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Gray v. Daimler Chrysler Corp.1/27/2005
FOR PUBLICATION
Willene Gray appeals the dismissal of her application for adjustment of claim by the Worker's Compensation Board ("the Board"). We affirm.
Issue
Gray raises one issue for our review, which we restate as whether Indiana Code section 22-3-7-9(f)(1) as applied violates Article I, Section 23 of the Indiana Constitution.
Facts and Procedural History
Gray is the widow of Willie Gray. From 1955 to December 31, 1981, Willie worked at Daimler Chrysler's ("Chrysler") foundry in Indianapolis, Indiana. Willie worked in various areas of the foundry including its coal room. Gray claims that while working at Chrysler's foundry, Willie was exposed to silica dust. Silica, also known as silicon dioxide, is a white or colorless crystalline compound occurring abundantly as quartz, sand, agate, and many other minerals. See The American Heritage Dictionary of the English Language (William Morris ed., 1981). Silica is used to manufacture a variety of materials like glass and concrete. Id. Long-term inhalation of silica dust can cause silicosis, which is a fibrosis of the lungs resulting in chronic shortness of breath. Id.
In August 2001, Willie was admitted to Winona Hospital in Indianapolis complaining of shortness of breath. It was found that Willie had trouble breathing in any position other than in an upright position, a condition known as orthopnea, and that he sometimes awoke at night gasping for air and was only able to catch his breath by sitting or standing up, a condition known as paroxysmal nocturnal dyspnea. Willie's treating physician was Dr. Ramon Dunkin. On August 7, 2001, Dr. Dunkin diagnosed Willie as suffering from silicosis due to his having worked at the Chrysler foundry. Willie died on December 29, 2001. Dr. Dunkin concluded that Willie's death was caused by "respiratory failure and broncogenic carcinoma, due to his exposure to silica while on the job at Chrysler Foundry." Appellant's Appendix at 26.
On May 2, 2003, Gray filed her application for adjustment of claim with the Board against Chrysler. Chrysler responded by filing a motion to dismiss, arguing that Gray's claim was barred by the limitations period provided in Indiana Code section 22-3-7-9(f)(1). Gray filed a motion in opposition to Chrysler's motion to dismiss, which included an affidavit from Dr. Dunkin. In his affidavit, Dr. Dunkin stated that prior to August 7, 2001, Willie had no notice and could not have known that he had any lung disease associated with his employment at the Chrysler foundry.
On February 18, 2004, a hearing was held before single Board member John A. Rader. At this hearing, the parties stipulated to the following facts:
1.That [Gray's] decedent was last employed by [Chrysler] on or about December 31, 1981.
2.That [Gray's] decedent's date of last exposure within the meaning of the Occupational Disease Act was December 31, 1981.
3.That [Gray] now alleges that her decedent's date of disability was in 2001.
4.That [Gray's] decedent died on or about December 29, 2001.
5.That [Gray's] application was filed on May 2, 2003.
6.That [Gray] claims that her decedent suffered an occupational disease by inhalation of silica dust in the course and scope of his employment.
7.That solely for purposes of [Gray's] discovery rule argument and the Board's ruling on the Motion To Dismiss, [Chrysler] stipulated that [Gray's] decedent had no notice of lung disease prior to August 7, 2001.
Appellant's App. at 6-7. On March 17, 2004, Rader issued an order granting Chrysler's motion to dismiss. In this order, Rader firs
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