Wyoming Refining Co. v. Bottjen
Decision Date | 22 February 1985 |
Docket Number | No. 84-182,84-182 |
Citation | 695 P.2d 647 |
Parties | WYOMING REFINING COMPANY, Appellant (Defendant-Employer), v. Clarence A. BOTTJEN, Appellee (Plaintiff-Employee). |
Court | Wyoming Supreme Court |
Stanley K. Hathaway and Rick A. Thompson of Hathaway, Speight & Kunz, Cheyenne, for appellant.
Donald B. Hansen of Jones, Dumbrill & Hansen, Newcastle, for appellee.
Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.
This appeal results from the award of worker's compensation benefits to appellee Clarence A. Bottjen some ten years after exposure to the condition which caused the ailment. Appellant-employer Wyoming Refining Company contests the award, contending appellee's claim is barred by the statute of limitations. We agree with appellant and reverse.
Appellant raises two issues:
Since we hold appellee's claim was barred by the applicable statute of limitations, we need not address appellant's second issue regarding the constitutionality of reviving a previously barred claim.
The facts are not in dispute. Appellee worked at a refinery from 1956 to 1971. During that time, the refinery was owned by Sioux Oil Company and later by Tesoro Oil Company. Appellant purchased the refinery in 1977, some six years after appellee worked there. Appellant assumed the worker's compensation accounts of its predecessors upon purchase of the refinery.
On December 27, 1982, appellee learned that he suffered from asbestosis as a result of exposure to asbestos during his fifteen-year employment at the refinery. On June 17, 1983, appellee filed a claim for worker's compensation, which was awarded by the district court.
The cause of action of an injured employee accrues at the time of an injury occurring during the course of his employment. State ex rel. Director, Worker's Compensation Division v. Tallman, Wyo., 589 P.2d 835 (1979); Claim of Evans, Wyo., 417 P.2d 17 (1966); Claim of Heil, 65 Wyo. 175, 197 P.2d 692 (1948). Therefore, appellee's claim is governed by the laws in effect at the time of the injury. In the Matter of Barnes, Wyo., 587 P.2d 214 (1978), and Bemis v. Texaco, Wyo., 400 P.2d 529 (1965), reh. denied 401 P.2d 708 (1965). As stated above, appellee learned of his condition on December 27, 1982. 1 The applicable statute of limitations in effect at that time read:
(Emphasis added.) Section 27-12-503, W.S.1977.
The above statute, amended in 1983, now reads:
(Emphasis added.) § 27-12-503, W.S.1977 (June 1983 Replacement).
The only significant change in the new statute which became effective on May 27, 1983, is from the phrase "whichever occurs first" to "whichever occurs last" in subsection (b).
The law in effect at the time appellee became aware of his condition in December of 1982 was the old version of § 27-12-503, W.S.1977, quoted above. That law required a claim to be filed within one year after the appellee was informed of the injury or within three years from the date of the last injurious exposure which caused the condition, whichever occurred first. Appellee was informed of his condition in 1982; the last injurious exposure to the asbestos which caused the condition was in 1971. Therefore, what occurred first was appellee's exposure to asbestos from 1956 to 1971. Appellee's claim is barred since it had to be brought within three years of the last injurious exposure in 1971, or by 1974.
We were faced with a similar situation in the case of State ex rel. Director, Worker's Compensation Division v. Tallman, supra. In that case, an employee was diagnosed as having pulmonary fibrosis as a result of exposure to bentonite dust while working in a mill from 1937-1948. In 1976, it was determined the employee suffered from pulmonary fibrosis and made a claim for worker's compensation. We held his claim was barred under § 27-12-503, W.S.1977, and stated:
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State ex rel. Director, Worker's Compensation Division v. Tallman, supra, at 838-839.
There is no dispute that the result would be different under the new version of § 27-12-503, W.S.1977 (June 1983 Replacement), which has been in effect since May 27, 1983. We cannot, however, apply the statute retrospectively in the absence of clear legislative intent:
51 Am.Jur.2d Limitation of Actions § 57, p. 635 (1970).
In Mustanen v. Diamond Coal & Coke Company, 50 Wyo. 462, 62 P.2d 287 (1936), we held that a 1935 amendment to a worker's compensation statute enlarging the employee's right to recover benefits should not apply retrospectively to a claim from an injury occurring in 1930. We followed the general rule that ordinarily a statute has prospective application only.
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