any injury or disease arising out of the employment (§ 3208); a "cumulative injury" is defined as "occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment." (§ 3208.1, emphasis added.) To read section 5500.5 as petitioners suggest would be to find at least a partial repeal of that causation requirement. Repeals by implication, however, are not favored. We will not presume that in the enactment of statutes the Legislature intended to overthrow long-established principles of law unless such intention is made clearly to appear either by express declaration or by necessary implication. (Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1, 7, 128 Cal.Rptr. 673, 547 P.2d 449.) We must assume, moreover, that when passing a statute, the Legislature was aware of existing related laws and intended to maintain a consistent body of rules. (Ibid.)

In City of Torrance v. Workers' Comp. Appeals Bd. (1982) 32 Cal.3d 371, 185 Cal.Rptr. 645, 650 P.2d 1162, the Supreme Court summarized the evolution of section 5500.5 since its enactment in 1951. The section was enacted, the court explained, to codify the rule announced in Colonial Ins. Co. v. Industrial Acc. Com. (1946) 29 Cal.2d 79, 172 Cal.Rptr. 884. "As originally enacted, the section provided that an employee claiming benefits for an occupational disease could recover against any one of the successive employers whose employment contributed to the disease." (City of Torrance, supra, at pp. 374-375, 185 Cal.Rptr. 645, 650 P.2d 1162, emphasis added; see also Flesher v. Workers' Comp....