GENE AMREN,			)
				)
Employee,			)	DECISION AND ORDER
Respondent,			)
				)	AWCB Case Nos.	726716
v.				)		431412
				)		408002
TAYLOR RIGGING, INC.,		)		401410
CONSTRUCTION & RIGGING,		)		322940
PACIFIC ERECTORS, INC.,		)		314568
THE HERRICK CORP., 		)		310035
NORTH SLOPE MECHANICAL,		)		213721
ANGLO ALASKA CONSTRUCTION,	)		206064
MAGNUM STEEL CO.,		)		102471
HOUSTON CONTRACTING CO.,	)		102470
ISAACSON CORP.,			)		102472
TEN HI STEEL CO., INC.,		)		102473
ACTIVE STEEL ERECTORS, INC.,	)
UNDERWATER CONSTRUCTION,	)	AWCB Decision No. 90-0021
FLUOR ALASKA,			)
				)	Filed with AWCB Anchorage
Employers,			)	February 7, 1990
				)
and				)
				)
ALASKA NATIONAL,		)
ALPAC/INA,			)
WAUSAU INS. CO.,		)
TRAVELERS INS., CO.,		)
FIREMAN'S FUND,			)
ADJUSTCO,			)
HOME INSURANCE,			)
ARGONAUT INC.,			)
INDUSTRIAL IND.,		)
				)
Insurers,			)
Petitioners.			)
				)

This matter came before us in Anchorage, Alaska on petitions by all employers and insurers (except Taylor Rigging, Inc. and its insurer Alaska National Insurance Co.) for dismissal of the employee's claims. The parties agreed to submit the matter for decision based on the written record and briefs. We closed the record on December 12, 1989 when we next met following a reasonable interval for receiving any timely-filed reply briefs.

Attorney Eric Olson represents the employee who claims compensation and medical benefits based on chronic obstructive pulmonary disease. Attorney Robert J. McLaughlin represents Taylor Rigging, Inc. and its insurer. The employers and insurers seeking dismissal of the employee's claims under AS 23.30.095, 100, and 105, are represented as follows.

Attorney Frank S. Koziol represents employers Construction Rigging, Inc., Active Steel Erectors, Inc., Fluor Alaska, and their insurer ALPAC/INA. Attorney Trena L. Heikes represents Underwater Construction and its insurer Industrial Indemnity. Attorney Talis J. Colberg represents Herrick Corporation and its insurer The Travelers Indemnity Company. Attorney Ann Stoloff Brown represents Houston Contracting and its insurer Travelers Insurance Company.¹Attorney Rod Sisson represents Ten Hi Steel and its insurer Home Insurance Company. Attorney Kelly C. Fisher represents Pacific Erectors, Inc. and its insurer Wausau Insurance Companies. Attorney Richard L. Waller represents Anglo Alaska Construction, Inc. and its insurer Protective National Insurance Co. Attorney Allan J. Olson represents Isaacson Corporation and its insurer Argonaut Insurance Company. Attorney James B. Pentlarge represents North Slope Mechanical/B.T. Mancini and its insurer Fireman's Fund.

The petitions to dismiss are all based on the statutes of limitations and notice requirements of our Act. Some of the briefs submitted, however, included additional arguments in support of dismissal. We reviewed the notes of the prehearing conferences which resulted in submission of the petitions for determination based on the written record. The notes clearly indicate that the statute of limitations/notice arguments were to be resolved separately in this decision and order. Because the notes limit the issues at hearing and control the course of the action, 8 AAC 45.065(c), we disregarded any portion of the briefs which addressed subjects other than statutes of limitation or notice.

The employee, a 54-year-old steelworker, claims to be disabled due to chronic obstructive pulmonary disease. He claims his disease was caused by inhalation of fumes he encountered while engaged in welding and is therefore work-related. He filed claims for compensation and benefits against the employers for whom he allegedly worked during the period from 1974 through 1987. He has not worked since August 1987. The petitioning employers and insurers contend his claims against them, filed on August 30, 1988, came too late to comply with statute of limitations and notice requirements and should therefore be dismissed.

Whether the employee had the requisite knowledge of the nature of his disability and its relationship to his employment to result in his August 30, 1988 claims being barred by AS 23.30.095(a), AS 23.30.100(a) and AS 23.30.105(a).

We relied upon the employee's June 27, 1988 deposition. We also relied upon the August 29, 1988; July 12, 1989; and August 16, 1989 deposition of George Stewart, M.D. Since there were no objections, we also relied upon documents in the employee's claim file which had been served on all the parties, 8 AAC 45.120(f).

The employee testified that for approximately 15 years he had worked as a union-dispatched welder for a variety of employers. (Amren Dep. at 25). Since 1979 he has suffered from some shortness of breath. (Id. at 43). In Exhibit 1 of Dr. Stewart's July 12, 1989 deposition, though, Buff B. Burtis, M.D., noted an earlier onset of breathing problems in the history section of his January 5, 1981 medical report. "This 44 year old welder has had frequent episodes of dyspnea since 1974." Dr. Stewart explained "dyspnea" in his July 12, 1989 deposition as "a 25-cent word for shortness of breath." (Stewart Dep. at 10).

The employee's testimony in other parts of his deposition is more consistent with Dr. Burtis's report. He stated he had some shortness of breath in 1975 while working in Valdez, Alaska for Fluor on the Trans Alaska Pipeline. He saw a non-physician medic who administered an injection which resolved the problem. (Amren Dep. at 20). He stated anyone welding galvanized materials (like those used in constructing the pipeline) could expect some problems due to fumes. (Id. at 22).

He next experienced significant breathing problems in 1979 while welding the bottom of a drilling vessel for Underwater Construction. He began coughing up "black stuff" and continued to do so for several weeks. (Id. at 18). The coughing and dust made his throat so sore he could not smoke cigarettes. Since he did not smoke cigarettes for several weeks, he decided to quit smoking and has not smoked them since. (Id. at 24). He did not file a workers’ compensation claim, though, because he expected the coughing would resolve itself. He did not obtain any medical treatment, (Id. at 19).

In October 1980 he began having difficulties while welding for Active Steel Erectors. He went to a physician for the breathing problems at that time. (Id. at. 19). There is no dispute he filed a report of occupational injury on October 20, 1980.

The employee's physician, Winthrop Fish, M.D., referred him to Dr. Burtis. Dr. Burtis reported his findings to Dr. Fish in a letter dated January 16, 1981. In that letter, Exhibit 4 to Dr. Stewart's July 12, 1989 deposition, Dr. Burtis noted he had evaluated the employee's complaints of dyspnea. He diagnosed pulmonary emphysema. He reported "an extensive conversation with [the

employee] concerning the nature of emphysema and its pathogenesis." He stated he had advised the employee, "to avoid noxious inhalants whenever possible . . . alter his life style in order to achieve the cleanest air possible and avoid strenuous exertion that would aggravate his dyspnea."

The employee testified that after the fall of 1980 he always had some shortness of breath and continued seeing Dr. Burtis every six months. He also continued using prescription medications to aid his breathing. (Amren Dep. at 22). He described his breathing as a bit of a problem which "snowballed" in 1987. (Id. at 23). Until 1987, he did not lose any time from work due to his breathing problems. (Id. at 36). However, he was somewhat selective in choosing the type of work he would perform. (Id. at 43). He also used a paper mask while welding the last few years.

(Id. at 27).

In early 1987 the employee worked for Taylor Rigging. None of the work he did in the interim caused him problems. (Id. at 25). In February 1987 he welded galvanized decking material

which he believed triggered severe breathing problems. (Id. at 33). He was hospitalized after seeing Dr. Stewart. (Id. at 43). He was hospitalized a second time in March 1987. (Id. at 28).

Following his hospitalization the employee tried to -return to work. He worked one week in August 1987 for Shaughnessy on the North Slope. He did no welding, working only as a rigger. He was unable to manage the walking and lifting retired. (Id. at 16). He has not worked since that time. (Id. at 11).

The employee stated that, while he knew at the time of hospitalization that his lung problems were somehow associated with his work with Taylor Rigging, "I was trying not to accept the fact that I wasn't going to be able to go back to work." However, after it had gone on for a period of time (approximately one year) he felt, "I better go to somebody and try to figure out just how to handle it . . . . (Id. at 36). He retained his attorney who filed an application for adjustment of claim against Taylor Rigging on March 24, 1988.

In his first deposition (dated August 29, 1988) George Stewart, M.D. testified he specializes in internal medicine and lung disease. (Stewart Dep. at 4). He first examined the employee on February 6, 1987. He had the employee hospitalized, due to respiratory distress on that date. (Id, at 5). Dr. Stewart described the pulmonary function tests he had done on the employee as well as his review of similar tests previously done on the employee in 1985. Based on the tests available to him at that time, Dr. Stewart stated there appeared to be permanent worsening of the employee's pulmonary function testing attributable to employment with Taylor Rigging. (Id. at 8). Dr. Stewart described the employee's problems in the spring of 1987 as "a transient worsening of his severe obstructive lung disease." (Id. at 10). He stated that he did not think the employee's exposure at Taylor Rigging had permanently increased the level of sensitivity or level of lung disease. (Id. at 11) . Dr. Stewart concluded that the early 1987 events did not result in a permanent increase in the employee's level of disability. (Id. at 18).

Dr. Stewart testified that the employee's symptoms were consistent with exposure to welding fumes. (Id. at 18). It is possible that the employee's condition could have developed very insidiously over decades or, in as short a period as hours after a severe viral illness or exposure to toxic inhalants. (Id. at 14).

On August 30, 1988, the day after Dr. Stewart's first deposition, the employee filed applications for adjustment of claim against each of the petitioners.

In the first part of his second deposition (dated July 12, 1989) Dr. Stewart testified he diagnosed the employee's condition as obstructive lung disease. (Stewart Dep. 11 at 8). He stated his diagnosis was essentially the same as Dr. Burtis, diagnosis in 1981. (Id. at 13). He agreed with Dr. Burtis' recommendations in the January 16, 1981 letter to Dr. Fish. (Id. at 25).

Dr. Stewart remarked on deposition Exhibit 5, a letter from Dr. Burtis to INA adjuster Marion Berry dated October 23, 1981. He disagreed with Burtis' conviction that the pulmonary disease occurred secondary to emphysema. (Id. at 27). In the letter Dr. Burtis stated the employee's condition would be expected to worsen temporarily when exposed to fumes, vapors, or other noxious inhalants. Dr. Stewart agreed but stated some inhalants could be released in the course of hearing metal which could cause a permanent rather than temporary worsening. (Id. at 28).

Dr. Stewart testified occupational lung diseases usually develop when the lungs are repeatedly exposed to hazards such as fumes. (Id. at 79). Rased on the lung capacity test performed on the employee, Dr. Stewart could not tell when the condition evolved. (Id. at 33). Nor could he tell when the injury occurred. (Id. at 115).

Dr. Stewart stated he took a detailed health history of the employee upon examination in 1987. He was asked whether he believed the employee understood the relationship between inhalation of fumes at work and aggravation of the condition. Dr. Stewart stated, "I'm not in a position to comment on whether [the employee] understood that or not. I don't believe I specifically asked or couched any questions to get that answer." (Id. at 112).

AS 23.30.105(a) provides:

AS 23.30.095(a) provides, "[I]f the condition requiring [medical treatment] is a latent one, the two-year period [during which the employer is obliged to provide treatment without our order] runs from the time the employee has knowledge of the nature of his disability and its relationship to his employment and after disablement" In construing AS 23.30.105(a) and AS 23.30.095(a) our court held an injury is "latent," "so long as the claimant does not know, and in the exercise of reasonable diligence (taking into account his education, intelligence and experience) would not have

come to know, the nature of his disability and its relation to his employment." Grasle Co. v. Alaska Workmen's Compensation Board, 517 P.2d 999, 1002 (Alaska 1974) (Footnotes omitted).

AS 23.30.100(a) requires the employee to give notice of injury within 30 days of the date of injury. However, AS 23.30.100(d)(2) provides that failure to give notice does not bar a claim, "if the board excuses the failure on the ground that for some satisfactory reason notice could not be given." The court has found that where a reasonable man would not have appreciated the serious nature of his injury, a satisfactory reason for failing to give notice exists. The running of the 30-day notice period is then suspended until the employee can reasonably be expected to realize the cause and nature of his injury. Alaska State Housing Authority v. Sullivan, 518 P.2d 759, 762 (Alaska 1974).

All of the petitions for dismissal,²based upon AS 23.30.095(a), 100(a), and 105(a), therefore turn on when the employee could reasonably have been expected to have knowledge of the serious nature of his disability and its relationship to his employment. Applications for Adjustment of Claim were filed on his behalf against the petitioners on August 30, 1988. We find the applications both established a claim against each petitioner and gave them notice of injury under AS 23.30.100(a). The claims are barred, however, unless the applications were filed within the time requirements of the previously noted statutes.

In applying those statutes we keep several thoughts in mind. Our court has stated, "[W]hile the defense of the statute of limitations is a legitimate one, it is not generally favored by the courts. As the Supreme Court of Washington has noted, [T]he statute of limitations is not such a meritorious defense that either the law or the facts should be strained in aid of it"'. Safeco Insurance Company of America v. Honeywell, Inc., 639 P.2d 996, 1001 (Alaska 1981) (citing Guy F. Atkinson Company v. State, 403 P.2d 880 (Washington 1965)).

Also important is the ethical dilemma which might arise, under Alaska Code of Professional Responsibility Rule 7-102, should a restrictive reading of the "knowledge provision" of the statutes force counsel to file claims in the absence of medical evidence linking injuries to employment. The court alluded to the necessity of tempering the 'knowledge provisions" with recognition of the ethical need to weigh medical advice and opinion existing at any given time. It cited with approval the following excerpt from Great American Indemnity Co. v. Britton, 179 F.2d 60, 62 (D.C.Cir. 1949). "We cannot place a premium on the filing of claims which fly in the face of professional advice and ethical standards." Morrison-Knudsen Co. v. Vereen, 414 P.2d 536, 541 (Alaska 1966). The court held the statute of limitations did riot begin to run there until six months after hospitalization when the employee was first told by his physician that the disabling condition was linked to an earlier industrial injury.

For evidence of what the employee knew, and when he knew it, we have as a primary resource only his deposition. We also have the deposition testimony of his current treating physician, Dr. Stewart. Of Dr. Burtis' involvement with the employee we only know what appears in several medical reports.

Based on the employee's testimony, we find he first experienced respiratory distress in 1975 while welding galvanized pipe for Fluor.³We find based on his testimony the episode resolved without the intervention of a physician, involved a condition the employee stated was a common event for welders of galvanized materials, resulted in no time off work, and entailed no continuing physical problems.⁴We find he had no actual knowledge of a serious, work-related condition at that time.

The employee stated he experienced breathing problems while welding a drilling rig for Underwater Construction. He suffered from coughing up a black substance and an extremely sore

throat. His throat was so sore he stopped smoking cigarettes However, he did not visit a physician and the condition resolved

itself. We find the employee had no actual knowledge of a serious, work-connected condition at that time.

The employee stated be began to have serious breathing difficulties while welding for Active Steel Erectors, apparently in October 1980. He filed a notice of industrial injury with Active Steel Erectors and visited Dr. Fish who referred him to Dr. Burtis. Dr. Burtis diagnosed emphysema, and the employee stated he suffered from shortness of breath thereafter. We find the employee had actual knowledge, following Dr. Burtis' diagnosis of the employee's continuing shortness of breath, of the serious nature of his condition.

The law requires, however, knowledge of both the serious nature and cause of the condition. Unlike traumatic injuries, the cause of alleged occupational diseases is often not clear. We think the employee, like the injured employee in Vereen, can only be held accountable for knowledge of the cause of his condition imparted by his treating physicians.

We have no direct evidence that the employee was told that his condition was caused by his work (as opposed to temporarily aggravated by exposure to fumes). Petitioners rely upon Dr. Burtis' January 16, 1981 letter which noted "an extensive conversation with [the employee] concerning the nature of emphysema and its pathogenesis." "Pathogenesis" is defined as, "The course which a disease takes in developing from the very beginning to its full manifestation." 3 Attorneys' Dictionary of Medicine, P-78. We do not find that the "pathogenesis" of emphysema has been established in the record so that we could infer what Dr. Burtis would have told the employee concerning its causal relationship to his employment. We do note, additionally, that Dr. Burtis' letter to Berry in 1981 anticipated only a temporary worsening of the condition upon further exposure to fumes on the job. We do not believe Dr. Burtis' belief in temporary worsening at that time would be consistent with an earlier conclusion that similar exposure caused the emphysema. At any rate, we have no direct evidence that the employee knew in 1980 that his condition (diagnosed as emphysema) was causally linked to his work. Moreover, given his treating physician's apparent belief, we find no basis for expecting the employee to have independently understood a direct causal relationship between his emphysema and his work,

The employee testified he continued to suffer shortness of breath, but missed no work, between 1980 and 1987. In 1987, while welding for Taylor Rigging, he experienced severe breathing difficulties. He then saw Dr. Stewart who testified he caused the employee to be hospitalized but did not discuss the cause of the chronic obstructive pulmonary disease with the employee. The employee testified he attributed his condition since 1987 to employment with Taylor Rigging. He attributed his "laxity" in filing a claim against Taylor Rigging to an unwillingness (perhaps understandable) to recognize he could no longer expect to work. Nowhere did he say, however, that he attributed (or had been told to attribute) his condition to his previous work with the petitioners, Dr. Stewart's deposition of August 29, 1988, in which he stated the previous employment could have caused the employee's condition, is the only evidence available to us expressing that opinion. The employee's attorney filed claims against the petitioners the day following the taking of the deposition (August 30, 1988).

We find the employee neither knew, nor in the exercise of reasonable diligence would have come to know, of a causal relationship between his previous work far the petitioners and his condition until August 29, 1988. We find his applications against the petitioners, filed on August 30, 1988, were timely under AS 23.30.105(a), AS 23.30.095(a), and AS 23.30.100(a). The petitions for dismissal of the employee's claims, based on those Statutes, are denied and dismissed.

The petitions to dismiss the employee's claims under AS 23.30.095(a), AS 23.30.100(a) , and AS 23.30.105(a) are denied and dismissed.

Dated at Anchorage, Alaska, this 7th day of February 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Paul F. Lisankie
Paul F. Lisankie, Designated Chairman

/s/ RL Whitbeck Sr.
Richard L. Whitbeck, Sr., Member

PFL/jc

If compensation is payable under terms of this decision, it is due on the date of issue and penalty of 20 percent will accrue if not paid within 14 days of the due date unless an interlocutory order staying payment is obtained in Superior Court.

APPEAL PROCEDURES

A compensation order may be appealed through proceedings in Superior Court brought by a party in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska.

A compensation order becomes effective when filed in the office of the Board, and unless proceedings to appeal it are instituted, it becomes final on the 31st day after it is filed.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of Gene Amren, employee/respondent; v. Taylor Rigging, Inc., et al., employers; and Alaska National Insurance Company, et al., insurers/petitioners; Case No, 8726716, et al.; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 7th day of February 1990.

Clerk