Occupational Disease for First Responders

Posted on Wednesday, January 8th, 2020 at 9:52 am    

OCCUPATIONAL DISEASE: PRESUMPTIONS FOR FIREFIGHTERS, POLICE, AND OTHER FIRST RESPONDERS

Normally, injuries and accidents that occur under Virginia Workers Compensation must consist of a specific traumatic event that caused a sudden anatomical change in the body to the injured worker; however, there are a whole class of cases that do not follow that approach and these are cases which involve an occupational disease.  Sometimes these can be hard to prove, but the Virginia legislature has made it easier for police, firefighters, sheriffs, and other first responders and public law enforcement officers to prove occupational disease claims. 

Without getting into all the specifics of proving an occupational disease, which is covered in other articles, suffice it to say that an occupational disease means a disease arising out of, and in the course of employment, but not including an ordinary disease of life to which the public is equally exposed. 

What this definition means is the oftentimes, even though someone may be suffering from a disease that was directly caused by exposure for instance, to hazardous chemicals on their job, if it is the kind of disease not specifically recognized as arising directly out of the employment, and therefore an ordinary disease that the public may also get, such as a form of cancer, then the disease is not going to be recognized as an occupational disease.  It will be considered an ordinary disease of life and the standards of proof for that are much higher than for a regular occupational disease. 

The good news is that the Virginia legislature carved out an exception to this rule for police, firefighters, sheriffs, and other first responders and public law enforcement officers. 

What this law says is that if you are a firefighter, police officer, or other first responder, then for certain diseases, such as respiratory diseases, hypertension or heart diseases, and certain types of cancers, it is to be presumed that the disease in question is in fact an occupational disease suffered in the line of duty.   

Now this presumption can be overcome by the defense if, for instance, they can prove that the disease came about for exposure to something completely unrelated to work, and that the first responder was not in a position to be exposed to anything that might give rise to the disease in question. 

Unfortunately, insofar as firefighters are concerned, the law as it stands contains some barriers and defects that make it hard to prove some occupational diseases. 

The statute lists a number of presumptions for cancers that firefighters and other first responders are entitled to and they are for the cancers of leukemia, pancreatic, prostate, rectal, throat, ovarian, or breast cancer.  The problem is that the law as it stands now also requires that the International Agency for Research on Cancer (IARC) recite in their listings that whatever the injured worker was exposed or came into contact with to during their job actually causes, or may cause the type of cancer the injured worker is suffering from.   They also require that the first responder with one of these types of cancer have completed 12 years of continuous service. 

The good news is that according to the case law, the injured worker need only prove one instance of exposure to the toxic chemical during his or her career that may cause cancer as identified by IARC. 

The bad news is that at least one form of cancer on the list specifically has no known cause and that is pancreatic cancer

Pancreatic cancer is one of the few cancers where medical science currently simply has no idea as to the cause.  Apparently, the only thing that might contribute to it is cigarette smoke. 

Because of this, many agree that the law as currently written, in this regard, for lack of a better word, is ridiculous. The current law in Virginia actually says that pancreatic cancer is one of the presumptive types of cancer that is considered to be contracted in the line of duty, but at the same time, the law also says you have to prove there was exposure to something that might cause it, and as we just said, nothing is known to do that except possibly cigarette smoke. So basically, the Legislature has drafted a law that—at least with respect to pancreatic cancer—is completely useless. 

Moreover, a State Review Board has also noted that the law is lacking as it currently stands. The Joint Legislative Review Commission (JLARC) Audit Report of the Virginia Workers Compensation Commission that was released on Monday, December 17, 2019 says on page 3, in the headline: “Requirements to establish cancer presumptions are unreasonably burdensome and not supported by science.” 

The JLARC specifically talks about firefighter benefits and how many claims are denied because the firefighter failed to prove proper exposure to the carcinogen that caused his or her type of cancer.  The JLARC then suggests that all an injured firefighter should have to prove is that he or she fought fires and was exposed to smoke. They say that should be sufficient, given the toxic soup of chemicals that any scientist and industrial hygienist knows is released by any house or industrial fire. I certainly could not agree more. 

We rely on our first responders to protect us. They put their lives on the line for us every day. Can we not make it as easy as possible for them to make a claim in the event they suffer because of the years of dedicated service to this cause? 

Hopefully, plans are afoot in Richmond to change these laws so this never happens to any firefighters or other first responders who in the future develop cancer or any of the other diseases given a presumption in the law. 

In the meantime, if you have been advised that you are suffering from an occupational disease, please do not wait to contact a worker’s compensation lawyer to assist you. You only have two years from the date that the diagnosis was first communicated to you by a physician to file a claim form with the Virginia Workers Compensation Commission. 

If you have been exposed to toxic chemicals in your line of work, and your doctor supports that your disease came from that exposure, and you’re a member of a Union, know that your Union should be able to steer you in the direction of an expert such as an industrial hygienist, or other such expert, who can assist in proving your exposure to the relevant chemicals in your claim. You may very well need his or her testimony in order to win. 

Joe Miller has been representing victims of on-the-job injuries and occupational disease for over 30 years. If you or a loved one has been injured on the job or suffered an occupational disease, please do not hesitate to call us toll free at 888-667-8295. or complete our online contact form 

 

Lung Disorders from Silica Dust Can Entitle Employees to Worker’s Compensation Benefits Based on an Occupational Illness

Posted on Tuesday, March 27th, 2018 at 4:48 pm    

Construction work is extremely dangerous. Some of the reasons are well-known. Some reasons change from site to site. Employees who suffer a disease due to constant exposure to chemical toxins and other hazards have the right to bring a North Carolina or Virginia worker’s compensation claim – depending on where they work. An experienced work injury lawyer can explain the exact requirements. One disease that can change or even end a worker’s life is exposure to silica dust.

Silica dust may cause lung disease and death

Silica, also known as quartz, is a common mineral found at construction and industrial sites. It can be found in the soil, concrete, rocks, sand, granite, and landscaping items. Silica dust is typically created through drilling, grinding, or cutting. Silica is also present in cement, mortar, and brick. The dust can spread through mixing cement, cutting stone, pressurized air-blowing, using a jack-hammer, working with power-chipping tools, demolition work, and other means.

The particles can be 100 times more minute than sand. The dust, which is almost impossible to see, can easily enter a worker’s lungs. Damage may include respiratory disorders, lung cancer, COPD (chronic obstructive pulmonary diseases) and kidney failure. Exposure to enough silica can cause silicosis, which can result in lesions, inflammation, and scar tissue buildup in the lungs. In the most serious cases, exposure to silica dust can be deadly.

Often, diseases caused by exposure to silica take years to appear. In most cases, these diseases occur after years of exposure to respirable crystalline silica. Many workers don’t even realize that they are breathing it or that is has landed on their skin, clothing, footwear, and hands.

Workers who are affected by silica exposure include foundry workers, stoneworkers, miners, grinders, bricklayers, and sandblasters.

According to OSHA (the Occupational Safety and Health Administration), about two million people have been exposed to respirable crystalline silica. OSHA requires that employers take protective measures to limit exposure to this unhealthy material. Employers should inform their employees about the risks of silica if they know or have reason to know that silica levels are above specific minimum levels. Employers should work with professionals who can determine how much silica is present by taking samples and conducting tests.

Employers should use dust controls and safe work methods to protect workers. If controls and safety methods aren’t sufficient, the employer should provide respirators to their workers.

OSHA also requires that employers:

  • Have a written control plan in place that includes:
    • The methods that will be used to protect workers
    • The strategies used to restrict work access where there are high levels of silica.
  • Appoint a competent person to implement the plan
  • Restrict practices that expose silica to workers such as dry sweeping or using compressed air without a ventilation system
  • Offer employees medical exams (including lung function tests and chest x-rays) every three years for specified workers
  • Educate workers on the danger of silica exposure and the ways to reduce exposure
  • Keep records of exposure and medical tests

Silica exposure and your occupational disease claim

Unlike workplace accidents, occupational illnesses normally develop over a long period of time. Many workers don’t realize they’ve been exposed until they start to have serious health issues. Generally, a worker is eligible for worker’s compensation benefits in North Carolina or Virginia based on an occupational disease if:

  • The illness/disease was caused by conditions that are unique to a particular type of job – and
  • The illness was not an ordinary disease that the general public is likely to get.
  • The risk of getting the illness/disease is greater than that of general employment

Some disease such as lung cancer can be caused by other causes. Smoking is a common reason may people get lung cancer. That the worker could have gotten the disease from another source does not automatically mean his/her claim will be denied. Workers who suffer lung disease through exposure to substances that are known to cause the disease can still recover worker’s compensation benefits. Defense lawyers may, though, try to blame your medical problems on other causes, such as smoking, but only if you actually smoked.

Workers who suffer a work-related occupational illness that prevents them from working are entitled to 2/3rds of the average weekly wage while they can’t work or average weekly wages up to 500 weeks as well as lifetime medical benefits in Virginia.

In North Carolina, a worker with confirmed silicosis or asbestos is assumed to be disabled for the first 104 weeks. Whether the employee will be entitled to those benefits beyond 104 weeks depends on whether the Industrial Commission determines, or the Parties agree, that the worker is, indeed, disabled, but in no case can the worker receive more than a total of 300 weeks or workers comp checks for the silicosis.

Exposed workers are also entitled to have their reasonable and related medical bills paid by workers comp insurance even if they are still working.  Families are entitled to death benefits if a worker dies due to an occupational illness or disease.

Statute of Limitations in Virginia for Silicosis.  The most important thing to be aware of regarding silicosis are the time limitations for filing a claim. In Virginia, as soon as you become aware of your diagnosis of silicosis, you have TWO YEARS to file a claim. This time limit applies whether the diagnosis preventing you from working or whether you had any symptoms whatsoever.

In addition to that time limit there is another one in Virginia:  If it has been many years after you retired that you find out about your diagnosis, you are unfortunately out of luck. You must file your claim within FIVE YEARS of your “last injurious exposure” to silica dust.

Statute of Limitations in North Carolina for Silicosis. North Carolina also requires employees to file within two years of being advised of a diagnosis of silicosis; however, to recover for disability or death, there must have been a minimum of two years of exposure to the dust in North Carolina, unless that exposure was more than 10 years before any other, additional exposure elsewhere.

North Carolina has also instituted an extensive system to make it easier for employees who believe they are being exposed to silicosis or asbestos to undergo examinations by a physician from an advisory medical committee set up by the Industrial Commission, which examinations are to be paid for by the employer. These examinations can up to three times within two years of the initial claim of silicosis or asbestosis, unless the parties agree on compensation.

Some common examples of respiratory/lung occupational illness, in addition to silicosis include:

  • Asbestosis – many workers who worked on buildings that had asbestos suffer from this disease. Mesothelioma is a form of lung cancer also caused by exposure to asbestos.
  • Black lung disease (also called coal worker’s pneumoconiosis) – caused by inhaling dust
  • Brown lung disease– common to people who work with cotton, hemp, or flax. It’s a lung disease
  • Farmer’s lung – caused by exposure to bacteria and mold in certain crops
  • Flock worker’s lung – caused by inhaling nylon fibers used for blankets, upholstery, and carpeting
  • Popcorn lung (also called bronchiolitis obliterans) – a lung disease common to employees who work in microwave popcorn plants and who handle certain food flavors such as butter, chips, frosting, and margarine
  • Silo filler’s disease – this is due to exposure to toxic gases from crops that ferment in silos.

The aforementioned COPD is also a well-known work-related disease that causes bronchitis, emphysema, and death.

Some of the deadly and life-changing toxins and chemicals that cause occupational illnesses of different types include:

  • Arsenic
  • Benzene
  • Beryllium
  • Lead
  • Mercury
  • Nitroglycerin
  • Herbicides and Pesticides

The chemical manganese can also cause serious health problems. Welders are likely to be exposed to manganese.

Make the call to a respected North Carolina/Virginia worker’s compensation attorney today

Attorney Joe Miller Esq. has more than 25 years-experience fight for workers who were injured on the job or who suffered an occupational illness. He’s helped thousands of employees get justice. To learn if you have a case and to get the strong recovery justice demands, please call his office at (888) 694-1671. You can also reach him through his contact form.