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Gray v. Daimler Chrysler Corp.1/27/2005
(1) In all cases of occupational diseases caused by the inhalation of silica dust or coal dust, no compensation shall be payable unless disablement, as defined in subsection (e), occurs within three (3) years after the last day of the last exposure to the hazards of the disease.
(2) In all cases of occupational disease caused by the exposure to radiation, no compensation shall be payable unless disablement, as defined in subsection (e), occurs within two (2) years from the date on which the employee had knowledge of the nature of his occupational disease or, by exercise of reasonable diligence, should have known of the existence of such disease and its causal relationship to his employment.
(3) In all cases of occupational diseases caused by the inhalation of asbestos dust, no compensation shall be payable unless disablement, as defined in subsection (e), occurs within three (3) years after the last day of the last exposure to the hazards of the disease if the last day of the last exposure was before July 1, 1985.
(4) In all cases of occupational disease caused by the inhalation of asbestos dust in which the last date of the last exposure occurs on or after July 1, 1985, and before July 1, 1988, no compensation shall be payable unless disablement, as defined in subsection (e), occurs within twenty (20) years after the last day of the last exposure.
(5) In all cases of occupational disease caused by the inhalation of asbestos dust in which the last date of the last exposure occurs on or after July 1, 1988, no compensation shall be payable unless disablement (as defined in subsection (e)) occurs within thirty- five (35) years after the last day of the last exposure.
Indiana Code section 22-3-7-9(e) defines "disablement" as "the event of becoming disabled from earning full wages at the work in which the employee was engaged when last exposed to the hazards of the occupational disease by the employer from whom he claims compensation or equal wages in other suitable employment, and `disability' means the state of being so incapacitated." Indiana Code section 22-3-7-6 is also relevant, and it provides:
he rights and remedies granted under this chapter to an employee subject to this chapter on account of disablement or death by occupational disease arising out of and in the course of the employment shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin, at common law or otherwise, on account of such disablement or death.
Ind. Code ยง 22-3-7-6.
We have recently stated that Indiana Code section 22-3-7-9(f) is "a statute of repose, rather than a statute of limitation." Stytle v. Angola Die Casting Co., 806 N.E.2d 339, 342 (Ind. Ct. App. 2004), trans. denied. A statute of repose "is designed to bar actions after a specified period of time has run from the occurrence of some event other than the injury which gave rise to the claim." Kissel v. Rosenbaum, 579 N.E.2d 1322, 1326 (Ind. Ct. App. 1991). In distinguishing between a statute of limitations and a statute of repose, we have stated, "A statute of limitation extinguishes a remedy while a statute of repose may bar a cause of action even before it arises." Id.
The Board determined, and the parties do not seem to dispute this, that because Willie's disablement did not occur within three years after the last day of his last exposure to silica dust, which the parties stipulated was December 31, 1981, Gray's claim was barred by the statute. However, in order to avoid having her claim barred, Gray argues that Indiana Code section 22-3-7-9(f)(1) as applied violates Article I, Section 23 of
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