Matter of Smith v. Certain Teed Prods. Corp. (1981)

Our plain-English summary of Matter of Smith v. Certain Teed Prods. Corp. (New York Supreme Court, Appellate Division, December 17, 1981).

Winona Smith, the widow of Edward Smith, sought workers' compensation for his disability and death. He had been exposed to asbestos dust while working for Certain Teed Products Corporation from July 1966 to June 1972. He became disabled in January 1975, learned in December 1975 that he had mesothelioma, and died in February 1976. The Workers' Compensation Board disallowed the claims because section 40 of the Workers' Compensation Law requires disability or death within twelve months of the employment exposure. The widow argued that section 44-a, which has a more lenient timetable for 'silicosis or other dust diseases', should apply. The Appellate Division, Third Department, had to decide whether mesothelioma is a 'dust disease'. It noted that earlier cases limited that phrase to the pneumoconiosis group, and the claimant conceded mesothelioma is not in that group. The court declined to overturn those cases, since the Legislature had amended the statute without changing the phrase. It said any reclassification of mesothelioma should come from the Legislature. The board's decision was affirmed.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court, Appellate Division, 3rd Dept.
• Decided: December 17, 1981
• Citation: 85 A.D.2d 820
• Stage: Appeal from workers' compensation or benefits
• State: New York

Outcome. The Appellate Division affirmed the Workers' Compensation Board's decision disallowing the widow's disability and death claims against Certain Teed Products Corp. as barred by section 40, so the claimant lost.

What the court held. Mesothelioma is not a 'dust disease' under Workers' Compensation Law section 44-a, because that phrase is limited to the pneumoconiosis group, so the 12-month limit of section 40 applies. Any change to that classification is for the Legislature.

Issues decided: Employer and Contractor Liability, and Workers' Compensation, Statute of Limitations.

The people and their exposure

• Edward Smith: mesothelioma; died

The defendants

• Certain Teed Products Corp. (employer)

Later decisions citing this one

One later decision in our library cites this one:

• Smith v. Bell Aerospace (New York Supreme Court, Appellate Division, 3rd Dept., 1987). The Appellate Division reversed the Workers' Compensation Board's decision discharging the Special Funds Conservation Committee from liability on the death claim, and sent the matter back to the Board, with costs against the Special Fund.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

85 A.D.2d 820 (1981)

In the Matter of the Claim of Winona Smith, Individually and on Behalf of Edward Smith, Deceased,

Appellant,

v.

Certain Teed Products Corp. etal., Respondents. Workers' Compensation Board, Respondent

December 17, 1981

Appellate Division of the Supreme Court of the State of New York, Third Department.

Mahoney, P. J., Sweeney, Kane, Yesawich, Jr., and Weiss, JJ., concur.

Claimant's deceased was exposed to asbestos dust while employed by Certain Teed Products Corporation between July 1, 1966 and June 1, 1972. He became disabled on January 18, 1975, learned that he was suffering from the work-related disease of mesothelioma in December of 1975, and died from that disease on February 15, 1976. The deceased's disability claim and claimant's death claim were ultimately disallowed and their cases closed by the board on the ground they were barred by the provisions of section 40 of the Workers' Compensation Law, which states that "[n]either the employee nor his dependents shall be entitled to compensation for disability or death resulting from disease unless the disease is due to the nature of his employment and contracted therein * * * within the twelve months previous to the date of disablement". On this appeal, claimant contends that the claims should not have been disallowed since section 44-a rather than section 40 of the Workers' Compensation Law applied to the deceased's disease. Section 44-a provides a more lenient timetable for the filing of claims resulting from "silicosis or other dust diseases". In particular, it excludes from the provisions of section 40 those claims relating to silicosis and other dust diseases and makes the employer liable for claims resulting from injurious exposures to these diseases even when the disability or death does not occur within 12 months. Thus, simply stated, the sole issue raised by this appeal is whether mesothelioma is a dust disease within the meaning of section 44-a of the Workers' Compensation Law (see, also, Workers' Compensation Law, § 3, subd 2, par 29; § 28). While recognizing that there is a body of case law which limits the phrase "dust disease" as used in the Workers' Compensation Law to those within the pneumoconiosis group, and further conceding that mesothelioma is not a dust disease within the pneumoconiosis group, claimant argues that the purpose behind the initial judicial decision limiting the phrase "dust disease" to those within the pneumoconiosis group has changed. When this court first interpretated dust diseases to be limited to those of the pneumoconiosis classification (Matter of Lawton v Port of New York Auth., 276 App Div 81, 85, mot for lv to app den 300 N.Y. 761), the reason for narrowly defining that phrase was to expand the group of occupational diseases for which awards could be given for partial disability and restrict those "dust diseases" which required total disability as a prerequisite for an award. Since the Workers' Compensation Law now permits awards for partial disabilities resulting from dust diseases (Workers' Compensation Law, § 3, subd 2, par 29, as amd by L 1974, ch 577, § 1), claimant argues that the reasoning behind the initial limitation of dust diseases no longer exists and that the judicial limitation of the phrase to diseases within the pneumoconiosis group should be overturned. We decline to do so. Section 44-a was added to the Workers' Compensation Law in 1974 (L 1947, ch 431, § 10) and has been amended twice (L 1957, ch 938; L 1965, ch 613) since the Lawton decision. In neither amendment was the phrase "silicosis or other dust disease" changed. Case law has consistently adhered to Lawton and limited the phrase "dust disease" to those within the pneumoconiosis group (Matter of Roberts v Agway, Inc., 71 AD2d 733; Matter of Viskovich v Keasbey Co., 36 AD2d 665, mot for lv to app den 29 N.Y.2d 483; Matter of Nick v Meyer Co., 26 AD2d 878, mot for lv to app den 19 N.Y.2d 579). Finally, the [*821] very legislative amendment which claimant argues undermines the reasoning behind the Lawton decision involved an extensive review of those sections in the Workers' Compensation Law dealing with silicosis and other dust diseases and yet left that judicially construed phrase intact (see L 1974, ch 577). Accordingly, it is our view that the phrase "dust diseases", as found in the Workers' Compensation Law, continues to apply only to those of the pneumoconiosis classification. The Legislature is presumed to have been aware of judicial decisions to that effect and their failure to change the phrase when amending the statute indicates their agreement with those decisions (see McKinney's Cons Laws of NY, Book 1, Statutes, pp 353-354). In view of the continuing controversy over the etiology of mesothelioma, any change in the classification of this disease should be the result of legislative, rather than judicial initiative. The board's decision in this matter applying section 40 to the claims should, therefore, be affirmed.

Decision affirmed, without costs.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites