Opinion
No. 77-437
Decided October 27, 1977. Rehearing denied November 17, 1977. Certiorari granted January 23, 1978.
From award of workmen's compensation death benefits against last employer of uranium miner who died from radiation caused-cancer, employer, for whom decedent only worked approximately 8 days, sought review.
Order Affirmed in Part, Set Aside in Part.
1. WORKERS' COMPENSATION — Death Benefits Proceeding — Expert Medical Testimony — Sufficient — Support Finding — Last Injurious Exposure — Employer Liable. Although, in workmen's compensation death benefits proceeding, medical expert testified that the short exposure to radiation suffered by decedent employee while working for employer for eight days probably did not cause the employee's lung cancer and death, he gave as his opinion that the exposure was of a level which if continued indefinitely would increase the probability of lung cancer, and that testimony was sufficient to support a finding that the exposure met the last-injurious-exposure test of the statute so as to make that employer liable for death benefits.
2. Death Benefits — Exposure — Radioactive Materials — Liability Attaches — Last Employer — Length of Exposure — Irrelevant — Concentration Determinative. In regard to workmen's compensation death benefits relative to death caused by exposure to radioactive materials, liability attaches to the last employer in whose employment the decedent was exposed to injurious concentrations of toxic materials, regardless of the length of the exposure required actually to cause the disease; accordingly, the length of exposure is immaterial, and the fact that decedent employee worked for the last employer for only eight days did not shield it from liability for such death benefits.
3. Death Benefits — Exposure — Radioactive Materials — Employer — In Compliance — Federal Standards — Immaterial — Determination of Liability. Relative to claim for workmen's compensation death benefits arising from decedent employee having received his last injurious exposure to radiation while employed by petitioner, the fact that petitioner was in compliance with federal standards for safe levels of radiation is immaterial as to its liability under the workmen's compensation statute.
4. Death Benefits — Awarded — Against Last Employer — Statutory Limit — — Interest in Excess — Payable — Subsequent Injury Find. In workmen's compensation proceeding in which death benefits were awarded against employer in whose employ decedent suffered last injurious exposure to radiation, the employer, by statute, was liable for benefits only up to $7,500; and accordingly, interest in excess of that amount was payable out of the subsequent injury fund.
Review of Order of the Industrial Commission of the State of Colorado
Nelson, Hoskin, Groves Prinster, P.C., William H. Nelson, Gregg K. Kampf, for petitioners.
Robert S. Ferguson, for State Petitioner State Compensation Insurance Fund.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, John Kezer, Assistant Attorney General, for respondent Industrial Commission of the State of Colorado and Juereta P. Smith, Its Director.
Traylor, Palo, Cowan Arnold, Charles J. Traylor, David L. McKinley, for respondent Climax Uranium Corporation.
Union Carbide Corporation and its insurer, petitioners, seek review of an order of the Industrial Commission awarding death benefits of $7,500, the maximum statutory amount, plus interest from the date the claim was filed. The award was premised on the finding that Union Carbide was the last employer in whose employment the decedent was last injuriously exposed to harmful levels of radiation. We affirm as to the $7,500 but reverse as to the interest, which should be paid out of the subsequent jury fund.
The dispute is between the employee's last two employers and centers on the interpretation of this language:
"Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier." Section 8-51-112, C.R.S. 1973 (1976 Cum. Supp.)
The employee died of lung cancer incurred as a result of his exposure to radioactive materials during his work as a uranium miner for various employers. He began work for Union Carbide on April 28, 1970, and was dismissed on May 5, 1970, for failure to pass a pre-employment physical examination. Although the physical was given before he began work, the results were not available until after he had worked eight days. The examination revealed the onset of lung cancer from which the employee later died. Petitioners urge that the employee's brief exposure to radiation during his very short employment with Union Carbide was so insignificant in causing his lung cancer that it could not amount to a last injurious exposure. We disagree.
[1] Although the medical expert, in his testimony before the referee, explained that the short exposure suffered by the employee while working for Union Carbide probably did not cause his lung cancer and death, he gave as his opinion that the exposure was of a level which if continued indefinitely would increase the probability of lung cancer. This testimony is sufficient to support a finding that the exposure met the applicable test.
[2] "The Colorado statute does not require that the last injurious exposure be the cause in fact of the disease. To the contrary, we read the statute as declaring that an injurious exposure is a concentration of toxic material which would be sufficient to cause the disease in the event of prolonged exposure to such concentration . . . [W]e believe there is a clear manifestation of the legislature's intention to hold liable the last employer in whose employment the employee was exposed to injurious concentrations of toxic materials, regardless of the length of the exposure required actually to cause the disease." Climax Uranium Co. v. Claimants in re the Death of Smith, 33 Colo. App. 337, 522 P.2d 134 (1974). (emphasis in original)
The length of exposure is immaterial. As the Supreme Court stated in Colorado Fuel Iron Corp. v. Alitto, 130 Colo. 130, 273 P.2d 725 (1954): "The General Assembly intended to provide compensation benefits for exposure continuing for any period after the effective date of the Act."
[3] Petitioners also urge that their compliance with the federal standard for safe levels of radiation should immunize them from liability for having subjected an employee to his last injurious exposure. While their compliance with the federal guidelines may insure that they do not violate any federal regulation, it is immaterial to their liability under our workmen's compensation statute which does not deal with statistical amounts of exposure but rather is a "practical statute, having for its purpose the accomplishment of a definite humane purpose. It should be mantled in the spirit of the objective, not shrouded in a haze of over-technical interpretations." Colorado Fuel Iron Corp. v. Alitto, supra.
Accordingly, the resolution of the factual question of last injurious exposure being supported by substantial evidence, it will not be set aside on review. See, e.g., State Compensation Insurance Fund v. Foulds, 167 Colo. 123, 445 P.2d 716 (1968).
[4] As to the interest awarded, under § 8-60-113, C.R.S. 1973, which is applicable to this case, the last employer or his insurance carrier is liable for total benefits up to the amount of $7,500, but "additional benefits shall be paid out of the subsequent injury fund . . . ." Consequently, as all parties have agreed, the interest awarded by the Commission in excess of the $7,500 award is payable out of the subsequent injury fund, rather than by petitioners.
The order is affirmed in part and set aside in part, and the cause is remanded for entry of an order consistent with this option.
JUDGE PIERCE concurs.
JUDGE SMITH dissents.