Occupational Disease Claims Under Senate Bill 218
| Publication year | 1993 |
| Pages | 2421 |
1993, November, Pg. 2421. Occupational Disease Claims Under Senate Bill 218
This article examines the history of OD claims and analyzes significant issues created by recent changes in the law.
The two primary issues discussed in this article are:
1) the significance of amendments made July 1, 1991, in CRS § 8-41-304(1), specifically the significance of adding the language "substantial permanent aggravation" to the last injurious exposure rule with the passage of S.B. 218; and
2) the test used to determine whether OD cases are treated as pre- or post-S.B. 218 claims: the onset of disability versus the last injurious exposure.
Only recently have some of the issues facing practitioners litigating OD claims been addressed by the courts. Monfort v. Rangel and ICAO,(fn1) decided by the Colorado Court of Appeals on August 26, 1993, takes a step toward defining and applying the term "substantial permanent aggravation" now found in CRS § 8-41-304(1). The Industrial Claims Appeals Office ("Panel") has issued several Final Orders which may give some direction regarding matters to be analyzed. These orders and the Monfort decision are further discussed below.
The definition of "occupational disease" has not changed with the enactment of S.B. 218. It is defined at CRS § 8-40-201(14) as
[a] disease which results directly from the employment or the conditions under which work was performed, which can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside of the employment.
Therefore, an occupational disease is unlike an accidental injury, which is "traceable to a definite time, place and cause."(fn2) A typical example of an OD claim would be the office worker who contracts carpal tunnel syndrome, also known as repetitive motion syndrome, caused by operating a word processor.
Judicial interpretation has expanded the definition of OD. For example, a condition of employment such as a claimant wearing safety boots which cause the development of blisters on a foot previously burned severely in a nonindustrial accident fits the definition of OD.(fn3)
A pre-existing hypersensitivity or secondary cause does not defeat a claim for OD. In Hall v. Industrial Claims Appeals Office,(fn4) the claimant had restrictive lung disease, which he alleged was due to inhalation of industrial irritants. He also smoked cigarettes. The Colorado Court of Appeals determined that the nonindustrial cause (smoking) would defeat an OD claim only if it was an "equally exposing stimulus" to the occupational disease.
Masdin v. Gardner-Denver-Cooper Industries, Inc., a seemingly inconsistent opinion, determined that where there is no evidence that occupational exposure is a necessary precondition to development of the disease with which a claimant is afflicted, then claimant has sustained an occupational disease only to the extent that the occupational conditions have contributed to the claimant's overall disability.(fn5)
Nevertheless, reconciling the Hall and Masdin decisions and extracting principally from Masdin, the Supreme Court recently determined in Anderson v. Brinkhoff(fn6) that where occupational factors were 50 percent responsible for aggravating the claimant's underlying genetic deficiency (the other 50 percent was due to smoking), rendering the claimant disabled, he would be entitled to 50 percent of the medical and disability benefits to which he would otherwise be entitled. This decision will apparently require apportionment and presentation of apportionment evidence between industrial and nonindustrial factors in many occupational disease cases, notwithstanding CRS § 8-40-201(14). However, in Cowin & Co. v. Medina,(fn7) the Court of Appeals held that when the claimant establishes the existence of an occupational disease, the burden of proof shifts to the respondents to demonstrate affirmatively the existence of a nonindustrial exposure.
The issue of what does or does not constitute an occupational disease has been, at least prior to Anderson, far less controversial than determining which employer/insurer is liable in cases of sequential employment/insurance coverage with potential multiple injurious exposures. Before the enactment of S.B. 218, there was no question that Colorado was the "sole liability state" in claims involving sequential employments/coverages. Prior to July 1, 1991, CRS § 8-41-304(1) provided:
Last employer liable---exception (1) where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and the insurance carrier, if any, on the risk when such an employee was last injuriously exposed under such employer shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier. [Emphasis added.]
Consequently, the primary issue in compensable OD claims became which employer or, if insured, which insurance carrier would be solely liable for the last injurious exposure. Practitioners characterized this test as "searching for the caboose." The last injurious exposure rule, developed through the case law, provided some harsh, although...
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