Workers’ Compensation and Lung Disease

Posted on Tuesday, October 12th, 2021 at 2:58 pm    

While many North Carolina and Virginia claim workers’ compensation benefits are based on an accident, you can also claim benefits if you suffered an occupational illness or disease. The workers’ compensation laws in both states authorize claims for workers who suffer lung diseases and other diseases due to workplace conditions – provided the worker can show that certain conditions are met.

Unlike most injuries from accidents, workers who suffer lung disease or other occupational illnesses often never recover well enough to return to the type of work they were doing before their illness. With luck, some workers are able to manage their disease well enough – that if they learn new job skills, they can work again provided the workplace conditions are safer.

It’s often critical that if you have an occupational disease that you file your workers’ compensation as soon as possible – so you can start getting the medical help you need. There are also time limits for filing a workers’ compensation claim based on an occupational illness. It’s critical that you speak with an experienced North Carolina or Virginia workers’ compensation lawyer as quickly as possible.

What are the requirements for filing an occupational illness workers’ compensation claim?

Generally, you must show that:

  • You have an illness that prevents you from working
  • That the illness was caused by your workplace conditions and work experience
  • That the illness is not an illness that could have been developed away from the workplace

That being said, even if you are able to return to work, if you are partially impaired with respect to lung disease—meaning there is a level of disease in your lungs that rises to a certain level—you may be entitled to compensation for that, even if you are back at work, full duty. As will be further explained, the amount of compensation for such partial impairment from the presence of the lung disease itself rises as the stages of the disease worsen.

But as for the types of diseases that are common, what are referred to in the law as “ordinary diseases of life,” these things are much harder to prove. For example, if you get the flu, you would have hard time seeking benefits because you may have gotten the flu from people in your household or your community. If you do construction work which involves tearing out asbestos tiles, and you develop asbestosis, then it’s much more likely your claim your illness was due to the work you did and that your claim will be successful. Some jobs are more prone to occupational lung illnesses than others such as construction work, mining work, and agricultural work.

Most occupational illnesses develop over a period of years so it can be hard to pinpoint the exact date your illness started. There is one advantage to occupational illness claims over accident claims. There are presumptions that you have an occupational illness based on the type of disease you have and the type of work you did. Your lawyer can explain these presumptions.

What types of diseases can qualify as an occupational Illness?

Some of the occupational illnesses that are fairly common include:

Lung disease and occupational illnesses

Workers in the mining industry are often exposed to dangerous chemicals and dusts which can cause silicosis (a form of lung cancer that has no cure). Other types of lung diseases that can qualify for workers’ compensation benefits in Virginia and North Carolina are:

According to Medline Plus (a service of the National Library of Medicine which is part of the National Institutes of Health), there are three general types of lung diseases:

  • Airway diseases. These disorders affect “the tubes (airways) that carry oxygen and other gases into and out of the lungs.” Airway diseases usually limit or block the airways. Common airway diseases include COPD, asthmas, and bronchiectasis. Patients with an airway disease say it feels like they are “trying to breathe out through a straw.”
    • “Asthma is a chronic disease that causes the airways of the lungs to swell and narrow. It leads to breathing difficulties such as wheezing, shortness of breath, chest tightness, and coughing.”
    • Chronic obstructive pulmonary disease (COPD) makes breathing difficult. COPD is normally classified as chronic bronchitis (long-term coughing with mucus) and/or emphysema (long-term damage to the lungs). Most COPD patients have both classifications.
    • Bronchiectasis is another type of lung disease that damages the airways – causing the airways to “become permanently wider.”
  • Lung tissue diseases. These disorders damage the lung tissue. “Scarring or inflammation of the tissue makes the lungs unable to expand fully (restrictive lung disease). This makes it hard for the lungs to take in oxygen and release carbon dioxide.” Patients with lung tissue disease can’t breathe deeply. Examples of lung tissue disease include:
    • “Idiopathic pulmonary fibrosis (IPF) is scarring or thickening of the lungs without a known cause.”
    • “Sarcoidosis is a disease in which inflammation occurs in the lymph nodes, lungs, liver, eyes, skin, and/or other tissues.”
  • Lung circulation diseases. “These diseases affect the blood vessels in the lungs. They are caused by clotting, scarring, or inflammation of the blood vessels. They affect the ability of the lungs to take up oxygen and release carbon dioxide.” One example of lung circulation disease is:
    • Pulmonary hypertension. “Pulmonary hypertension is high blood pressure in the arteries of the lungs. It makes the right side of the heart work harder than normal.”

Other lung disease disorders include:

  • Pneumoconiosis-includes various types of lung diseases, including black lung and asbestosis.
  • Black lung disease (also known as coal workers’ pneumoconiosis)
  • Mesothelioma – a lung cancer that is fatal and comes from asbestos exposure
  • Byssinosis—a disease that comes from cotton dust
  • Berylliosis

How are workers compensated if they contract a lung disease as a result of their work environment or other occupational disease?

In Virginia, Police Officers, Firefighters and Hazardous Material officers have a bit of an easier time proving occupational diseases such as respiratory disease, hypertension, certain cancers, and heart disease, because they are entitled to a presumption that the development of such diseases arose from their job pursuant to a special state statute.

There is also a Virginia statute governing the presumption of compensability for firefighters, emergency medical personnel, Police officers, healthcare workers, and others for the contraction of certain diseases, including Hepatitis, meningococcal meningitis, tuberculosis or HIV and more recently, as of July 1, 2020, COVID-19. The COVID-19 portion of the statute is retroactive to as early as March 12,2020.

For non-lung related illnesses, compensation is available for time lost from work at the rate of 2/3rds of one’s average weekly wage, plus payment by the insurance carrier of lifetime medical bills for the condition. The weekly payments are potentially available for up to 500 weeks, depending on the worker’s inability to return to work as a result of the occupational disease.

Under the Virginia statute for black lung disease (otherwise known as coal worker’s pneumoconiosis), or asbestosis, the level of compensation, assuming the disease is not preventing the employee from working, is based on the level or classification of the stage of the disease. That level or classification, is, in turn, determined by a qualified pulmonary physician who is certified to read the International Labour Office Classification lung-X-rays of the injured worker. This type of doctor is otherwise known as a B-Reader.  The amounts a worker who contracts black lung disease are similar to those available to a worker who contracts asbestosis and are as follows:

  • If the x-rays reveal the coal worker has the first stage of the disease, with no impairment of work capability, the worker is entitled to up to 50 weeks of payments at 2/3rds of the average weekly wage.
  • If it is determined the coal worker has 2nd Stage pneumoconiosis, assuming there is no work impairment, he or she is entitled for up to 100 weeks of payments at 2/3rds of the average weekly wage.
  • If it is determined that the coal worker has 3rd stage pneumoconiosis, and he or she is not otherwise impaired from work, the worker would be entitled to up to 300 weeks of compensation at the rate of 2/3rds of his or her average weekly wage.

If the coal worker also has an “A, B, or C” designation under the B-reading, meaning there is also progressive fibrosis for any stage of the disease, and there is enough pulmonary function loss,  and his or her doctor instructs the coal worker not to return to the dusty work environment, then that worker shall be deemed to have a permanent disability for the last 3 years prior to the filing of his or her claim, as well as entitlement to ongoing payments at 2/3rds of the worker’s average weekly wage, for the remainder of his or her life.

If death results from Coal Worker’s pneumoconiosis, then the claim must be made by the coal worker’s dependents within 3 years of his or her death, and the amount recovered is payable to the extent required by Federal Law, as permitted by Title IV of the 1969 Federal Coal Mine Health and Safety Act (FCMHSA).

At Joe Miller Law Ltd., our experienced North Carolina and Virginia worker’s compensation lawyer has helped thousands of injured and ill employees get the compensation they deserve. He understands what the requirements are for showing you have an occupational disease – including meeting any presumption tests. He understands just how life-altering most lung diseases are. He works with your own medical team and lung specialists, when necessary, to verify your medical condition.

To speak with a seasoned workers’ compensation attorney, call lawyer Joe Miller, Esq., at 888-667-8295. or use my online contact form to make an appointment.

Employees in North Carolina and Virginia who have a work injury case can also use our New Electronic Case Review. We created this link to help workers speak with us during the pandemic.