State Ins. Fund v. Industrial Commission ( 1949 )

It appears to me that in this sort of case the reasoning in the case of Salt Lake City v. Industrial Commission, 93 Utah 510,74 P.2d 657, is applicable. The employer's liability is imposed by statute; the carrier's liability by contract made pursuant to the statute for the benefit of any person disabled under the terms of the statute. It follows, therefore, that the conditions antecedent to the accrual of a cause of action are: (1) A compensable disability under the terms of the statute. (2) Reasonable diligence in the ascertainment of the extent and nature of the disability and the fact that it was employment caused. (3) Knowledge of such compensable disability brought home to the responsible employer which is notice to the carrier. (4) Refusal or failure of the responsible employer (viz. his insurance carrier) to meet the obligation to pay compensation within a reasonable time. The cause of action that is the cause for the action against the carrier is under the act, the failure or refusal of the responsible carrier to meet its contractual obligation which does not arise until all three of the previous conditions are or can be fulfilled.

Such holding does not permit the employee, by failing to demand payment, to postpone the accrual of the cause of action indefinitely nor does it in the case where one of several successive employers may be liable, permit the cause of action to arise before it can be ascertained which employer is liable.

I cannot, at the moment, think of any action lying in tort except an action for fraud when the accrual of the cause of action depends upon the ascertainment of a fact. Certainly in actions for damages caused by negligence it is the event of the negligence which causes the damage and not the ascertainment of the extent of the damage which accrues the cause of action. In trespass I think it is the same. In libel and slander it is the event of libelling or slandering and not the event of ascertaining the libel and slander which accrues the cause of action.

In contract it is the event of the breach which gives rise to the cause of action unless the breach is purposely concealed in which case the principle of estoppel may be employed to keep the law logical.

When the obligation is imposed by quasi contract it is the event which imposes the duty in good conscience and equity to make restitution or reparation which accrues the cause of action.

When the obligation is imposed by statute, it is usually refusal or the failure to perform that obligation which gives rise to the action to enforce it. Witness the case of the industrial injury which causes disability where the obligation to pay compensation arises from the disability caused by the injury, and consequently, the cause of action arises from the failure or refusal to meet that obligation rather than the event of the ascertainment of disability. In the case of disability from industrial disease where disability and especially total disability are reached by a gradual if not an imperceptible process, I can well see why ascertainment of the event of disability may be for practical purposes and for the very fulfillment of the purposes of the statute be the event which gives rise to the cause of action and were this the only theory on which I could sustain the results of the prevailing opinion, I should concur outright. But for logical reasons, I prefer to approach the matter from the contract side which avoids the introduction of an anomaly into the law and to produce a result just as fair to the employer and the employee. And although I agree that law is not necessarily logic, that is not the same as saying that it should not be logical when life and logic may be equally served.

At this time I do not care to commit myself as to whether the failure of a doctor correctly to diagnose a case must be counted within the period in which the employee could by reasonable diligence have ascertained that his disability was employment caused and by its nature compensable. I am willing to send the case back to the commission to obtain information as to why a thorough examination was not made at the time he knew or had reason to believe that his disability was caused by fumes, but I am not prepared to say that if his doctor misled him by a wrong diagnosis that he acted with diligence in not so discovering that fact sooner nor whether he may not have to suffer the consequence of the physician he chose failing to make a proper diagnosis. That may depend on the type of medical skill reasonably available to him in the community where he lives for due diligence in the ascertainment of the cause of a man's disability may contain the element of choosing a doctor who has the reputation and the standard of skill which may reasonably be expected of doctors in that community as well as the diligence of the employee to continue investigation of his ailment and its cause after he has chosen a doctor and failed to receive relief and the reason for the failure as well as information as to the nature and cause of his disability. But dependent upon the further findings of the commission, we may not be required to pass upon those questions.