Occupational Diseases in General
Occupational diseases are diseases which are characteristic and peculiar to the employer's business.
Occupational diseases are illnesses, not injuries caused by accidents.
Common examples of occupational diseases include carpal tunnel syndrome, asbestosis and silicosis. By comparison, common examples of injuries are broken bones, sprained ankles, and concussions.
Same Workers Compensation Benefits
In Louisiana, every employee who is disabled because of an occupational disease is entitled to the same compensation benefits that an employee would received if the employee were injured by a physical personal injury by accident arising out of and in the course of employment. Also, every dependent of an employee whose death is caused by an occupational disease is entitled to the same compensation that a dependent of an employee whose death is caused by a physical personal injury by accident arising out of and in the course of employment.
So basically, an employee get the same benefits, whether the employee has an occupational disease (such as carpal tunnel syndrome) or an actual injury (such as a broken wrist).
Under Louisiana workers compensation, there exists a presumption that an occupational disease that appears in the first 12 months of employment is not related to that employment. That means that any occupational disease contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed not to have been contracted in the course of and arising out of such employment.
However, the employee may rebut this presumption by a preponderance of the evidence standard. A preponderance of the evidence means "more likely than not". So, in order to overcome this 12 month presumption, an employee would simply need to prove that it was more likely than not that the occupational disease that appears in the first 12 months of employment is related to that employment.
For occupational diseases, the date of accident to be used for purposes of calculating the average weekly wage will be the date of last employment with the employer from whom benefits are sought, or the date of last injurious exposure, whichever occurs last.
Where there are multiple employers, the employee may make his or her claim against any or all of them. They are all liable to the employee. As between the employers, however, the last causative employer will be the ultimately responsible party. This is known as the last injurious exposure rule, or the last causative employer rule. Again, basically, the employer in the job that last caused the employee's disease will be the employer whose insurance will pay. As between insurers, most policies provide that coverage is provided only if the policy was in effect at the time of the last injurious exposure, and this provision has been upheld by the courts.
Generally speaking, degenerative disc disease, arthritis, spinal stenosis, heart related disease and mental illness are not occupational diseases. Neither are hernias. However, carpal tunnel syndrome can be an occupational disease. Also, since thoracic outlet syndrome is akin to carpal tunnel it to can qualify as an occupational disease.
Since an occupational disease is generally considered to be one that is "characteristic of and peculiar to an employment," medical testimony (usually from a doctor) is typically required to prove such.
Also, to prove a claim of occupational disease, the employee must show a causal link between his work and the disease. That is, the employee must show that the job caused the disease. Again, medical testimony (usually from a doctor) is typically required to prove that the job caused the disease.
If it is only possible that the employment caused the disease and if other factors are just as likely, the burden is not usually met. However, in several recent cases Louisiana courts have begun to show a willingness to expand the area of occupational disease to cover degenerative conditions where it is proven that the employment was a contributing factor in causing the disease. For example, Louisiana court have granted workers compensation benefits in cases such as:
- Where lymphedema was aggravated by work conditions;
- Where there was synovitis of a finger; and
- Where a mechanic had plantar fascitis.
However, in another case, public employees who suffered injuries arising from prolonged exposure to mold around the workplace were held to not have suffered an accident so as to be compensable. The court denied benefits because it held that this was not to an occupational disease as the illness due to exposure to mold was not "characteristic of and peculiar to the employment."
So it is not easy to recover for an occupational disease where the employment was a contributing factor, but it can be done, especially with a skilled attorney. Success is determined case by case by the particular facts of each case, and an employee really does need an experience Louisiana workers compensation attorney to properly assemble the evidence (including medical testimony from doctors) and present such relevant and important facts in a clear and convincing manner to the judge.
Prescriptive Period (Time Limits to File an Occupational Disease Claim)
The prescriptive period - or time limit in which a claim must be filed - is one year from the date that the disease has manifested itself, the employee learns he is disabled, and the employee knows or has reason to believe that the disease is related to his occupation.
Again, one year from the date that:
- The disease manifested itself (or simply appeared);
- The employee is disabled from working as a result of the disease; and
- The employee knows or has reasonable grounds to believe that the disease is occupationally related.
All three requirements must be present for the one year time limit to start. So the one year clock only starts ticking when the disease has appeared, the employee learns he is disabled, and the employee knows or has reason to believe that the disease is related to his occupation.
It was not until 2001 that the Louisiana Legislature finally made this prescriptive period for an occupational disease claim the same as the fundamental one-year prescriptive period for cases of a workers compensation personal injury by accident. Now, all claims for disability arising from an occupational disease are barred unless the employee files a claim for workers compensation benefits within one year of the date that that all three of these conditions are satisfied.
Reasonable Grounds to Believe that the Disease is Occupationally Related
Concerning the requirement that the employee has reasonable grounds to believe that the disease is occupationally related, this is typically determined on a case by case basis by the particular facts of each case. Once example occurred when a Louisiana court found that where the claimant has been coughing up ink for several years and had been cautioned by her physician to avoid working in any environment containing smoke, dust, or fumes, the employee had reasonable grounds to believe that her disease was work-related.
Given the case by case nature of this requirement, a sick employee really needs to hire an experienced Louisiana workers compensation attorney to properly present the evidence to a workers compensation judge.
Occupational Disease Death Benefits
Additionally, all claims for death benefits arising from an occupational disease are barred unless the dependent or dependents of the deceased employee file a claim within one year of the date of death of such employee, or within one year of the date the claimant has reasonable grounds to believe that the death resulted from an occupational disease.
Compensation shall not be paid to an employee or his dependents for disability or death arising from disease suffered by an employee who, at the time of entering into the employment from which the disease is claimed to have resulted, willfully and falsely represented himself or herself as not having previously suffered from such disease.
So if the employee lies about the disease at the beginning of the employment, then the employee can never recover under workers compensation for a claim related to that disease.
Written notice of the time limitation in which claims may be filed for occupational disease or death resulting from occupational disease must be posted by the employer at some convenient and conspicuous point about the place of business. If the employer fails to post this notice, the time in which a claim may be filed shall be extended for an additional six months.
Occupational Diseases in Special Types of Employees
There are special rules for firemen and firewomen. For firefighters, heart disease as well as cancers of the bladder, brain, colon, liver, pancreas, skin, gastrointestinal tract and leukemia are presumed to be work related. To overcome that presumption in a claim by a firefighter, the employer must present testimony that the firefighter's work did not precipitate, accelerate, aggravate, or otherwise cause or contribute to the heart condition. So even if the work of a firefighter may have been a remote or minor cause of these diseases, the firefighter will be able to recover complete workers compensation benefits.
Also, because there are different rules for liability in firefighter cases, the courts have held that the last injurious exposure rule does not apply to these cases.
Under Louisiana law, a laboratory technician who is disabled because of the contraction of any disease, diseased condition, or poisoning, which disease, diseased condition, or poisoning is a result, whether directly or indirectly, of the nature of the work performed, is entitled to the same full workers compensation benefits as the laboratory technician would receive in a workers compensation physical personal injury claim by accident arising out of and in the course of employment.
Also, the dependent of a laboratory technician whose death is the result of a disease, diseased condition, or poisoning, whether directly or indirectly, of the nature of the work performed is entitled to the same full workers compensation benefits as the laboratory technician would receive in a workers compensation physical personal injury claim by accident arising out of and in the course of employment.
The phrase "laboratory technician" means any person who, because of his skills in the technical details of his work, is employed in a place devoted to experimental study in any branch of the natural or applied sciences; to the application of scientific principles of examination, testing, or analysis by instruments, apparatus, chemical or biological reactions or other scientific processes for the purposes of the natural or applied sciences; to the preparation, usually on a small scale, of drugs, chemicals, explosives, or other products or substances for experimental or analytical purposes; or in any other similar place of employment.
Special Types of Occupational Diseases
Certain types of diseases are specifically excluded from coverage, such as degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease. When one of these listed conditions is diagnosed, Louisiana courts will conclude that coverage for the occupational disease does not exist.
However, to the extent that certain conditions are excluded from occupational disease recoverable under Louisiana workers compensation, then these excluded events and maladies might be the subject of a tort (personal injury) recovery. This is similar to the way that the exclusions of “gradual deterioration or progressive degeneration” in a workers comp “personal injury by accident” may also allow these excluded events and maladies to be the subject of a tort (personal injury) recovery.
Carpal Tunnel Syndrome
Carpal tunnel syndrome is specifically allowed for recovery within the definition of occupational disease. In other words, if an employee suffers from carpal tunnel syndrome, the employee may be able to recover workers compensation benefits for the carpal tunnel syndrome. It all depends on whether the the employment caused the carpal tunnel syndrome.
Sometimes the causal relationship between the carpal tunnel syndrome and employment is fairly easily established, sometimes the causal relationship is somewhat more questionable but still proven, and sometimes the causal relationship is not proven and thus compensation is denied for that reason. In some cases, it has been recognized that the listing of carpal tunnel syndrome as an occupational disease does not exclude the possibility that it might have occurred as an “injury by accident” and might be covered for that reason. But again this must be proven on a case by case basis under the particular facts of each case.
Also, in several cases, it has been held that thoracic outlet syndrome is similar to carpal tunnel syndrome and thus should be considered as within the listing of carpal tunnel syndrome as an occupational disease.
Occupational Noise-Induced Hearing Loss (NIHL)
Under Louisiana law, occupational noise-induced hearing loss (NIHL) is considered an occupational disease. Because the occupational noise-induced hearing loss is covered under Louisiana workers compensation, employers are now granted tort immunity to an employer sued by employees for compensatory damages for such hearing loss.
Louisiana courts have said that it wanted to achieve “more expansive and comprehensive coverage to include employment-related ailments that did not fit within the schedule of diseases and were not by definition an accidental injury.” The court also said the question was whether NIHL is a disease or illness “due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease," and concluded that hearing loss is within those definitions.
Again, an occupational disease is one in which there is a demonstrated causal link between the particular disease or illness and the occupation. Therefore, Louisiana courts now find that hazardous levels of industrial noise, which cause the hearing loss, is a condition very characteristic of and peculiar to the particular employment of working in a very loud environment.