The primary elements of an occupational disease that a claimant must prove are:
The primary elements of an occupational disease that a claimant must prove are:
(1) causal connection between work and the disease; (2) disease followed a natural incident of exposure; (3) disease is not of a character to which the employee may have had substantial exposure outside of employment; (4) disease is not an ordinary disease of life to which the general public is exposed; and (5) disease had its origin in a risk connected with the employment.
If an employee was exposed to dangerous chemicals or products with multiple employers that eventually led to an occupational disease, it is common for each employer to want to point the finger at the other employers for being responsible. At the very least, they feel the other employers who exposed the employee to the dangerous product or products should be held partially accountable for the employee’s unfortunate fate. Yet, the Georgia Workers’ Compensation Act actually finds only one employer at fault.
Under O.C.G.A. § 34-9-284, “Where compensation is payable for an occupational disease, the employer in whose employment was last injuriously exposed to the hazards of such disease and the insurance carrier, if any, by whom the employer was insured when such employee was last so exposed under such employer shall alone be liable therefore, without right of contribution from any prior employer or insurance carrier.” This statute lets all the previous employers who otherwise would have been liable if that was the employee’s only place of employment or last place he or she worked completely off the hook for paying workers’ compensation benefits.
So on the surface, the last employer for the employee (and the insurer of the employer) carries all the liability for the Claimant’s disability and will be stuck with paying large medical costs and potentially many years of indemnity benefits given the serious nature of many occupational diseases. While there is no getting around responsibility if an employer is the last place of exposure, that does not necessarily mean the employer will owe the full amount of benefits. Based on O.C.G.A. § 34-9-285, if the Claimant is temporarily totally disabled by a disease caused in part by circumstances related to the employment and in part by circumstances unrelated to employment, then only a proportion of temporary total disability benefits should be awarded.
The Georgia Supreme Court upheld a constitutional challenge to the apportionment statute of § 34-9-285 in Price v. Lithonia Lighting Company, 256 Ga. 9, 343 S. E. 2d 688 (Ga. 1986). The employee tried to argue that the statute violated the Equal Protection Clause since there was no provision comparable to § 34-9-285 where an occupational disease was not involved. Id. at 689. This argument failed when the Court in Price v. Lithonia Lighting Co. was persuaded in part by the employer’s argument that “since employees of certain industries, such as the asbestos industry, were almost certain to file more claims against their employers than the average worker in other industries, the legislature could have felt that certain industries could not withstand the financial impact of compensating employees who were disabled not only as a result of an occupational disease, but whose disability resulted because an occupational disease contributed in some form to the employee’s disablement by aggravating a pre-existing disease.” Id. at 692. They were further persuaded by the argument that particular industries “could not survive unless they were responsible only for the portion of a claimant’s disability which is related to his occupational disease.” Id.
The Price Court also brought up the point that “…it is generally much more difficult to determine when aggravation of the pre-existing condition becomes the cause of the disability. This is so because occupational diseases arise gradually from a day-by day exposure to unhealthful conditions over an extended period of time.” Price at 692. The Claimant in Price had pneumonia, frequent colds, and coughs throughout her childhood and adolescence. Id. at 689. She eventually had to leave her job due to her respiratory problems, and her lung problems were aggravated by her breathing fumes, chemicals, or dust while working with the employer. She was eventually diagnosed with chronic bronchiectic lung disease. Id. After being awarded full benefits by the administrative law judge, it was later determined that only 10% of her disability was attributable to the aggravation of her condition. Id. As a result, she was awarded 10% of her weekly indemnity benefits. Id. It should be noted the Court in Price did note the Award of benefits should still abide by the requirement of § 34-9-261 that the weekly benefit for total disability not be less than the minimum required for that date of injury. Id. at 692. Therefore, even if it is determined the workplace is only 1% responsible for his or her occupational disease, the Claimant will still be entitled to the minimum payment of benefits under § 34-9-261.
The Court of Appeals of Georgia also opined on the issue of apportioning weekly benefits for occupational diseases in Whitaker v. Fieldcrest Mills, Inc., 174, Ga. App. 533, 330 S. E. 2d 761, (Ga. App. 1985). The Claimant in Whitaker was diagnosed with a respiratory ailment that was the result both his occupational disease, byssinosis, and other non-work related causes, in particular a history of smoking cigarettes for several years. Whitaker at 762-763. Medical evidence attributed 45 percent of his respiratory ailment to the occupational disease and 55 percent ton non-work related causes. Id. at 763. The administrative law judge then classified the claimant’s condition as a permanent partial disability to his body as a whole. The Court disagreed with that distinction and noted, “Where a totally disabled employee seeks compensation for an occupational disease, which is not the sole cause for the disabling impairment, the benefits properly are reduced by the proportion of any non-compensable causes of the impairment, and it requires a fiction to classify such a condition as only a permanent partial disability.” In other words, the Claimant will be awarded a portion of the TTD benefits that would be owed in conjunction with whatever percentage is deemed related to his or her compensable occupational disease. Furthermore, the Claimant’s disability is not deemed temporary partial disability or permanent partial disability when a portion is caused by the occupational disease and partly because of non-work related causes.
When evaluating an occupational disease case to determine if apportionment is an option, it is imperative to find out through discovery other activities the Claimant may have had outside of employment. Exposure to dangerous materials, chemicals, or products can happen in a multitude of places, including such benign settings as their home. Depending on what type of products or materials a Claimant may encounter, activities such as painting, window glazing, work on vehicles such as brake or clutch work, smoking, and repair of home appliances are just a few activities that could be determined as contributing factors to a Claimant’s disability when faced with an occupational disease. If the Board does find apportionment is appropriate in a case, the Claimant’s compensation can be adjusted by either reducing the number of weekly payments or the amounts of such payments. Thus, it is important to note that a failure to take into account a Claimant’s outside activities could end up costing an employer a sizeable reduction in future exposure.