Bainbridge v. Boise Cascade Plywood Mill , 111 Idaho 79 ( 1986 )

BAKES, Justice,

Margaret Bainbridge (claimant) appeals the decision of the Industrial Commission dismissing her claim for worker’s compensation benefits for failure to file her claim within the statutory time period. Boise Cascade Corporation (employer) through its surety, Northwestern National Insurance Co., cross appeals the commission’s finding that claimant has presented a prima facie case of disability related to an occupational disease. We affirm the commission’s finding that claimant failed to file a claim within the required time period. As a result, we do not reach the question of whether claimant has established a prima facie case of an occupational disease.

Claimant began working for employer at its Emmett plywood assembly plant in September, 1979. She worked at a glue booth, patching holes in and otherwise preparing wood sheets prior to their assembly in plywood form. The glue booth where claimant worked was in close proximity to saws in the actual assembly area where the wood sheets were glued together to form the finished plywood. The glue resin was applied to the wood sheets by spraying. Thus, at her work place, claimant was exposed to sawdust and glue fumes. Shortly after beginning her employment in 1979, claimant developed a cough. She consulted Dr. Paul McConnel, a family practitioner, who diagnosed her condition as bronchitis with flu. Claimant’s cough persisted and in January, 1980, Dr. McConnel treated claimant again for her cough and, in addition, for a rash and for a pre-existing asthma condition.¹ Dr. McConnel initially treated claimant’s condition with antibiotics. However, the medication seemed to have little effect in alleviating her symptoms.

In April of 1981 claimant continued to suffer from her asthma condition, and Dr. McConnel prescribed asthma medication. At a subsequent examination in July, 1981, Dr. McConnel noticed that claimant’s asthma had improved following claimant’s one-week absence from work. The following month, on August 31, 1981, claimant returned to Dr. McConnel, complaining of difficulty breathing with exertion. At this point Dr. McConnel apparently suspected claimant’s work environment to be related to her asthma symptoms. Dr. McConnel arranged for a pulmonary function test to be conducted on September 4, 1981. He recommended that claimant discontinue working until the pulmonary function test could be completed. Claimant ceased work on September 3, 1981. Following a month off work, claimant appeared to improve, and Dr. McConnel issued a note to claimant to be given to her employer. This note, dated October 30, 1981, was delivered by claimant to the employer on October 31, 1981. In that note, Dr. McConnel recommended that claimant refrain from working indefinitely, noting that she had asthma reaction “to dust and chemical fumes.” However, in the same note, Dr. McConnel also stated that claimant “could work in a clean environment.” Claimant applied for and received non-occupational disability benefits through employer’s non-occupational disability insurer, First Far West Corporation. Claimant’s medical expenses during her employment were covered by her employer’s group health insurance carrier, Blue Shield of Idaho, Inc.

Claimant did not return to work following the September 4, 1981, pulmonary testing and voluntarily terminated her employment in May, 1982. Claimant received nonoccupational disability benefits from September 4, 1981, through August, 1982, at which time benefits ceased. Claimant first filed a claim for worker’s compensation benefits on November 26, 1982. On that date she filed both her claim for benefits and her application for hearing with the Industrial Commission. At the hearing before the commission, the employer through its surety moved to have claimant’s claim dismissed on grounds that it was barred by the statute of limitations contained in I.C. § 72-448. The commission specifically found that claimant failed to file her claim for disability within one year after manifestation of an occupational disease and therefore dismissed her claim.

On appeal claimant contends that the commission erred in its application of the statute of limitations in that: (1) the employer’s failure to file a report of the occupational disease as required by I.C. § 72-602(1) operates to toll the limitation imposed by I.C. § 72-448; and (2) employer’s payment of medical expenses and non-occupational disability benefits operated to change the applicable statute of limitations from one year under I.C. § 72-448 to five years under I.C. § 72-706(2). We disagree and affirm the Industrial Commission.

I

The workman’s compensation law provides compensation to employees who suffer disability as a result of an industrial accident or an occupational disease arising out of the course of employment. A review of the statutory provisions reveals that some apply strictly to occupational disease while others apply strictly to industrial accidents. Such is the case regarding statutes of limitations imposed on claims for disability.

I.C. § 72-701 contains the statute of limitations applicable to claims for disability resulting from industrial accidents.² By its express language it applies to claims arising from accidents, not to claims for disability arising from an occupational disease. The applicable statute of limitations for claims for disability resulting from occupational disease is found in I.C. § 72-448.³ Both sections, however, impose the same limitation on claims for disability, namely, “within one (1) year after the date of the accident,” I.C. § 72-701, or “within one (1) year after manifestation of the disease.” I.C. § 72-448(1). Claimant does not contend her claim was filed within the applicable statutory period. Rather, she contends that the failure of Boise Cascade to file a report of the occupational disease as required by I.C. § 72-602(1) operates to toll the limitation imposed by I.C. § 72-448. Claimant’s argument is based on her proposed interpretation of I.C. § 72-604. That section states:

“72-604. Failure to report tolls employee limitations. — When the employer has knowledge of an occupational disease, injury, or death and willfully fails or refuses to file the report as required by section 72-602(1), Idaho Code, the notice of change of status required by section 72-806, Idaho Code, the limitations prescribed in section 72-701 and section 72-706, Idaho Code, shall not run against the claim of any person seeking compensation until such report or notice shall have been filed.” (Emphasis added.)

Claimant’s reliance on this provision is misplaced. The express and specific language of Section 72-604 only tolls the limitations contained in Section 72-701 and Section 72-706. It makes no reference to I.C. § 72-448. In essence, claimant invites this Court to place a judicial gloss on 72-604 so as to make its tolling provisions applicable to the statute of limitations contained in I.C. § 72-448. We decline claimant’s invitation to do so, especially given the legislature’s clear intent to the contrary.⁴ Statutes of limitations are clearly creatures of legislative enactment and not within the domain of the judiciary to impose. We will not usurp a clearly legislative prerogative. The commission correctly concluded that I.C. § 72-604 does not apply to I.C. § 72-448.

Even if § 72-604 were applicable to § 72-448, it only tolls limitations for willful failure to file the required report. The commission found that employer’s failure to file the § 72-602 report was not willful. In its written opinion on rehearing, the commission expressly acknowledged and followed our definition of “willful” set out in Smith v. Idaho Dept. of Employment, 107 Idaho 625, 691 P.2d 1240 (1984), another Industrial Commission case, in which this Court “reaffirmed earlier Idaho case law indicating that ‘willful’ implies a conscious wrong.” 107 Idaho at 628, 691 P.2d at 1243. Applying this Court’s definition of “willful” the commission concluded “that the evidence does not establish a willful failure on the part of the employer to make the required report.” This finding by the commission is supported by the following substantial competent evidence in the record. Both claimant and employer’s office manager, Mrs. Deanna Martin, testified that when claimant presented the note from Dr. McConnel on October 31, 1981, there was never any discussion that her condition was work related. Indeed, prior to that time claimant had filed several applications for non-occupational disability benefits in which she represented that her preexisting asthma condition was not work related. Claimant made similar representations in her applications filed after the October 31,1981, meeting. Additionally, Mrs. Martin, the employer’s office manager, testified that her understanding of Dr. McConnel’s October 31,1981, note was that claimant had merely aggravated her prior non-work related asthmatic condition. The note itself contains no specific language indicating that claimant’s underlying condition was caused by her work environment. Employer’s failure to draw from the note an inference to the contrary (i.e., that claimant’s asthma was caused by her work environment) is at most a simple misunderstanding of Dr. McConnel’s intent in issuing the note. Any subsequent failure to file the § 72-602(1) report would be based on that misunderstanding. As we indicated in Smith v. State Dept. of Employment, supra, misunderstanding or otherwise negligent omission to report required information will not support a finding that such an omission or failure to report is “willful.” 107 Idaho at 628, 691 P.2d at 1243, quoting Meyer v. Skyline Mobile Homes, 99 Idaho 754, 761, 589 P.2d 89, 96 (1979).

II

Claimant next contends that payment of non-oecupational disability and medical benefits by employer effectively changes the one-year statute of limitations imposed by I.C. § 72-448 to a five-year statute of limitations imposed by I.C. § 72-706(2). However, once again, claimant’s reliance on the provisions of I.C. § 72-706 is misplaced, for two reasons. First, that section’s statute of limitations does not apply to the time for filing claims for disability, but rather applies to the time for filing applications for hearings before the Industrial Commission. In this case the commission dismissed for failure to timely file the claim, not for failure to timely file an application for hearing. Accordingly, I.C. § 72-706 is inapplicable.⁵

Secondly, and more importantly, 72-706(2) only extends the statute of limitations “when payments of compensation have been made and thereafter discontinued____” (Emphasis added.) There has been no payment of “compensation” in this case by the employer. “Compensation” is a word of art under the Workmen’s Compensation Act and refers to income and medical benefits “made under the provisions of this law,” I.C. § 72-102(5), (12), and (15). Payments made to an employee under group health policies or group disability policies are not payments “made under the provisions of this law,” and accordingly the medical and insurance benefits paid under the group policies provided by the employer are not “payments of compensation” within the meaning of 72-706(2), and for this additional reason I.C. § 72-706(2) is inapplicable on the facts of this case.

The Industrial Commission has correctly applied the law as set forth in I.C. § 72-448 to the facts of this case. The decision of the Industrial Commission barring claimant’s claim based on the statute of limitations is affirmed. Accordingly, we need not address the issues raised by the employer and surety in their cross appeal. Costs to respondents. No attorney fees.

DONALDSON, C.J., and SHEPARD, J., concur.

1 . It was Dr. McConnel’s opinion that claimant’s asthma predated her employment with employer but was asymptomatic and aggravated by her work environment. The specific agent blamed for claimant’s aggravated symptoms was the formaldehyde present in the glue resin. Expert medical testimony before the commission indicated that formaldehyde could produce the symptoms claimant was suffering. However, that same testimony also indicated that heavy cigarette smokers were exposed to significant amounts of formaldehyde which would also produce the same symptoms. In this respect it is important to note that the medical history of claimant, as given by her physician, Dr. McConnel, indicates that claimant has been a heavy smoker since age 15, averaging lVi to 2 packs of cigarettes per day up until 1980 when she cut back. She quit smoking altogether in December, 1982.

2 . 72-701. Notice of injury and claim for compensation for injury — Limitations.—No proceedings under this law shall be maintained unless a notice of the accident shall have been given to the employer as soon as practicable but not later than sixty (60) days after the happening thereof, and unless a claim for compensation with respect thereto shall have been made within one (1) year after the date of the accident or, in the case of death, then within one (1) year after such death, whether or not a claim for compensation has been made by the employee. Such notice and such claim may be made by any person claiming to be entitled to compensation or by someone in his behalf. If payments of compensation have been made voluntarily or if an application requesting a hearing has been filed with the commission, the making of a claim within said period shall not be required.

3 . 72-448. Notice of contraction of disease and claim for compensation. — (1) Except in cases of silicosis for which notice of contraction and claim for compensation may be given at any time within the four (4) year limitation provided in section 72-439, unless written notice of the manifestation of an occupational disease shall be given by the employee to the employer within sixty (60) days after the first manifestation thereof, and within five (5) months after the employment has ceased in which it is claimed the disease was contracted, and, in case of death, unless written notice of such death be given within ninety (90) days after the occurrence and unless claim for disability or death shall be made within one (1) year after manifestation of the disease or death respectively, all rights to compensation for disability or death from injury due to an occupational disease shall be forever barred (Emphasis added.)

4 . I.C. § 72-604, like I.C. § 72-448, was added to the present statutory compilation in 1971, and both were amended during the 1978 legislative session. Thus, at the time of the last legislative action on these two sections, the legislature was • fully aware that § 72-604 contained no reference to I.C. § 72-448. Additional facts indicate that the failure to include 72-448 within the purview of 72-604 was intentional rather than an oversight by the legislature. Prior to the 1978 amendments the limitations contained in § 72-701 applied to both accidents and occupational disease. Smith v. I.M.L. Freight, Inc., 101 Idaho 600, 619 P.2d 118 (1980). Thus, prior to the 1978 amendment of § 72-604, that section would have tolled the limitation on claims for occupational disease as contained in § 72-701. However, during the 1978 legislative session, I.C. § 72-701 was amended to delete any reference to occupational disease. The combined amendments of I.C. §§ 72-448, -604, and -701 make the legislative scheme abundantly clear. I.C. § 72-604 does not apply to limitations for filing claims arising from an occupational disease.

5 . The worker’s compensation law as enacted establishes two sets of statutes of limitations, those applicable to the filing of claims for disability (I.C. § 72-448 and 72-701) and those dealing with filing applications for hearing before the Industrial Commission (I.C. § 72-706). In the present case the Industrial Commission held that claimant’s right to any benefits under the worker's compensation law was barred for failing to bring her claim within the prescribed one-year limitation period. Under the facts of this case I.C. § 72-706 is not implicated.