Occupational DiseasesOccupational Diseases

DOUGLAS J. HAYDENDOUGLAS J. HAYDEN

GENERAL ATTORNEYGENERAL ATTORNEY

NEW YORK STATE INSURANCE NEW YORK STATE INSURANCE FUNDFUND

HUGH O’BOYLEHUGH O’BOYLE

FOLEY, SMIT, O’BOYLE & WEISMANFOLEY, SMIT, O’BOYLE & WEISMAN

In general, an occupational disease In general, an occupational disease is an ailment which is a result of a is an ailment which is a result of a distinctive feature of the kind of work distinctive feature of the kind of work performed by claimant and others performed by claimant and others similarly employed (similarly employed (Paider v Park Paider v Park East Movers,East Movers, 19 NY2d 373, 380). 19 NY2d 373, 380).

Workers’ compensation is not the equivalent of life Workers’ compensation is not the equivalent of life and health insurance and the mere fact that a and health insurance and the mere fact that a disease is contracted at work does not make it an disease is contracted at work does not make it an occupational disease. An occupational disease is occupational disease. An occupational disease is one which results from the nature of the one which results from the nature of the employment, and by nature is meant, not those employment, and by nature is meant, not those conditions brought about by the failure to furnish a conditions brought about by the failure to furnish a safe place to work, but conditions to which all safe place to work, but conditions to which all employees of a class are subject and which employees of a class are subject and which produced the disease as a natural incident of a produced the disease as a natural incident of a particular occupation, and attach to that particular occupation, and attach to that occupation a hazard which distinguishes it from the occupation a hazard which distinguishes it from the usual run of occupations and is in excess of the usual run of occupations and is in excess of the hazard attending employment in general (hazard attending employment in general (Goldberg Goldberg v Marcy Corpv Marcy Corp., 276 NY 313). ., 276 NY 313).

New York Workers’ Compensation Law New York Workers’ Compensation Law §3(2) lists several processes and the §3(2) lists several processes and the diseases that frequently result from those diseases that frequently result from those processes. The legislature also recognized processes. The legislature also recognized that it could not identify every process and that it could not identify every process and every disease associated with that every disease associated with that exposure and process so §3(2) paragraph exposure and process so §3(2) paragraph 30 is a catch all provision allowing any 30 is a catch all provision allowing any other occupational disease shown to be other occupational disease shown to be caused by an employment. caused by an employment.

The predisposition of an employee to have The predisposition of an employee to have an occupational disease does not prevent an occupational disease does not prevent him/her from having the benefit of workers’ him/her from having the benefit of workers’ compensation if they develop what would compensation if they develop what would ordinarily be considered an occupational ordinarily be considered an occupational disease, but if the nature of employment disease, but if the nature of employment would not have a tendency to produce a would not have a tendency to produce a similar malady in the average worker it is similar malady in the average worker it is not an occupational disease. (not an occupational disease. (Detenbeck v Detenbeck v General Motors CorpGeneral Motors Corp. 309 NY 558). . 309 NY 558).

If the hazard seeks out the If the hazard seeks out the susceptible, who are few in number susceptible, who are few in number among the work force and passes by among the work force and passes by the greater, who perform the same the greater, who perform the same work under the same conditions, it is work under the same conditions, it is not an occupational disease (not an occupational disease (Hennige Hennige v Fairview Fire Deptv Fairview Fire Dept. 99 AD2d 158).. 99 AD2d 158).

Nevertheless, if a claimant has a Nevertheless, if a claimant has a preexisting condition, if the nature of preexisting condition, if the nature of the employment acts on a dormant the employment acts on a dormant preexisting condition and makes it preexisting condition and makes it symptomatic, an occupational symptomatic, an occupational disease may be established (disease may be established (Strouse Strouse v Village of Endicottv Village of Endicott 50 AD2d 635). 50 AD2d 635).

In such instances where there is no In such instances where there is no evidence to link the disease to a distinctive evidence to link the disease to a distinctive feature of the claimant’s job, the claimant feature of the claimant’s job, the claimant may still be able to establish an accident may still be able to establish an accident within the meaning of the Workers’ within the meaning of the Workers’ Compensation Law (Compensation Law (Engler v United Parcel Engler v United Parcel ServiceService 1 AD3d 854). For instance in New 1 AD3d 854). For instance in New York, respiratory illness from the effects of York, respiratory illness from the effects of cigarette smoke at the place of work has cigarette smoke at the place of work has been found to be an accident within the been found to be an accident within the meaning of the workers’ compensation law meaning of the workers’ compensation law ((Johannesen v New York City Department of Johannesen v New York City Department of Housing Preservation and DevelopmentHousing Preservation and Development 84 84 NY2d 129).NY2d 129).

An occupational disease is due to the An occupational disease is due to the nature of the work and not the nature of the work and not the place place of of employment. Hence, a therapy aide in a employment. Hence, a therapy aide in a mental health facility who suffered from mental health facility who suffered from asbestos related lung disease from asbestos related lung disease from asbestos flaking off pipes at the place of asbestos flaking off pipes at the place of work had not sustained an occupational work had not sustained an occupational disease since the disease resulted from disease since the disease resulted from the place of employment and not the the place of employment and not the nature or duties of the claimant’s work nature or duties of the claimant’s work ((Demers v St. Lawrence Psychiatric Demers v St. Lawrence Psychiatric Center,Center, 271 AD2d 857). 271 AD2d 857).

For World Trade Center workers, many For World Trade Center workers, many occupational lung disease claims have occupational lung disease claims have been seen for those involved in rescue or been seen for those involved in rescue or cleanup efforts who were exposed to cleanup efforts who were exposed to asbestos and other dust on a daily basis. asbestos and other dust on a daily basis. On the other hand, an office employee at On the other hand, an office employee at the World Trade Center site would be less the World Trade Center site would be less likely to successfully pursue such a claim likely to successfully pursue such a claim since the disease would not be due to the since the disease would not be due to the nature of that individual’s work.nature of that individual’s work.

The fact that no OSHA violation has The fact that no OSHA violation has been issued based on the workplace been issued based on the workplace presence of a harmful substance does presence of a harmful substance does not preclude a finding of an occupational not preclude a finding of an occupational disease (disease (Hosmer v Emerson Power Hosmer v Emerson Power TransmissionTransmission, 295 AD2d 870), but to be , 295 AD2d 870), but to be accepted on the issue of causation a accepted on the issue of causation a medical opinion should have a generally medical opinion should have a generally accepted basis in the scientific accepted basis in the scientific community (community (Norberg v Pepsi Cola Buffalo Norberg v Pepsi Cola Buffalo Bottling CorpBottling Corp. 10 AD3d 740).. 10 AD3d 740).

The Workers’ Compensation Board The Workers’ Compensation Board may order the employer to provide may order the employer to provide claimant’s physician with chemical claimant’s physician with chemical samples so that the potential of samples so that the potential of harmful physical results may be harmful physical results may be determined (determined (Crisci v IMM CorporationCrisci v IMM Corporation 306 AD2d 645)306 AD2d 645)

Occupational asthma has also been Occupational asthma has also been found to result from certain work found to result from certain work processes. For example, the fumes processes. For example, the fumes caused by wrapping meat in a sealed caused by wrapping meat in a sealed polyvinyl chloride film has been polyvinyl chloride film has been associated with meat wrappers asthma associated with meat wrappers asthma ((Garafolo v Arms Hills Supermarkets Garafolo v Arms Hills Supermarkets 74 74 AD2d 681). Baker’s asthma resulting AD2d 681). Baker’s asthma resulting from exposure to flour is another from exposure to flour is another common lung disease.common lung disease.

The mere presence of a potentially harmful The mere presence of a potentially harmful workplace chemical would not suffice where workplace chemical would not suffice where the Workers’ Compensation Board finds the Workers’ Compensation Board finds that the claimant has failed to establish an that the claimant has failed to establish an adequate exposure. For instance in adequate exposure. For instance in Ellis v Ellis v CleanoramaCleanorama 3 AD3d 808, the claimant 3 AD3d 808, the claimant alleged swelling and burning to the hands, alleged swelling and burning to the hands, face and leg from being splashed with the face and leg from being splashed with the dry cleaning chemical, percethalane. dry cleaning chemical, percethalane. Nevertheless, evidence was credited that Nevertheless, evidence was credited that the chemical was contained in sealed the chemical was contained in sealed drums and that claimant’s job duties with drums and that claimant’s job duties with the dry cleaning establishment did not the dry cleaning establishment did not involve require her to come in contact with involve require her to come in contact with the chemical.the chemical.

Another common occupational lung Another common occupational lung disease in New York is asbestosis. disease in New York is asbestosis. Other common diseases are silicosis Other common diseases are silicosis and talcosis. and talcosis.

Since these diseases are often slow Since these diseases are often slow starting diseases with the individual starting diseases with the individual becoming ill years after exposure, the becoming ill years after exposure, the ordinary statute of limitations in New York is ordinary statute of limitations in New York is extended for certain slow starting diseases extended for certain slow starting diseases and a claimant may file within two years of and a claimant may file within two years of disablement and after the claimant knew or disablement and after the claimant knew or should have known that the disease is or should have known that the disease is or was due to the nature of the employment was due to the nature of the employment (Workers Compensation Law §28).(Workers Compensation Law §28).

Also, sometimes timely claim filing is Also, sometimes timely claim filing is facilitated because timely filing is facilitated because timely filing is measured from the date of disablement measured from the date of disablement and the Workers’ Compensation Board and the Workers’ Compensation Board has broad discretion regarding has broad discretion regarding establishment of a date of disablement establishment of a date of disablement and may choose either the date of first and may choose either the date of first medical treatment or the date when a medical treatment or the date when a claimant loses time from work (claimant loses time from work (Ryciak v Ryciak v Eastern Precision ResistorEastern Precision Resistor, 12 NY2d 29)., 12 NY2d 29).

In New York, liability for dust In New York, liability for dust diseases is established based on last diseases is established based on last exposure, and is imposed on the exposure, and is imposed on the employer in whose employment the employer in whose employment the claimant was last exposed to an claimant was last exposed to an injurious dust hazard (Workers’ injurious dust hazard (Workers’ Compensation Law §44-a).Compensation Law §44-a).

What constitutes a dust disease What constitutes a dust disease under New York law has been under New York law has been narrowly defined to mean a disease narrowly defined to mean a disease of the pneumoconiosis (a chronic of the pneumoconiosis (a chronic fibrous reaction in the lungs) and the fibrous reaction in the lungs) and the condition can usually be confirmed condition can usually be confirmed by x-ray.by x-ray.

In a quirk of New York law, an employee who In a quirk of New York law, an employee who is exposed to asbestos/silica, but does not is exposed to asbestos/silica, but does not contract the dust disease asbestosis/silicosis contract the dust disease asbestosis/silicosis and instead contracts some other disease and instead contracts some other disease such as mesothelioma (cancer of the lining of such as mesothelioma (cancer of the lining of the lungs), has not contracted a dust disease the lungs), has not contracted a dust disease ((Smith v Certain Teed Products CorpSmith v Certain Teed Products Corp,. 85 ,. 85 AD2d 820) and liability is established against AD2d 820) and liability is established against the carrier who insured the employer on the the carrier who insured the employer on the date of disablement, even if disablement date of disablement, even if disablement occurred many years after last exposure to occurred many years after last exposure to harmful dust.harmful dust.

In many dust disease cases, since the In many dust disease cases, since the disease is slow starting and often becomes disease is slow starting and often becomes disabling many years after exposure, at disabling many years after exposure, at which point the claimant has already which point the claimant has already stopped working for other causes, the stopped working for other causes, the employer/carrier has sometimes escaped employer/carrier has sometimes escaped liability for lost earnings claim on the liability for lost earnings claim on the theory that the claimant’s lost earnings theory that the claimant’s lost earnings are related to factors unconnected with are related to factors unconnected with the claimant’s disability (the claimant’s disability (Petermann v Petermann v Consolidated EdisonConsolidated Edison 294 AD2d 723, 294 AD2d 723, Milby Milby v Consolidated Edisonv Consolidated Edison 304 AD2d 946). 304 AD2d 946).

Mere evidence of pleural placing Mere evidence of pleural placing from exposure to asbestos without from exposure to asbestos without signs of actual resulting disability has signs of actual resulting disability has also been found to be insufficient to also been found to be insufficient to support an award for lost wages support an award for lost wages ((McCaffrey v LewisMcCaffrey v Lewis, 301 AD2d 833)., 301 AD2d 833).

The list of occupational diseases is The list of occupational diseases is ever growing as scientific study and ever growing as scientific study and workplace exposure shows specific workplace exposure shows specific diseases to arise from certain diseases to arise from certain exposures (as in the butter flavoring exposures (as in the butter flavoring diacetyl in microwave popcorn diacetyl in microwave popcorn recently being associated with the recently being associated with the lung disease bronchiolitis obliterans).lung disease bronchiolitis obliterans).