3.4 Checklist for Occupational Disease Claims

• Library: Workers' Compensation Practice in Virginia (Virginia CLE) (2020 Ed.)

3.4 CHECKLIST FOR OCCUPATIONAL DISEASE CLAIMS

3.401 In General. Questions that need to be answered before filing an occupational disease claim include:

1.	Is it an accident or an occupational disease? 39
2.	Has there been a communication of a diagnosis of an occupational disease? 40
3.	Is there a statute of limitations problem? 41
4.	Has timely notice been given to the employer? 42
5.	Was there "injurious exposure"? 43
6.	Who was the employer at the time of the last injurious exposure? 44

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7.	Does the claim involve Section 65.2-503(B)(17) of the Virginia Code or one of the presumptions in Section 65.2-402 or 65.2-504 ? 45
8.	Was the condition a result of cumulative trauma caused by repetitive motion? 46
9.	Is the condition an ordinary disease of life? 47 (This does not apply to claims under sections 65.2-402, 65.2-402.1, 65.2-503, and 65.2-504.)
10.	Is the condition an aggravation of an ordinary disease of life? 48
11.	Is there medical evidence to support the period of disability? 49
12.	If the employee could do light-duty work, has there been sufficient marketing? 50
13.	When do benefits begin and end? 51

3.402 Accident or Occupational Disease. A claimant may file under an injury by accident or an occupational disease theory. If there is any question about which theory is appropriate, a claim should be filed for both. Res judicata may apply if the claims are filed at different times. ⁵²

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3.403 Communication of Diagnosis of an Occupational Disease.

A. In General. The date of communication to the employee that he or she has a work-related disease is, by statute, the equivalent of the date of the accident. ⁵³ The average weekly wage and the start of the limitations period are controlled by this date. Medical benefits do not begin until 15 days before the date of first communication. ⁵⁴ The seven-day waiting period of Section 65.2-509 applies for compensation benefits.

The date of the injury by accident, namely, the date the diagnosis of a work-related disease is first communicated to the employee, establishes the rights and duties of the parties. Until there is such a date, there is no cause of action, and there are no vested rights. ⁵⁵ The date of communication usually is established by the medical evidence and the testimony of the claimant.

B. Requirements.

1. In General. Two requirements must be met to establish a valid communication: (i) a diagnosis of an occupational disease and (ii) a communication to the employee that the disease is work-related. Benefits for compensation or medical treatment cannot be awarded until there has been a diagnosis and communication to the employee of the occupational disease. ⁵⁶

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2. Diagnosis. For effective notice, the claimant must be given a diagnosis of an occupational disease arising out of and in the course of employment. ⁵⁷

a. Diagnosis Must Be Definite but Need Not Contain Precise Medical Terminology. The diagnosis need not contain precise medical terminology as long as it is definite and informs the claimant in clear and understandable language that he or she is suffering from a disease that arises out of and in the course of employment. ⁵⁸

b. Tentative Diagnosis or Impression Not Sufficient. A "working diagnosis" or "differential diagnosis" is not sufficient to trigger the running of the limitations period or commence the employer's responsibility for medical treatment. ⁵⁹

c. No Diagnosis Exists if Additional Testing Is Required. Where there is a definitive diagnosis and communication of an occupational disease, it is not necessary to have the diagnosis subsequently confirmed by diagnostic studies. However, if the diagnosis is tentative, there can be no communication until there is confirmation by diagnostic studies. ⁶⁰ There was no diagnosis when a physician said that toxic exposure was likely but that chronic viral infection had to be ruled out. ⁶¹

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d. Doctor's Identification of Disease Not Always Necessary. In Rice v. Virginia Beach General Hospital, ⁶² the claimant, a cytotechnologist who used chemical solvents in her work, received a diagnosis and communication of an occupational disease when she was advised by her physician that she had a chemical and nutritional hypersensitivity secondary to exposure to toxic chemicals.

In Cooper v. Ethan Allen, ⁶³ the claimant's fibromyalgia was not accurately identified initially, but a precise diagnosis of the disease is not required if there is sufficient evidence to establish a communication that the claimant's condition was causally related to her work.

e. Doctor's Identification of Specific Agent Causing the Disease Not Always Necessary. A claimant is not required to identify the exact chemical, biological, or other agent that caused an occupational disease if the evidence persuasively establishes exposure to the causative hazard of the condition in the workplace. In the absence of another cause, circumstantial evidence linking work history and exposure to the allergic condition may be sufficient. ⁶⁴

3. Communication to the Employee That the Disease Is Work-Related.

a. In General. For there to be a communication of an occupational disease, the employee must be medically advised that the condition is causally related to the work. ⁶⁵ The communication does not have to contain precise legal medical terminology as long as the diagnosis is definite

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and informs the claimant in clear and understandable language that the disease arises out of and in the course of employment. ⁶⁶

b. Who May Provide a Communication of an Occupational Disease. In City of Alexandria v. Cronin, ⁶⁷ the Court of Appeals, finding that a claim was barred by the statute of limitations, noted that

Section 65.2-406(A)(5) [now 65.2-406(A)(6)] does not require that an employee receive from a physician a communication that his disease is work related; rather, the statute only requires that the employee, simultaneously with or sometime after the diagnosis of his condition, learn that the condition is an occupational disease for which compensation may be awarded. ⁶⁸

In Hamm v. English Construction Co., ⁶⁹ the Commission found that although the record showed that a physician did not communicate a diagnosis to the claimant until responding to questions from the claimant's counsel on November 13, 2003, the claimant was aware of a potential compensable occupational disease when he filed a claim on May 6, 2003. Therefore, May 6, 2003, rather than November 13, 2003, was the appropriate date of communication of an occupational disease.

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c. Who May Receive the Communication. If a claimant is not mentally competent to understand the rights and obligations imposed by the Act, a communication of an occupational disease by the treating physician to the claimant's spouse or next friend is sufficient to meet the notice requirement. ⁷⁰ Communication to the claimant's counsel through medical reports is also sufficient to meet the statutory requirement. ⁷¹

d. Communication in Presumption Cases. An employee who qualifies for the presumption of Section 65.2-402 of the Virginia Code as to death or disability from respiratory disease, hypertension, heart disease, or cancer is not required to present evidence of a communication of a diagnosis that the condition is a result of employment. This requirement would defeat the purpose for which the presumption was enacted. ⁷² However, benefits cannot begin until the date that the claimant learns that his condition is an occupational disease for which compensation can be awarded. ⁷³

4. Examples.

a. Valid Communications. There was a communication when the doctor diagnosed "probable carpal tunnel syndrome" and recommended modifications in the claimant's work but declined to put his opinion in writing until confirmation by additional testing. The claimant testified that during that visit she became aware that her condition was workrelated. ⁷⁴

There was a communication of diagnosis of an occupational disease where a doctor suspected that there was a connection between the claimant's condition and his work because he improved after being away from work and, after additional testing several months later resulted in a diagnosis

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of "idiopathic interstitial lung disease," the doctor had him stop working. The communication occurred at the time of the definitive diagnosis. ⁷⁵

Where the claimant was told that his symptoms were a "chemical reaction" to the "chemical in latex" and subsequently advised the company nurse that his problem was coming from something in the plant, there was a communication of an occupational disease sufficient to trigger a legal obligation to file a claim. ⁷⁶

Where a doctor advised a nurse that her dermatitis could be caused by exposure to nickel, Neosporin, latex, or Quaternium, after which the claimant took precautions to avoid these potential allergens, this was a sufficient communication to alert her that the problem could be caused by the use of latex gloves at work. ⁷⁷

In Potter v. McLane Mid Atlantic/McLane Co., ⁷⁸ a majority of the Commission held that the claimant's receipt of a copy of a letter sent by her counsel to her doctor advising that hearing loss is compensable as an ordinary disease of life under the Act was a sufficient communication of an occupational disease to commence the running of the statute of limitations.

b. No Communication. There was no communication of an occupational disease where hospital records reflected that the claimant might be allergic to foreign chemicals and diagnosed his condition as psoriasis, chemical dermatitis, and exfoliative erythroderma secondary to psoriasis but did not relate these conditions to the workplace. Only after undergoing a patch test to detect allergies did the claimant become aware, and his doctor assert, that he suffered from...