Workers Compensation Attorney for Occupational Disease Claims in Virginia
In Virginia employees can receive workers compensation benefits not only when they suffer an injury by accident but also when they contract an occupational disease caused by their employment. The Virginia Workers Compensation Commission has jurisdiction over these occupational illness claims. And though occupational disease workers comp claims make up a small percentage of all claims filed, they often require litigation and a workers’ compensation hearing 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 lawyer 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 – including the payment of lifetime medical expenses, temporary total disability payments, and compensation for permanent impairment – and negotiating a lump sum workers compensation 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.
Injured and ill 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.
There is, however, an exception to this rule. If you are a fire fighter or police officer who has been diagnosed with a heart or lung disease, you need not prove that a doctor related your condition to your employment. Under the heart and lung bill you are entitled to a presumption that your condition is related to your job.
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?
As mentioned above, 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.
Proving an Occupational Disease Claim in Virginia Workers’ Compensation
An ill 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.
The first step in winning your occupational disease claim in Virginia is to determine whether your condition is an “occupational disease” or an “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.
Carpal tunnel syndrome and hearing loss are always considered ordinary disease of life. Other conditions vary. Remember – you want your illness to be considered an occupational disease and not an ordinary disease of life so that you have a lower burden of prooof.
How to Win Your Occupational Disease Claim in Virginia
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
How to Win an Ordinary Disease of Life Claim 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.
We Represent Injured Workers with the Following Occupational Diseases and Ordinary Disease of Life in Virginia
As with other types of claims, medical evidence is the key to winning your case. 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. Detailed statements of causation and disability, which are based on objective findings as well as your complaints and reports, are necessary to get approved for benefits for occupational disease.
We can help you if you’ve been diagnosed with one of the following occupational diseases in Virginia:
- AIDS/HIV contracted by nurses, fire fighters, and first responders
- Allergic Reaction to Mold
- Benign Pneumoconiosis
- Beryllium Disease
- Bronchiolitis Obliterans (Popcorn workers’ lung)
- Carbon Dioxide Poisoning
- Carbon Monoxide Poisoning
- Carpal tunnel Syndrome
- Chemical Exposure
- Coal Workers’ Pneumoconiosis (Black Lung Disease)
- Fume Exposure
- Heart Disease
- Hypersensitivity Pneumonitis
- Interstitial Lung Disease
- Lung Disease
- Lyme Disease
- Mold Exposure
- Occupational Asthma
- Pneumothorax/Collapsed Lung
- Post Traumatic Stress Disorder (PTSD)
- Sick Building Syndrome
- Silo Filler’s Disease
- 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 in Virginia and Social Security Disability benefits. All you have to do is call, text, or email us today for a free consultation. We’re ready to help you win your occupational disease and environmental lung illness claim in Virginia.