State Indus. Ins. System v. Jesch
| Decision Date | 07 November 1985 |
| Docket Number | No. 15250,15250 |
| Citation | 101 Nev. 690,709 P.2d 172 |
| Parties | STATE INDUSTRIAL INSURANCE SYSTEM, Appellant, v. Margaret JESCH, Respondent. |
| Court | Nevada Supreme Court |
Pamela M. Bugge, Matthew H. Feiertag, Carson City, for appellant.
David R. Gamble, Carson City, for respondent.
Robert Jesch was diagnosed as having malignant mesothelioma involving the right lung in March 1982. Mr. Jesch elected surgical intervention, radiation therapy, and chemotherapy. All treatment modalities proved unsuccessful and there was spread of the disease into the opposite lung, and nodes of the neck and scalp. On June 21, 1982, Mr. Jesch died. He was fifty-eight years old at the time of his death. Before his death, Mr. Jesch and his wife were advised by an attending physician to seek disability benefits as his disease was caused by work-related exposure to asbestos fibers. Mrs. Jesch filed a workers' compensation claim with the State Industrial Insurance System (SIIS) against Mr. Jesch's last employer (Ray Heating & Sheet Metal Co.). Her claim was denied by SIIS. Mrs. Jesch appealed the denial of benefits and, after a hearing, the hearing officer affirmed the original determination. Mrs. Jesch again appealed the denial of benefits.
At the hearing before the appeals officer, Mrs. Jesch testified that her husband had been a sheet metal worker for forty years. He had worked in Nevada for all but a couple of months during that time period. Admitted as evidence at the hearing was a list of Mr. Jesch's employers from 1967 through 1971. Also admitted was a note from Mr. Jesch explaining his known exposures to asbestos. Both parties agreed that mesothelioma was a disease with a latency period of twelve to forty years.
The appeals officer found that Mr. Jesch's death was caused by work-related exposure to asbestos which occurred while employed within the State of Nevada. He dismissed Ray Heating & Sheet Metal Co. from the action because Mr. Jesch was not exposed to asbestos during his ten-year employment there. Concluding that the governing occupational disease statutes must be interpreted to include mesothelioma, the appeals officer reversed the decision of the hearing officer and ordered SIIS to accept and pay widow Jesch's claim. A Petition for Judicial Review was filed by SIIS and the district court affirmed the appeals officer's decision.
We are thus asked to decide whether compensation for mesothelioma is precluded under our occupational disease provisions because of the lengthy latency period of the disease, and whether the last injurious exposure rule governs the procedural requirements of filing such a claim. Because we agree with the lower court's decision that mesothelioma is a compensable occupational disease and that the last injurious exposure rule applies to such successive-employer claims, we affirm.
Asbestos is a mineral fiber which has been used extensively in industry and the home. Over 3,000 products contain asbestos. S. Kusnetz and M. Hutchison, A Guide to the Work-Relatedness of Disease 54 (1979). Asbestos exposure has been proved to result in a number of disabling and fatal diseases. Among these diseases are lung cancer, cancer of the mesothelial lining of the chest and abdominal cavities, and asbestosis. Asbestos exposure has also been linked epidemiologically to gastrointestinal cancers.
There are long latency periods associated with the asbestos-related diseases. Asbestos-induced lung cancer usually involves a latency period of greater than twenty years. Mesothelioma generally involves a latency period of at least twenty-five to thirty years. Some cases of mesothelioma have not manifested for more than forty years from the exposure to asbestos.
Malignant mesotheliomas are almost always fatal within the year following diagnosis. Treatment modalities rarely produce a cure. It is also extremely rare to observe malignant mesothelioma in persons not exposed to asbestos. The diagnosis of occupational mesothelioma is based on meeting the following criteria: 1) confirmed history of occupational exposure to asbestos 2) pathological evidence of mesothelioma. Id. at 62. The concern for workers exposed to asbestos is perhaps best reflected by the Occupational Safety and Health Administration (OSHA): Occupational Exposure to Asbestos, 48 Fed.Reg. 215, 51089 (1983) (codified at 29 C.F.R. § 1910.1001 at 660-65).
Dr. William J. Nicholson of Mt. Sinai School of Medicine (Environmental Sciences Laboratory) testified before the Senate Labor and Human Resources Subcommittee on Labor on April 24, 1984. He reported that the annual death toll from asbestos-related cancers are expected to rise to approximately 10,000 by the year 2000. He further reported that an estimated 27,500,000 workers were exposed to asbestos between 1940 and 1980. An estimated 350,000 deaths will be related to that exposure period. Employment Safety and Health Guide, No. 678-Part I, May 8, 1984 (CCH). It is evident that asbestos-related diseases will be a major problem for a number of years to come.
Mrs. Jesch seeks to recover death benefits under Nevada's Occupational Disease Act. NRS 617.470 of that Act governs occupational diseases of the respiratory tract resulting from dusts. It provides:
All conditions, restrictions, limitations and other provisions of NRS 617.460 with reference to the payment of compensation or benefits on account of silicosis shall be applicable to the payment of compensation or benefits on account of any other occupational disease of the respiratory tract resulting from injurious exposure to dusts. 1
NRS 617.460(4), however, restricts recovery for respiratory tract diseases by limiting the time period in which compensation from such respiratory tract diseases can be claimed. It states:
No compensation may be paid in case of silicosis unless, during the 10 years immediately preceeding the disablement or death, the injured employee has been exposed to harmful quantities of silicon dioxide dust for not less than 3 years in employment in Nevada covered by the insurer. (emphasis added).
A narrow reading of the foregoing statutes, then, would preclude compensation in all claims of asbestos-related cancers (including mesothelioma) and most claims of asbestosis due to the lengthy latency periods involved with these diseases.
It has been conceded by SIIS that Mr. Jesch suffered and died from an occupational disease possessing a lengthy latency period. Strict statutory interpretation would preclude recovery of benefits by his widow.
Our workers' compensation laws reveal that the primary purpose is to provide economic assistance to persons who suffer disability or death as a result of their employment. This court has a long-standing policy of liberally construing these laws to protect workers and their families. Hansen v. Harrah's, 100 Nev. 60, 675 P.2d 394, 396 (1984). There are strong public policy reasons to support such a position.
Unquestionably, compensation laws were enacted as a humanitarian measure. The modern trend is to construe the industrial insurance acts broadly and liberally, to protect the interest of the injured worker and his dependents. A reasonable, liberal and practical construction is preferable to a narrow one, since these acts are enacted for the purpose of giving compensation, not for the denial thereof.
Id. at 63, 675 P.2d 394, citing Nevada Industrial Commission v. Peck, 69 Nev. 1, 10-11, 239 P.2d 244, 248 (1952).
It is necessary for the legislature's goals and overall objectives of the Occupational Disease Act to be met. It has been noted by this court that statutory interpretation should not yield an unreasonable result if a more reasonable result is available. Sheriff v. Smith, 91 Nev. 729, 733, 542 P.2d 440, 443 (1975); Cragun v. Nevada Pub. Employees' Ret. Bd., 92 Nev. 202, 205, 547 P.2d 1356, 1358 (1976) citing Penrose v. Whitacre, 61 Nev. 440, 455, 132 P.2d 609, 616 (1942).
Since the purpose of the Occupational Disease Act is to compensate workers for work-related illness or injury, the exclusion of Mrs. Jesch's claim would be inconsistent with its basic intent. The legislative desire was to provide for workers. Mr. Jesch worked most of his life in Nevada and died from mesothelioma. Mr. Jesch provided a list of his employers to SIIS and pinpointed his known exposures to asbestos. It is undisputed that mesothelioma is an asbestos-related disease with a lengthy latency period. The legislature could not have intended to exclude Mrs. Jesch's claim for benefits. See Welfare Div. v. Washoe Co. Welfare Dep't., 88 Nev. 635, 637-38, 503 P.2d 457, 459 (1972) (citations omitted); Ex Parte Iratacable, 55 Nev. 263, 282, 30 P.2d 284, 290 (1934) (citation omitted); Donoghue v. Tonopah Oriental Mining Co., 45 Nev. 110, 116-17, 198 P. 553, 554 (1921).
We feel it is also necessary to examine the purposes which statutes of limitations are designed to serve. It is generally agreed that there exist three purposes. First, there is an evidentiary purpose. The desire is to reduce the likelihood of error or fraud that may occur when evaluating factual matters occurring many years before. Memories fade, witnesses disappear, and evidence may be lost. Second, there is a desire to assure a potential defendant that he will not be liable under the law for an indefinite period of time. Third, there is a desire to discourage prospective claimants from "sleeping on their rights." E.g., P. Barth with H. Hunt, Workers' Compensation and Work-Related Illnesses and Diseases 120 (1980).
When evaluating the traditional purposes of statutes of limitations, it is observed that the evidentiary problems frequently...
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