We know that if you have been in an accident at work, and you have sustained an injury, you will likely be covered under some sort of workers compensation program. Each state has its own workers compensation, and those who work as longshoremen or dock or harbor workers have the Longshore & Harbor Workers Act in place to compensate them for medical bills and lost wages. By extensions of this act, those who work for U.S. contractors overseas and offshore oil rigs are covered for on the job injuries.
In the case of an injury the process is fairly straightforward – you get injured, get medical treatment and file a claim for medical care and lost wages. (This is not to say it can’t get complicated dealing with employers’ insurance carriers; it can and does, but that is not today’s discussion) When there is a single traumatic incident on the job that caused an injury it is clear that the job caused the injury.
When a worker is dealing with an occupational disease, the process is not so straightforward and it may be difficult to prove that the occupational environment caused the condition. Sometimes the latency period is very long (for example, asbestos issues can arise up to 50 years after exposures) and sometimes there may have been multiple exposures in a variety of jobs or environments. This can make it difficult to prove that the exposure to that particular substance on that particular job caused the condition.
What Are They?
Occupational diseases are those conditions or diseases that arise as a result of long term exposure to something in the workplace. These exposures are usually chemical, physical or biological in nature. The first occupational disease was identified in chimney sweeps in 1775 London; they developed a particular kind of cancer.
Black Lung Disease, found in coal miners or those who work with coal fired boilers or those who mill graphite, is an occupational disease that comes from inhaling coal dust over a long period of time.
Other types of lung diseases have been identified: asbestosis comes from working with asbestos over time (and can lead to mesothelioma); silicosis is a common manufacturing lung disease as many types of silicates are used in various manufacturing processes. These are from inhaling the dust or fibers of the material, which lodge in the lungs.
Chemical exposure can cause a variety of occupational diseases. Often skin conditions are the result of long term exposure to chemicals in the work environment. Sometimes these resolve after the exposure stops, but sometimes the effect is far reaching and manifests itself in cancers of various types. Vietnam veterans who were exposed to Agent Orange can develop a variety of ailments as a result, often years after the exposure.
Examples of occupational diseases that arise from physical elements are hearing loss from loud noise, or carpal tunnel disease from repetitive motions. In longshore workers we often see chronic back issues, hearing loss from the noise and even stress-related conditions.
LHWCA & DBA Occupational Disease Claims
The Longshore & Harbor Workers Compensation Act, and by extension the Defense Base Act does not set out specifics for handling occupational disease claims. Section 902(2) of the Act does, however have a broad definition of “injury” as meaning an “accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.” Interestingly, this definition has remained intact since the inception of the Act in 1927, so it is clear that compensation for occupational diseases was contemplated.
Initially courts narrowly interpreted this, and claimants were only compensated for those occupational diseases known to plague certain jobs, such as silicosis claims for sandblasters or asbestosis claims for those exposed to asbestos. Over the years, due in part to scientific evidence of environmentally caused health issues, the interpretation has expanded to any disease or condition caused by exposures in the workplace, or a pre-existing condition exacerbated by those exposures.
Different Rules vs. Traumatic Injury
There are some different rules regarding occupational diseases under the LHWCA. If the disease or condition has taken some time to manifest, the last employer that the claimant worked for where exposure occurred is responsible for paying the claim.
The other “different” rule is regarding the amount of compensation due an employee (or former employee) who makes a claim for occupational disease. The Average Weekly Wage (AWW) for purposes of compensation is calculated at the time the disability becomes known, not at the time of exposure. This can mean that if the condition becomes apparent after the worker has retired (which is not unusual at all) the amount of compensation is based on what they are earning at that time.
Contractors for U.S. companies who have worked overseas, or are working overseas face many of the same dangers and environmental conditions as the military. Sometimes these dangers and conditions translate into occupational health problems. Right now the issue of the burn pits in Iraq and Afghanistan is raising major health concerns. Many of those exposed to the toxic fumes of these burn pits are experiencing serious health issues due to that exposure.
Senate hearings have been held to investigate on the military’s behalf, but contractors are also affected. One contractor, KBR (formerly a Halliburton subsidiary) is in extended litigation over whether they can be sued by members of the military for the injuries sustained from the toxic burn pits.
We will discuss this issue at length in another article, but be aware that if you were working in Iran or Afghanistan for a U.S. contractor, and you were exposed to the burn pit fumes, your current medical issues may related to that situation. An experienced Defense Base Act attorney can help you with this and you owe it to yourself to explore the possibilities.
How To Proceed With An Occupational Disease Claim
Succeeding in a claim for an occupational disease is not as easy as it may sound. You do need medical opinions stating that your current medical condition is a result of some on the job exposure or circumstance. The insurance company for the employer may have medical opinions that refute your doctor’s opinion. You need experienced legal help to successfully sort through this, someone dedicated to pursuing the rights of injured workers.
If you are experiencing chronic medical problems that may be related to your job, and you are subject to the Longshore & Harbor Workers Compensation Act, or the Defense Base Act, you need an attorney experienced in those types of claims. Occupational diseases and conditions can have long ranging effects on your life, and you need the best legal help you can find.