When we think of workers’ compensation in Virginia, we typically think of injuries by accident. Virginia law instructs us to look for a specific and identifiable event as the cause of an injury. That being said, there are situations where a person is entitled to compensation for injuries that lack any type of identifiable event, these are known as “Occupational Diseases.”
Virginia Code §65.2-400 defines “Occupational Disease” as “a disease arising out of and in the course of employment, but not an ordinary disease of life to which the general public is exposed outside of the employment.” The occupational diseases seen most often are generally the product of continuous exposure to a certain workplace hazard (e.g., fumes, bacteria, mold, etc.).
Occupational diseases range from conditions as common as COPD to conditions as devastating and rare as the cancer, Mesothelioma. An employee who has a compensable occupational disease shall be entitled to the same hospital, medical and miscellaneous benefits as an employee who has a compensable injury by accident. There are two statutes of limitations one must be cognizant of that apply specifically to occupational disease cases. As a general rule, occupational disease claims must be filed within two years after a diagnosis of the disease is first communicated to the employee or within five years from the date of the last injurious exposure to the hazard that caused the disease. VA Code §65.2-406 (A)(6). These limitation periods are oftentimes at issue in occupational disease cases and must be analyzed carefully. It is important to determine precisely when the employee first learned of the diagnosis and precisely when the exposure to the hazard ended.
In what I would call a subcategory of Occupational Diseases, are “Ordinary Diseases of Life.” Virginia Code §65.2-401 says “An ordinary disease of life to which the general public is exposed outside of the employment may be treated as an occupational disease if established by clear and convincing evidence.” Clear and convincing evidence is a greater burden of proof than what is required in other workers’ compensation cases. Typically, a claimant is only required to prove an issue by a preponderance of the evidence (i.e., “more likely than not”). Therefore, it is much more difficult for a claimant to prove causation when the condition at issue is an ordinary disease of life.
Hearing loss, for example, though typically part of the aging process, can be found to be a compensable occupational disease in some circumstances. Carpal tunnel is another ordinary disease of life that is sometimes found to be a compensable occupational disease. Though these conditions are the product of cumulative trauma or repetitive movement, do not dismiss their potential compensability. Occupational disease claims have the potential to result in extreme medical expenses and should be fought with vigilance.
Adjuster Tips for Occupational Disease Cases in Virginia
- The employee must have been diagnosed with the disease at issue. A tentative diagnosis is not sufficient.
- The employee’s physician must causally relate the disease to the particular work hazard. A physician stating that the disease “may” be caused by the work hazard is not sufficient.
- An employee must file a claim within five years of his last exposure to the work hazard, and an employee must file within two years of being informed of the diagnosis of the disease. A claim that is not timely filed is forever barred from being filed.
Should you have any questions regarding occupational diseases, please do not hesitate to contact our office.