Many people think of industrial accidents and physical injuries when they hear the term “workers compensation.” But workers comp covers more than that.
If you are diagnosed with a disease caused by your employment, then you may also be entitled to workers compensation benefits. The law provides benefits for three categories of diseases: ordinary diseases of life; occupational diseases; and, presumptive diseases.
The purpose of this article is to discuss what occupational diseases are covered under workers comp, and what evidence you will need to meet your burden of proof. Though occupational disease claims make up less than 10 percent of all claims filed with the Virginia Workers Compensation Commission, insurance carriers often conduct extensive discovery and refuse to accept liability unless you prove your case at a workers comp hearing. This is because occupational diseases usually require hospitalization and extensive medical treatment over a long period, making these claims expensive for insurers.
Keep reading to learn more. If you don’t see the answer to your question, or are looking for a top-rated workers comp lawyer, call me for a free consultation: (804) 251-1620 or (757) 810-5614. I’ve helped many people in situations similar to yours negotiate top-dollar workers compensation settlements for their occupational diseases, and I’d like to help you.
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.
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.
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.
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.
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.
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.
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.
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.
You can win your occupational disease claim if you can prove:
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:
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:
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.