|IN RE: RADFORD M. ANGELL||)||DOCKET NOS. 21,334 and 21,477|
|Claim No. 7007325||)||DECISION AND ORDER|
- Claimant, Radford M. Angell, by
- Fredrickson, Maxey and Bell, per
- Leo H. Fredrickson
- Employer, Atomic Energy Commission, by
- Chester G. Brinck, Chief Counsel, per
- Roy B. Erickson, Associate Counsel
- Department of Labor and Industries, by
- The Attorney General, per
- James D. Sawyer, Assistant
Appeal ( Docket No. 21,334 ) filed by the claimant on December 20, 1963, and cross-appeal (Docket No. 21,477) filed by the employer on January 17, 1964, from an order of the supervisor of industrial insurance dated December 5, 1963, rejecting this claim for the reason that it was not filed within one year of the date the claimant was first advised by a medical doctor that he had an occupational disease. Reversed and remanded, as to the appeal; dismissed, as to the cross-appeal.
The Board has reviewed the record in the light of a Proposed Decision and Order issued in this matter on December 18, 1964, and a statement of exceptions duly filed thereto by the claimant on January 7, 1965. As a result thereof, we conclude that the exceptions are well taken and that this matter should be remanded to the department of labor and industries for consideration of the claim on its merits.
The department's order from which the appeal and cross-appeal  were prosecuted made no determination as to whether or not the claimant was in fact suffering from an occupational disease. The rejection order is based upon the administrative finding that the claimant was advised by his attending physician on March 27, 1962, that his condition was occupational, and since the accident report was not received by the department until August 7, 1963, the claim was not timely.
Thus, as correctly noted by the hearing examiner, the only issue invoking the Board's jurisdiction is whether or not the claim was timely filed with the department. The employer's cross-appeal as to the claim on its merits is decidedly premature and its counsel conceded at the first hearing that the only issue to be determined at this time was the timeliness of the appeal. Although more a matter of procedure than substance, the employer's cross-appeal should have been formally dismissed in the Proposed Decision and Order. This oversight will be corrected herein.
Under the evidence, the department's determination that the claimant was advised by his attending physician on March 27, 1962, that his condition was occupational is patently erroneous. The department offered no evidence to support its determination and the claimant testified that his attending doctor did not so advise him until August 13, 1962. This was corroborated by the testimony of the attending physician, Dr. Hubbard. The claimant further testified that the occasion of August 13, 1962, marked the first time that he had ever been informed by a doctor that he had a disease which resulted from his occupation.
The hearing examiner found, on the basis of the claimant's testimony, that he knew by December, 1961, as a result of advice by a medical doctor, that he had a disabling lung condition arising out of his work with asbestos in his employment at Hanford, Washington. 
The claimant's testimony in this respect was to the effect that he was given periodic physical examinations by his employer at Hanford every two or three years. He stated that "they always passed me," but on his last examination, which took place in 1960 or 1961, the doctors advised him to change his trade as working with asbestos was bad for his health - more specifically, for his lungs. It is clear that the claimant was himself aware that he was having pulmonary difficulties as of that time, but there is no evidence that the doctors attempted to isolate or identify the particular disease process that was responsible for such difficulties. The claimant continued to work until December, 1961, when he decided he had better quit his work at Hanford if, as he put it, "I wanted to live any longer." He expressly denied that the doctors at Hanford had ever told him that his breathing difficulties or lung condition had resulted from his work with asbestos.
Manifestly, that which is or may be harmful to a pathological condition or disease is not, ipso facto, its cause. Thus, to say to a workman that his work is bad for his condition is not to say that the condition itself arose out of such work. The claimant's direct denial that the employer's doctors at Hanford ever advised him with respect to the etiology of his condition stands unrefuted in the record. Under the law, the one-year-limitation period does not commence to run against a workman until such time as a medical doctor advises him that his work or occupation is the cause of his disabling disease. Williams v. Department of Labor & Industries, 45 Wn. 2d 574; Nygaard v. Department of Labor & Industries, 51 Wn. 2d 659.
Under the record, the statute did not commence to run against the claimant until August 13, 1962. His claim, filed with the department on August 7, 1963, was within the statutory period. 
Based upon the record, the Board makes the following findings:
- On August 7, 1963, the claimant filed an accident report with the department of labor and industries. The report was signed by the claimant on August 13, 1962. On August 21, 1963, the department issued an order rejecting the claim for the reason that no claim was filed within one year from the date the claimant was informed that he had an occupational disease. The claimant appealed and on October 8, 1963, the department issued an order making its order of August 21, 1963, interlocutory, pending further investigation. On October 11, 1963, the Board issued an order denying the appeal on the ground that the order appealed from was not a final order. On December 5, 1963, the depart- ment issued an order adhering to its order of August 21, 1963, on the ground that the claim- ant was advised by his attending physician on March 27, 1962, that his condition was occupational, and, accordingly, the claim, filed on August 7, 1963, was not timely. On December 20, 1963, the claimant filed a notice of appeal, and on January 10, 1964, the Board issued an order granting the appeal. On January 17, 1964, the employer filed a cross-appeal from the department's order of December 5, 1963, attempt- ing to raise an issue on the merits of the claim and contending that the department should also have denied the claim on the ground that the claimant was not suffering from an occupational disease due to his employment with this employer. On January 24, 1964, the Board issued an order granting the cross-appeal and on December 18, 1964, a Proposed Decision and Order was issued by a hearing examiner for the Board. Exceptions thereto were duly filed by the claimant on January 7, 1965.
- August 13, 1962, marks the first occasion that the claimant was advised by a medical doctor that his disabling lung condition was caused by his work with asbestos.
Based upon the foregoing findings, the Board makes the following conclusions:
- The Board has jurisdiction of the parties and the subject matter of the claimant's appeal (Docket No. 21,334).
- The Board does not have jurisdiction over the employer's cross-appeal (Docket No. 21,477). 
- The accident report filed by the claimant on August 7, 1963, was timely under the provisions of RCW 51.28.055.
- The order of the supervisor of industrial insurance dated December 5, 1963, is incorrect, and this claim should be remanded to the depart- ment of labor and industries with instructions to consider the claim on its merits.
- The employer's cross-appeal should be dismissed.
It is so ORDERED.
Dated this 15th day of December, 1965.
BOARD OF INDUSTRIAL INSURANCE APPEALS
J. HARRIS LYNCH Chairperson
R. H. POWELL Member
R. M. GILMORE Member