Litigating Occupational Disease Cases

By: J. Michael Parsons, Esq. with valuable assistance from his associate, AmandaConley, Esq., both of Parsons Law Group, LLC in Marietta, GeorgiaFor Worker’s Compensation Legal Advice Contact www.parsonslawgroup.com

Introduction

Since the inception of the Workers’ Compensation Act, occupational diseaseclaims have posed a challenge to legislators, lawyers, and claimants. Over time, moreand more diseases have been accepted as at least potentially occupational in nature.However, occupational disease claims still differ significantly from traditional workers’compensation claims both in the methods for proving the claim and the likelihood of compensability. First, the burden of proof is considerably higher for occupational diseaseclaims, as opposed to more traditional work-related injuries.

This higher burden of proof, accompanied by the standard elements of causation in workers’ compensationclaims, necessitates creative discovery tactics in order to prove compensability. Thisarticle will discuss a few of those methods, including how they can be successfullyimplemented and why they are useful to satisfy the requisite statutory elements of proof.

Historical Overview

Occupational disease has been recognized for virtually as long as organizedemployment has existed. Some of the oldest references to occupational diseases can befound in the descriptions of ailing workers made by ancient Greek physicians.Hippocrates described a severe attack of colic due to lead poisoning in a man who

ISSIAH

, R

ICHARD

C., G

EORGIA

ORKERS

’ C

OMPENSATION

§ 7.03, p. 335 (2nd ed. 2002).

Atlanta Work Injury Attorney www.parsonslawgroup.comworked as a miner extracting metals.

Hippocrates also noted the correlation between a paralysis in the hand and the worker’s occupation involving the twisting of twigs.

Other European physicians described lung diseases afflicting miners during the sixteenthcentury:[S]ome mines are so dry that they are entirely devoid of water and this drynesscauses the workmen even greater harm, for the dust, which is stirred and beatenup by digging, penetrates into the windpipe and lungs, and produces difficulty in breathing and the disease which the Greeks called asthma. If the dust hascorrosive qualities, it eats away the lungs, and implants consumption in the body.In the mines of the Carpathian Mountains women are found who have marriedseven husbands, all of whom this terrible consumption has carried off to a premature death.

In the seventeenth century, the Father of Occupational Medicine, BernardinoRamazzini, an Italian professor of medicine, published his work, The Diseases of Tradesmen.

Ramazzini studied miners, bakers, coppersmiths, chemists, mirror makers,stone cutters and cleaners of cesspits. It was Ramazzini who revised the Hippocratic artof medicine by requiring physicians to ask in which occupation ill workers wereemployed.

Ramazzini described hand pain and numbness among professional scribes andnotaries:The maladies that afflict the clerks arise from . . . incessant movement of the handand always in the same direction . . . Incessant driving of the pen over paper

Chojnacki, Robert J., “Occupational Disease Under the New York Workmen’s Compensation Law,” 42ST. JOHN’S LAW REV. 473, 475 (1968), citing D. Hunter, THE DISEASES OF OCCUPATIONS 9(1957).

Dembe, Allard E., Occupation and Disease, How Social Factors Affect the Conception of Work-RelatedDisorders, 27 (1996).

Chojnacki, supra, at 476, quoting Hunter, supra, note 1, at 26-27.

Id., at 477, citing Hunter, supra, note 1, at 32.

Id., at 478.

456

causes intense fatigue of the hand and the whole arm because of the continuousand almost constant strain on the muscles and tendons, which in the course of time results in failure of power in the right hand. An acquaintance of mine, anotary by profession, still living, used to spend his whole life continually engagedin writing . . . and he made a good deal of money by it; first he began to complainof intense fatigue in the whole arm, but no remedy could relieve this, and finallythe whole right arm became completely paralyzed. In order to offset this infirmityhe began to train himself to write with the left hand, but it was not very long before it too was attacked by the same malady.

The Emergence of the Occupational Disease Statute in Georgia

Workers’ compensation law has developed to view occupational disease claimsmore rigidly and with more suspicion than traditional workplace accidents.

The reasonis clear. It is simply more difficult to prove that a claimant suffered a work-related injurywhen there is no specific accident.

You also need medical evidence to show that anoccupational disease was caused by the claimant’s employment to a reasonable degree of medical certainty. In the case of an illness, it is much harder to prove that the illnessresulted from conditions of the claimant’s employment where there are several potentialcauses, even if workplace exposure is one accepted cause. For instance, smoking cancause lung cancer. However, the daily breathing of silica dust, smoke and fumes can alsocause lung cancer. Concern about this issue resulted in the earlier Georgia workers’compensation scheme providing an exclusive list of diseases that would be consideredoccupational for purposes of that act.

Dembe, supra, note 2, at 27. Quoting Ramazzini, B. 1713, Diseases of Workers, p. 229, 421, 423.

Brandt-Rauf, Sherry I. & Brandt-Rauf, Paul W.,

Compensation for Occupational Disease: Hidden Agendas

, H

EALTH

FFAIRS

, 73, 77 (Fall 1998). This article notes that twenty-one states, including Georgia,“limit coverage to diseases peculiar to the workplace, thereby excluding ordinary diseases of life andeliminating coverage for a significant amount of occupationally related disease.” Employers and their insurers tend to view these claims with skepticism, with “60 percent of diseases claims initially denied.”

. at 77 (“Occupational disease is often unpredictable before the fact, and the relationship between theworkplace toxins and illness may be subtle and confounded by synergistic effects and multiple causes.”);Hancock v. Modern Indus. Laundry, 878 S.W.2d 416 (Ark. Ct. App. 1994).

Kissiah,

supra

note 1, at § 7.01.