W.C. No. 4-563-143.Industrial Claim Appeals Office.
August 26, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which determined Westinghouse is not liable for the claimant’s alleged occupational asbestosis. We affirm.
Section 8-41-304(1), C.R.S. 2004, provides that where compensation is payable for asbestosis the only employer and insurance carrier liable shall be the last employer in whose employment the employee was last exposed to harmful quantities of asbestos “on each of at least sixty days or more” and the insurance carrier, if any on the risk when the employee was last so exposed under such employer. (Emphasis added).
The ALJ found the claimant was last exposed to asbestos dust in 1975 while employed for Westinghouse. Specifically, the ALJ found the claimant worked 12 hours per day for 47 days at Westinghouse.
Relying on a union contract which defined a “regular working day” to be 8 hours and a “regular working week” to be 5 consecutive 8 hour work days, the claimant argued he effectively worked more than 60 days at Westinghouse. However, the ALJ determined that the plain and ordinary meaning of the § 8-41-304(1) required the claimant to prove he worked on at least 60 calendar days at Westinghouse. Under these circumstances, the ALJ determined the claimant failed to sustain his burden to prove Westinghouse is liable for the alleged asbestosis.
On review the claimant argues that the ALJ’s interpretation of §8-41-304(1) results in obvious inequities. In particular a claimant who developed asbestosis after working 4 hours a day for 60 days would recover workers’ compensation. In contrast, no compensation would be payable to a claimant who developed asbestosis after working 12 hours a day for 59 work days. Therefore, the claimant renews his contention that a fair and equitable reading of the last injurious exposure rule in §8-41-304(1), must allow claimants to comply with the 60 day exposure requirement by evidence the claimant worked the equivalent of 60 work shifts of 8 hours each. We disagree.
Initially, we reject the Westinghouse respondent’s contention the ALJ erroneously failed to grant its motion to dismiss the Petition to Review. Section 8-43-301(2), C.R.S. 2004. That statute provides that a petition to review must be filed within twenty days of the date the ALJ’s order is mailed to the parties and may be filed by mail. Where the petition is filed by mail, the petition:
“shall be deemed filed on the date of mailing, as determined by the certificate of mailing, provided the certificate of mailing indicates that the petition to review was mailed to the appropriate administrative law judge.”
Here, the record supports the ALJ’s finding that the claimant’s Petition to Review was mailed to the ALJ within 20 days of the date the ALJ’s order was mailed. The untimely service of process on opposing party is not the equivalent of an untimely filing of a Petition to Review. See Colorado Department of Institutions v. Industrial Claim Appeals Office, 780 P.2d 72 (Colo.App. 1989). Therefore, even if there was a delay in the respondents’ receipt of the Petition to Review, the error is not jurisdictional and, consequently, we shall proceed to consider the claimant’s arguments.
The issue on appeal involves a question of statutory construction. The rules of statutory construction require that we construe § 8-41-304(1) to further the legislative intent. City of Thornton v. Replogle, 888 P.2d 782
(Colo. 1995). To discern the intent we must give the words in the statute their plain and ordinary meanings. Oberle v. Industrial Claim Appeals Office, 919 P.2d 918 (Colo.App. 1996). If the statutory language is unambiguous, there is no need to resort to interpretative rules of statutory construction because we must presume the General Assembly meant what it clearly said. Davison v. Industrial Claim Appeals Office, 84 P.3d 1023 (Colo. 2004). To discern the legislative intent, we must first give the words in the statute their plain and ordinary meanings. A forced, subtle, or strained construction of the statute should be avoided if the language is simple and the meaning is clear. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993) ; Grogan v. Lutheran Medical Center, Inc., 950 P.2d 690 (Colo.App. 1997).
Section 8-41-304(1) creates a special exception to the last injurious exposure rule for claims based on silicosis, asbestosis or anthracosis. In those cases liability may not be imposed unless the claimant suffered a harmful exposure “on each of at least sixty days or more.” The original reason for the restrictions on compensability for silicosis and asbestosis was the fear that the compensation system could not bear the financial impact of full liability for dust disease simply because they were so widespread in particular industries. A. Larson, Larson’s Workers Compensation Law § 53.02 (2005).
The Webster’s New College Dictionary (1995) defines the term “each” as “every” or “every one of a group.” Applied to § 8-41-304(1), the statute requires the claimant to prove he was harmfully exposed to asbestos dust on every one of at least 60 days.
As argued by the claimant, the Workers’ Compensation Act does not define the term “days.” However, § 2-4-105, C.R.S. 2004, and §8-70-103(30), C.R.S. 2004 (Employment Security Act), define the term “week” as “seven consecutive days.” Therefore, we are persuaded the General Assembly has effectively adopted Webster’s New College Dictionary definition of a “day” as a 24 hour period into which a week is divided.
Conversely, had the General Assembly intended to impose liability on the employer where the claimant was exposed to asbestos dust for at least 480 hours (8 hours x 60 days) it could have enacted a requirement that the claimant prove a cumulative exposure of at least 480 hours. The legislature did not do so, and we may not read nonexistent provisions into the statute. Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985) Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Accordingly, we conclude the legislative intent of § 8-41-304(1) is to limit liability for asbestosis to employers and insurers where the claimant was last injuriously exposed to asbestos dust every day for a duration of no less than 60 calendar days. Therefore, the ALJ’s order is consistent with the applicable law.
We recognize the claimant’s argument that this construction creates disparate treatment between claimants who suffer an intensive daily exposure to asbestos dust over a period of less than 60 days and claimants who suffer a less intensive daily exposure to asbestos dust over a period of 60 or more days. Indeed Professor Larson notes that minimum exposure requirements can be particularly arbitrary in the case of asbestos related disease because there is no established minimum amount of exposure capable of causing the disease. A. Larson, Larson’s Workers’ Compensation Law, § 53.03. However, the asserted inequity presents an issue for the General Assembly and not this forum. See Duran v. Industrial Claim Appeals Office, 883 P.2d 477 (Colo. 1994) (fact that specific language enacted by legislature may have been tailored more precisely to accomplish its intent does not compel conclusion statute is defective); Avis Rent-A-Car System v. Allstate Insurance Co., 937 P.2d 802
(Colo.App. 1997); Naiden v. Epps, 867 P.2d 215(Colo.App. 1993).
Finally, we agree with the ALJ that the union contract is not dispositive of the meaning of whether the claimant worked at Westinghouse more than 60 days. The union contract defined “regular working day” as an 8 hour shift for purposes of determining when a union member would be entitled to overtime pay. However, the contract did not preclude an employee from working more than 8 hours per day.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 13, 2005, is affirmed.
Eugene Cook, Grand Junction, CO, CBS Corporation/Westinghouse, Pittsburgh, PA, Subsequent Injury Fund, Division of Workers’ Compensation — Interagency Mail, J. Conrad Metcalf, Esq. and Judy B. Snyder, Esq., Boulder, CO, (For Claimant).
Suzanne M. Gall, Esq., Denver, CO, (For Claimant).
Craig H. Russell, Esq., Evergreen, CO, (For Respondent CBS Corporation/Westinghouse).
Vincent Morscher, Esq., Denver, CO, (For SIF).