Understanding and Defending Occupational Disease Claims

Employers who are not in the mining industry or in the manufacturing of chemicals often think they have no exposure to occupational disease claims. They are wrong. Almost every employer has exposure to occupational disease claims as any ailment that develops as the result of the work done by an employee is an occupational disease, also known in some jurisdictions as occupational illness. Occupational disease can be defined as any illness or injury that occurs in a group of workers at a higher rate than it does in the general population.

Every Employer Has Exposure to Occupational Disease

Physical activity, especially repetitive motion, frequently triggers the onset of an occupational disease. Painters who use spray guns in a constant back and forth motion and clerical workers who type most of the day are both prone to developing carpal tunnel syndrome, an occupational disease. Other physical activity like constant bending can trigger musculoskeletal problems even though no specific injury occurred.

The challenge with occupational disease claims is determining whether or not the employer is responsible for the employee’s medical condition. As claims for cancer, asbestosis, black lung disease, carpal tunnel syndrome, etc., can be costly or even catastrophic, it is imperative that the claim be properly investigated and medically analyzed before a determination to accept or deny the claim is made.

Medical Proof First Step In Occupational Disease Claim

The first step in the handling of the occupational disease claim is medical proof. Often the medical diagnosis of the employee’s doctor is based on the information provided by the employee. Before the medical opinion of the doctor (normally hired by the employee’s attorney) is accepted, an independent medical evaluation by a defense doctor should be completed. Often two different doctors can review the same medical information, diagnostic tests, and symptoms, and come to different conclusions as the cause of the employee’s medical issue.

If both the employee’s doctor and the independent medical examiner agree on the employee’s medical condition, the determination of whether or not it is an occupational disease claim moves on to the next step, determining the cause. It is extremely important for the employee’s medical history and work history to be known and thoroughly reviewed. Frequently, the employee’s medical issue can be traced back to a non-employment related history. For example: the hearing loss claim. Is the hearing loss due to the constant humming of machinery where the employee works, or is the hearing loss due to the employee’s age and the years the employee spent in the military as a field artillery gunner?

Exposure to Harmful Substance Must Be Proven

The employee’s exposure to a harmful substance or harmful activity must be proven. It is not enough for the employee to claim the workplace had excessive fumes or dust that caused his occupational disease. The employee must specify the exact substance in the work environment that caused his medical condition. For example: The doctor diagnosed the employee with a pulmonary impairment and relates it to the dust at the employee’s workplace. The doctor needs to go a step further and identify what chemical in the dust caused the pulmonary impairment and provide supporting medical documentation that the precise chemical named causes the employee’s exact medical condition.

Once the doctor and the employee have identified the exact chemical substance they believe is causing the employee’s medical condition, an industrial hygienist can be brought in to test the work environment for the alleged cause of the occupational disease. The industrial hygienist can determine if the work place has a concentration of the harmful substance in a quantity that would cause the symptoms of the sick employee. If a scientific link between the exposure to the substance and the employees medical condition cannot be established, then the occupational disease should be denied.

Need to Determine If Injury Cause Occurred At Any Other Time

If the industrial hygienist documents the harmful substance was in the workplace in a concentration that caused the employee’s medical condition, then the next step in the occupational disease claim is to determine if the employee incurred exposure to the harmful substance at any time other than while working for the employer.

Often with pulmonary and hearing loss claims, the condition for which the employee now needs medical treatment has been accumulating over a long period of time. An example of this: The employee is diagnosed with black lung disease, but has not always worked in the employer’s coal mine. During a 40 year career, the employee worked in five different coal mines for 5 different employers. As the disease is cumulative, in most states the responsibility for the black lung disease would be apportioned by the amount of time the employee worked for each employer. (A few states do not allow apportionment and the current employer/insurer gets to pay for the claim in its entirety).

Detailed & Careful Claim Analysis Must Be Completed

Whenever an employer is presented with an occupational disease claim, it is imperative that a detailed and careful analysis of the claim be completed before a determination to accept or deny the claim is made. By understanding the cause of the employee’s medical condition and the relationship of the medical condition to the employee’s work, a proper approach to the handling of occupational disease claims can be had.

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact:[email protected].

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: [email protected].