Synalloy Corp. v. Newton

326 S.E.2d 470, 254 Ga. 174, 1985 Ga. LEXIS 609

• Court: Supreme Court of Georgia
• Decided: February 27, 1985
• Docket: 41336
• Status: Published

Opinions

Weltner, Justice.

Former employees of Synalloy Corporation (formerly Augusta Chemical Company) filed suit in tort alleging, among other things, that Synalloy negligently exposed them to beta-napthylamine (BNA), a known carcinogen, and failed to warn them of the dangers of exposure. Two of the plaintiffs, Newton and Williams, were employed by Synalloy prior to 1971. The plaintiff Samuels was employed in 1972. None oí¹ the plaintiffs learned of the relationship between BNA and cancer until 1981, at which time suit was brought for physical and mental injuries.

Synalloy moved for summary judgment, claiming that the superior court of Richmond County lacked jurisdiction because the exclusive remedy was the occupational disease provision of the Workers’ Compensation Act, OCGA § 34-9-280. The motion was denied. The Court of Appeals affirmed, holding that pre-1971 employees had a common law tort action against Synalloy, and that post-1971 employees were entitled to a jury determination of whether the injuries fall within the definition of an occupational disease. Synalloy Corp. v. Newton, 171 Ga. App. 194 (319 SE2d 32) (1984). We granted certiorari to examine the Court of Appeals’ interpretation of OCGA § 34-9-280.

OCGA § 34-9-280 (3) (F) lists five criteria which must be met before a disease which is incurred as a result of exposure to some harmful substance will be deemed an occupational disease. ¹ OCGA § 34-9-281 (b) (3) provides that workers’ compensation claims for occupational diseases must be brought within one year after “the last injurious exposure” to the substance.

1. Synalloy contends that workers’ compensation is the exclusive remedy available to the employees. We agree.

It is axiomatic that the legislature intended that workers’ compensation be the exclusive remedy of an employee who suffers an occupational disease, OCGA § 34-9-289, and the State Board of Workers’ Compensation to be the sole tribunal hearing the claim, OCGA § 34-9-280 (3) (F). Although a claim comes within the coverage of the Act, it does not follow that it is always compensable. Nowell v. Stone Mountain Scenic Railroad, 150 Ga. App. 325 (257 SE2d 344) (1979). An injury stemming from an occupational disease (as defined by the Act) is within the coverage of the Act. It is not compensable, however, without a disability.

The claimants seize upon this very circumstance — that in no instance have all five of the statutory elements combined to create a compensable claim — to insist that they have a tort action under the provisions of OCGA § 34-9-289, providing in part as follows: “An employee who suffers disability or death from any occupational disease not listed in Code § 34-9-280 shall not be deprived of any common law rights under existing law.” Because, they say, it cannot be established that they presently meet all the requirements of subparagraph (F), supra, they have, therefore, a common law right of action.

With this we disagree. First, the quoted language is held over, unchanged from the time when all of the occupational diseases then recognized were identified by name, i.e., “listed.” The 1971 amendment added another category, generically defined, (without limiting such expanded coverage by undertaking to “list” each disease thereby included). See Ga. L. 1946, p. 103, which is the genesis of the quoted portion of OCGA § 34-9-289.

Second, subsection (F) is not merely a checklist of circumstances against which each potential claimant must compare his medical history, symptoms, and work experience. To the contrary, subsection (F) is in large part a description of the term “occupational disease.” Thus, when subsection (F) (iii) provides “That the disease is not of a character to which the employee may have had substantial exposure outside the employment,” it cannot be held to refer to the particular ailment of a named employee, and of the possible exposure of that employee to a given disease in circumstances not related to his specific employment. To the contrary, it is the “character” of the disease which is controlling.

This very case provides an excellent example, inasmuch as any disability flowing from exposure to beta-napthylamine (BNA) would be a disease “not of a character to which the employee may have had substantial exposure outside the employment.” Further, under the provisions of subsection (F) (iv) it is assuredly the case that a disease stemming from exposure to BNA is “not an ordinary disease of life to which the general public is exposed.” Similar analyses might be drawn from the other constituent elements of subparagraph (F).

Hence, it is seen that as to occupational diseases the General Assembly has not converted the Workers’ Compensation Act into a complex of jury issues wherein every worker pursuing a tort action — and every employer resisting a workers’ compensation claim — might dispute any portion of any of the five elements of the statutory description. To so interpret it would nullify the statute and its goal of producing stated benefits for job-related disability, independent of fault.

2. As for pre-1971 employees, the Court of Appeals held that their claims had accrued at the termination of employment, and that they were entitled to seek tort relief, as the 1971 amendment had not been passed at that time.

With this conclusion we respectfully disagree. At such time as there shall co-exist all of the elements which, at law, combine to create a cause of action, that cause of action is deemed to be vested, and thereafter cannot be diminished by legislative act. Before that time, however, when the elements which ultimately might combine to create the cause of action are as yet inchoate, a new statute may delineate any cause of action which shall mature after its effective date. Hart v. Owens-Illinois Corp., 250 Ga. 397 (297 SE2d 462) (1982). Hence, the question becomes — when did the claims of pre-1971 employees vest?

In Georgia, a cause of action in tort does not vest until three elements exist: (1) the person is injured; and (2) learns or reasonably should have learned of the injury; and (3) learns or reasonably should have learned of the cause of the injury. King v. Seitzinger’s, Inc., 160 Ga. App. 318 (287 SE2d 252) (1981). Because the 1971 amendment was enacted before the occurrence of any compensable injury, the statute as amended must be the exclusive remedy for the pre-1971 employees. Thus, no plaintiff has a common law action in tort.

3. While workers’ compensation is the exclusive remedy of Synalloy’s employees, there can be no claim without disability. As no plaintiff yet has become disabled, as required by OCGA § 34-9-281 (b) (1), none has at this time a workers’ compensation claim.

We note that in occupational disease cases the legislature has allowed for only a one-year period of limitations between exposure and disability, which is likely too restrictive, for in many cases a cause of action will be barred before it arises. That presents substantial constitutional questions. See Clark v. Singer, 250 Ga. 470 (298 SE2d 484) (1983). But here is not the place for such an excursus.

Judgment reversed.

All the Justices concur, except Clarke, Smith, and Gregory, JJ., who dissent.

1 (F) Other occupational diseases, provided the employee or the employee’s dependents first prove to the satisfaction of the State Board of Workers’ Compensation (or the medical board, if the matter in controversy is referred to it under Code Section 34-9-311) all of the following:

(i) A direct causal connection between the conditions under which the work is performed and the disease;

(ii) That the disease followed as a natural incident of exposure by reason of the employment;

(iii) That the disease is not of a character to which the employee may have had substantial exposure outside of the employment;

(iv) That the disease is not an ordinary disease of life to which the general public is exposed;

(v) That the disease must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence.

For the purposes of this subparagraph, partial loss of hearing due to noise shall not be considered an occupational disease.