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By Curtis Larsen
Montana State Fund
Introduction
A research project was undertaken in the fall of 2004 to survey AASCIF members concerning several aspects of their states’ occupational disease laws. The purpose of this research project was to examine potential changes to Montana’s occupational disease law in light of a trilogy of court decisions declaring portions of Montana law unconstitutional.
Montana law contained separate statutory schemes for occupational injuries and occupational diseases. The continuing vitality of a separate statutory scheme for occupational diseases was called into question by these court decisions. The results of the research aided the state of Montana to formulate a new law that combined the previously separate statutory schemes for occupational injuries and occupational diseases.
This article summarizes the results of the survey. A description of the methodology and results of the survey is provided, along with the survey instrument and a tabulation of the results on a state-by-state basis.
The problem
In a trilogy of cases decided between 1999 and 2003, the Montana Supreme Court declared certain distinctions in benefits between occupational injuries and occupational diseases to be unconstitutional, as arbitrary and a denial of equal protection. The first case was Henry v. Montana State Fund, 294 Mont. 449, 982 P.2d 456 (1999). Henry concluded that providing certain rehabilitation benefits to workers covered by the injury law, but not to workers covered by the occupational disease law, was unconstitutional. The Court reasoned there should be no difference in the benefits payable, for a back problem in this case, caused during one work day from the benefits payable for a back problem caused over several work shifts.
In Stavenjord v. Montana State Fund, 314 Mont. 446, 67 P.3d 229 (2003), the Court extended Henry and held that limiting partial disability benefits for occupational disease claimants to $10,000, while providing a higher amount to an occupational injury claimant for the same or similar disability was an unconstitutional denial of equal protection.
Finally, in Schmill v. Liberty Northwest Insurance Corp., 315 Mont. 51, 67 p.3d 290 (2003), the Court again relied on Henry and ruled that the occupational disease act provision of apportioning a permanent impairment between occupational and non-occupational factors, while providing full benefits to injury claimants without such apportionment, was unconstitutional.
Principal findings and conclusions
Workers’ compensation laws have been enacted and revised in all 50 states since the early part of the 20th century. The survey responses from AASCIF members reveal a wide variety of statutory approaches to addressing compensation for workers who suffer either occupational injuries or occupational diseases. However, state laws can be grouped into two broad categories: those that treat injuries and diseases as separate statutory schemes, and those that do not. Only two of the surveyed states have different benefits for injuries and disease. None of the states surveyed contain statutory distinctions between injury and disease based on their time relatedness or occurrence within one work shift or more than one work shift (as did Montana law until recently). Rather, these states tend to define an injury in terms of a discrete and identifiable incident at work, and a disease as one that is peculiar to work and develops over time. Several states, most notably California and Texas, define an injury to include diseases.
Most of the surveyed states have the same or similar requirements for an employee to provide notice to the employer for both an injury and disease, along with the same or similar claim filing requirements.
Several states do not have separate causation standards for either an injury or a disease. Instead, the causation standard is incorporated into the statutory definition of injury or disease itself. Other states have separate statutory causation provisions that require a showing of proof that an injury or disease is related to work.
The survey asked responding states whether their statutes provided apportionment for either occupational injury or disease. Four states do not provide apportionment for either injury or disease, while six states provide for apportionment for both. Two states provide for apportionment of only occupational injuries, while not providing for apportionment of occupational diseases.
The survey responses revealed that it is not always possible to distinguish between differing statutory requirements for causation and apportionment. These are, in effect, some times different sides of the same coin. California’s apportionment statute characterizes apportionment as an element of causation.
Methodology
The workers’ compensation benefit systems in the United States are primarily based on state law. All 50 states have adopted some form of workers’ compensation and occupational disease laws. Thus, there is a multitude of statutory schemes, along with a body of judicial construction and interpretation that could be examined. This research project focused on researching other states’ statutory systems in an effort to determine what works well and what does not. There were two research methods employed in this research. The primary method consisted of a survey given to a select group of states. The secondary method consisted of independent ad hoc legal research of the group of states that did not respond to the survey.
The research began with a review and survey of other states’ occupational injury and occupational disease laws. Some states have comprehensive systems that address injuries and diseases in the same statute, while others have separate statutory systems. The research included a review of any challenges to the constitutionality of the differing treatment of occupational injuries and diseases. In order to relate these states’ laws to the laws of Montana, the research was focused on the differences in definitions of injuries and diseases, the differences in benefits, notice and procedures for filing of claims, and apportionment, if any, between occupational and non-occupational factors or between prior occupational injuries and new or aggravated injuries and disease.
The survey was comprised of five closed-ended questions and seven open-ended questions, focused on distinctions in other states’ laws between occupational injuries and occupational diseases. The survey contained a total of twelve key questions, several of which had subparts. The survey instrument is reproduced as Appendix A.
Surveys were distributed to the CEOs of 21 AASCIF-member state funds. A total of ten responses were returned initially, representing a response rate of 48%. Of this number, a total of sixteen responses received from the state funds to whom the survey was sent, equal to a response rate of 76%. While a greater response rate was desired, for purposes of this research project, it was not necessary to obtain a statistically representative sample of responses. Rather, the objective was to obtain examples of other states’ law for comparison purposes.
Findings
The data collected through the survey are reported and analyzed in the following sections.
General
The first three questions of the survey were related, and asked respondents whether their state’s workers’ compensation laws contained separate statutory schemes for occupational injuries and occupational disease. The necessity of responding to questions 2 and 3 was dependent on “yes” answers to the prior question.
Question one was designed to determine whether the surveyed states have statutory schemes similar to Montana law, which does have separate and distinct statutory schemes. Ten of the respondents answered “yes” (63%) while six of sixteen answered “no” (37%). Nine of the ten “yes” respondents answered Question 2 “no”, confirming they have had no legal challenges in those states based on the statutory differences. This response to Question 2 made a response to Question 3 unnecessary and irrelevant. One state, Arizona, experienced a constitutional challenge to the different causation standard for occupational diseases, but the challenge was unsuccessful.
Definitional and procedural issues
Questions 4, 5, 6 and 9 asked respondents about certain definitional and procedural issues, and what the differences were, if any, in the respondent’s state occupational injury and occupational disease statutes. All of these questions called for specific information from the respondents.
Questions 4 and 9 of the survey were similar, in that they asked merely for specific statutory references. Based on the responses received, it is evident that in some states, the statutory definitions for occupational injury and occupational disease incorporate and include the legal causation standard. For example, New Mexico law provides that “occupational disease” means a disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment. N.M. Stat. § 52-3-33. Similarly, Kentucky law provides that “occupational disease” means a disease arising out of and in the course of the employment. KRS 342.0011(2). Kentucky law also contains a separate detailed section further defining the requirement that the disease “arise out of the employment.” KRS 342.011(3). In this respect, Kentucky law is similar in approach to current Montana law. See MCA § 39-72-408.
The responses to Question 4 of the survey indicate that most states have separate statutory definitions of occupational injury and occupational disease. In several states, the definitions are similar, and define each phrase in terms of the causative requirement that the injurious exposure arise from the employment.
One state, Wyoming, adopted a version of the model act adopted by the National Commission on State Workmen’s Compensation Laws. See 10 Larson’s Worker’s Compensation Law, Appendix F (2001). This definition incorporates all injurious occupational exposures in one definition of “injury” as follows:
(xi) "Injury" means any harmful change in the human organism other than normal aging and includes damage to or loss of any artificial replacement and death, arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer and incurred while at work in places where the employer's business requires an employee's presence and which subjects the employee to extra-hazardous duties incident to the business. "Injury" does not include:
(A) Any illness or communicable disease unless the risk of contracting the illness or disease is increased by the nature of the employment;
Wyo. Stat. Ann. § 27-14-102 (a)(xi).
Notice and claim filing requirements
Questions 5 and 6 of the survey asked respondents to address their states’ legal requirements for notice of injury and filing of claims. The purpose of these questions was to determine whether the respondents’ states have approached these procedural matters in a more effective way than Montana law did.
Injured employees and their employers usually do not have a significant issue with discerning or realizing when an occupational injury occurs. The fact of a work-related injury is usually evident to the injured employee and, with some exceptional cases, the employee and employer usually have few questions about the time requirements for giving notice of the injury to the employer and filing a claim with the carrier.
The situation may be different, however, with occupational diseases. An occupational disease may develop over a long period of time, during which an employee may work for several employers. In addition, over a lifetime, the employee may be exposed to non-occupational health hazards that may lead to disease, or be a substantial contributing factor to incurring a disease.
The responses to Questions 5 and 6 are summarized in Appendix B. An examination of the responses reveals that the responding states have a wide variety of requirements for injured workers to give notice of an injury, and for filing a claim.
Most states’ laws require an injured employee to give notice of the injury to the employer or carrier within a relatively short period of time after the injury, and a claim for benefits may be denied if notice is not timely given. The purpose of the notice requirement is to give a carrier an opportunity to investigate an injury in a timely manner, and to allow an employer to quickly react and repair or abate a potentially dangerous workplace situation.
For giving notice of an injury, the time requirements range from four days from date of injury in Colorado to 90 days from date of injury in Maine. With respect to an occupational disease, several of the responding states do not have a distinct requirement to give notice to the employer. Eleven states (69%) require notice of a disease to the employer or insurance carrier within a specified period of time after the claimant has knowledge of the disease, or the disease is first manifested. These time requirements range from a relatively short period of seven days in Kentucky, to an open-ended 90 days from the date of separation from employment in Oklahoma.
As noted, the claim filing requirements for occupational injuries and diseases also vary widely from state to state. The time limits range from a relatively short 60 days after the first manifestation of disease in Idaho to three years from the last injurious exposure in Kentucky and Maine.
Benefits
Question 7 of the survey asked respondents to describe any differences in benefits for an occupational injury and an occupational disease. As described above, the Montana Supreme Court determined that benefit differences for injury claimants and disease claimants are unconstitutional. The purpose of this question was to determine if any state had approached statutory definitional and benefit issues tied together in a way that could be adapted to Montana law, in light of the constitutional infirmities in Montana law.
Most states do not have differences in benefits for an occupational injury and an occupational disease. Only three (19%) of the responding states’ (Kentucky, New Mexico and Ohio) statutes contain some benefit differences. There does not appear to be any unique features about these two states’ statutory schemes that might make their systems adaptable to Montana.
Apportionment
Question 8 of the survey asked respondents whether the responding states’ statutes provided for apportionment of occupational injury and occupational disease. Eight states (50%) have laws containing an apportionment provision for both occupational injuries and occupational diseases, while six states’ (38%) laws have no apportionment provision. One state identified apportionment as a feature of its statutory definition of occupational injury only, while excluding occupational disease. One state has apportionment for occupational injury through case law. One state includes apportionment in its statutory requirements for causation. In sum, ten states (63%) have an apportionment provision for industrial injuries, while eight states (50%) also have apportionment provisions for occupational disease.
Proximate cause standard
Question 9 of the survey asked respondents to provide their states’ legal causation standard for both an occupational injury and an occupational disease. The responses to Question 9 are summarized in Appendix B. As with most of the other survey questions that required an open-ended response, a variety of responses were received to this question. However, they may be categorized as follows:
Eleven (68%) of the responding states have a causation standard that is the same as or similar for both occupational injuries and diseases, and which is incorporated into the statutory definition for each. Texas’ statute is typical of the responses in this category. In Texas, the injury or death must be proximately caused by an injury or occupational disease arising out of and in the course of the employee’s employment. Texas Labor Code § 401.011.
In a second category are those states that appear to have specific statutory provisions for causation, of which three (19%) appear to be in this group. Of these, Oregon offers a unique two-part test for an injury and for a disease, distinguished by the presence of a pre-existing injury or disease, or no pre-existing injury or disease.
The third category includes states, two in number (13%), where the causation standard has been established by case law. For occupational injury, Maryland case law provides that the claimant must demonstrate that a probable relationship exists between the accident and the injury, and that no other intervening cause is likely to have precipitated the disability. Continental Group v. Coppage, 58 Md. App. 184, 472 A.2d 1014 (1984). Similarly, for an occupational disease, the claimant must establish that it is more probable than not that the disability is causally related to the employment, and no other intervening cause was responsible. See Pappas v. Modern Mfg. Co., 14 Md. App. 529, 287 A.2d 798 (1972).
Constitutional issues
Question 10 of the survey had four parts, and asked the respondents to address certain significant constitutional issues that may have arisen in their states concerning their workers’ compensation statutes. The purpose of this question was to see if any state’s courts have determined their statute to have constitutional infirmities similar to those found by the Montana Supreme Court in the trilogy of cases described above, or other constitutional defects that should be taken into account when considering modifications to an occupational disease law.
Four respondents identified a constitutional issue with their states’ laws in at least one of the four parts of Question 10. In one case, the respondent’s answer to Question 10a does not appear to be consistent with the respondent’s answer to Question 7. This may indicate that one or both questions were unclear, or that the given response to 10a does not address the issue intended by the question.
In reviewing the case citations provided in response to Question 10, it appears that these cases are peculiar to the constitution and laws of the responding states, and the issues raised by those cases are not relevant to the research questions under consideration in this research project.
Miscellaneous Matters
Question 11 asked respondents to provide any other noteworthy information concerning the respondent states’ treatment of occupational injury and occupational disease. Only three of the sixteen respondents provided any information in response to this question. One respondent noted that their state’s consensus process used in evaluating occupational disease claims under current regulation was being challenged. Another respondent noted a significant court decision in the state of Colorado that allows apportioning liability in occupational disease between industrial and non-industrial factors when these factors are equal. The final respondent reported on the effect of a court case in Oregon that involved a challenge to that state’s exclusive remedy provision.
Question 12 asked the respondents whether they wished to receive a copy of the survey results. All sixteen respondents answered that they did wish to receive a copy of the survey results.
Conclusion
Most AASCIF-member states’ laws adequately and appropriately address the differences between occupational injuries and occupational diseases. For the most part, there are no compelling reasons for separate statutory claim and benefit schemes.
Appendices and supporting documentation are available in pdf format.
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