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OCCUPATIONAL DISEASE – UNDERSTANDING THE LAW
Fred H. Kumpf J.C. April 2000
OCCUPATIONAL DISEASE COMPENSABLE -N.J.S.A. 34:15-30
The statutory formula for compensability for occupational disease is similar to that for accidental injuries, that is, “compensation for personal injuries to or for death of such employee by any “compensable” occupational disease arising out of and in the course of the employment” Section 30. There appears to me to be three essential elements of Section 30. There must be an injury or death – due to a “compensable” occupational disease – which must arise out of and in the course of the employment. There is an exception for willful self-exposure but that exception has never been established, to my knowledge, so it is not that important.
OCCUPATIONAL DISEASES BEFORE 1950
Let us look first at what the law was before our present occupational disease statute was enacted. In 1911 when the Workers’ Compensation Act was first enacted there was no coverage for occupational diseases. Partly this was due to the fact that compensation laws were an alternative to the common-law tort actions and no common law claim had ever succeeded for occupational diseases. There was thought to be no quid pro quo to the employer to justify including occupational diseases in the Workers’ Compensation system. Coverage of diseases also developed slowly because of a fear that employers and their carriers could not meet the financial burdens of occupational diseases.
Many of the filing requirements were designed to protect employers and carriers from future liability, which was unpredictable. We have seen recently a resurgence in the use of these filing requirements to deny compensation for occupational injuries.
In 1924 New Jersey enacted its first occupational disease law, which consisted of a list of diseases with no catchall provision such as “or any other similar disease”. Specific diseases were added by amendment until 1949 when the general occupational disease act was enacted was effective, Jan. 1, 1950. There were two exceptions initially for asbestosis and silicosis. These exceptions were eliminated in 1951.
Between 1924 and 1949, if a disease was not on the list it was not compensable unless it could be an accident. The Compensation Court had no power to expand coverage beyond the diseases listed in the Act. You have these curious cases where the employer is arguing the worker has an occupational disease. So, in Glick v. Wright Aeronautical, the employer argued that the petitioner’s carpal tunnel syndrome was caused by continuous strain on his fingers while polishing over the 11 weeks of his employment. The Compensation Court found petitioner’s injury compensable. Because of credibility problems of the petitioner, who alleged an accident when he was struck on the wrist by a piece of metal, the Court of Common Pleas in a trial de novo found the injury was an occupational disease and not compensable. This determination was affirmed by the Supreme Court, which was the equivalent of the Appellate Division now. Ptak v. General Electric Co., was decided in 1951 but the employment and injury were before 1950. On Nov. 21, 1949 at 3:30 p.m. the petitioner was assigned to a new job, to make cardboard boxes, which required bending repeatedly. At 9:00 p.m. she could not straighten up and had developed a sacroiliac sprain. The Compensation Court concluded this was an occupational disease not an accident and, therefore, not compensable. The County Court in a Trial de novo rejected this conclusion which was affirmed by the Appellate Division which held this was an accident. Incidentally, these old cases are a great place to look for law holding that a RSD is an occupationally related disease.
THE CURRENT OCCUPATIONAL DISEASE STATUTE
Let us look at what kind of occupational disease statute we have now in Section 30. The effective date was January 1, 1950. It is a general occupational disease statute – including all diseases even those resulting from repetitive stress. The Liberal Construction doctrine is applied to the definition of “disease” so that it is broadly defined to be “any departure from the state of health presenting marked symptoms. Giambatista v. Thomas Edison. By applying this standard courts are trying to distinguish between diseases of ordinary life and diseases which are due to the employment. So, courts are asking the question, was there something in the employment which either caused, accelerated, exacerbated or aggravated the petitioner resulting in injury.
One other principle in Workers’ Compensation to understand occupational diseases is that the employer takes the worker “as is” with all his/her weaknesses or individual susceptibilities and is responsible for the end result if the work activates, aggravates, accelerates or exacerbates some pre-existing problem. Belth v. Anthony Ferrante & Son. An Amendment to Section 12(d) in 1979 helps the employer by allowing a credit for pre-existing disability.
COMPENSABLE OCCUPATIONAL DISEASE DEFINED
The key to Section 30 is that only “compensable” occupational diseases fit into the statutory formula. Compensable occupational disease is defined in Section 31 (a) to include all diseases arising in out of and in the course of the employment, which are due in a “material” degree to causes or conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment”.
Subsection (b) of Section 31 states that deterioration of a tissue, organ or part of the body in which the function of such tissue or part of the body is diminished due to the natural aging process thereof is not compensable.
So what does this all mean? First you must establish that a repetitive stress disorder arises out of and in the course of the employment. There must be proof of causation to a material degree. The condition must be characteristic of or peculiar to the employment. There must be proof the worker’s problem is more than that he or she is getting old. This last requirement is especially a problem with conditions of old age such as arthritis.
ARISING OUT OF AND IN THE COURSEOF THE EMPLOYMENT
Let us now look closer at these elements in establishing a compensable disease. Arising out of deals with the nature of the risk. You must establish that a stress disorder is a risk of the employment.
The old view of occupational disease was that it developed gradually and was the kind of condition that would be expected from the work being done. Accidents were viewed as something unexpected. Looking from the viewpoint of the worker, if the event was an unlooked for mishap or untoward event which was not expected or designed then it was an “accident”.
This was the language used by the Appellate Division in Ptak and Court of Common Pleas in Glick. In Glick the Court of Common Pleas quoted the definition of occupational disease from Bollinger v. Wagaraw Building Supply Co., 122 N.J.L. 512: “An occupational disease is one that from common experience is visited upon persons engaged in the usual course of events. It is one that is incidental to the employment itself, e.g., painters become affected with lead colic or poisoning, telephone operators develop ear troubles . . . In such instances they are injuries or diseases common to workers in those particular trades. . .The term “accident” in Section 7 did not include “conditions as are regularly expected as a result of a person doing his regular work in the regular way."
Bondar v. Simmons involved a bursitis of the shoulder. The worker for 5 years acted as filler on a machine requiring the pushing of a lever 500-700 times a day. On Feb. 7, 1951, so the present act applies, he had to stop working due to pain in the shoulder diagnosed as bursitis or calcific tendonitis. The Appellate Division affirmed the Compensation Court’s award of compensation on the basis that although not generally recognized as an occupational disease, this condition was due to the employment or arose out of and in the course of the employment and was characteristic of and peculiar to his employment. In rejecting the employer’s argument that this condition was not peculiar to the employment but particular to the individual, the court said, “the work employment . . .is not designed to restrict recovery to employments which are innately dangerous, but is intended to include employments from which a disease arises by reason of the susceptibility of the particular claimant to the deleterious effects of his occupation.”
In Neylon v. Ford Motor Co., the worker injured his back – a sacroiliac sprain – unloading a freight car on Nov. 16, 1948, so the old act applies. So, if it’s not an accident, it’s not compensable. The Compensation Court held this was an accidental injury arising out of and in the course of the employment. The employer argued the sprain resulted from a strain or exertion which was not an unusual one -–pressing the old idea of accident as unexpected or unusual. The County Court affirmed the award. The Supreme Court affirmed by an equally divided court. Justice Jacobs rejected the employer’s argument indicating he knew of no instances when the court’s rejected orthopedic injuries, which were the result of performance of usual work. The dissent wanted to apply the Seiken case test requiring unusual strain in cardiac cases to this orthopedic injury. Later the unusual strain requirement in cardiac cases was rejected.
In the Laffey case, the Appellate Division revered an award of compensation for occupational pulmonary disease to a police officer who worked in a police station described as dusty, fumes from the street came in the windows and on foot patrol was exposed to truck fumes and fumes from fires and odors from a landfill. The court held that the petitioner failed to establish a link between the disease and his occupational conditions. The court indicated petitioner failed to show that the conditions surrounding his work environment were “peculiar” to the employment. The petitioner also failed to demonstrate with objective medical evidence that the ailment was related to exposure to the environment as a result of his employment. The court indicated proof was required that the exposure was in excess of that ordinarily encountered in everyday living.
As long as this is merely a way of saying we must ensure that a worker’s disease was more than a disease of ordinary life, it is not a problem because that is what we are trying to do, distinguish diseases due to the employment from those of everyday life. The language, however, is susceptible to the interpretation that peculiar to “means” only diseases that are expected as a result of the employment are compensable. The language is also susceptible to meaning that the new heart requirement in Section 7.2 of “in excess of claimant’s daily living” is being applied to other than heart occupational claims. This was rejected in the past and should continue to be rejected based upon the statutory language of Section 7.2, which only applies to heart and cerebral vascular injuries.
The other half of the arising test for compensability is arising in the course of the employment, which deals with the time and place of encountering the risk. The thing to remember is that you don’t have to be in the course of your employment but the injury only need arise in the course of the employment. Arise is a modifier of both out of and in the course of.
CAUSATION TO A MATERIAL DEGREE
The next requirement of Section 31 we will discuss is that there be proof of causation to a material degree. For accidental injuries New Jersey adheres to the positional risk doctrine – if your employment brings you into contact with a neural risk, it is compensable. This is not true with occupational diseases since 1979. In occupational disease claims generally in this nation workers compensation did not look at the degree of contribution by the employment to an occupational disease, as long as there was some contribution by the employment. Since 1979 this is no longer true in New Jersey. The employment must be a “material” contributing factor to the development of the disease. Material is defined in Section 7.2 to be an appreciable degree or a degree substantially greater than de minimis. So a worker must now show that the employment contributed to the disease to a greater extent than was necessary prior to the adding the words “material degree”. There may be more than one material contributing factor in the development of a disease, but to prove a compensable occupational disease the employment must be one of the material contributing factors.
PECULIAR TO OR CHARACTERISTIC OF THE EMPLOYMENT
The elimination in 1979 of the last phrase in the definition of compensable occupational disease in Section 31, also forced courts to deal with the statutory language “causes and conditions which are characteristic of or peculiar to a particular trade, occupation process or place of employment”.
The highest level of risk requirement and the hardest to establish is “the peculiar risk doctrine” which is on the other end of the scale from the positional risk doctrine. This peculiar risk doctrine makes compensable only those risks that could only come from the employment. It is again the old idea of occupational diseases as those, which every worker would develop if exposed, long enough with sufficient intensity of exposure.
Many state statutes have this “peculiar to” language similar to Section 31 and most have interpreted the language to require only an “increased risk” level to establish a compensable disease. That is, the person is exposed to similar things outside of work, but the frequency and/or intensity are greater at work. This requires proof of the intensity and frequency of exposure at work to the cause of the disease in question. Failure to establish a lengthier or more intense exposure or one peculiar to the employment was why the Laffey case ultimately was unsuccessful.
In Fiore the Supreme Court indicated that in order to establish an occupational heart claim you had to meet the standards in both Section 7.2 for heart claims and Section 31 for occupational claims. The Court stated there were three requirements as follows: (1) “the petitioner must show that the disease is due in “a material degree” to causes “arising out of” the workplace and that they are or were characteristic of or peculiar to a particular trade, occupation , process or place of employment (2) you must prove by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease. Where there are multiple risk factors, some of which are personal to the petitioner, the worker “must show that the work exposure exceeds the exposure caused by the petitioner’s personal-risk factors” and (3) must show that the employment exposure substantially contributed to the development of the disease. The Court explained substantial contribution by stating “when the exposure is so significant that, without the exposure , the disease would not have developed to the extent that it caused the disability resulting in the claimant’s incapacity to work.” This will require proof of (1)
the extent of petitioner’s exposure to the alleged occupational condition (2) the extent of other non-work-related exposures or conditions (3) the manner in which the disease developed with respect to the claimant’s medical and work history. Because of the use of “peculiar to” in the definition of compensable occupational disease and because of some of the language in Fiore and Laffey referred to earlier, the cases where claimants are having trouble are those where the courts, without specifically setting the level of risk required, are viewing the statute as requiring a peculiar risk.
You also need to know how specific your particular judge is on the proofs of the exposure and causal relationship. Some are pretty tough.
These risk level requirements are undercurrents in decisions. You must become aware of when these problems exist under the surface and if you are the petitioner’s attorney you should have the cases available to argue that Section 31 does not require the showing of a “peculiar risk” but only an “increased risk”. If you represent the employer you should use those cases where the courts in other jurisdictions have held this peculiar to and characteristic of “language requires proof of a peculiar risk”. It is hard to believe that we have been operating under this statutory language since 1979 and still do not have a definitive decision of what level of risk must be shown to establish a compensable occupational disease. This probably means that attorneys are not making these arguments either on the trial level or appellate level.
The increased risk test has been established in three types of situations:
1. Where there is exposure to an unusual substances or motion in the employment – as exposure to asbestos
2. Where there is exposure to usual substances or motions but to an unusual degree – butcher going in and out of a freezer develops pneumonia
3. Occupational Transmission of ordinary disease – nurse exposed to someone with Tuberculosis and develops Tuberculosis
MORE THAN THE NATURAL AGING PROCESS
You also have the burden of showing that the symptoms and condition of the claimant is more than the natural aging process. None of us can do at age 60 what we could do at age 20. Complaints and physical limitations must be shown to be more than just getting old. This requires more than a litany by the petitioner of what I can’t do now that I could do before.
MULTIPLE EMPLOYERS, INSURANCE OR INJURIES
The nature of occupational disease is that it develops gradually and sometimes imperceptibly until at some point the person realizes things just are not normal. Where there are a series of employers such as with boiler makers, union laborers or roofers or where there is one employer, which is covered by a series of workers’ compensation insurance carriers, who will be responsible for workers’ compensation for the disease?
An arbitrary rule was reached by the Supreme Court that the last carrier or employer when disability “manifested” is responsible for paying all the compensation benefits.
Actually any time there is a manifestation the employer or carrier at that time is responsible, Bond v. Rose Ribbon & Carbon Mfg. Co., 42 N.J. 308 (1964). In Giagnacovo the Court held that an employment of 14 days was enough to hold the employer responsible for the last condition. Vastino indicates that there must be a material contribution to the disease by the last employer in order for that employer to be responsible for the disease. There are some cases where the last employer is just for a few days or was a different exposure from prior employer’s exposures so they are not held responsible.
MANIFESTATION OF DISABILITY
Manifestation occurs in three ways –
1. Medical evaluation fixing disability
2. Stopping work as a result of the disease
3. Manifest loss of physical function. This involves situations where a worker would know by his own experience that a condition had developed, i.e., one that can be seen or heard by the worker’s own senses, such as a Dupuytren’s contracture or hearing loss.
In any one case you may have several manifestations based upon these standards, which may mean there are several employers responsible for their respective manifestation.
A common practice developed after an accidental injury when the injured worker returned to work, to file occupational claims against the new employer or new carrier for the same employer alleging aggravation, exacerbation or acceleration of the compensable injury. This practice has been severely curtailed because of the Kozinsky and Peterson decisions, which require proof of a material contribution by the employment to the injury and objective medical evidence of disability due to the subsequent employment. If there are two accidents, however, the result is different. Even where the medical experts can not apportion the disability between the two accident based upon their respective contribution to the final disability, the courts must do so according to Bajnath.
BURDEN OF PROOF
The petitioner or injured worker has the burden of proving by a preponderance of the evidence “all of the elements of the claim – including the occurrence of an injury arising out of and in the course of employment, medical causation, material contribution, manifestation, the extent temporary disability and permanent disability.
Preponderance of probabilities – means evidence must be greater than 50% leading to a specific conclusion.
Medical causation opinions must be based upon reasonable medical probability or certainty, which refers to the general consensus of, recognized medical thought and opinion concerning the probabilities of conditions in the future based upon present conditions. Schrantz v. Luancing 218 N.J. Super 434 (Law Div. 1986).
PERMANENT PARTIAL DISABILITY
N.J.S.A. 34:15-36, the definition section of the Act contains a definition of Permanent Partial Disability as follows: “Disability permanent in quality and partial in character means a permanent impairment caused by a compensable occupational disease, based upon demonstrable objective evidence which restricts the function of the body or of its members or organs, included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee’s working ability . . . Injuries such as minor lacerations, minor contusions, minor sprains. . .and occupational disease of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition.”
It is clear from the last sentence that you could met all the requirements of a compensable occupational disease establishing an increased risk, a material contribution by the employment, medical causation based upon reasonable medical probability, the presence of some functional impairment and still not be entitled to permanent partial disability. A disability greater than “minor” must be established by the employee.
This definition also requires proof of “objective medical evidence of a functional restriction”. According to the Supreme Court in Perez once objective medical evidence of restriction has been established, then it must be determined whether the disease is minor or serious.
1. Proof of a material lessening of working ability if proven will suffice. Again “material” has same meaning – appreciable degree, or a degree substantially greater than de minimis from Section 7.2.
2. If material lessening of work is not established there must be proof of material impairment in carrying on the “ordinary pursuits of life”.
The employee has the burden of establishing these criteria for permanent partial disability, Perez v. Pantasote, Inc., 95 N.J. 105(1984)
EMPLOYER’S BURDEN OF PROOF
Section 12(d) Credit to employer for prior functional loss:
The employer has the burden of proving by a preponderance of the evidence that the employee had a prior functional loss under N.J.S.A. 34:15-12(d). It is insufficient to establish there were non-work factors contributing to the disease. It is necessary to establish that prior to the employment exposure the employee had a disability. If a worker has a pre-existing weakness, which is aggravated, exacerbated or accelerated a repetitive stress in the employment. When both of these factors contribute to the ultimate disease there is no credit under 12(d) unless the employee had disability from the pre-existing weakness prior to the employment exposure.
The mechanics of the Section 12(d) credit essentially is the employer is responsible for compensation that would be payable from the pre-existing disability to the final disability. Abdullah v. S.B. Thomas, Inc. 190 N.J. Super. 26 (App.Div. 1983)
Recent case law has made the “notice” provisions concerning occupational disease very significant. N.J.S.A. 34:15-33 provides that unless the employer has knowledge, which can be imputed from the circumstances at times see (Panchak v. Simmons Co., 15 N.J. 13 (1954), and other cases under knowledge, the employee or someone on their behalf must provide written notice to employer that the employee has developed an occupational disease within 5 months after the employee ceased to be exposed or within 90 days of when the employee knew or ought to have known the nature of the disability and its relation to his employment whichever is later. Failure of notice is a complete bar to compensation.
This notice requirement was recently interpreted by the Supreme Court which held that the employer did not have to show prejudice as a result of failure of notice in order for the lack of notice to act as a bar to compensation. In the Brock case, the knowledge of the employee required by the statute resulted from having received a settlement check in a third party civil action for the same pulmonary condition. The decision in Brock v. Public Service & Gas Co., 149 N.J. 378 (1997), collects and discusses all of the “notice” cases in New Jersey. If you are a petitioner’s attorney you should be aware of all of the “knowledge” cases if you have a notice problem.
N.J.S.A. 34:15-34 provides that there is no time limit for filing a workers compensation claim for occupational disease provided that where a claimant knew the nature of the disability and its relationship to the employment (no ought to have known as in notice provision), all claims are barred unless a claim petition is filed in Trenton within 2 years of the date of such knowledge.
Some employers have argued that this two-year period runs even when the employee continues to be exposed. The Supreme Court recently held that there is no specific case law prohibiting the tolling of the jurisdiction of the Workers’ Compensation court during continued exposure, but left open the question for another case. Earl v. Johnson & Johnson 158 N.J. 155(1999). The Brooks v. Bethlehem Steel Co., 66 N.J.Super. 135,138 (App. Div. 1961) certif. den. 36 N J. 657 (1961), case held that the two-year period was tolled during continued exposure that contributed to the disability.