From 1957 until 1988, plaintiff worked as a plumber. He was employed first by Hackett’s Plumbing and Heating, and then by Hackett’s successor in interest, defendant Fred’s Plumbing and Heating, Incorporated. Until 1981, he worked in the field. Over the course of his career, it is alleged that plaintiff was exposed to asbestos. After being diagnosed with pulmonary asbestosis on June 4, 1999, plaintiff filed a workers’ compensation claim on July 7, 1999. Eighteen years lapsed between his last allegedly injurious exposure to asbestos in 1981 and his diagnosis with the disease in 1999.
After plaintiff filed his claim, five insurance companies moved for summary judgment, arguing that any claim was barred by the statute of limitations. Additionally, each denied its own specific liability. At the time of those motions, however, the employer was unrepresented and had not yet participated in the case. After the
In so ruling, the Commissioner relied primarily on the fact that the ODA and its five-year limitations period was in effect both at the time plaintiff was alleged to be injured by asbestos, and when he was finally diagnosed with pulmonary asbestosis, the date of disablement. In either case, the Commissioner held that the limitations period ran from the ‘last injurious exposure.” Id. § 1006(a) (1987).
Defendant-insurers maintain that the Commissioner’s jurisdiction was lost at the time claimant appealed the first summary judgment ruling to the Orleans Superior Court. They argue that the Commissioner lacked the jurisdiction to unilaterally withdraw her June 6, 2001 ruling. Therefore, defendants argue that her amended ruling has no legal effect and cannot now be properly appealed. Claimant argues that Commissioner’s order was never final, because it preceded any appearance by the true party defendant the employer.
In her amended ruling, the Commissioner noted that “any determination as to the liability of the insurers is one for the superior court, not this department.” Indeed, while the liability of an insurer under the statute is primary when the insurer undertakes to defend an employer,
Morrisseau v. Legac,
While it is true that an appeal from a final order concludes the agency’s jurisdiction, prior to entry of a final order in an action involving multiple claims or parties any “other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” V.R.C.P. 54(b); see also
Szirbik v. R.K. Miles, Inc.,
Turning to plaintiff’s substantive claims, plaintiff makes three arguments. First, he claims that the ODA applies and
that his claim did not accrue until his diagnosis in 1999, rather than at the time of exposure to the asbestos. Second, he claims that if the ODA does not apply, then 21 V.S.A. § 660(b) applies, and his claim is not time-barred under that statute.
By the time plaintiffs disease became apparent, there can be little doubt that his claim was technically barred by the ODA The statute of limitations that applies to a particular cause of action is generally the one in effect when the cause of action accrued.
Cavanaugh v. Abbott Labs.,
The workers’ compensation laws were passed with the intent to supplant the complicated and inconsistent results of common law. In- exchange for faster and more certain compensation, an employee foregoes the right to sue his employer. See 21 V.S.A § 622 (statutory right is exclusive remedy for employee suffering personal injury). In
Sienkiewycz v. Dressell,
One month after he was diagnosed with pulmonary asbestosis, and one week
before
plaintiff filed his claim, the ODA was repealed and merged with the Workers’ Compensation Act, 21 V.S.A. §§ 601-701 (1987 and Cum. Supp. 2002). Thus on July 1, 1999, 21 V.S.A § 660(b) went into effect. Section 660(b) provides specific protections for occupational diseases. It reads: “a claim for occupational disease shall be made within two years of the date the occupational disease is reasonably discoverable and apparent.” 21 V.S.A. § 660(b) (Cum. Supp. 2002). Plaintiff claims that § 660(b) ought to apply retroactively to his claim. Remedial statutes are entitled to liberal construction.
Pillsbury v. United Eng’g Co.,
Plaintiff argues that this Court should presume the Legislature intended retroactive application of § 660(b) in light of the latent nature of certain occupational diseases. While the humanitarian purpose of § 660(b) is apparent, its language is clear. ‘Where the meaning of a statute is plain on its face, this Court will enforce the statute according to its terms for there is
Plaintiffs final contention is that any statutory interpretation which denies his claim violates his right to a remedy under Chapter I, Article 4 of the Vermont Constitution, which provides that “[ejvery person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property or character . . . .” Vt. Const, ch. I, art. 4. This Court has equated Article 4 with the federal Due Process Clause. See
Mellin v. Flood Brook Union School Dist.,
Chapter II, Section 70 of the Vermont Constitution expressly authorizes the Legislature to establish the workers’ compensation laws. The ODA is part of the workers’ compensation statutory framework. “[T]he right to maintain such an action is afforded only by the Legislature.”
Quesnel,
Affirmed.