Disability stemming from any disease within the course of employment may entitle the employee to compensation, if the disease is found to be occupational in nature. Di Nicola v. Crucible Steel, Inc., 83 A.D.2d 735, 736, 442 N.Y.S.2d 582, 584 (3d Dept. 1981); see also Rodriguez v. Atlantic Gummed Paper Corp., 61 A.D.2d 873, 402 N.Y.S.2d 238, 239 (3d Dept. 1978). To be considered an occupational disease, the disease must be the
“result of a distinctive feature of the kind of work performed by claimant and others similarly employed, not an ailment caused by the peculiar place in which the particular claimant happens to work … or caused by ordinary contact with a fellow employee ….”
Paider v. Park East Movers, 19 N.Y.2d 373, 380, 280 N.Y.S.2d 140, 144, 227 N.E.2d 40, 43 (1967) (citations omitted). In order to obtain workers’ compensation benefits based upon an occupational disease, the claimant must “establish a ‘recognizable link’ between his condition and a distinctive feature of his occupation.” Engler v UPS, 767 NYS2d 496, 498 . Therefore, the foundation of determining if a disability resulted from an occupational disease is whether a distinctive feature of employment caused the disability.
Two factors result in occupational diseases: exposure to toxins and repetitive activity. This article discusses both and then provides some practical takeaways for practictioners defending these claims.
To be compensable, exposure claims must involve exposure to a toxic substance for a prolonged period. Further, the exposure itself must be an inherent feature of the claimant’s employment. A good example is exposure to asbestos being an inherent risk of a steamfitter’s job, where the worker is required to repair pipe systems which are often insulated with asbestos. Since asbestos exposure is an intrinsic risk of this employment, a claim for asbestosis properly falls within the definition of an occupational disease. Contrast this with a security guard who works in a building where renovations cause the guard to be exposed to asbestos. Subsequently, the guard is diagnosed with asbestosis. This would not qualify as an occupational disease since, unlike a steamfitter, asbestos exposure is not an inherent aspect or “distinctive feature” of the security guard job function.
Repetitive Use or “Overuse” Exposure Claims.
To be compensable, a repetitive activity must be the inherent in the very nature of the employment. For example, a factory worker working on an assembly line wrapping widgets performs the same function multiple times in an hour. If after 18 years at the same employment, such worker developed carpal tunnel syndrome (“CTS”) which was evidenced by medical reports stating causality, the CTS would likely be considered an occupational disease claim. Compare this to an office employee, alleging an occupational disease in the form of neck and back pain due to the physical lay out of her work area i.e. chair and desk. The Court rejected this type of ergonomic claim as an occupational disease, stating that the claimant’s problem related to a “specific condition peculiar to the claimant’s place of work” rather than “the very nature of the employment.” Bryant v. City of New York, 252 AD2d 777 (3rd Dept., 1998).
In a more recent claim, a claimant alleged he sustained a causally-related occupational disease due to repetitive overhead activities while working as a seasonal laborer for a municipal highway department. The Court held that the proof failed to demonstrate that claimant’s shoulder injury was attributable to repetitive movements associated with moving heavy wheelbarrow loads of asphalt or performing other manual duties during his short period of employment as a laborer with the highway department. Matter of Yonkosky v Town of Hamburg, NY Slip Op 00586, *2 . However, though the court found lack of substantial evidence evincing a recognizable link between claimant’s shoulder injury and a distinctive feature of his job as is necessary to establish his claim for an occupational disease, the claim was established and classified as an accidental injury.
- When faced with claims for occupational disease, carefully review and analyze the facts as reported to confirm whether the claim actually qualifies for an occupational disease.
- Specially identify the “distinctive feature of the employment” which likely caused the disability.
- CAUTION: If the above analysis fails to establish the claim as an occupational disease, the Board may nonetheless establish it as an accident.