Occupational Disease Claims
Valid occupational disease claims can include, but certainly are to illness or infirmity resulting from exposure to chemicals and industrial substances (with resulting lung diseases, heart disease, organ organic brain dysfunction, loss of teeth, loss of hearing, loss of reproductive function and ability, loss of smell, etc.); repetitive use of hands, legs, back, neck, eyes and voice. They can involve silicosis, asbestosis, tuberculosis, brucelosis, pneumonicosis, acidosis, and nervous breakdowns. left out would be carpal tunnel syndrome, tarsal tunnel syndrome, syndrome, tendonitis, arthritis, and bursitis, lumbar and cervical chronic synovitis of the knees and shingles.
Just about anything that can happen to a person, which ultimately culminates in a condition that can be medically linked to the work environment, be pursued as an occupational disease claim.
PROCEDURES FOR THE INJURED WORKER TO FOLLOW
As with any industrial injury claim, the injured worker has the initial responsibility to report his or her claim to the employer within certain time limits in order for the claim to be compensable. Notice is required within 180 days of when the employee’s claim arises.
Under §34A-3-108, UCA, the claim arises when the employee “first suffered disability from the occupational disease and knew, or in the exercise of reasonable diligence should have known, that the occupational disease was caused by the employment.”
This notice requirement contains two parts. First, we have the requirement that the employee must suffer from disability from the occupational disease, and second, the requirement that the employee must know or should know, under a reasonable person standard, that the disease was caused by the employment. Notice must be given within 180 days of these two conditions being met.
It is important to bear in mind that it is not necessary to a compensable claim that the cause-of-action arise during the term of employment. Claims arising out of asbestos exposure or exposures to dust and particles resulting in an interstitial fibrosis, or other product exposures, may arise 10 – 15 – or 20 years after the exposure at work, and may still be compensable, so long as the employee reports it to the employer or the Labor Commission within 180 days of first suffering disability (and provided the last exposure occurred after 1940). This is because although the exposure occurred years ago, the illness and resulting disability may have just arisen. The focus must be on when the disability arose, not when the exposure occurred.
Sometimes a worker may be disabled due to an illness, such as a lung disease, that he and his doctor believe is due to a non-industrial source, such as smoking. However, subsequent testing may reveal that the problem is due all or in part to something such as silicosis or asbestosis - and is work related. Once this knowledge, such as the test results, has been communicated to the injured worker, then the 180-day period begins to run, regardless of when the individual last worked for the employer in question.
Compensation benefits are essentially the same for an occupational disease claim as they are for a traditional workers compensation claim, subject to a few exceptions.
Visit www.dslaw.com to read the entire paper on occupational disease claims by Phillip Shell.
This page was written by attorney Phillip Shell.
Contact him at www.dslaw.com for more information on ocuupational disease claims.
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(Chartered April 1, 1988)
The Injured Workers Association of Utah (IWAU) is a Utah non-profit corporation concerned with over 70,000 injured, disabled and displaced workers each year who suffer the financial and personal hardships occasioned by industrial injuries and occupational diseases in Utah. It is neither union nor non-union, and represents all members of the workforce. Its membership is open to all injured workers regardless of race, creed, color, age, sex, national origin, religious persuasion or political affiliation
copyright 1999 - updated March 2005
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