Defending Occupational Claims in New York.

The burden is on the claimant to establish entitlement to benefits by showing causal relationship between the alleged exposures and the injury claimed. Occupational diseases/conditions can be compensable if they result from the nature of the employment and were caused by the employment. See WCL § 2(15), WCL § 39. The condition must be caused by a distinctive feature of the employment – there must be a clear link between the condition and the peculiar character of the job. See Leventer v. Yeshiva of Flatbush, 684 N.Y.S.2d 658 (App. Div. 1999).

Similarly, health conditions contracted from contact with co-employees are not compensable. See Paider v. Park Movers, 280 N.Y.S.2d 140 (1967).

Injuries found compensable.

Although any disabling condition contracted at work which resulted from exposure to some workplace hazard is compensable, the following diseases and conditions have been found compensable:

  1. Orthopedic injuries resulting from repetitive movement;
  2. Silicosis;
  3. Pulmonary diseases – including pulmonary fibrosis, pulmonary asbestosis, emphysema, bronchitis, and asthma.
  4. Hearing Loss;
  5. Dermatitis;
  6. Hernia produced by repetitive straining;
  7. Nervous system injuries;
  8. Infectious disease, such as hepatitis or tuberculosis when the exposure was to patients (for example, in a hospital setting) or infected materials.
  9. Blood poisoning, such as lead poisoning.

Pre-existing conditions.

The pre-employment “health state” of the employee is not considered when assessing the compensability of an allegedly occupational condition – whether or not the employee is pre-disposed to some condition is not important. However, if the claimant had a pre-existing condition this may be considered by the COurt. There is a distinction in the case law between pre-existing dormant and active conditions.

Environmental claims excluded.

Occupational claims related to the location or environmental conditions are not compensable under this law – because if all the employees were exposed to some condition (for example, poor ventilation) then it is not possible to say that a resultant pulmonary condition was related to the peculiar nature of the work rather than to the nature of the location. However, exposure to specific agents, like carcinogenic compounds, which then caused a related condition – will be found compensable.

Determining which factors are “merely environmental” and which are truly “peculiar” to the work is done on a case-by-case basis. To establish a claim for workers’ compensation benefits allegedly resulting from occupational disease the claimant must provide a recognizable link between the disease and a distinctive feature of the employment. Shared risks (like heat and cold) – common to all employments – as well as risks that are not common to the particular work – will not be found to be “occupational” in nature and therefore not compensable.

Generally, claims related to incidental exposures – for example, during a building renovation in which construction dust is in the workplace for a short time – are more likely to be characterized as a “specific ” accident rather than an occupational.

Benefits Payable.

Benefits payable for occupational disease are the same as those payable for traumatic specific injury claims. See WCL § 39. Where the occupational disease (like silicosis) leads to a panic disorder (or other psychiatric manifestation of the condition) then the resulting mental condition is considered part of the underlying occupational condition.

New York’s “Last on the Risk Doctrine.”

In an occupational claim, the last employer pays the entire award to the claimant. Then, that last employer can seek apportionment against the claimant’s prior employers (who exposed the claimant to the same condition leading to the occupational disease). See WCL § 44.

Investigation into apportionment.

Enabling this apportionment, the claimant must provide the last employer with the names and addresses of all his prior employers; the failure to provide those prior employer’s contact information may result in the claimant being stripped of all compensation until he complies with the request. WCL § 46.

Defense plan for occupational claims.

Occupational claims are generally denied. The filing of the C-7 denial pleading (for FROI/SROI-04) will result in the matter being listed for a PreHearing Conference (if the claimant has filed medical).

The Statute of Limitations in an occupational claim.

The two-year statute of limitations (WCL § 28) applies to occupational claims. The statute begins to run “from the date of disablement and within two years from the date the claimant knew or should have known that the disease is due to the nature of the employment.” This is important because fixing the claimant’s knowledge of the alleged occupational condition is important to defending against these claims. Specifically, we are looking for any documentation showing that the claimant was advised of the alleged condition and the relationship of the condition to the work.

Investigation.

Investigation is the key to defending against occupational claims. A strong medical opinion (IME) on causal relationship is needed. In order to provide counsel and the IME doctor with the most useful information possible, defense should be provided with the following:

  • Results of any environmental (for example, air quality testing) studies performed at the location;
  • Any ergonomic studies;
  • A complete job description for the claimant, with description of work duties;
  • Any OSH filings for the location, including MSDS (material safety data sheets) or SDS (safety data sheets) for all materials in location;
  • Information regarding any abatement or remediation projects at location;
  • Any internal surveillance depicting conditions within location;
  • Employee health records;
  • Employee human resources/personnel file;
  • Information about any union membership of claimant (because medical records/health information may be domiciled at union);
  • Information regarding prior employers (usually a resume submitted tot he current employer);
  • Prior medical information;
  • Information about other similar claims for the same employer/insured location;
  • Contact information for witnesses who can testify about the claimant’s actual work activities;
  • surveillance of the claimant;
  • prior claims history of the claimant (usually an ISO claims index bureau search report).

The medical expert.

The defense medical expert is usually an IME physician. However, consideration should be given toward obtaining reports/testimony from ergonomic experts, environmental testing experts/laboratories, etc., and presenting that information to the defense medical expert to help inform the opinion in regards to causality.

Role of the defense.

The defense should obtain information relating to any prior workers’ compensation or other claims filed by the claimant. Even if the body parts alleged in the instant occupational claims are not implicated, prior medicals may contain information about prior disease/illness manifestation.

In an environmental disease claim, the defense team should visit the insured location to assess the risk.

You should expect defense to subpoena or obtain by way of medical release authorization prior medical records. The purpose of such an investigation will be to obtain information that the condition is pre-existing/arose during a prior period of employment. Employers can use prior medical documentation to argue that the claimant’s condition manifested during a prior period of employment or that the claimant “know or should have known” about the injuries and their relationship to the employment for purposes of raising a Statute of Limitations defense (WCL § 28).

At trial, defense counsel must be prepared to vigorously cross-examine the claimant and her expert witnesses.

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Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com