Opinion
No. 76-671
Decided April 7, 1977. Rehearing denied April 21, 1977. Certiorari granted June 20, 1977.
Claimants of deceased uranium miner sought workmen's compensation recovery in both Utah, where decedent had been employed for last years of his life, and in Colorado, where primary employment had been for many years. After rejection of the claim in Utah, on causality grounds, Colorado Industrial Commission also rejected claim on basis that last injurious exposure to radiation occurred in Utah. Claimants sought review.
Order Set Aside
1. WORKERS' COMPENSATION — Occupational Disease Disability Benefits — Imposition on Colorado Employer — Necessary Condition — Last Employer. Under the Colorado Occupational Disease Disability statute, liability for disability benefits may be imposed upon a Colorado employer only if that employer is, in fact, the last employer of the disabled employee.
2. Employee — Not Colorado Resident — Last Injurious Exposure — Radioactive Agents — Not in Colorado — Claim for Death Benefits — Not Compensable. Where decedent employer was not a Colorado resident at the time of his death, was not last injuriously exposed to radioactive agents as a result of an employment contract entered into in Colorado, and where it was found decedent's last injurious exposure to radioactive substances did not occur within Colorado, the claim for occupational disease death benefits asserted by his heirs is not one compensable under Colorado Occupational Disease Statute.
3. Utah Finding — No Causal Connection — Radon Exposure — Death — Not Irreconcilable — Colorado Finding — Different Standard of Proof. Where, utilizing an extremely stringent standard of proof, the Utah Industrial Commission found that occupational disease benefit claimants had not demonstrated a causal connection between their decedent's radon exposure and his fatal cancer, that conclusion is not irreconcilable with finding of Colorado Industrial Commission that decedent's last injurious exposure to radiation took place in Utah, such finding having been based on ample medical evidence and having been made under a lesser standard of proof.
Review of Order from the Industrial Commission of the State of Colorado
Robert S. Ferguson, James A. May, William J. Baum, for petitioners.
Traylor, Palo, Cowan Arnold, Charles J. Traylor, for respondents claimants in the matter of the death of Douglas Garner.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, John Kezer, Assistant Attorney General, for respondent Industrial Commission of Colorado.
In this workmen's compensation proceeding, petitioners Skidmore Mining Company and the State Compensation Insurance Funds seek review of an order awarding benefits to the claimants of the deceased employee, Douglas Garner. We set aside the order.
The decedent was employed by various companies engaged in the mining and processing of uranium. With immaterial exceptions, the decedent worked continuously in this occupation from 1940 until July 1963, primarily at locations in the State of Colorado. For a period of approximately eight years immediately prior to his death, however, he had been employed in Utah by the Hecla Mining Company, a company whose principal operations were located in Utah.
In September 1963, Garner died as a result of lung cancer. Alleging that decedent's cancer was caused by exposure to certain radioactive substances, claimants sought compensation in Utah under that state's occupational disability statutes. The claim was denied by the Utah Industrial Commission on the basis that a causal relationship between decedent's exposure to radioactive materials and his subsequent lung cancer had not been sufficiently established, which decision was affirmed by the Supreme Court of Utah. Garner v. Hecla Mining Co., 19 Utah 2d 367, 431 P.2d 794 (1967).
Pending resolution of the proceedings in Utah, the claim initiated in Colorado against certain employers was held in abeyance. Upon conclusion of the Utah litigation, the Colorado Industrial Commission conducted various hearings relative to the claim here. In its resulting order, the Industrial Commission adopted the finding that decedent was last injuriously exposed to radioactive materials during his employment in Utah, and it concluded that, as the last Colorado employer, Skidmore Mining Company was liable to claimants and that the claims against all other employers designated in the action be dismissed.
I.
Inasmuch as claimants' rights accrued while C.R.S. 1963, § 81-18-13(1) (now § 8-51-112, C.R.S. 1973 (1976 Cum. Supp.)) was in effect, its provisions govern the award of benefits here. Tucker v. Claimants in re the Death of Gonzales, 37 Colo. App. 252, 546 P.2d 1271 (1975). Accordingly, the initial question presented is whether, for purposes of compensation under the statute, decedent's "last employer" should be deemed the Skidmore Company of Colorado. We conclude that Skidmore should not be so deemed.
Reyling on Smith v. Lawrence Baking Co., 370 Mich. 169, 121 N.W.2d 684 (1963), claimants assert that the legislative intent underlying C.R.S. 1963, § 81-18-13(1), and its successor is to provide occupational disease disability benefits to Colorado employees, payable by the last Colorado employer regardless of the employee's subsequent employment history in other states. Claimants' authority is not persuasive.
The Colorado legislature cannot require an employer such as Hecla, who was the last employer in point of time but whose place of business is outside the state, to compensate an employee whose claim is prosecuted in Colorado. But this proposition does not necessarily result in the conclusion expressed by the court in Smith v. Lawrence Baking Co., supra, that the statutory reference to the "last employer" must therefore be interpreted as meaning the last employer in the state where benefits are sought.
[1] The more plausible construction of our statute is not that the last Colorado employer shall be liable for the occupational disease disability of an employee, but rather that the last employer shall be liable for such compensation provided that the last employer is a Colorado employer. See Wagner v. LaSalle Foundry, 345 Mich. 185, 75 N.W.2d 866 (1956), overruled in Smith v. Lawrence Baking Co., supra. And, applicable Colorado precedent supports this interpretation.
Here, the referee found that decedent's last injurious exposure to radioactive substances did not occur within this state. Consistent with out legislature's intent that liability under such circumstances be determined by reference to the employment during which an employee was last injuriously exposed to harmful substances, Climax Uranium Co. v. Claimants in re the Death of Smith, 33 Colo. App. 337, 522 P.2d 134 (1974), we decline to impose liability upon Skidmore.
Decedent was not a Colorado resident at the time of his death, nor was he last injuriously exposed to radioactive agents as the result of an employment contract entered into in this state. While these factors are not dispositive, they are nevertheless relevant in ascertaining the financial burden a state legislature may be said to have reasonably imposed. See Crenshaw v. Chrysler Corp., 394 Mich. 513, 232 N.W.2d 166 (1975).
[2] In view of the foregoing, we hold as a matter of law that the claim here is not one compensable under this state's occupational disease statutes. Accordingly, the Commission's award must be set aside. See Dorsch v. Industrial Commission, 185 Colo. 219, 523 P.2d 458 (1974).
II.
Claimants also argue that, even assuming that in order to impose liability on a Colorado employer the last injurious exposure must have occurred in Colorado, the referee's findings that the last injurious exposure took place at Hecla Company's mines is not supported by the evidence. Therefore, claimants contend, this finding should be disregarded and Skidmore held liable under the rule of Climax Uranium Co. v. Claimants in re the Death of Smith, supra. We disagree.
The evidence with respect to the medical effects of decedent's various exposures to radioactive substances was ambiguous. However, the only expert witness to testify in the proceedings stated on two different occasions that in his opinion claimant's last injurious exposure was in the State of Utah, and where, as here, a factual determination is supported by competent evidence, it will not be disturbed on review. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970).
[3] Nor is this conclusion irreconcilable with the result reached by the Utah Supreme Court in Garner v. Hecla Mining Co., supra. There, the Utah Industrial Commission found that claimants had not demonstrated a causal connection between radon exposure and decedent's cancer. The Commission, however, utilized an extremely stringent standard of proof. See Garner v. Hecla Mining Co., supra, (dissenting opinion of Tuckett, J.). Under a lesser standard there is ample evidence to support the conclusions of the Colorado referee that decedent's condition was caused by the inhalation of radon particles and that his last injurious exposure to those radioactive materials was in the State of Utah.
The order is set aside and the cause remanded to the Industrial Commission with directions to dismiss the claim.
JUDGE SMITH and JUDGE VAN CISE concur.