This appeal brings up for consideration the question of the construction and constitutionality of the amendments to the Workmen’s Compensation Law with respect to “ compressed air illness ” adopted in 1946 and 1947 (L. 1946, ch. 642; L. 1947, ch. 624).
The claimant-respondent had been employed from 1911 to 1938 by various construction companies upon jobs requiring him to work in compressed air. His last exposure to compressed air was in the period from July 1, 1938, to December 25, 1938, when he was employed by the employer appellant, Walsh Construсtion Co., during the construction of the Queens Midtown Tunnel. While at work on this job, the claimant complained of pain in his right hip and shoulder. This pain persisted from then on and the claimant worked only intermittently thereafter, at jobs not involving exposure to compressed аir.
The claimant’s condition was not diagnosed as caisson disease, a disease due to exposure to compressed air, until December 11, 1950, when he was found to be suffering from
The referee fixed December 11, 1950, the date on which the claimant was first treated for the disease, as the date of the claimant’s disablement. Section 42 of the Workmen’s Compensation Law authorizes the board to determine the date of disablement and, under section 38 of the Workmen’s Compensation Law, the date of disablement so determined is treated as the date of “ the happening of an accident ” for the purpose of the compensation law.
There is no controversy in this case as to the date of disablement, the appellant employer having itself asserted befоre the referee that ‘ ‘ the disablement date in this case is December 11,1950.”
At the time of the claimant’s last exposure to compressed air in 1938, section 40 of the Workmen’s Compensation Law provided that, except in the case of an employee who had contracted an occupational disease ‘ ‘ in the same employment with the same employer by whom he was employed at the time of his disablement and who had continued in the same employment with the same employer from the time of сontracting the disease up to the time of his disablement thereby ”, no employee was entitled to compensation for disablement caused by an occupational disease unless the disease was contracted “ within the twelve months previous to the date of disablement ”. (L. 1931, ch. 344.) Under the statute as it then read, an employee who had contracted an occupational disease and had then left his employer, would be barred from claiming compensation if disablement did not occur within twelve months after the contracting of the disease.
However, in 1946, the Legislature recognized that it was unjust to apply this general rule to a disease like caisson disease which was of a slow-starting or insidious nature; very often, more than twelve months elapsed after the contraction of the disease before its presence was known or apparent. The Legislature therefore amended section 40 of the Workmen’s Compensation Law in 1946 to exclude “ compressed air illness ” from the twelve months’ provision of the stаtute. The pertinent portion of the statute as amended read: “ The time limit for contraction of the disease prescribed by this section shall not bar compensation in the case of an employee who contracted
In 1947, both sections 28 and 40 were comprehensively amended (L. 1947, ch. 624, eff. July 1, 1947). The amendment to sectiоn 40, adopted in 1946, was retained, although its position in the text was changed and certain other slow-starting diseases causing latent or delayed pathological changes were also excluded from the time limit provided by section 40, and the following sentencе was added at the end of the section: “ Neither shall the right to compensation in such cases be barred by the failure of the employee or his dependents to file a claim within the two-year period prescribed by section twenty-eight, provided such claim shall be filed after such period of two years, within ninety days after disablement and after knowledge that the disease is or was due to the nature of the employment.”
A similar provision was inserted in section 28, by the same chapter of the Laws of 1947. (The one-year period for filing claims generally had been extended to two years by L. 1947, ch. 77.) Section 45, dealing with notice to the employer, was also amended by chapter 624 of the Laws of 1947, so as to provide that the notice could be given “ within ninety days after the disablement or after knowledge that the disease is due to the nature of the employment, whichever is the later date.”
The first question raised by the appellants is whether the amendments apply to a case in which the disablement occurred after the effective date of the amendments but the disablement was the result of a disease contracted before that date.
The Workmen’s Compensation Board answered this question in the affirmative; we think that this was plainly correct. The Legislature clearly intended that the amendmеnts should apply to all cases of disablement occurring after the effective date of the amendments. Under the statutory scheme, the date of the disablement is treated as the date of the happening of an accident for the purpose of setting in motion the machinery of compensation under the statute. Any disablement occurring after the enactment of the amendments therefore constituted the
Upon this analysis, it is apparent that the amendments are given only a prospective, not a retrospective, effect in holding that claimants who suffered disablement subsequent to the effective date of the amendments are entitled to the benefit of those amendments in the making and enforcement of their claims.
This analysis also bears upon the constitutional question raised by the appellants. The Legislature has not here attempted to revive a claim which was once complete and enforcible but which was subsequently barred by the Statute of Limitations. In occupational disease cases, there is no right to claim compensation until disablement occurs; the claim then accrues for the first time; the Legislature has merely prescribed, prior to the time when a disablement occurred, the time limitations which are to govern the claim for compensation for the disablement.
We thus have here a stronger case in support of the validity of the statute than we would have if the Legislature had undertaken to lift the bar of the Statute of Limitations after it had run against a claim which had fully accrued. However, even if we regard the amendments as the equivalent of a statutory revival of a barred cause of action, we find no constitutional infirmity in the amendments.
It is the settled law, so far as the guarantee of due process under the Federal Constitution is concerned, that statutes reviving barred causes of action, with an exception not relevant here, are valid and constitutional. It was so decided by the United States. Supreme Court in 1885, in Campbell v. Holt (
When we come to the question of the due process provision of the State Constitution, we have greater difficulty. While many State courts have followed Campbell v. Holt in the construction of the due process clause or similar provisions of their State Constitutions, many others have declined to do so and have interpreted their State Constitutions аs generally forbidding the statutory revival of barred causes of action. (See eases cited in Chase Securities Corp. v. Donaldson, supra, pp. 312-313.) The courts of each State are, of course, free to adopt their own construction of the State Constitution, even though the language under cоnsideration may be identical with that of the Federal Constitution (Ives v. South Buffalo Ry. Co.,
The New York Court of Appeals has chosen a middle course between the course of those States which have refused to follow Campell v. Holt and those which have accepted its reasoning. While dеclining “ to adopt the broad and unqualified view that a State may constitutionally revive any personal cause of action, whatever the circumstances ”, the court held “ that the Legislature may constitutionally revive a personal cause of action where the circumstances are exceptional and are such as to satisfy the court that serious injustice would result to plaintiffs not guilty of any fault if -the intention of the Legislature were not effectuated ” (Gallewski v. Hentz & Co.,
We therefore conclude that there was no violation of either the State or Federаl Constitutions in the enactment of the amendments.
The remaining contention of the appellants is that the award should have been made against the Fund for Reopened Cases under section 25-a of the Workmen’s Compensation Law. This contention is without merit. This fund deаls, as its title indicates, with reopened cases; it has no connection with claims newly made under a special statute which allows them to be made despite the lapse of time. Section 25-a applies only if more than seven years had elapsеd from the date of the accident (here, this means the disablement). No such period had elapsed in this case. The claim was filed within a few days after the disablement.
The decision and award of the Workmen’s Compensation Board should be affirmed, with costs to thе board.
Foster, P. J., Bergan, Coon and Imrie,-JJ., concur.
Decision and award affirmed, with costs to the Workmen’s Compensation Board.
Notes
The amendment to section 28 in 1947, insofar as it extended the time for the filing of claims for the occupational diseases enumerated therein, was held to apply to a disablement which had occurred prior to the effective date of the amendment in Matter of Wood v. Queen City Sign Co. (