Nebraska Workers’ Compensation Refresher: Occupational Disease
Nebraska Revised Statute § 48-101 provides that when personal injury is caused to an employee “by accident or occupational disease,” arising out of and in the course of his or her employment, such employee shall receive compensation, provided the employee was not willfully negligent at the time of receiving such injury.
Occupational disease are “injuries” due to the causes and conditions that are characteristic of and peculiar to a particular trade, occupation, process or employment and excludes all ordinary diseases of life to which the general public is exposed. Neb. Rev. Stat. § 48-151(3). “Characteristic of and peculiar to” the particular employment, involves a comparison of the hazards of the claimant’s employment and the hazards of employment generally. “It is not necessary that the disease originate exclusively from the employment, but only that the conditions of the employment must result in a hazard which distinguishes it in character from employment generally.” Ross v. Balwin Filters, 5 Neb. App. 194, 557 N.W.2d 368 (1996).
“Ordinary diseases of life to which the general public is exposed” are specifically exempted from being considered occupational disease. Neb. Rev. Stat. § 48-151(3). Generally, conditions such as the flu and colds are the type of conditions which would be considered “ordinary diseases of life.” Conditions such as asthma and other lung diseases have been found to be occupational disease where the condition was contributed to by a deleterious substance that the claimant was exposed to the in the course of his or her work.
The date of injury for an occupational disease is the date when the effects of the disease manifest in a disability. Morris v. Nebraska Healthcare System, 266 Neb. 285, 644 N.W.2d 436 (2003). A worker becomes disabled, and thus injured, from an occupational disease at the time when a permanent medical impairment or medically assessed work restrictions result in labor market access loss. Ludwick v. TriWest Healthcare Alliance and Physicians Clinic, Inc., 267 Neb. 887, 678 N.W.2d 517 (2004). An employee’s disability caused by an occupational disease is determined by the employee’s diminution of employability or impairment of earning power or earning capacity. Id. Other cases have phrased disability as the point when the injured worker is no longer able to render further service. Morris v. Nebraska Health System, 266 Neb. 285, 664 N.W.2d 436 (2003).
If an employee’s date of disability from an occupational disease does not occur until after employment is terminated for an unrelated reason, such as retirement, the employee still has an occupational disease as of the date of disability, but is not necessarily entitled to indemnity benefits. Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354 (2007). In Olivotto, at the time of the employee’s occupational disease manifested in disability he was retired, as a result, the Court concluded he had not suffered any loss of access to the labor market and had no diminution of employability or impairment of earning capacity.
When an employee is exposed to a deleterious substance over a course of years during which the employee worked for different employers, sometimes each with a different insure, determining which employer or insurer is liable, is a function of the application of the so-called “last injurious exposure” rule.
Under the last injurious exposure rule, liability is assigned to the carrier who was covering the risk when the last “injurious” exposure occurred. To be “injurious” an exposure need not be the actual cause of the employee’s condition, or even a “material contributing cause” of the condition. Rather, to be “injurious” an exposure simply needs to be “of the type which could cause the disease given prolonged exposure.” Osteen v. A. C. and S., Inc., 307 N.W.2d 514, 209 Neb. 282 (1981).
In response to the argument that the application of the rule is harsh because it allocates liability to entities for which no proof exists that their exposures in fact caused or contributed to the employee’s condition, the Supreme Court explained: “The law of averages, however, will spread the costs proportionately among insurers over time. Thus the rule equitably spreads the risk of liability for an occupational disease among the employers who expose workers to the danger of the disease and their respective carriers.” Hull v. Aetna Ins. Co., 247 Neb. 713, 719, 529 N.W.2d 783, 788 (1995); Morris v. Nebraska Health Sys., 266 Neb. 285, 664 N.W.2d 436 (2003).
For information or questions regarding acute or repetitive trauma injuries, please contact Nebraska Workers’ Compensation attorney Thomas Shires at firstname.lastname@example.org or by phone at 402.475.1075.