Workers Compensation Attorney for Occupational Disease Claims in Virginia
In Virginia injured employees can receive workers compensation benefits not only when they suffer an injury by accident but also when they contract a disease caused by their employment. The Virginia Workers Compensation Commission has jurisdiction over these occupational disease claims. And though occupational disease workers comp claims make up a small percentage of all claims filed, they often require litigation because of their complexity and the cost of medical treatment required to treat the illnesses.
This article provides an overview of the occupational disease claim process in Virginia. We recommend that you contact an experienced workers comp attorney if you believe that you’ve contracted an illness because of your work. With a skilled representative in your corner you have a better chance of getting approved for benefits and negotiating a lump sum workman’s comp settlement.
Do I Have an Occupational Disease or Illness Claim under Virginia Workers Comp?
Before we determine whether an injured worker has an occupational disease claim, we investigate and search for the answers to several questions. Below is a list of questions we review before asking the Commission to refer a client’s case to a workers compensation hearing based on a work-related disease.
Did you suffer an accident or an occupational disease?
Usually this is an easy question to answer. But not always. Some medical conditions have multiple causes. For example carpal tunnel syndrome can develop over time because the employment requires frequent hand use or it can develop suddenly because of a traumatic event like a car accident.
Injure workers can file under an injury by accident or an occupational disease theory if the origin of the condition is not clear. We recommend doing so in all such cases. You are allowed to allege alternative theories of compensation.
Did your physician tell you that your disease was caused by your employment?
You do not have an occupational disease claim unless a doctor has diagnosed you with a work-related disease and told you that your condition is related to your employment. This date is equivalent to the date of accident for claims brought under an injury by accident theory.
Do not file a workers compensation claim until you receive an official diagnosis and are told that your diagnosis is related to work. A tentative diagnosis or a diagnosis that requires additional testing to confirm is not considered an official diagnosis under the Virginia Workers’ Compensation Act.
Has the statute of limitations for your occupational disease expired?
Virginia Code Section 65.2-406 contains multiple time limitations that govern how long you have to file a claim. For most occupational diseases the statute of limitations is two years from the date of communication of the disease or five years from the date you were last exposed to the employment, whichever happens first.
Have you given timely notice of the occupational disease to your employer?
Under Virginia Code Section 65.2-405 you must give written notice of the occupational disease to your employer within 60 days of the date you received an official diagnosis and communication of the disease.
If you fail to give timely notice you aren’t out of luck automatically. The employer must prove that it was prejudiced by your failure to give notice of the disease. This is often difficult to prove.
Was there an injurious exposure?
Police officers, firefighters, and first responders are entitled to a presumption that heart disease, hypertension, respiratory disease, lung disease, and some types of cancer are occupational diseases.
For those of you who are either not entitled to the heart and lung presumption or who are suffering from diseases that are not covered by a presumption, you must prove that you had an injurious exposure. This is a legal term of art that refers to “an exposure to the causative hazard of such disease which is reasonably calculated to bring on the disease in question.” As a general rule you need a medical doctor to opine that your employment is a common cause of the condition.
Who was your employer at the time of your last injurious exposure?
Most of you work for employers that are required to carry workers compensation insurance coverage. So this is rarely an issue, but it’s important to make sure that your employer has three or more employees so that it is subject to the Workers’ Compensation Act.
Is your condition an occupational disease or an ordinary disease of life?
An injured worker always has the burden of proof on an initial claim for benefits. But the exact burden depends on whether you have contracted an occupational disease or a disease or ordinary life. Carpal tunnel syndrome and hearing loss are always considered ordinary disease of life.
If your condition is an ordinary disease of life then you must prove your case by clear and convincing evidence, not just a mere probability. If however your condition is an occupational disease then you only have to prove your case by a mere probability.
Proving an Occupational Disease Claim
You can win your occupational disease claim if you can prove:
- A direct causal connection between your employment and the disease you were diagnosed with;
- That your disease can be seen to have followed as a natural consequence of your work because of exposure caused by your employment;
- That the disease can be traced to the employment as a proximate cause;
- That the disease is neither a disease to which you may have had substantial exposure outside of the employment nor any medical condition of the spine (back, neck, or thoracic);
- That the disease is incidental to the type of work your employer does; and
- That the disease had its origin in a specific risk of your employment
Proving an Ordinary Disease of Life under Virginia Workers Comp
If the general public is exposed to the risk of the disease outside of employment, then you must satisfy the requirements of Virginia Code Section 65.2-406 and 65.2-401 by clear and convincing evidence. There are four elements to proving an ordinary disease of life:
- That you have been diagnosed with a disease;
- That your disease arose out of and the course of your employment;
- That your work, and not things outside of your work, caused the disease; and,
- That your ordinary disease of life followed as a consequence of your employment.
You must have a supportive treating physician to get approved for benefits under either an ordinary disease of life or occupational disease theory. As an occupational disease lawyer in Virginia I work with area physicians to obtain supportive supports on behalf of my clients.
We Represent Injured Workers with the Following Occupational Diseases
Corey Pollard can help you if you’ve been diagnosed with one of the following occupational diseases in Virginia:
- An allergic reaction to mold or other substances
- Carbon Dioxide Poisoning
- Carbon Monoxide Poisoning
- Carpal Tunnel Syndrome
- Chemical Exposure
- Deep Vein Thrombosis
- Digital Neuroma
- Dust Exposure
- Fume Exposure
- Hearing Loss
- Interstitial Lung Disease
- Latex Allergy
- Lyme Disease
- Mold Exposure
- Mixed Connective Tissue Disorder and Fibromyalgia
- Plantar Fasciitis
- Pneumothorax/Collapsed Lung
- Post Traumatic Stress Disorder (PTSD)
- Sick Building Syndrome
- Recurrent Hernia
- Vision Loss
No matter the occupational illness you’ve been diagnosed with, we’ll work hard to try to get you approved for workers’ comp and Social Security Disability benefits. All you have to do is call, text, or email us today for a free consultation.