Investigating the Occupational Disease Claim Is a Complex Process

Any illness or medical condition that occurs in a group of workers at a higher rate than it does in the general population is considered an occupational disease. Some occupational diseases, for example byssinosis, also called brown lung disease, only occur in people who have worked in the cotton, flax, hemp or jute production. Byssinosis is definitely an occupational disease. Other medical conditions, for example hearing loss, may or may not be occupational related. The challenge for worker compensation is to determine what medical conditions are occupational diseases and what are not occupationally related.

The first issue the work comp adjuster must address is the age of the occupational disease. The adjuster normally deals with injuries that occurred a day ago, a week ago or even a month earlier. However, the occupational disease claim is quite different. The occupational disease may have started ten years, twenty years or even thirty years prior. Most occupational diseases are latent, meaning the employee does not know precisely when they began to suffer the affects of the disease and the disease has been progressively getting worse over a period of time.

Latent injury claims often involve asbestos, silica, benzene, mold, carbon monoxide, lead paint, many chemicals, any carcinogen, and the many substances regulated by the Environmental Protection Agency. Occupational diseases cover a wide area of medical conditions but most relate to lung diseases, various types of occupational induced cancers, and hearing loss.

The age of the occupational disease is important from the standpoint of compensability. The states vary greatly on whom (which employer) is liable for the occupational disease. There are three primary approaches that are used in different states in delegating who is responsible. Responsibility for the cost of the occupational disease may be assigned to:

1. The employer at the time the disease becomes known to the employee

2. The employer at the time the disease started to develop

3. All the employers from the time the disease started through the last employer.

Several states have migrated from the second or third approach to the first approach to diminish the amount of litigation over responsibility for an occupational disease. Establishing the moment in time an occupational disease started twenty or thirty years ago is fraught with speculation. Also, including all previous employers is often not fair. For example, if the employee with brown lung disease changed occupations and worked as a commercial fisherman for several years, they fishing company would have a valid argument that the brown lung disease is not their problem.

In the states where the original employer or all the prior employers can be held responsible for the occupational disease, the work comp adjuster must do a thorough time-line investigation. The work comp adjuster should start with questioning the employee in detail as to the names of every employer in their adult life and the dates they worked for each employer.

The adjuster loves to hear “I started at XYZ Company when I was 18, and have worked there all my life”, as it eliminates hours of work locating and contacting former employers to advise them of the occupational disease claim. Of course, that also makes the one and only employer fully responsible for all the cost of the occupational disease. On the other hand the adjuster cringes when she hears “well, I have worked for 12 different coal mining companies in the last 40 years and I don’t know when my black lung disease [pneumoconiosis] started”, for many days of research lie ahead for the adjuster.

In addition to determining the dates and names for each former employer, the adjuster will need to obtain the employees job duties with each former employer, the name of each former supervisor, the substances, materials, chemicals, etc., that were used in their work, and any health issues they had while working with that employer. The adjuster also must delve into the personal habits of the employee, for instance, smoking is known to exacerbate the occupational diseases involving the lungs.

To circumvent HIPAA laws, the adjuster should obtain a medical authorization from the employee that is very broad and allows the adjuster to contact all prior medical providers. The adjuster will obtain a complete medical history of the employee. In some situations, the adjuster may review the medical history of the employee, but if the occupational disease is a complex medical condition, it is often better for the adjuster to hire a doctor, a specialist in the medical field of the occupational disease, to review the prior medical history, to see if their were previous signs or symptoms of the occupational disease known prior to date it was first diagnosed. This can often assist in the allocation of responsibility for the occupational disease.

Also, in the states where all prior employers can be held responsible or where the employee worked when the disease started, there is another obstacle for the work comp adjuster. After locating and contacting the prior employers, the adjuster needs to know who the work comp insurers were during the time period the employee worked at the other companies. In the industries where occupational diseases are well known, such as asbestosis, the former employers will know exactly when each work comp insurers policy started and stopped. However, in industries where occupational diseases are less common, the employer (who has a totally different staff and record keeping system than they did 3 decades ago) may have a difficult time identifying who their work comp insurer was 30 years ago. Knowing who insured who, and when, is very important for the allocation of damages in the states where damages are allocated among the various previous insurers.

In the occupational diseases that can occur in the general population as well as the employee population, the adjuster has to have medical verification the disease is related to the occupation. For example, occupational asthma can result from over 300 known causes including chemicals, enzymes, metals, plant substances, animal substances, smoke and gases. Distinguishing occupational asthma from asthma that develops without an occupational connection entails hiring specialist in the respiratory field to examine and diagnose the cause.

To properly allocate responsibility and cost of occupational diseases, the work comp adjuster has to do a complete employment background investigation of the employee. The employer can assist the work comp adjuster with the occupational disease investigation by providing the medical history they have on the employee including the health insurance file on the employee (be sure to have the adjuster provide the medical authorization to you).

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