*1 requirement The second for intervention right applicant

of is that must be “so

situated that of the action disposition

may practical impair impede matter or interest,

his ability protect unless

the applicant’s adequately repre- interest is by existing parties.”

sented 65B.53, (1982) limits an insurer’s

right subrogation of necessary to amounts prevent injured a double recovery by the

person. 65B.51, (1982) Minn.Stat:

requires that when is motor vehicle terms,

related no-fault no-fault benefits

paid must be deducted from any tort recov-

ery. Application provisions of offset of is, course, 65B.51 in Astleford’s inter-

est. Deduction of the value of eco- basic

nomic loss any recovery benefits from

which the Millers are may, entitled how-

ever, destroy subroga- Prudential’s asserted Millers,

tion right. hand, on the other

have no incentive application to resist provisions,

the offset recovery for

value of basic economic loss benefits would

simply expose them to Prudential’s claim Consequently, ap- reimbursement.

pears that Prudential’s interest will be ade-

quately protected only by intervention.

Reversed. GUGGENBERGER, Respondent, CO.,

COLD SPRING GRANITE Relator.

No. C5-82-533.

Supreme Court Minnesota.

April Roll, McCoy

Roll & and Laurence F. St. Paul, for relator. *2 Hagen, lungs

F. Dean Lawson and John Minne- those his last during years; exposure apolis, for respondent. therefore occurred in 1965. It also reversed finding temporary partial disability

a that had occurred on or about 1975 or 1976. We defer to the exercised the discretion when it factual Appeals Court of makes the findings “unless consideration of evi AMDAHL, Chief Justice. there permissible dence and the inferences employer seeks review of a decision requires adopt from reasonable minds to Compensation of the Workers’ Ap- Court of contrary Talmadge conclusion.” v. Med peals $16,879 awarding employee per- tronic, Inc., (Minn. manent benefits for a 20 1982) (citations omitted). Here it is clear percent lungs of his due to that there is sufficient evidence in the rec silicosis, necessary work-related as well as support Appeals’ ord to the Court of find expenses. and reasonable medical Because ings. the employee’s exposure to silica dust and other irritants occurred in we In 1965 the workers’ compensation ground reverse on the that the claim was included the statutory following scheme repose provisions barred the statute of repose occupational statute of diseases: depend- Neither the nor his Respondent, Guggenberger, has ents are for dis- entitled relator, worked for Spring ability resulting occupa- or from death Company, sharpened since He tools disease, tional unless such disease is due for 2 years, granite and then worked as a employment to the nature of his as polisher years, for 27 under constant expo- defined in section subdivision granite sure to silica or dust. In and was contracted therein within 12 Gug- Industrial Commission ordered that previous months to the date of disable- genberger polishing be from his transferred ment; job except because in the case of silicosis or X-rays indicated early symp- asbestosis, toms of assigned silicosis. He was to the in which cases disablement of machine shop wages at no loss of and re- must occur within three mained there until when he was trans- of such employee’s from the date job ferred to an supervisory outdoor entail- with an in an ing physical activity. July less employment to the nature of which the * * Guggenberger hospitalized with an disease have been a hazard *. may attack, acute heart and on his return to Subdi- assigned work 3 months later was “ provided, ‘disability’ vision 1 had means shop indoor work in the machine during being earning the state of disabled from winter and outdoor work in summer. At full at the work at which the em- hearing time of the in this action he ployee employed was last and ‘disablement’ was still time employed full and had suf- becoming means the act of so disabled.” In wages. fered no loss of through 1973 subdivisions 2 9 were and subdivision 1 rewritten to read in total Compensation The Workers’ Court as “The of an follows: Appeals Guggenberger found that sus ee an disease resulting occupational from a permanent partial disability tained on No regarded personal injury shall be with- 2,1979, vember when he was first informed meaning compensa- the worker’s that he grade I or II silicosis. How ever, tion law.” Act of ch. May that findings court reversed of fact 11-12, Minn.Laws 1593-94. that he exposed aggravating §§ had been conditions We these 1973 amend- recently from 1965 to 1980 and had suf held fered continuing personal operative to his ments did not alter the definition Ford, SCOTT, of disablement. Abram v. Art Goebel (dissenting). Justice (Minn.1982). Applying I respectfully dissent. is undisputed pre-1973 statutory definition of disable- employee’s silicosis was caused ment to occupational an disease claim aris- relator Cold ing under the post-1973 we found Granite Company, where he worked for 44 that an employee’s disablement occurred on years. Because causation is undisputed, the the date the employee took á lower paying majority’s *3 176.66, reliance on Minn.Stat. § job, reasoning as follows: (1971), subd. 3 deny unjusti- benefits is

Since the fied. meaning of the term “dis- ablement” was well established at facts, The which majority sup- finds amended, time the statute was we believe ported evidence, by the are as follows: The that if the legislature had intended to use employee, respondent Guggenber- the term in a different sense in the ger, Spring worked for relator Cold Granite amended it would have said so. Company through from 1936 the date of the Therefore, to show by Octo- hearing compensation before the judge in 1,1980, ber the employee required was to November 1980. He exposed was to silica establish that by then he was not able to dust from 1938 to 1965 while working as a earn full wages paint sprayer. polisher. stone developed He silicosis as a result of this exposure. Spring Cold was Id. aware of the employee’s silicotic condition Because Guggenberger suffered no by 1965, September and rather than inform- 1965,1 loss within 3 years of the date ing stricken, him that he had been so it of his last exposure (and has suffered none instead him to posi- transferred another date), his claim did not mature within tion.1 the time specified 176.66, in Minn.Stat. § September From 1965 on he had minimal (1971). subd. 3 See Graber v. Peter Lametti exposure fumes, to dust and but this addi- Construction 293 Minn. exposure tional did not aggravate cause or N.W.2d The later enact his silicosis. was not until November ment 176.101, (40) Minn.Stat. subd. 3 § employee that the himself learned he (1982), making permanent impairment of had job-related. silicosis and that was organs internal compensable as a scheduled He petition January filed his for benefits on disability, could not serve to revive the 10, 1980. barred claim. Independent See Klimmek v. employee permanent par- The has a 20% 487,299 School District No. tial disability person, of the entire based (Minn.1980) (recognizing that a claim which upon impairment lungs of the and loss of has been running barred of a limita pulmonary injury function. The tions is not revived by subsequent caused and arose of and in the course out repeal of that provision). The dissent’s dis of his with He employment Spring. Cold tinction between the repose, statute of has, admittedly, suffered no actual 176.66, (1971), Minn.Stat. subd. 3 § and a loss as a result of his silicosis. The Work- statute of limitations is one of form rather Compensation Appeals ers’ Court of award- substance; than the effect of each is to bar permanent partial disability ed him benefits the claim. for a under scheduled Minn.Stat. Reversed. 176.101, 3(40) (1980), provides subd. which § description Victory self-insured, 1. Spring, undoubtably its of Notch v. Granite Cold a (1976), cases, potential liability 238 N.W.2d 426 knew of its in silicosis employee just having dissent omits the crucial fact that the in been before this court such a year had lost period years within the 3 case Fink v. three earlier. See meaning was therefore disabled within the 176.66, There, rejected. for such benefits sidered and internal silicotic em- organs. his ployee terminated in 1957 and took a lower- employee On these facts the should re- paying job involving exposure not to silica ceive compensation. dust. totally He did not become disabled majority holds the claim is until 1973. The and insurer at- 176.66, barred tempted responsibility by argu- to disclaim no because he suffered actual ing that no was due under loss within three date of his subd. because had in 1965. Minn.Stat. § compensable disability sustained a with- subd. provided: exposure. in three years of his This Neither the nor dependents court expressly held are entitled to for disability though did not bar the claim even there had or death from resulting occupational dis- been no compensable disability within three ease, unless such disease is due to the *4 Minn, years exposure. of the 306 at nature of as defined in 502-03, 238 430-31. N.W.2d at 176.011, section subdivision and was The employee in this case suffered dis-

contracted within therein 12 months pre- ability years expo- within three of his last disablement; vious to the of date except sure. in safely He was unable 1965 to asbestosis, case of silicosis or in which continue a granite polisher. cases disablement of the his work as years must occur within three from the The disability compensable, was not how- date employee’s of such last exposure ever, Spring, because Cold which did not in an an employment to disease, inform him pay of the continued to nature of which disease may have regular him a new wages job assignment. at ** been a hazard *. This was a within the meaning 176.66, though of even it subd. was § 176.66, (1971), subd. 1 § “ non-compensable reassign- reason of provided amended in ‘dis- ment and of full payment wages. continued ability’ means the state of being disabled This interpretation eminently is reasonable from earning full at the work at in light statute, of the of the purpose which which the employee was last employed and was v. explained Victory in Notch Granite ‘disablement’ means the act of becoming so Minn, Co., 502-03, 306 at 238 N.W.2d at disabled.” disability Partial from silicosis 430-31, as was follows: compensable not at that time unless it followed a period of total disability. Minn. respondent correctly points out, As Stat. 176.664 § ‘last exposure limitation’ is an insurance assure a intended to causal rela- The in majority errs requiring the em- tionship between the disease em- and the ployee to wage establish actual loss within ployment. It is not limitation in the three exposure. of this last By re- barring nature of those stale claims. quiring the claim employee’s to have “ma- “ * * * three-year within the period, the ture[d]” Quite likely legislature was * * * majority the statute contrary construes persuaded that if silicosis does not legislative intent our past and decisions. manifest three years itself within of an dust, employee’s to silica 176.66, We have held that under subd. § proof medically both and otherwise that 3, an employee need not have suffered a an employment hazard caused the disease compensable disability within three years of speculative is so and uncertain as to be his last exposure; he need only have suf- fered a unreliable.” Graber Peter Lametti disablement. In Notch v. Co., Granite Construction N.W.2d 426 (1976), an analogous argument con- N.W.2d purpose to insure that compensation To recover temporary for a causal link 176.101, exists between the under subd. 2 disease, (1980), ment and the has been fulfilled in an employee must show some actual loss, this case. The wage disease manifested itself as those benefits are designed to within three years exposure, However, of the last compensate wage for loss. majority does dispute not that the em- recovery permanent partial disability of ployment caused it. As the purpose injuries, avowed benefits for scheduled such as were met, of the statute has been it is unreason- in awarded this case under able to 3(40), raise as a bar to the employee’s require any showing does not claim. loss.

Alternately, I would hold that Permanent partial disability compensa- in simply injuries is tion for scheduled of the sort here inapplicable to this case. is settled that involved is meant as for the occupational cases, rights disease “the “functional loss of use or the employee become fixed the law in organ, function” of a scheduled member or effect as of the date he a compen sustains rather than as for loss. sa ble or disability.” (Emphasis add

ed.) Products, Notch v. Victory Quality 306 Ahoe r. Park 258 N.W.2d 495, 496 Minn. n. (Minn.1977), 428 n. 1 889-90 n. 2 the court not- (1976); Fink v. recovery 262 ed that for scheduled is 393, 400-01, 115 Minn. (1962); loss: designed compensate *5 Kress Minneapolis-Moline v. 258 Minn. respect With claims 1, 3, 102 497, The injury after the ef- based on sustained sustained was not compen- (August fective date of the amendment sable while subd. was in effect. 1974), appears Thus, rights governed by are not its partial disability payable permanent requirements. In a similar situation we represents general damages rather than legislature said: “The could not have in payment earning capacity. for loss in tended employee’s rights that an to com Similarly, Tracy v. In- Streater/Litton pensation be barred before his silicosis had dustries, (Minn. 913-914 283 N.W.2d progressed point to the where he might 1979), we said: bring proceedings to rights enforce such * * require us to ad- Logic consistency and *.” Fink v. here at the outset to our earlier view 115 N.W.2d v. Park Prod- expressed Quality in Ahoe ucts, (Minn. n. 2 258 N.W.2d agree implication Neither can I with the 1977), disability permanent partial majority opinion, in the upon based Abram for loss distin- compensate benefits must Ford, (Minn. v. Art Goebel 327 N.W.2d 88 guishable earning capacity from reduced 1982), that recovery under already disability because total benefits 3(40), for a scheduled to an internal unemployability. reflect the maximum in organ caused by occupational disease re- Accordingly, legislature we hold that the quires he show suffered has of function com- made disablement in the form of actual loss. pensable for its own sake in the form of Abram temporary involved claims for both damages separate and distinct from permanent partial dis- loss. ability. The there relating discussion added; omitted.) footnote (Emphasis requirement loss, although spe- stated, Independent v. School cifically only Finally, could have related to Klimmek (Minn. temporary partial disability claim. District No. 299 N.W.2d There, TODD, 1980), we stated Justice. inapplicable. is that a claim which has been barred of Justice join I dissent Scott. running of a limitations is not subsequent repeal revived of that YETKA, Justice. 176.66, subd. 3

provision. Minn.Stat. § join I the dissent of Justice Scott. provi- a statute of limitations is not already purpose said its is to sion. We have WAHL, Justice. link between the insure a causal join I the dissent of Justice Scott. “It is not a limitation injury. ment and the barring in the nature of those stale claims.”

Notch

I would affirm.