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with valuable assistance from his associate, Amanda Conley, Esq., both of Parsons Law Group, LLC in Marietta, Georgia For Worker’s Compensation Legal Advice Contact www.parsonslawgroup.com
Introduction Since the inception of the Workers’ Compensation Act, occupational disease claims have posed a challenge to legislators, lawyers, and claimants. Over time, more and 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 disease claims, as opposed to more traditional work-related injuries.1 This higher burden of proof, accompanied by the standard elements of causation in workers’ compensation claims, necessitates creative discovery tactics in order to prove compensability. This article will discuss a few of those methods, including how they can be successfully implemented 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 organized employment has existed. Some of the oldest references to occupational diseases can be found 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
KISSIAH, RICHARD C., GEORGIA WORKERS’ COMPENSATION LAW § 7.03, p. 335 (2nd ed. 2002).
Atlanta Work Injury Attorney www.parsonslawgroup.com worked as a miner extracting metals.2 Hippocrates also noted the correlation between a paralysis in the hand and the worker’s occupation involving the twisting of twigs.3 Other European physicians described lung diseases afflicting miners during the sixteenth century: [S]ome mines are so dry that they are entirely devoid of water and this dryness causes the workmen even greater harm, for the dust, which is stirred and beaten up by digging, penetrates into the windpipe and lungs, and produces difficulty in breathing and the disease which the Greeks called asthma. If the dust has corrosive qualities, it eats away the lungs, and implants consumption in the body. In the mines of the Carpathian Mountains women are found who have married seven husbands, all of whom this terrible consumption has carried off to a premature death.4 In the seventeenth century, the Father of Occupational Medicine, Bernardino Ramazzini, an Italian professor of medicine, published his work, The Diseases of Tradesmen.5 Ramazzini studied miners, bakers, coppersmiths, chemists, mirror makers, stone cutters and cleaners of cesspits. It was Ramazzini who revised the Hippocratic art of medicine by requiring physicians to ask in which occupation ill workers were employed.6 Ramazzini described hand pain and numbness among professional scribes and notaries: The maladies that afflict the clerks arise from . . . incessant movement of the hand and always in the same direction . . . Incessant driving of the pen over paper
2 1Chojnacki, Robert J., “Occupational Disease Under the New York Workmen’s Compensation Law,” 42 ST. JOHN’S LAW REV. 473, 475 (1968), citing D. Hunter, THE DISEASES OF OCCUPATIONS 9 (1957). 3
Dembe, Allard E., Occupation and Disease, How Social Factors Affect the Conception of Work-Related Disorders, 27 (1996). 4Chojnacki, supra, at 476, quoting Hunter, supra, note 1, at 26-27. 5Id., at 477, citing Hunter, supra, note 1, at 32. 6Id., at 478.
4 5 6
causes intense fatigue of the hand and the whole arm because of the continuous and 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, a notary by profession, still living, used to spend his whole life continually engaged in writing . . . and he made a good deal of money by it; first he began to complain of intense fatigue in the whole arm, but no remedy could relieve this, and finally the whole right arm became completely paralyzed. In order to offset this infirmity he 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.7 The Emergence of the Occupational Disease Statute in Georgia Workers’ compensation law has developed to view occupational disease claims more rigidly and with more suspicion than traditional workplace accidents.8 The reason is clear. It is simply more difficult to prove that a claimant suffered a work-related injury when there is no specific accident.9 You also need medical evidence to show that an occupational 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 illness resulted from conditions of the claimant’s employment where there are several potential causes, even if workplace exposure is one accepted cause. For instance, smoking can cause lung cancer. However, the daily breathing of silica dust, smoke and fumes can also cause lung cancer. Concern about this issue resulted in the earlier Georgia workers’ compensation scheme providing an exclusive list of diseases that would be considered occupational for purposes of that act.10
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, HEALTH AFFAIRS, 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 and eliminating 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.” Id. 9 Id. at 77 (“Occupational disease is often unpredictable before the fact, and the relationship between the workplace 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). 10 Kissiah, supra note 1, at § 7.01. See also, Lohman, Judith S., Occupational Diseases Under the Workers’ Compensation Law, Office of Legislative Research, Connecticut General Assembly (Sept. 14, 1995).
The original Georgia Workers’ Compensation Act excluded all disease from coverage, viewing all disease as ordinary. In 1946, the Act was amended to include four types of compensable occupational diseases: “(1) poisoning by certain agents; (2) disease condition caused by x-ray or radioactive substance exposure; (3) asbestosis; and (4) silicosis.” The 1971 amendment to the act added the catch-all category, including its five prerequisites for compensability, which is now encoded at § 34-9-280(2). However, that section still excludes partial loss of hearing due to noise, psychiatric and psychological problems, and heart and vascular disease, standing alone, from coverage under the Act. O.C.G.A. § 34-9-280(2). If a claimant’s disease did not appear on the list, or it could not logically be included in an existing category, the claim was not compensable.11 The justification for this list was that the selected illnesses were closer to occupational injuries rather than occupational diseases.12 The current law is arguably more flexible, with the exception of the four types of disease that remain excluded, but the current state of the law continues to pose a challenge to attorneys trying to recover for their clients. Current Occupational Disease Statute Occupational diseases are governed by Article Eight of the Workers’ Compensation Act. The term “occupational disease” is defined by § 34-9-280(2), which states that an occupational disease must “arise out of and in the course of the particular trade, occupation, process, or employment in which the employee is exposed to such disease.”13 In addition, § 34-9-280(2) qualifies this definition with five additional factors that must be proven:
Kissiah, supra note 1, at § 7.01. Id. at § 7.03. 13 O.C.G.A. § 34-9-280(2).
“(A) A direct causal connection between the conditions under which the work is performed and the disease; (B) That the disease follows as a natural incident of exposure by reason of the employment; (C) That the disease is not of a character to which the employee may have had substantial exposure outside of the employment; (D) That the disease is not an ordinary disease of life to which the general public is exposed; (E) That 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.”14 As with all other workers’ compensation claims, an employer is liable where “the disease arose out of and in the course of the employment in which the employee was engaged under such employer . . . and has resulted from a hazard characteristic of the employment in excess of the hazards of such disease attending employment in general.”15 On the other hand, compensation for an occupational injury requires only that the injury arise out of and in the course of employment.16 Thus, the burden of proof for an occupational disease is significantly higher. The burden of proving these five factors is on the claimant. Therefore, what evidence will be most helpful in establishing what is essentially a very strict element of causation? Under these circumstances, discovery can be used to establish the crucial connection between an employee’s harmful exposure in the workplace and the disease they currently suffer from. A physician’s opinion that the illness resulted from the claimant’s employment is essential,17 but often that opinion must be bolstered by other forms of evidence, especially where there is conflicting medical testimony. In addition, as a part of the patient’s history, a physician may want evidence of hazards in the work environment before he/she concludes that a claimant is suffering from an occupational
Id. O.C.G.A § 34-9-281. 16 O.C.G.A §34-9-1(4). 17 Ring v. Stone & Sons Monument, Ark. Workers’ Comp. Comm’n, Claim No. F305003 (April 5, 2004).
disease. Therefore, these discovery tactics focus on the workplace itself once the employee has had a thorough medical evaluation. The first option is to perform an inspection of the premises, which falls under the purview of Sections 9-11 of the Georgia Civil Practice Act governing discovery. Section 9-11-34 governs entry upon land for purposes of discovery, and states that a party may be permitted entry upon land or property in the possession and control of another party “for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon.”18 Such request must also fall within the scope of permitted discovery, which is essentially a relevancy requirement.19 In the case of occupational disease claims, entry upon land would apply to the employer’s premises. Although the claimant will have already described the workplace and the conditions of their employment to his/her attorney, an actual visual inspection can be a valuable tool. The attorney may notice something important that the employee did not think to mention, and will at least gain a better understanding of the conditions their client worked under. The inspection can also be performed by a specialist employed by the attorney, who will have a greater understanding of the hazards to look for. It also creates an undesirable situation for the employer. Business owners generally do not want lawyers and industrial engineers snooping around their establishment. Filing a request for entry upon land can create significant leverage. I analogize it to taking an adjuster’s deposition. It makes the other side quite uncomfortable. Air quality testing arguably falls under the same discovery provision, and can be used to much the same effect.20 Many occupational diseases involve the breathing of
O.C.G.A. § 9-11-34(a)(2). O.C.G.A. § 9-11-26(b)(1). 20 See, O.C.G.A § 9-11-34(a)(2), which refers to both “testing” and “sampling” the property.
dust, fumes and smoke over time. Thus, retaining the services of a clinical air quality tester can be useful to test the air at the workplace for possible contaminants. The attorney will have to be diligent in hiring such an expert who will need to have some litigation experience on the stand and have excellent credentials. You can be sure that the employer/insurer will have testing conducted to combat any evidence you obtain.. Nonetheless, if you have concrete scientific evidence that the air in the workplace contains contaminants and is harmful, you have gone a long way in proving that the claimant suffered a workplace exposure pursaunt to part (B) of the statute.21 Obviously, retaining an air quality tester to conduct air quality testing could be done in conjunction with a general inspection of the premises, yielding a broad view of the claimant’s working conditions in one visit to the employer. In the event that a more comprehensive review of the workplace is needed to identify potentially hazardous conditions, an industrial hygienist can be retained. An industrial hygienist typically evaluates the health effects of chemicals or noise in a workplace, but they can also look for any conditions that could result in illness.22 The industrial hygienist would have to meet the qualifications for an expert witness to testify at a hearing on the claim, but as long as they use testing methods typical to their profession, this burden should be easily met.23 At a hearing, the industrial hygienist can testify as to the state of the workplace upon inspection, as well as any conditions that could have caused the plaintiff’s illness. Even if the hygienist’s report is never used as
O.C.G.A § 34-9-280(2)(B). See generally, http://www.abih.org/general/cihcaih.html. The website for the American Board of Industrial Hygiene discusses in detail what an industrial hygienist is, what types of services they can render, and the qualifications necessary to become an industrial hygienist. The Board also notes eight areas of practice in this field, including occupational disease. 23 O.C.G.A. § 24-9-67.1(b).
evidence in a hearing, it provides support for the claim that the illness is directly connected to exposure in the workplace to a particular substance.24 Where a claimant works in an environment where they may be exposed to chemicals, the attorney may also request copies of all Material Safety Data Sheets (MSDS) kept by the employer. MSDS’s are documents prepared by chemical manufacturers to inform their customers of the hazards of those chemicals.25 Per OSHA regulations, all chemicals used in the workplace must be properly labeled and the employer must provide MSDS’s and safety training to all exposed workers.26 First, requesting copies of these reports allows an attorney to know exactly which chemicals the claimant was potentially exposed to. Without this knowledge, it may be difficult for a physician to link a particular disease with a specific cause inside the workplace. Second, the employer may have violated OSHA regulations on this point and either not have the required MSDS’s or have failed to properly train their employees. Although workers’ compensation is a no-fault system, the employer does not want to be caught disregarding important safety precautions especially OSHA who has the federal authority to levy fines and even shut down plants. Again, when you request MSDS’s in your discovery, the other side will know you have done your homework and you will have made a safety manager very uncomfortable. Admitting the MSDS’s as evidence at a hearing can be done under the business records exception to the hearsay rule. Records of an employer’s past OSHA violations are also discoverable in this context. If an employer has been cited in the past for violating OSHA regulations, these can be evidence of an unsafe workplace or at least a workplace where exposures could
See, O.C.G.A. § 34-9-280(2)(A) and (B). http://www.osha.gov/SLTC/hazardcommunications/index.html. 26 Id.
occur. Whether the violations were remedied can also be important in proving occupational exposure, because they show that the employer knew there were health hazards but failed to address the problem. These violations can also establish that certain health hazards existed in the workplace in the first instance, which may be necessary for establishing a causal connection between an illness and occupational exposure.
Illustrative Cases 1. Benzene Exposure/Hearing Loss A former client, let’s call him Jim Parks, sustained carpal tunnel syndrome and elbow injuries while on the job. He also had some hearing loss as a result of driving a chemcial tank truck for 31 years. During the course of representing Mr. Parks, I discovered that he had also developed bladder cancer. At first, Mr. Parks did not think the bladder cancer was work related but after a visit with a clinical toxicologist, his opinion started to change. The toxicologist was concerned about a recent urine sample which detected abnormally high levels of benzene in his body. Benzene is a known carcinogen and while not directly related to bladder cancer, the toxicologist certainly could not rule out benzene exposure as the cause of his bladder cancer. The toxicologist would not state with a reasonable degree of medical certainty that the benzene exposure led to the bladder cancer but said that it must be “strongly considered”. At that point, I did not feel that I had quite met my burden of proof and began to engage in discovery. I was also concerned that bladder cancer would not satisfy section (D) of O.C.G.A. § 34-9-280(2) which states: “That the disease is not an ordinary disease
of life to which the general public is exposed.” Certainly, cancer is an ordinary disease of life. Therefore, I had to demonstrate that by virtue of Mr. Parks’ employment, he was much more at risk than the general public for developing a more rare type of cancer. I determined that the employer did not maintain MSDS’s even though Mr. Parks had daily exposures to benzene. I also was able to discover many other hazardous and cancer-causing chemicals from which Mr. Parks was exposed. I retained an expert in workplace exposures to testify to a reasonable degree of medical certainty that Mr. Parks’ workplace exposures directly caused his bladder cancer especially in light of the fact that Mr. Parks did not ever smoke or engage in any of the other contibuting factors. We were also able to retain an industrial hygienist to show that Mr. Parks had sustained severe hearing loss from driving the chemical tankers. The case was settled very favorably for Mr. Parks who retired and was able to keep his medical benefits.
2. Pulmonary Fibrosis
My client, a welder and machine operator, worked at a manufacturing plant that assembled brakes and struts for automobiles. He developed pulmonary fibrosis as a result of a thirty two year history of exposures to smoke, dust, chemicals and asbestos according to his treating physician, a pulmonologist. He also treated with another pulmonologist who examined him to determine his candidacy for a lung transplant. This second doctor opined that my client had idiopathic pulmonary fibrosis but could not rule out occuptional exposures as a causative factor. The employer had four other pulmonologists review the medical records and all four determined that my client had
idiopathic pulmonary fibrosis. However, none examined my client or obtained any history of his occupational exposures. Obviously, we were in for protracted litigation. In discovery, we were able to obtain MSDS’s and past OSHA violations from the employer. Importantly, one of the chemicals that my client was exposed to created quite a concern for the treating physician. She testified that repeated exposure to chromium causes severe respiratory problems that could lead to pulmonary fibrosis. The OSHA violations for unclean air and inadequate ventilation provided an excellent platform for the treating physician to testify that the totality of the occupational exposures caused my client’s pulmonary fibrosis. An inspection of the plant by an industrial hygienist also confirmed the poor air quality in the plant even though the employer made a valiant effort to “clean up” for the inspection. Unfortunately, my client passed away during the pendency of this claim and the matter is still pending after three years due to repeated delays and continuances. Conclusion Occupational exposure cases are difficult to prove and can be prohibitively expensive. Nonetheless, there are good cases out there that deserve aggressive representation. Hopefully, some of these discovery tactics will be useful in your practice. Appendix #1 is a sample of discovery submitted in case #2.
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