1. Where the medical evidence established that the plaintiff prior to commencement of his employment with the defendant was afflicted with an early stage of silicosis which gradually progressed to a degree which totally disabled the plaintiff from further employment with the defendant such disease was held to have "existed at commencement of employment" and hence his right to workmen's compensation therefor is barred by the provisions of the statute (RSA 281:2 III (supp)).
Appeal under the Workmen's Compensation Law (RSA ch. 281) from a decision of the Commissioner of Labor denying the plaintiff Camille Boucher compensation based upon a claim of total disability due to silicosis. RSA 281:2 III (supp).
The plaintiff is 57 years of age. He was born in Canada and attended school there through the sixth grade. He can speak and understand English but cannot read it. He can write his name and can read and write French.
His principal employment since 1927 has been that of a stonecutter in the granite industry. Since June 11, 1934 he has been employed by the defendant in this capacity at different periods of time, the last period of employment being from January 8, 1948 to August 6, 1958.
Beginning in 1946 the plaintiff had a series of X-rays taken of his chest at varying intervals prior to August 6, 1958. These films all showed the presence of silicosis and a gradual onset of the disease which at the time of the trial was diagnosed as second degree silicosis. The plaintiff left his employment August 6, 1958 and has not been employed at his trade since.
The plaintiff requested the Trial Court to find that he "was employed by the John Swenson Granite Co. on February 12, 1945, and was a regular employee until August 6, 1958. . . ." The defendant requested a finding that "the `commencement of employment' was January 8, 1948." The Trial Court (Griffith, J.) denied the plaintiff's and granted the defendant's request, and made the following findings and rulings, among others:
"The Court finds that on the date of the beginning of the last period of employment by the petitioner at the Swenson Granite Company on January 1, 1948, the petitioner had a condition of silicosis, but that this condition had not progressed to the point of being a disease within the meaning of the statute.
"The Court further finds that the condition that the petitioner had of silicosis at the beginning of his last period of employment with the Swenson Granite Company on January 1, 1948, was not a condition that would progress to the disabling disease of silicosis in the absence of further exposure to silica dust and that, therefore, the petitioner is not barred from recovery by the terms of the statute.
"The Court further finds that the petitioner became totally disabled on August 6, 1958, the date that he quit his employment, and that he is now totally disabled from gainful employment.
"The Court finds that the petitioner acquired the disease of silicosis at the John Swenson Granite Company during the period of his employment there.
"The Court's ruling is intended to distinguish between silicosis as a condition not affecting a person's work or general physical condition, and a disease of silicosis as affecting either the ability to work, or the physical well-being of a person.
"The Court finds that the petitioner is entitled to compensation at the maximum rate from August 6, 1958, subject to the limitations of the statute for this type of disability."
The defendant's exceptions to the rulings of the Court on the admission and exclusion of evidence, to certain findings and rulings, and to the failure to grant certain requests for findings and rulings were reserved and transferred. Other pertinent facts appear in the opinion.
WHEELER, J.
The defendant contends that the plaintiff is not entitled to compensation because the disease of silicosis existed "at commencement of the employment" and in such cases compensation is barred under the statute (RSA 281:2 III (supp)) the material portions of which provide: "III. Personal injury . . . shall mean . . . the following disease . . . arising out of and in the course of employment . . . silicosis and other pulmonary dust diseases subject to the provisions hereinafter set forth. For the purpose of determining the date of injury for an occupational disease the first date of treatment by a licensed physician shall be taken as the date of injury. . . . It shall not include other diseases or death therefrom unless they are the direct result of an accidental injury arising out of and in the course of employment, nor shall it include a disease which existed at commencement of the employment, nor a disease the last injurious exposure to the hazards of which occurred prior to the effective date of this chapter." (Emphasis supplied). The statute further provides that compensation shall not be payable for partial disability. Colantonio v. Company, 97 N.H. 23. The plaintiff's contention in substance is that in light of the legislative history of the Workmen's Compensation Law it was not the legislative intent to exclude from recovery pre-existing silicosis since "Limitations on recovery [Bolduc v. Company, 96 N.H. 235] are limitations on Earning Disability." In other words, as the plaintiff's contention is understood, since the plaintiff did not have the disease silicosis prior to August 6, 1958 so as to be totally disabled therefrom and thus entitled to compensation, the disease did not exist "at commencement of the employment" within the contemplation of the statute.
Three medical experts testified and were unanimous in their opinion that as far back as 1946 the X-ray plates showed an early degree of silicosis present which would have taken years of exposure to silica dust to have developed to the point where it could be diagnosed. This condition progressed until at the time of the trial it was diagnosed as second degree silicosis. The record is barren of any medical testimony that this condition from 1946 to the present was not a disease.
The Court's ruling distinguished "silicosis as a condition not affecting a person's work or general physical condition, and a disease of silicosis as affecting either the ability to work, or the physical well-being of a person."
Prior to 1947 silicosis and other pulmonary dust diseases were not compensable under the statute. Laws 1947, 266:2 III. The statute placed certain limitations and restrictions on the right of recovery by barring compensation for disease "which existed at commencement of the employment."
Because of previous nonliability for occupational diseases this court recognized the necessity for these limitations, obviously intended by the Legislature to give to the insurer and employer opportunity to provide a reserve for future claims. Fortin v. Textron, 97 N.H. 291, 293.
The wording of the statute does not lend itself to the interpretation sought by the plaintiff that because he was not totally disabled by silicosis before August 6, 1958 he could not be found to have had the disease "at commencement of the employment." RSA 281:2 III (supp). To read this meaning into the statute would amount to judicial legislation. The evidence compels a finding that at the commencement of his last employment with the defendant the plaintiff had a "disease" within the meaning of the statute and consequently is not entitled to an award of compensation. Salyer v. Clinchfield Coal Corp., 191 Va. 331, 336.
Although this conclusion makes it unnecessary to refer to other arguments made by the defendant our consideration of one of these prompts us to point out what appears to be a deficiency in the law. In 1957 RSA 281:2 III and 17 were amended to provide that in cases of silicosis and other pulmonary dust diseases "the first date of treatment by a licensed physician shall be taken as the date of injury." Section 17 further provides that a claim for compensation "shall be barred . . . unless said notice [of the injury] is given to the employer within one year" of the injury. In silicosis cases no claim for compensation arises until total disability results. RSA 281:2 III (1). By its very nature the disease does not ordinarily become totally disabling until years have elapsed after it can be diagnosed and is likely to be treated. Hence the combined effect of ss. 2 III, and 17, supra, will preclude compensation in all but rare cases, since the first date of treatment will ordinarily occur more than a year before a claim for compensation can arise.
The characteristics of silicosis appear to have been recognized by the Legislature in 1961 when RSA 281:30 (supp) was amended to provide that in silicosis cases compensation "shall be deemed to run from the first date of disability and not from the date of injury as herein defined in such cases." Laws 1961, 194:13. However this beneficial provision of the Law will be of little value if employees never become entitled to compensation because barred by section 17 for failure to give notice within a year of the first date of treatment, at a time when they had no compensable claim. See Bolduc v. Company, 97 N.H. 360, 365.
The provisions of sections 2 III, and 17, supra, may be contrasted with the Ohio statute for example, which provides that applications for compensation for total disability due to silicosis must be made "within one year after total disability began or within such longer period as does not exceed six months after diagnosis of silicosis by a licensed physician." Ohio Rev. Code, s. 4123.68 (W); State v. Industrial Commission, (Ohio App.) 160 N.E.2d 346. See also, Agostin v. Pittsburgh Steel F'dry Corp., 354 Pa. 543, 550.
It may well be that difficulties in interpretation of the 1957 amendment to section 2 III were a factor in the Trial Court's erroneous construction of the previous exclusion of a "disease which existed at commencement of the employment."
In view of the foregoing, the Legislature might well find it in the public interest to review the original provisions providing compensation for silicosis and other pulmonary diseases together with the amendments thereto in order to determine if they clearly express their legislative intent.
Judgment for the defendant.
All concurred.
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