The proof required for a condition to be covered as an occupational disease in NC depends on whether the condition is one of those listed in North Carolina General Statute § 97-53. An employee with one of these “listed” conditions needs only to prove that their employment caused or substantially contributed to the condition. Employees with a condition that is not listed in § 97-53 must also show that their employment placed them at an increased risk as compared to the general public for developing the condition.
When an employee has been exposed to a particular health risk at more than one employer then the workers’ compensation claim lies with employer where the employee was last exposed. There are complicated special rules for claims for asbestosis and silicosis as well as hearing loss.
Listed Occupational Diseases
Certain specific medical conditions, which are acknowledged to be commonly associated with workplace exposures, are specifically identified in North Carolina General Statute § 97-53 as occupational diseases. The “listed” diseases are as follows:
- Arsenic poisoning.
- Brass poisoning.
- Zinc poisoning.
- Manganese poisoning.
- Lead poisoning. Provided the employee shall have been exposed to the hazard of lead poisoning for at least 30 days in the preceding 12 months’ period; and, provided further, only the employer in whose employment such employee was last injuriously exposed shall be liable.
- Mercury poisoning.
- Phosphorus poisoning.
- Poisoning by carbon bisulphide, menthanol, naphtha or volatile halogenated hydrocarbons.
- Chrome ulceration.
- Compressed-air illness.
- Poisoning by benzol, or by nitro and amido derivatives of benzol (dinitrolbenzol, anilin, and others).
- Epitheliomatous cancer or ulceration of the skin or of the corneal surface of the eve due to tar, pitch, bitumen, mineral oil, or paraffin, or any compound, product, or residue of any of these substances.
- Radium poisoning or disability or death due to radioactive properties of substances or to roentgen rays, X rays or exposure to any other source of radiation; provided, however, that the disease under this subdivision shall be deemed to have occurred on the date that disability or death shall occur by reason of such disease.
- Blisters due to use of tools or appliances in the employment.
- Bursitis due to intermittent pressure in the employment.
- Miner’s nystagmus.
- Bone felon due to constant or intermittent pressure in employment.
- Synovitis, caused by trauma in employment.
- Tenosynovitis, caused by trauma in employment.
- Carbon monoxide poisoning.
- Poisoning by sulphuric, hydrochloric or hydrofluoric acid.
- Undulant fever.
- Smallpox infection due to vaccinations.
- Hearing loss caused by harmful noise in the work environment.
- Diseases caused by chemical exposure in circumstances where the employment led to sufficient exposure to cause the disease.
When an employee develops one of the listed conditions it is presumed that the employment placed the employee at an increased risk for developing the condition. To recover as an occupational disease under North Carolina Workers’ Compensation law, the employee must still prove that the employment significantly contributed to the development of the condition.
Other Occupational Diseases.
North Carolina General Statute § 97-53(13) is a “catch-all” provision which allows workers’ compensation for any disease “which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.” These diseases can include carpal tunnel and tendinitis, as well as degenerative conditions.
In order to qualify for NC workers’ compensation under the catch-all occupational disease provision the worker must show both 1) that the employment placed them at an increased risk as compared to the general public for developing the occupational disease; 2) that the employment in fact substantially contributed to the occupational disease.
Causation and Increased Risk.
In every occupational disease case in NC the claimant must prove causation. It is not necessary to prove that the employment is the sole cause of the disease, only that the employment “significantly contributed” to developing the condition. Workers’ compensation benefits may be allowed when exposure to a risk of employment aggravates or accelerates the development of a pre-existing disease. The question is whether the disease would have developed to the extent that it causes physical disability if not for the workplace exposure. Proof of causation in an occupational disease claim under NC workers’ compensation almost always requires medical evidence, including the testimony of a doctor.
Claims for conditions other than the occupational diseases listed in North Carolina General Statute § 97-53, the worker must also prove increased risk. Increased risk means that the employee was placed at a greater risk of contracting the condition than the public at large. It is not necessary to prove that the risk exists only in the employment, only that the risk is greater there. Medical or other expert evidence, such as the testimony of an ergonomics expert, is generally required to prove increased risk in occupational disease claims in North Carolina. A worker’s heightened sensitivity to a particular chemical, such as an allergy, does not create an increased risk for the purposes of recovering for an occupational disease in North Carolina. In general, stress and anxiety in the workplace do not constitute an increased risk, so depression and other mental illness arising from the employment are generally not covered absent an underlying physical injury or occupational disease that is covered by workers’ comp.
Filing and Notice Requirements for Occupational Disease Claims.
Occupational diseases by their very nature usually develop over time. For this reason, unless wage replacement benefits are paid pursuant to the Workers’ Compensation Act, an occupational disease claim must be filed with the North Carolina Industrial Commission within two years of the latter of 1) the date the employee is advised by a doctor that he or she has a work related disease, or 2) the date the employee is first disabled as a result of the condition. If the employer or carrier has paid medical treatment for the disease the NC workers’ compensation claim may be filed within two years of the last payment of medical expenses.
Separate from the filing requirement, an injured employee should give written notice to his or her employer within thirty days of the latter of: 1) being advised by a doctor that he or she has an occupational disease; or 2) the first onset of disability related to the condition. This is true even if the employer has actual notice of the injury. Click here for more information on Filing and Notice Requirements in NC Workers’ Compensation Cases.
Can we help you with your North Carolina Occupational Disease case? Occupational disease claims are legally and medically complex. Many sick workers find their claims denied or are not receiving the medical treatment or disablity benefits they deserve. If you have questions about occupational disease claims in North Carolina workers’ compensation please call or email for a free consultation with Kevin Bunn, a Board Certified Expert in North Carolina Workers’ Compensation Law.