Litigating Occupational Disease Cases

By: J. Michael Parsons, Esq. with valuable assistance from his associate, Amanda
Conley, Esq., both of Parsons Law Group, LLC in Marietta, Georgia
For Worker’s Compensation Legal Advice Contact www.parsonslawgroup.com

Introduction

Since the inception of the Workers’ Compensation Act, occupational disease

claims have posed a challenge to legislators, lawyers, and claimants. Over time, more

and more diseases have been accepted as at least potentially occupational in nature.

However, occupational disease claims still differ significantly from traditional workers’

compensation claims both in the methods for proving the claim and the likelihood of

compensability. First, the burden of proof is considerably higher for occupational disease

claims, as opposed to more traditional work-related injuries.1 This higher burden of

proof, accompanied by the standard elements of causation in workers’ compensation

claims, necessitates creative discovery tactics in order to prove compensability. This

article will discuss a few of those methods, including how they can be successfully

implemented and why they are useful to satisfy the requisite statutory elements of proof.

Historical Overview

Occupational disease has been recognized for virtually as long as organized

employment has existed. Some of the oldest references to occupational diseases can be

found in the descriptions of ailing workers made by ancient Greek physicians.

Hippocrates described a severe attack of colic due to lead poisoning in a man who

1
KISSIAH, RICHARD C., GEORGIA WORKERS’ COMPENSATION LAW § 7.03, p. 335 (2nd ed. 2002).

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Atlanta Work Injury Attorney www.parsonslawgroup.com

worked as a miner extracting metals.2 Hippocrates also noted the correlation between a

paralysis in the hand and the worker’s occupation involving the twisting of twigs.3 Other

European physicians described lung diseases afflicting miners during the sixteenth

century:

[S]ome mines are so dry that they are entirely devoid of water and this dryness
causes the workmen even greater harm, for the dust, which is stirred and beaten
up by digging, penetrates into the windpipe and lungs, and produces difficulty in
breathing and the disease which the Greeks called asthma. If the dust has
corrosive qualities, it eats away the lungs, and implants consumption in the body.
In the mines of the Carpathian Mountains women are found who have married
seven husbands, all of whom this terrible consumption has carried off to a
premature death.4

In the seventeenth century, the Father of Occupational Medicine, Bernardino

Ramazzini, an Italian professor of medicine, published his work, The Diseases of

Tradesmen.5 Ramazzini studied miners, bakers, coppersmiths, chemists, mirror makers,

stone cutters and cleaners of cesspits. It was Ramazzini who revised the Hippocratic art

of medicine by requiring physicians to ask in which occupation ill workers were

employed.6 Ramazzini described hand pain and numbness among professional scribes and

notaries:

The maladies that afflict the clerks arise from . . . incessant movement of the hand
and always in the same direction . . . Incessant driving of the pen over paper
2
1Chojnacki, Robert J., “Occupational Disease Under the New York Workmen’s Compensation Law,” 42
ST. JOHN’S LAW REV. 473, 475 (1968), citing D. Hunter, THE DISEASES OF OCCUPATIONS 9
(1957).

3
Dembe, Allard E., Occupation and Disease, How Social Factors Affect the Conception of Work-Related
Disorders, 27 (1996).
4Chojnacki, supra, at 476, quoting Hunter, supra, note 1, at 26-27.
5Id., at 477, citing Hunter, supra, note 1, at 32.
6Id., at 478.

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 causes intense fatigue of the hand and the whole arm because of the continuous
and almost constant strain on the muscles and tendons, which in the course of
time results in failure of power in the right hand. An acquaintance of mine, a
notary by profession, still living, used to spend his whole life continually engaged
in writing . . . and he made a good deal of money by it; first he began to complain
of intense fatigue in the whole arm, but no remedy could relieve this, and finally
the whole right arm became completely paralyzed. In order to offset this infirmity
he began to train himself to write with the left hand, but it was not very long
before it too was attacked by the same malady.7

The Emergence of the Occupational Disease Statute in Georgia

Workers’ compensation law has developed to view occupational disease claims

more rigidly and with more suspicion than traditional workplace accidents.8 The reason

is clear. It is simply more difficult to prove that a claimant suffered a work-related injury

when there is no specific accident.9 You also need medical evidence to show that an

occupational disease was caused by the claimant’s employment to a reasonable degree of

medical certainty. In the case of an illness, it is much harder to prove that the illness

resulted from conditions of the claimant’s employment where there are several potential

causes, even if workplace exposure is one accepted cause. For instance, smoking can

cause lung cancer. However, the daily breathing of silica dust, smoke and fumes can also

cause lung cancer. Concern about this issue resulted in the earlier Georgia workers’

compensation scheme providing an exclusive list of diseases that would be considered

occupational for purposes of that act.10

7
Dembe, supra, note 2, at 27. Quoting Ramazzini, B. 1713, Diseases of Workers, p. 229, 421, 423.
8
Brandt-Rauf, Sherry I. & Brandt-Rauf, Paul W., Compensation for Occupational Disease: Hidden
Agendas, HEALTH AFFAIRS, 73, 77 (Fall 1998). This article notes that twenty-one states, including Georgia,
“limit coverage to diseases peculiar to the workplace, thereby excluding ordinary diseases of life and
eliminating coverage for a significant amount of occupationally related disease.” Employers and their
insurers tend to view these claims with skepticism, with “60 percent of diseases claims initially denied.” Id.
9
Id. at 77 (“Occupational disease is often unpredictable before the fact, and the relationship between the
workplace toxins and illness may be subtle and confounded by synergistic effects and multiple causes.”);
Hancock v. Modern Indus. Laundry, 878 S.W.2d 416 (Ark. Ct. App. 1994).
10
Kissiah, supra note 1, at § 7.01. See also, Lohman, Judith S., Occupational Diseases Under the Workers’
Compensation Law, Office of Legislative Research, Connecticut General Assembly (Sept. 14, 1995).

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 The original Georgia Workers’ Compensation Act excluded all disease from

coverage, viewing all disease as ordinary. In 1946, the Act was amended to include four

types of compensable occupational diseases: “(1) poisoning by certain agents; (2) disease

condition caused by x-ray or radioactive substance exposure; (3) asbestosis; and (4)

silicosis.” The 1971 amendment to the act added the catch-all category, including its five

prerequisites for compensability, which is now encoded at § 34-9-280(2). However, that

section still excludes partial loss of hearing due to noise, psychiatric and psychological

problems, and heart and vascular disease, standing alone, from coverage under the Act.

O.C.G.A. § 34-9-280(2).

If a claimant’s disease did not appear on the list, or it could not logically be

included in an existing category, the claim was not compensable.11 The justification for

this list was that the selected illnesses were closer to occupational injuries rather than

occupational diseases.12 The current law is arguably more flexible, with the exception of

the four types of disease that remain excluded, but the current state of the law continues

to pose a challenge to attorneys trying to recover for their clients.

Current Occupational Disease Statute

Occupational diseases are governed by Article Eight of the Workers’

Compensation Act. The term “occupational disease” is defined by § 34-9-280(2), which

states that an occupational disease must “arise out of and in the course of the particular

trade, occupation, process, or employment in which the employee is exposed to such

disease.”13 In addition, § 34-9-280(2) qualifies this definition with five additional factors

that must be proven:

11
Kissiah, supra note 1, at § 7.01.
12
Id. at § 7.03.
13
O.C.G.A. § 34-9-280(2).

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 “(A) A direct causal connection between the conditions under which the work is
performed and the disease;
(B) That the disease follows as a natural incident of exposure by reason of the
employment;
(C) That the disease is not of a character to which the employee may have had
substantial exposure outside of the employment;
(D) That the disease is not an ordinary disease of life to which the general public
is exposed;
(E) That the disease must appear to have had its origin in a risk connected with
the employment and to have flowed from that source as a natural consequence.”14

As with all other workers’ compensation claims, an employer is liable where “the disease

arose out of and in the course of the employment in which the employee was engaged

under such employer . . . and has resulted from a hazard characteristic of the employment

in excess of the hazards of such disease attending employment in general.”15 On the

other hand, compensation for an occupational injury requires only that the injury arise out

of and in the course of employment.16 Thus, the burden of proof for an occupational

disease is significantly higher.

The burden of proving these five factors is on the claimant. Therefore, what

evidence will be most helpful in establishing what is essentially a very strict element of

causation? Under these circumstances, discovery can be used to establish the crucial

connection between an employee’s harmful exposure in the workplace and the disease

they currently suffer from. A physician’s opinion that the illness resulted from the

claimant’s employment is essential,17 but often that opinion must be bolstered by other

forms of evidence, especially where there is conflicting medical testimony. In addition,

as a part of the patient’s history, a physician may want evidence of hazards in the work

environment before he/she concludes that a claimant is suffering from an occupational

14
Id.
15
O.C.G.A § 34-9-281.
16
O.C.G.A §34-9-1(4).
17
Ring v. Stone & Sons Monument, Ark. Workers’ Comp. Comm’n, Claim No. F305003 (April 5, 2004).

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disease. Therefore, these discovery tactics focus on the workplace itself once the

employee has had a thorough medical evaluation.

The first option is to perform an inspection of the premises, which falls under the

purview of Sections 9-11 of the Georgia Civil Practice Act governing discovery. Section

9-11-34 governs entry upon land for purposes of discovery, and states that a party may be

permitted entry upon land or property in the possession and control of another party “for

the purpose of inspection and measuring, surveying, photographing, testing, or sampling

the property or any designated object or operation thereon.”18 Such request must also fall

within the scope of permitted discovery, which is essentially a relevancy requirement.19

In the case of occupational disease claims, entry upon land would apply to the

employer’s premises. Although the claimant will have already described the workplace

and the conditions of their employment to his/her attorney, an actual visual inspection

can be a valuable tool. The attorney may notice something important that the employee

did not think to mention, and will at least gain a better understanding of the conditions

their client worked under. The inspection can also be performed by a specialist employed

by the attorney, who will have a greater understanding of the hazards to look for. It also

creates an undesirable situation for the employer. Business owners generally do not want

lawyers and industrial engineers snooping around their establishment. Filing a request

for entry upon land can create significant leverage. I analogize it to taking an adjuster’s

deposition. It makes the other side quite uncomfortable.

Air quality testing arguably falls under the same discovery provision, and can be

used to much the same effect.20 Many occupational diseases involve the breathing of

18
O.C.G.A. § 9-11-34(a)(2).
19
O.C.G.A. § 9-11-26(b)(1).
20
See, O.C.G.A § 9-11-34(a)(2), which refers to both “testing” and “sampling” the property.

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dust, fumes and smoke over time. Thus, retaining the services of a clinical air quality

tester can be useful to test the air at the workplace for possible contaminants. The

attorney will have to be diligent in hiring such an expert who will need to have some

litigation experience on the stand and have excellent credentials. You can be sure that the

employer/insurer will have testing conducted to combat any evidence you obtain..

Nonetheless, if you have concrete scientific evidence that the air in the workplace

contains contaminants and is harmful, you have gone a long way in proving that the

claimant suffered a workplace exposure pursaunt to part (B) of the statute.21 Obviously,

retaining an air quality tester to conduct air quality testing could be done in conjunction

with a general inspection of the premises, yielding a broad view of the claimant’s

working conditions in one visit to the employer.

In the event that a more comprehensive review of the workplace is needed to

identify potentially hazardous conditions, an industrial hygienist can be retained. An

industrial hygienist typically evaluates the health effects of chemicals or noise in a

workplace, but they can also look for any conditions that could result in illness.22 The

industrial hygienist would have to meet the qualifications for an expert witness to testify

at a hearing on the claim, but as long as they use testing methods typical to their

profession, this burden should be easily met.23 At a hearing, the industrial hygienist can

testify as to the state of the workplace upon inspection, as well as any conditions that

could have caused the plaintiff’s illness. Even if the hygienist’s report is never used as

21
O.C.G.A § 34-9-280(2)(B).
22
See generally, http://www.abih.org/general/cihcaih.html. The website for the American Board of
Industrial Hygiene discusses in detail what an industrial hygienist is, what types of services they can render,
and the qualifications necessary to become an industrial hygienist. The Board also notes eight areas of
practice in this field, including occupational disease.
23
O.C.G.A. § 24-9-67.1(b).

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evidence in a hearing, it provides support for the claim that the illness is directly

connected to exposure in the workplace to a particular substance.24

Where a claimant works in an environment where they may be exposed to

chemicals, the attorney may also request copies of all Material Safety Data Sheets

(MSDS) kept by the employer. MSDS’s are documents prepared by chemical

manufacturers to inform their customers of the hazards of those chemicals.25 Per OSHA

regulations, all chemicals used in the workplace must be properly labeled and the

employer must provide MSDS’s and safety training to all exposed workers.26 First,

requesting copies of these reports allows an attorney to know exactly which chemicals

the claimant was potentially exposed to. Without this knowledge, it may be difficult for a

physician to link a particular disease with a specific cause inside the workplace. Second,

the employer may have violated OSHA regulations on this point and either not have the

required MSDS’s or have failed to properly train their employees. Although workers’

compensation is a no-fault system, the employer does not want to be caught disregarding

important safety precautions especially OSHA who has the federal authority to levy fines

and even shut down plants. Again, when you request MSDS’s in your discovery, the other

side will know you have done your homework and you will have made a safety manager

very uncomfortable. Admitting the MSDS’s as evidence at a hearing can be done under

the business records exception to the hearsay rule.

Records of an employer’s past OSHA violations are also discoverable in this

context. If an employer has been cited in the past for violating OSHA regulations, these

can be evidence of an unsafe workplace or at least a workplace where exposures could

24
See, O.C.G.A. § 34-9-280(2)(A) and (B).
25
http://www.osha.gov/SLTC/hazardcommunications/index.html.
26
Id.

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occur. Whether the violations were remedied can also be important in proving

occupational exposure, because they show that the employer knew there were health

hazards but failed to address the problem. These violations can also establish that certain

health hazards existed in the workplace in the first instance, which may be necessary for

establishing a causal connection between an illness and occupational exposure.

Illustrative Cases

1. Benzene Exposure/Hearing Loss

A former client, let’s call him Jim Parks, sustained carpal tunnel syndrome and

elbow injuries while on the job. He also had some hearing loss as a result of driving a

chemcial tank truck for 31 years.

During the course of representing Mr. Parks, I discovered that he had also

developed bladder cancer. At first, Mr. Parks did not think the bladder cancer was work

related but after a visit with a clinical toxicologist, his opinion started to change. The

toxicologist was concerned about a recent urine sample which detected abnormally high

levels of benzene in his body. Benzene is a known carcinogen and while not directly

related to bladder cancer, the toxicologist certainly could not rule out benzene exposure

as the cause of his bladder cancer. The toxicologist would not state with a reasonable

degree of medical certainty that the benzene exposure led to the bladder cancer but said

that it must be “strongly considered”.

At that point, I did not feel that I had quite met my burden of proof and began to

engage in discovery. I was also concerned that bladder cancer would not satisfy section

(D) of O.C.G.A. § 34-9-280(2) which states: “That the disease is not an ordinary disease

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of life to which the general public is exposed.” Certainly, cancer is an ordinary disease of

life. Therefore, I had to demonstrate that by virtue of Mr. Parks’ employment, he was

much more at risk than the general public for developing a more rare type of cancer.

I determined that the employer did not maintain MSDS’s even though Mr. Parks

had daily exposures to benzene. I also was able to discover many other hazardous and

cancer-causing chemicals from which Mr. Parks was exposed. I retained an expert in

workplace exposures to testify to a reasonable degree of medical certainty that Mr. Parks’

workplace exposures directly caused his bladder cancer especially in light of the fact that

Mr. Parks did not ever smoke or engage in any of the other contibuting factors. We were

also able to retain an industrial hygienist to show that Mr. Parks had sustained severe

hearing loss from driving the chemical tankers. The case was settled very favorably for

Mr. Parks who retired and was able to keep his medical benefits.

2. Pulmonary Fibrosis

My client, a welder and machine operator, worked at a manufacturing plant that

assembled brakes and struts for automobiles. He developed pulmonary fibrosis as a result

of a thirty two year history of exposures to smoke, dust, chemicals and asbestos

according to his treating physician, a pulmonologist. He also treated with another

pulmonologist who examined him to determine his candidacy for a lung transplant. This

second doctor opined that my client had idiopathic pulmonary fibrosis but could not rule

out occuptional exposures as a causative factor. The employer had four other

pulmonologists review the medical records and all four determined that my client had

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idiopathic pulmonary fibrosis. However, none examined my client or obtained any

history of his occupational exposures. Obviously, we were in for protracted litigation.

In discovery, we were able to obtain MSDS’s and past OSHA violations from the

employer. Importantly, one of the chemicals that my client was exposed to created quite a

concern for the treating physician. She testified that repeated exposure to chromium

causes severe respiratory problems that could lead to pulmonary fibrosis. The OSHA

violations for unclean air and inadequate ventilation provided an excellent platform for

the treating physician to testify that the totality of the occupational exposures caused my

client’s pulmonary fibrosis.

An inspection of the plant by an industrial hygienist also confirmed the poor air

quality in the plant even though the employer made a valiant effort to “clean up” for the

inspection.

Unfortunately, my client passed away during the pendency of this claim and the

matter is still pending after three years due to repeated delays and continuances.

Conclusion

Occupational exposure cases are difficult to prove and can be prohibitively

expensive. Nonetheless, there are good cases out there that deserve aggressive

representation. Hopefully, some of these discovery tactics will be useful in your practice.

Appendix #1 is a sample of discovery submitted in case #2.

www.parsonslawgroup.com

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