Chapter 11 Occupational Diseases

• Library: The Law of Workers’ Compensation Insurance in South Carolina (SCBar) (2019 Ed.)

Chapter 11 Occupational Diseases

I. General

Chapter 11 of the Workers' Compensation Act addresses occupational diseases. An "occupational disease" is

a disease arising out of and in the course of employment which is due to hazards in excess ofthose ordinarily incident to employment and is peculiar to the occupation in which the employee is engaged. A disease shall be deemed an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation or employment as a direct result of continuous exposure to the normal working conditions of that particular trade, process, occupation, or employment.¹

"It is in the nature of all occupational disease cases that the disability arise over a period of time. Often there is no single incident to which the injury can be attributed."² Consequently, the South Carolina Legislature distinguished occupational diseases from injuries by accident by devoting a chapter of the Workers' Compensation Act to occupational diseases. Since then, courts have entertained cases involving respiratory,³ endocrine,⁴ malignant,⁵ cardiac,⁶ dermatological,⁷ musculoskeletal,⁸ immunological,⁹ and mental¹⁰ disorders. Some of those conditions were held compensable as "occupational diseases" and others were held to be not compensable as "occupational diseases."

In many respects, occupational diseases resemble injuries by accident. However, they give rise to both substantive and procedural peculiarities in workers' compensation practice which do not pertain to injury-by-accident claims.

II. Substantive Aspects

A. Elements of Occupational Disease Claims

Claims for occupational diseases involve the following six elements which are addressed in turn:

1. A disease;
2. The disease must arise out of and in the course of the claimant's employment;
3. The disease must be due to hazards in excess of those hazards that are ordinarily incident to employment;
4. The disease must be peculiar to the occupation in which the claimant was engaged;
5. The hazard causing the disease must be one recognized as peculiar to a particular trade, process, occupation, or employment; and
6. The disease must directly result from the claimant's continuous exposure to the normal working conditions of the particular trade, process, occupation, or employment.¹¹

1. Disease

South Carolina appellate court cases have not directly addressed the question of what constitutes a "disease"; however, they suggest some definitions. In contrast to injuries by accident, which occur suddenly, occupational diseases are insidious, frequently with an indefinite onset.¹² Thus, the onset date is not determinative in occupational disease cases, whereas the date of disability is.¹³

These principles remove occupational diseases from the concept of injuries by accident. If the cause of a medical condition in a particular case has an identifiable starting point, the condition most likely will be considered an injury by accident. Thus, in Hiers v. Brunson Construction Company,¹⁴ an employee's influenza, double pneumonia, and pleurisy were compensable as an injury by accident because these conditions resulted from exposure to extreme weather conditions on a specific occasion.¹⁵ Moreover, even if a sequence of exposures or events accumulates into a severe medical impairment, this impairment will most likely be compensable as an injury by accident, not as an occupational disease. As stated in Grayson v. Gulf Oil Co.,

Where a sudden illness or collapse is precipitated by the inhalation of harmful elements at a definite time, which brings to a climax the cumulative deleterious effects of the inhalation of such elements in the course of the employment over a period of time, it is generally considered that the disability is attributable to an accidental injury rather than to occupational disease.¹⁶

Other than these conceptual differences, claims for occupational diseases are largely treated as claims for injuries by accident.¹⁷ Accordingly, the amount of compensation is measured identically for both types of claims,¹⁸ and "the date of . . . disability controls the applicable benefit level."¹⁹

2. "Arise Out OP and "In the Course OP Employment

Like the injuries by accident, occupational diseases must "arise out of" and "in the course of a claimant's employment.²⁰ These phrases carry the same significance for occupational diseases as they do when they refer to injuries by accident.²¹

A rebuttable presumption exists for firefighters suffering from heart or respiratory disease that the disease arose out of and in the course of the firefighters' employment.²² In order for this presumption to operate, however, the firefighter

must be under the age of thirty-seven and must have successfully passed a physical examination by a competent physician upon entering into . . . service, which examination failed to reveal any evidence of [the heart or respiratory] condition or conditions, and such condition or conditions developed while actively engaged in fighting a fire or within twenty-four hours from the date of last service in such activity.²³

3. Due to Hazards in Excess of Those Ordinarily Incident to Employment

For a disease to be "due to hazards in excess of those ordinarily incident to employment . . . , the disease must be caused by the worker's exposure to hazards greater than those involved in ordinary occupations."²⁴

4. Peculiar to the Claimant's Occupation

The disease must be "peculiar to the occupation in which [the] claimant was engaged."²⁵ This phrase does not mean that the disease must either originate exclusively from or be unique to the particular kind of employment in which the employee is engaged before it can be considered an "occupational disease." The phrase also does not mean the disease must be one not otherwise found among the general public. Rather, a disease "is peculiar to the occupation in which the employee is engaged" if the disease is either directly caused by, especially incident to, or the natural consequence of the work in question.²⁶

Moreover, "peculiar means only that conditions of employment result in a hazard which distinguishes the employment from the general run of occupations . . . . [P]eculiar to employment does not mean unique, but only that employment increased the risk . . . . [O]rdinary diseases may be occupational diseases if produced or aggravated by distinctive conditions of employment . . . ."²⁷

5. Recognized as Peculiar to a Particular Trade, Process, Occupation, or Employment

A "disease cannot be regarded as an 'occupational disease' unless the disease results from a hazard that is acknowledged as different from hazards found in the general run of occupations."²⁸ Whether a claimant satisfies this element is a decision ordinarily left to the South Carolina Workers' Compensation Commission (the SCWCC), and courts will not disturb the SCWCC's finding on review²⁹ unless "there [are] too many factual disputes and too many elements which were not addressed to support a conclusion that the SCWCC made implicit findings."³⁰ Thus, an express finding regarding this element is not necessary.³¹ In one case, for example, "[t]he Industrial Commission's recognition of chronic obstructive lung disease as peculiar to [the claimant's] occupation is implicit in its affirmance of the Commissioner's findings that the disease was peculiar to their employment and was caused by on-the-job hazards greater than those ordinarily incident to employment."³²

6. Directly Results from Continuous Exposure to Normal Working Conditions

In all occupational disease cases, an element of causation exists which cases involving injuries by accident typically do not assume.³³ "The claimant must show a causal connection between his or her alleged occupational disease and the conditions of the employment in which the claimant was engaged."³⁴ The concept of causation in workers' compensation presumably resembles the concept of causation in tort, even though the Workers' Compensation Act aims to displace tort liability in disputes between employers and their employees.³⁵

B. Disability

"[I]n occupational disease cases compensability accrues when disability . . . or death occurs."³⁶ "[C]ompensability, and therefore liability, is founded upon disability, not injury."³⁷ "Section 42-11-20 . . . defines total disability as 'the physical inability to perform work in any occupation,"'³⁸ and partial disability as "the physical inability to continue work in [the claimant's last] occupation only . . . ."³⁹ Like they have in cases dealing with work-related injuries by accident, "[t]he South Carolina decisions have interpreted th[is] statute to mean disability in compensation cases is to be measured by loss of earning capacity, not complete physical helplessness."⁴⁰

By contrast, the term "disablement" represents complete physical helplessness and "means the event of an employee's becoming actually incapacitated, partially or totally, because of an occupational disease, from performing his work in the last occupation in which [the claimant was] injuriously exposed to the hazards of such disease . . . ."⁴¹ Thus, "disability" is not the same as "disablement."

In determining the occurrence of disability in occupational disease cases, we are usually dealing with a period of time over which the disease progresses to the point of disablement. An employee may contract the disease from exposure in his or her employment and not know he or she has it for a long time. Usually, diagnosis can only be made by a physician and diagnosis, even by a physician, in many instances is difficult and delayed.⁴²

In Reese v. CCI Construction Company,⁴³ the claimant worked as a carpenter and construction worker for more than 20 years. On his third day of work with the employer, the claimant was injured when he twisted his wrist while working with a drill. A physician diagnosed the claimant with aseptic necrosis of the carpal lunate, in which lack of blood supply caused...