Author: Chris Boggs
Like work-related bodily injuries, illnesses, sicknesses and diseases must be considered “occupational" to be covered by the workers' compensation policy. Before an illness or disease can be considered occupational and thus compensable under workers' compensation two tests must be satisfied:
- The illness or disease must arise out of and be in the course and scope of the employment; and
- The illness or disease must arise out of or be caused by conditions “peculiar" to the work.
Whether an illness arises out of and in the course and scope of employment is a function of the employee's activities. The simplest test toward determining whether an injury “arises out of and in the course and scope of employment" is to ask: Was the employee benefiting the employer when exposed to the illness or disease? State laws often play a part in this determination.
Qualifying as “occupational" is the simple part. It is more difficult to prove that the illness or disease is “peculiar" to the work. If the illness or disease is not peculiar to the work, it is not occupational and thus not compensable under workers' compensation. An illness or disease is considered “peculiar" to the work when such a disease is found almost exclusively in workers employed in a certain field or there is an increased exposure to the illness or disease because of the employee's working conditions.
For example, black lung disease in the coal mining industry is peculiar to the work of a miner. Coal miners are subject to prolonged exposure to higher-than-normal concentrations of coal dust leading to black lung disease. This makes the disease peculiar to the coal mining industry.
Another example of an exposure “peculiar" to the work is a healthcare worker contracting an infectious disease such as HIV or hepatitis as a result of contact with infected blood. The worker's unusual or “peculiar" exposure to such diseases results in an illness that is occupational and compensable.
Other illnesses often related to work include carpal tunnel syndrome, hearing loss from noisy operations, asbestosis, silicosis, contact dermatitis (chemicals) and even Lyme disease (for employees working in wooded areas).
Some illnesses less clearly attributable to conditions peculiar to the work include:
- Asthma: Often affects workers commonly around animal and plant products, wood dust, metals, cutting oils and other irritants;
- Bronchitis: Common among employees working around high concentrations of acids, smoke and nitrogen oxides;
- Hypersensitivity pneumonitis: Most often found in workers around moldy hay and cutting oils;
- Respiratory irritation and infections: Seen mainly in office workers arising out of indoor air pollution (a.k.a. sick building syndrome);
- Skin cancer: Common in workers with long-term exposure to ultraviolet light;
- Brain and other tumors: Common among employee's with long-term exposure to radiation;
- Coronary artery disease: Mostly attributable to employees exposed to carbon monoxide and stressful working conditions;
- Stress-related illnesses: Heart attacks, stroke and other such conditions; and
- Eye and sight problems: Office-bound employees often experience eye and sight problems due to the need to focus on a computer screen for long periods.
Qualifying an illness or disease as occupational and peculiar to the work may ultimately require industrial commission or court intervention to differentiate between medical opinion and legal facts. No one “test" is available to declare an illness or disease compensable or non-compensable; each case is judged on its own merits and surrounding circumstances.
Concluding that an illness is occupational, peculiar to the work and ultimately compensable is not necessarily based on the disease in question but on the facts surrounding the worker's illness. Factors investigated and considered include:
- The timing of the symptoms related to the work;
- Co-workers showing similar symptoms;
- Is the illness common to the industry;
- Does the employee have a predisposition to such illness; and
- Personal habits and medical history of the worker.
Which Policy Responds to Qualifying Occupation Illnesses and Diseases?
Once it is concluded the illness or disease if “occupational," which policy responds? Because occupational illnesses and diseases generally have long “gestation" periods, employees may be exposed to the harmful condition for many years before the illness manifests. It is also possible that the employee doesn't contract the disease until years after the exposure ends.
So, which workers' compensation policy responds? Easy! The workers' compensation policy specifically states that coverage is provided by the workers' compensation policy in effect at the employee's last exposure responds to the illness — even if the employee is working for another employer or retired at the time the disease manifests itself.
Last Updated: December 6, 2019