Electron Corp. v. Industrial Claim Appeals Office

817 P.2d 576, 15 Brief Times Rptr. 538, 1991 Colo. App. LEXIS 117, 1991 WL 64154
CourtColorado Court of Appeals
DecidedApril 25, 1991
DocketNo. 90CA0544
StatusPublished
Cited by2 cases

This text of 817 P.2d 576 (Electron Corp. v. Industrial Claim Appeals Office) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Electron Corp. v. Industrial Claim Appeals Office, 817 P.2d 576, 15 Brief Times Rptr. 538, 1991 Colo. App. LEXIS 117, 1991 WL 64154 (Colo. Ct. App. 1991).

Opinion

Opinion by

Judge MARQUEZ.

Electron Corporation, a self-insured employer, contests an order of the Industrial Claim Appeals Office (ICAO) refusing to apportion liability against the Subsequent Injury Fund (SIF) for permanent total disability benefits payable to the claimant, Joseph L. Salazar. We set aside the order.

The claimant was employed at Electron for twenty-one and one-half years, during which time he was exposed to significant amounts of silica dust and asbestos fibers. In 1977, at age 38, claimant was diagnosed as having silicosis and was awarded permanent partial disability of fifty percent as a working unit. Claimant continued to work for Electron in the same capacity, experiencing further injurious exposures to silica dust and asbestos fibers. His condition deteriorated until, in May 1987, he became totally and permanently disabled from silicosis.

The Administrative Law Judge (AU) found no evidence that claimant had been injuriously exposed to silica dust in any employment prior to working for Electron. Accordingly, the AU ruled that SIF was not liable for contribution under § 8-51-112, C.R.S. (1986 Repl.Vol. 3B) (now codified at § 8-41-304, C.R.S. (1990 Cum.Supp.)).

On review to the Panel, Electron argued that the applicable statute governing SIF liability is not § 8-41-304, but rather, § 8-51-106, C.R.S. (1986 Repl.Vol. 3B) (now codified with amendments not pertinent here at § 8-46-101, C.R.S. (1990 Cum.Supp.)), the statute requiring SIF contribution for cumulative permanent disabilities. The Panel disagreed. Relying solely upon Denver v. Hansen, 650 P.2d 1319 (Colo. App.1982), the Panel ruled that SIF liability for occupational diseases is limited to the specific provisions contained in § 8-41-304(2), and that the AU did not err by failing to consider or apply § 8-46-101(1).

Electron contends that the failure to require SIF contribution under the facts of this case would circumvent the legislative policy under § 8-46-101 of encouraging employers to hire partially disabled workers. We agree.

In Subsequent Injury Fund v. Grant, 812 P.2d 1183 (Colo.App.1990), we recognized that the two statutory sections at issue here were enacted for different purposes.

Section 8-41-304 applies to occupational disease claims in which a claimant was injuriously exposed to the same occupational hazards in two or more employments. The statute codifies the “last injurious exposure rule,” which assesses liability upon the employer in whose employment the employee was last injuriously exposed to the hazards of the disease, or between the last employer and the Subsequent Injury Fund for the specific occupational hazards enumerated under § 8-41-304(2). See Subsequent Injury Fund v. State Compensation Insurance Authority, 793 P.2d 580 (Colo.1990).

The statute reflects a legislative decision to relieve workers disabled by occupational diseases from the “almost impossible task” of apportioning liability between multiple employers. Union Carbide Corp. v. Industrial Commission, 196 Colo. 56, 581 P.2d 734 (1978); see generally 4 A. Larson, Workmen’s Compensation Law § 95.24 (1990).

In contrast, § 8-46-101, the subsequent injury statute, apportions liability between employers and the Subsequent Injury Fund in cases in which cumulative permanent partial disabilities have combined to render an employee totally and permanently disabled. The statute makes no distinction between accidental injuries and occupational diseases. See Subsequent Injury Fund v. Grant, supra. The legislative purpose underlying § 8-46-101 is to encourage employers to hire partially disabled persons or, as in the case here, to retain employees who become partially disabled in the course of their employment. See Subsequent In[578]*578jury Fund v. Thompson, 793 P.2d 576 (Colo.1990); see generally 2 A. Larson, Workmen’s Compensation Law § 59.30 (1989).

With these distinct statutory purposes in mind, we turn to the facts of this case. The evidence is undisputed that the claimant’s only exposure to silica dust and asbestos fibers occurred during his employment at Electron Corp. Therefore, since the claimant did not sustain multiple exposures while working for successive employers, § 8-41-304 has no application to this case. Rather, the dispositive inquiry here is whether the Subsequent Injury Fund is liable for contribution under the terms of § 8-46-101.

The SIF maintains that its liability for occupational diseases is limited to the specific occupational hazards enumerated under the last injurious exposure rule, § 8-41-304(2), and that it has no liability for occupational diseases pursuant to § 8-46-101. We rejected that argument in Subsequent Injury Fund v. Grant, supra, on the ground that such a result would circumvent the important policy considerations underlying § 8-46-101. We follow that holding here, but we base our ruling not only upon the policy considerations set forth in § 8-46-101, but on the legislative history of the two statutes.

Prior to 1975, occupational diseases and accidental work injuries were treated under separate legislative acts, the Occupational Disease Disability Act, Colo.Sess. Laws 1945, ch. 163, § 1, et seq. at 432, and the Workmen’s Compensation Act, Colo.Sess. Laws 1919, ch. 210, § 1, et seq. at 700. The two statutes here, § 8-46-101 and § 8-41-304, were both enacted prior to the merger of the two Acts in 1975.

The Subsequent Injury Fund was established in 1945 under the Workmen’s Compensation Act. See Colo.Sess. Laws 1945, ch. 164, Section 1, § 355 at 447. That same year, the General Assembly enacted the Occupational Disease Disability Act. See Colo.Sess. Laws 1945, ch. 163, § 1, et seq. at 432.

The latter Act expressly provided, with certain specific exceptions, for application of the Workmen’s Compensation Act to proceedings under the Occupational Disease Disability Act; however, § 355 of the Workmen’s Compensation Act, requiring SIF contribution for subsequent injuries, was one of the sections specifically exempted from application to the Occupational Disease Disability Act. See Colo.Sess. Laws 1945, ch. 163, § 31 at 445.

In 1961, the General Assembly amended both Acts to provide for limited SIF liability under the predecessor statute to § 8-41-304(2) of the Occupational Disease Disability Act. See Colo.Sess. Laws 1961, ch. 165, § 81-12-7 at 509 and § 81-18-13(2) at 500.

Then, in 1975, the General Assembly repealed the Occupational Disease Disability Act and reenacted and incorporated portions of the Act into the Workmen’s Compensation Act. The legislative intent in merging the two Acts was to provide a single, unified Act for both accidental injuries and occupational diseases. See Tape Recording of the Senate Business Committee, 50th General Assembly, First Session (May 19, 1975); see Krumback v. Dow Chemical Co., 676 P.2d 1215 (Colo.App.1983).

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Related

Electron Corp. v. Industrial Claim Appeals Office
833 P.2d 821 (Colorado Court of Appeals, 1992)
Subsequent Injury Fund v. Electron Corp.
817 P.2d 533 (Supreme Court of Colorado, 1991)

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817 P.2d 576, 15 Brief Times Rptr. 538, 1991 Colo. App. LEXIS 117, 1991 WL 64154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/electron-corp-v-industrial-claim-appeals-office-coloctapp-1991.