Occupational Diseases: Peculiarities and Pitfalls Abound
By: Melissa Rickert
As flu season approaches and we start to hear co-workers coughing and sneezing throughout the halls, we are reminded of another pesky yet far more significant situation: occupational disease claims. While occupational disease claims are not necessarily common, the circumstances are often grim. Thus, it is worth revisiting the occupational disease area of Georgia workers’ compensation and some of its nuances.
The definition of “occupational disease” by the Georgia Workers’ Compensation Act (the Act) is “those diseases which arise out of and in the course of the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” O.C.G.A. § 34-9-280(2), emphasis added. The claimant (or the claimant’s dependents) must prove five prongs: (1) there was a direct causal connection between the conditions under which the work is performed and the disease; (2) the disease followed as a natural incident of exposure by way of the employment; (3) the disease is not of a character to which the employee may have had substantial exposure outside of the employment; (4) the disease is not an ordinary disease of life to which the general public is exposed; and (5) the disease must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence. O.C.G.A. § 34-9-280(2), emphasis added.
For example, in Fulton-DeKalb Hospital Authority v. Bishop, the claimant was an EMT who filed a workers’ compensation claim seeking benefits after he contracted Hepatitis B, an infectious viral disease. At the trial level, the employer produced a written statement by an expert witness that Hepatitis B was a “fairly common viral disease found in all sectors of the American population” and “contraction [of Hepatitis B] cannot be linked exclusively to any particular activity or employment.” Id. The claimant argued that his job placed him in close contact with the bodily fluids of other people and that the nature of his work placed him in situations where he was three to five times more likely to contract Hepatitis B than the average person. The court of appeals found the claimant had not proven two of the five required prongs and reversed the lower court’s opinion. Bishop, 185 Ga. App. 771, 365 S.E.2d 549 (1988).
By the nature of occupational diseases, most occupational diseases are not immediately known. Rather, and more often, symptoms do not appear for months or perhaps years. Thus, O.C.G.A. § 34-9-281(a) holds the disablement or death of an employee caused by an occupational disease is considered the date of injury or occurrence. This safeguards an injured worker from losing his right to workers’ compensation benefits based on statute of limitations issues. However, an occupational injury claim must be filed within one year of the date the employee knew or should have known of the relationship between the disablement and his employment. Also, the claim is barred if more than seven years from the “last injurious exposure to the hazard of such disease….” O.C.G.A. § 34-9-281(b)(2). In death claims involving an occupational disease, claimants have one year from the date of death to file a claim so long as the cause of action was not barred while the employee was still alive. Id.
O.C.G.A. § 34-9-280(2) provides specific exclusions to the definition of “occupational disease.” For example, partial loss of hearing due to noise, psychiatric and psychological problems, and heart and vascular diseases are not considered occupational diseases unless they arise from a separate occupational disease. O.C.G.A. § 34-9-280(2). Additional exclusions involve diseases that are within the “occupational disease” definition but do not allow for partial disability benefits. These injuries include 1) the partial loss of a member; 2) the partial loss of a use of a member; or 3) for partial loss of vision of an eye. O.C.G.A. § 34-9-283.
In claims where an employee has both an occupational disease and any other non-compensable disability or infirmity deemed to be an aggravation, the employee can still receive compensation reduced in proportion to the disability caused by the work-related occupation disease. O.C.G.A. § 34-9-285. In these cases, evidence is submitted to show the apportionment between the work-related disability and the non-work related disability. Whitaker v. Fieldcrest Mills, Inc., 174 Ga. App. 533, 330 S.E.2d 761 (1985). Compensation must be adjusted by either reducing the number of weekly payments or as determined by the Board. Id.
Claims involving subsequent employers can prove complicated in determining which employer, if any, should be held responsible for benefits. The Act has clarified this issue somewhat in occupational disease claims. O.C.G.A. § 34-9-284 provides compensability lies with the employer in whose employment the employee was last injuriously exposed to the hazards of the disease and the insurance carrier, if any, by whom the employer was insured at the time the employee was last exposed. Moreover, the statute provides the last employer and insurer is liable “without right of contribution from any prior employer or insurance carrier.” O.C.G.A. § 34-9-284. However, where a claimant has falsely represented himself in writing that he has not previously been disabled, laid off or compensated in damages because of the subject disease, “[n]o compensation shall be payable for an occupational disease”. O.C.G.A. § 34-9-291.
Again, as we head into cold and flu season, it is a good time to revisit occupational diseases and reiterate the five prongs a claimant must prove in order for an occupational disease to be found compensable in Georgia
Attorney Contact Info
Melissa Rickert
melissa.rickert@swiftcurrie.com
404.888.6214