Opinion
W.C. No. 4-225-408
April 27, 2001
FINAL ORDER
The claimant and the respondents seek review of an order of Administrative Law Judge Harr (ALJ). The respondents contend the ALJ erred by failing to dismiss the claim for benefits under § 8-41-206, C.R.S. 2000, because the claimant did not suffer a disability within five years of his last industrial exposure to beryllium. The claimant contends the ALJ erred in upholding the findings of a Division-sponsored independent medical examination (DIME) physician that the claimant reached maximum medical improvement (MMI) for his occupational disease, and that the claimant sustained no permanent medical impairment. According to the claimant, these determinations were premature because he has not sustained an "onset of disability." We affirm the result, but our reasoning is different than that of the ALJ.
The ALJ's findings may be summarized as follows. In March 1993, the claimant was diagnosed with chronic beryllium disease (CBD). The claimant's last exposure to beryllium was in January 1979, when the claimant was employed by respondent Rockwell International (Rockwell).
The claimant's treating physician, Dr. Newman, placed the claimant at MMI on August 27, 1998, with a 5 percent whole person medical impairment rating. Dr. Newman reported that in March 1993 the CBD caused the claimant to experience "physical impairment sufficient to affect his functioning in the labor market from that date, based on symptoms and based on evidence of gas exchange abnormality detected during exercise beginning in 1993." Thus, Dr. Newman opined that the claimant's "onset of disability" from CBD occurred in March 1993.
The claimant underwent a DIME on the issues of MMI and permanent medical impairment. The DIME physician diagnosed the claimant with "subclinical" CBD, and agreed with Dr. Newman concerning the date of MMI. However, the DIME physician opined the claimant has no permanent medical impairment because his pulmonary function tests are within normal limits.
The ALJ found that "uncontroverted medical evidence" establishes the claimant developed occupational CBD because of exposure to beryllium arising out of and in the course of his employment with Rockwell. The ALJ further found, based primarily on the opinion of Dr. Newman, that the claimant's "onset of disability" from CBD occurred in March 1993.
However, the ALJ rejected the respondents' argument that because the claimant's onset of disability occurred more than five years after the date of the claimant's last exposure to beryllium (January 1979), the claim for benefits is barred by § 8-41-206. The ALJ reasoned that § 8-41-206 exempts certain occupational diseases, such as asbestosis and silicosis, from operation of the statute. In light of these exemptions, the ALJ concluded that, although the General Assembly did not expressly list CBD as an exception, "CBD is sufficiently similar to asbestosis and silicosis to be exempt by implication."
Having determined the claimant sustained a compensable occupational disease, the ALJ found the claimant is entitled to reasonable and necessary medical benefits in the form of "medical monitoring and periodic testing of his subclinical CBD." However, the ALJ found the claimant failed to overcome the DIME physician's opinions concerning MMI and the absence of medical impairment. Thus, the ALJ denied the claim for "permanent medical impairment benefits."
On review, the respondents contend the ALJ erred in his interpretation of § 8-41-206. The respondents contend the statute generally applies to occupational diseases because it expressly exempts certain occupational diseases, including asbestosis and silicosis. Further, the respondents argue that in the case of an unlisted occupational disease, such as CBD, the "date of injury" refers to the date the claimant was last exposed to the hazard, not the date of "onset of disability." The respondents reason that any other interpretation would render the statute meaningless because if the "date of injury" is synonymous with the date of "onset of disability," the claimant's disability would never commence more than five years after the date of injury.
The claimant argues that § 8-41-206 applies only to disability benefits, and not to medical benefits. The claimant also contends the statute does not apply to claims based on occupational diseases. In support, the claimant relies on cases which hold the "date of injury" for an occupational disease is the date when the claimant experiences the "onset of disability." The claimant reasons the statute cannot logically apply to occupational diseases because, by definition, no disability will ever be incurred more than five years after the "date of injury." Finally, the claimant argues the statutory exceptions for disability or death resulting from exposure to radioactive materials, asbestosis, silicosis, and anthracosis do not necessarily refer to occupational diseases. Rather, the claimant asserts these statutory references should be interpreted to mean medical conditions which result from accidental exposures to harmful substances.
We agree with the claimant that § 8-41-206 does not prohibit claimants from proving entitlement to medical benefits, even if the need for such benefits arises more than five years after the "date of injury," however that term is defined. Thus, we hold the ALJ properly awarded medical benefits. However, we agree with the respondents that § 8-41-206 bars any claim for disability benefits. Consequently, although we hold the ALJ misinterpreted the statute, we affirm the order denying permanent disability benefits because the ALJ reached the legally correct result. See Sears v. Penrose Hospital, 942 P.2d 1345 (Colo.App. 1997) (we may uphold an ALJ's order when the right result is reached for the wrong reason).
Section 8-41-206 provides as follows:
Any disability beginning more than five years after the date of injury shall be conclusively presumed not to be due to the injury, except in cases of disability or death resulting from exposure to radioactive materials, substances, or machines or to fissionable materials, or any type of malignancy caused thereby, or from poisoning by uranium or its compounds, or from asbestosis, silicosis, or anthracosis.
As the claimant points out, we have previously held that § 8-41-206 does not bar a claim for medical benefits resulting from an occupational disease. In Millard v. Rockwell International, W.C. No. 4-354-307 (April 13, 2000), and Romero v. Rockwell International, W.C. No. 4-331-478 (April 13, 2000), we reasoned that the statute prohibits proof of "disability" arising more than five years after the date of injury, but does not prohibit proof of the need for medical treatment arising more than five years after the date of injury. The file contains copies of both decisions, and we incorporate the reasoning of those cases as if fully set forth herein. Consequently, we conclude § 8-41-206 cannot be construed as prohibiting the award of medical benefits arising from the occupational disease of CBD, and the ALJ properly awarded medical benefits in this case.
We next consider the respondents' argument that the statute bars any claim for disability benefits. We agree with the respondents that § 8-41-206 applies to occupational diseases, and that the "date of injury" refers to the date the claimant was last exposed to the hazards of the disease.
The questions of whether § 8-41-206 applies to occupational diseases, and, if so, the meaning of the term "date of injury," are issues of statutory interpretation. Thus, we apply the ordinary rules of statutory construction. The principal objective of statutory construction is to effect the intent of the General Assembly. Because the best indicator of legislative intent is the language of the statute, we must afford the words their plain and ordinary meanings, provided no absurdity results. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). To the extent there is any ambiguity in the statute, we may consider other sources of legislative intent, including the problem which the legislature sought to solve, the circumstances under which the legislation was adopted, and the consequences of various constructions. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). We should also consider the entire statutory scheme so as to give consistent, harmonious, and sensible effect to all of its parts. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
We first consider whether or not § 8-41-206 applies to occupational disease claims, or, as the claimant argues, is limited to "accidental injuries" traceable to a particular time, place, and cause. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993) (differentiating occupational diseases from accidental injuries). In 1975, the statute currently codified at § 8-41-206 was significantly amended, and, except for a minor housekeeping change in 1977, was enacted in its present form. The 1975 amendment to the statute deleted the term "accident" and substituted the word "injury." Further, the 1975 amendments adopted the statutory exceptions for exposures to radioactive materials, uranium poisoning, asbestosis, silicosis, and anthracosis. 1975 Colo. Sess. Laws, ch. 71 at 306.
The 1975 legislation which amended the predecessor of § 8-41-206 also enacted sweeping changes to the law governing occupational diseases. The General Assembly repealed the preexisting occupational disease statute, provided that the terms "accident", "injury", or "injuries" shall include disability or death resulting from accident or occupational disease, and enacted a definition of an "occupational disease." 1975 Colo. Sess. Laws, ch. 71 at 293; §§ 8-40-201(2) and (14), C.R.S. 2000, formerly §§ 8-41-108(2) and (3). One of the effects of these changes was to render liability for occupational diseases coextensive with liability for accidental injuries, and to subsume both under the general term "injury." CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982).
In light of this legislative history, it would make little sense to infer the General Assembly did not intend § 8-41-206 to apply in cases where the claimant is alleging an occupational disease rather than an accidental injury. Indeed, the 1975 amendments to the statute expressly deleted the term "accident" and substituted the general term "injury." Because the General Assembly defined the term "injury" to include occupational diseases, we should not depart from that statutory definition and ascribe some other meaning to the word. City of Thornton v. Replogle, 873 P.2d 30 (Colo.App. 1993), aff'd., 888 P.2d 782 (Colo. 1995).
Moreover, the 1975 amendments to § 8-41-206 created exceptions to the operation of the statute in cases where the claimant sustains disability or death resulting from "exposure" to radioactive materials, uranium poisoning, asbestosis, silicosis, or anthracosis. The term "exposure" also appears in the statutory definition of an occupational disease, which was first adopted in the 1975 legislation. Thus, a consistent and harmonious reading of these provisions suggests the General Assembly intended § 8-41-206 to apply to occupational diseases. Although we agree with the claimant that an employee might sustain a single, identifiable "exposure" to radioactive substances which would constitute an "accidental injury," the term "exposure" also suggests prolonged contact with a hazardous substance. Further, asbestosis, silicosis, and anthracosis are commonly understood as diseases resulting from prolonged contact with hazardous materials rather than the consequences of single, identifiable exposures to hazardous substances.
We next consider whether, when the claimant is asserting the existence of an occupational disease, the statutory term "date of injury" refers to the date of last industrial exposure to the hazard, or to the date the claimant experienced the "onset of disability." In resolving this issue, we note that § 8-41-206 has been interpreted as an arbitrary rule of evidence which prohibits an ALJ from inferring a causal relationship between an industrial injury and a disability which commences more than five years after the date of the injury. This rule of evidence prevails regardless of the availability of testimony by lay and expert witnesses which might provide the basis for finding a causal relationship. Industrial Commission v. Weaver, 81 Colo. 191, 254 P. 444 (Colo. 1927); Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991). Because the General Assembly has done nothing to alter this long-standing judicial interpretation of the statute, we presume the legislature has implicitly approved it. Dependable Cleaners v. Vasquez, 883 P.2d 583 (Colo.App. 1994). Thus, our interpretation of the statute should be guided by this established legislative intent.
As the claimant argues, the "date of injury" of an occupational disease has been defined as the date the claimant first experiences an "onset of disability." Our courts have traditionally applied the "onset of disability" rule when determining rights and liabilities for an occupational disease. In contrast, the "last injurious exposure" rule has usually been restricted to resolving issues of apportionment when the claimant sustains an occupational disease and there have been multiple employers or insurers. Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo.App. 1998); Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995); but see, Martinez v. Industrial Commission, 40 Colo. App. 485, 580 P.2d 36 (1978).
However, for purposes of § 8-41-206, defining the "date of injury" for an occupational disease as the date of onset of disability would undermine the statutory objective and lead to an absurd result. As we have held, the statute is intended to apply to occupational diseases. However, if the date of injury is synonymous with the date of onset of disability, the rule of evidence established by § 8-41-206 would never apply to an occupational disease because the claimant would never sustain a disability beginning more than five years after the date of injury. See Industrial Commission v. Weaver, supra (statute does not prohibit proof of causation where the claimant sustains a disability within five years of the date of injury, then experiences a recurring disability more than five years after the injury).
Moreover, the courts have not slavishly applied the onset of disability rule to occupational disease cases where to do so would undermine the objectives of the Act. In Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. 1999), the court held the claimant was entitled to medical benefits for an occupational disease even though there had been no "onset of disability." The court reasoned the Act is designed to compensate for medical expenses in addition to loss of earning capacity, and concluded it would make no sense to treat occupational diseases differently from accidental injuries, for which medical care is provided regardless of disability.
Thus, we agree with the respondents that for purposes of § 8-41-206 the "date of injury" of an occupational disease is the date the claimant was last exposed to the hazards of the disease. Such an interpretation effects the legislative objective of establishing an arbitrary rule of evidence which prohibits proof of the cause of a disability which develops more than five years after the "date of injury." Although this interpretation may have harsh effects in cases where the claimant suffers from a slowly developing occupational disease, the result is no more severe than in cases where the claimant experiences a non-disabling industrial accident which blossoms into a full-scale disability more than five years after the date of the injury. Indeed, the Court of Appeals has observed "there are many industrial accidents which result in injuries, the ultimate effects of which are not discovered until long after the event." Ricks v. Industrial Claim Appeals Office, 809 P.2d at 1120.
We have also considered the ALJ's reasoning that CBD is similar to asbestosis and silicosis, and should be considered as an "implied" exception to § 8-41-206. However, the statute states that it applies "except" where the claimant suffers from the specified conditions, including asbestosis and silicosis. When the word "except" is used in a statute its common meaning is to exclude or omit, and the term generally operates to restrict the applicability of the legislative language. Larimer County v. Sinclair, 939 P.2d 515 (Colo.App. 1997). The General Assembly specified exceptions to the general applicability of § 8-41-206, and CBD is not among the listed exceptions. Consequently, we may not legislate an exception which does not appear in the statute. Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985) (we may not assume legislative powers, and should not read non-existent provisions into the Act). To the extent the statute effects unfair results, or treats similar diseases differently, rectification of these problems must await action by the General Assembly
Here, the ALJ found the claimant sustained an onset of disability more than five years after the last exposure to beryllium. The claimant does not contend that he sustained any disability within five years of his last exposure to beryllium, and in fact argues he has not sustained any disability at all. Consequently, the undisputed facts establish the claimant sustained no disability within five years of his last exposure to the hazards of CBD. Therefore, § 8-41-206 prohibits him from proving now, or in the future, that he sustained any temporary or permanent disability as a result of CBD. Thus, the ALJ's denial of permanent disability benefits was correct as a matter of law. In light of this determination, we need not consider the claimant's arguments concerning whether or not the ALJ's rulings on MMI and permanent medical impairment were, under the facts, "premature."
IT IS THEREFORE ORDERED that the ALJ's order dated March 15, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 27, 2001 to the following parties:
Michael Leming, 9327 W. 66th Pl., Arvada, CO 80004
Rockwell International, Benefits Department, P. O. Box 464, Golden, CO 80402-0464
Jerry McClory, Travelers Insurance, P. O. Box 173762, Denver, CO 80217-3762
Joseph M. Goldhammer, Esq., 1563 Gaylord St., Denver, CO 80206 (For Claimant)
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy
FILE: LUNDY.TXT