Occupational disease victims neglected by workers' comp system

More than a century after the workers’ compensation system was implemented, it is becoming more evident that those suffering from job-related diseases are often left out, with no path to justice.

A 2015 report by the nonprofit investigative news organization, Center for Public Integrity, concluded that for chemically induced illnesses and other occupational illnesses that can take years to develop, “workers’ comp rarely works at all.”

Strict time and proof requirements

A major problem is that many diseases triggered by on-the-job exposure are also caused by factors such as genetics, exposure to carcinogens outside the workplace, diet, smoking, bad luck, etc. Often, sick workers never suspect that their job had anything to do with the disease or they do not find out until it is too late to make a workers’ compensation claim.

Numerous states have enacted measures that create insurmountable obstacles for occupational disease victims. Most workers’ compensation laws have burdens of proof requiring claimants to establish that workplace exposure more likely caused the disease than all other possible factors. Such strict proof requirements lead to frequent denials of benefits.

In addition, many states have statutes of limitation that do not provide enough time to file a claim. Most base the deadline for filing a claim on the date of last exposure to the disease-causing hazard, not the actual diagnosis of the illness.

For instance, the statute of limitations for workers’ compensation claims in Pennsylvania is three years from the date of injury. The Workers’ Compensation Act does extend the time for occupational diseases caused by exposure to a workplace hazard — requiring that disability must occur within 300 weeks of the last exposure to the harmful toxin.

The problem is that it often takes job-related diseases years to surface — some take decades to become symptomatic. For instance, mesothelioma, a form of lung cancer caused by asbestos exposure, remains latent for decades.

The substantial lag between exposure and diagnosis for many illnesses has left sick workers without coverage, allowing many employers and insurers to escape responsibility.

Related: Nanoparticles: The next asbestos?

Most diseases left uncovered

The result is that most occupational disease sufferers never file a workers’ compensation claim. The Center for Public Integrity report cited a 2004 study by Professor J. Paul Leigh, an economist at the University of California, Davis, who estimated that more than 95% of fatal occupational diseases are not covered by workers’ compensation.

Those occupational illness claims that do get filed are denied at a far higher rate than injury claims, the Center for Public Integrity reported.

The report focused on states with statistics that differentiate between injury and illness claims. In Oregon, 36% of disease claims in 2014 were denied, compared to 11% of injury claims, the report said. In Ohio, the denial rate for disease claims was nearly 50% and 14% for injury claims.

A bargain not so grand

The workers’ compensation system is often described as the “grand bargain,” under which workers gave up the right to sue for damages for an on-the-job injury in return for a guarantee that they can recoup their lost wages and medical expenses.

Developed a century ago, the system ensured that workers would no longer have to prove their employers were negligent while employers were freed from paying for pain and suffering and punitive damages. The system was supposed to provide a faster, cheaper and less adversarial way to resolve disputes between workers and employers.

In most cases, the workers’ compensation system is the sole recourse for workers injured on or sickened by their jobs. However, that system has essentially abandoned sick workers.

Some courts have ruled that occupational disease victims who discover their illnesses after the workers’ compensation filing deadline may sue their employers. But filing suit poses a whole bunch of other obstacles — including costs and burdens of proof — that the workers’ compensation system was supposed to remedy.

Related: Asbestos litigants face setback

Burden shifted to government programs, workers

Meanwhile, many employers and insurers are escaping liability for workers’ illnesses. The costs of workplace illnesses have shifted to nonworkers’ compensation insurance, government programs and — most significantly — workers and their families.

The system has resulted in taxpayers subsidizing employers, straining social insurance programs such as Social Security disability, Medicare and Medicaid.

The Center for Public Integrity cited another study by Leigh and his colleague James Marcin concluding that in 2007 nonworkers’ compensation insurers and taxpayers picked up the tab for $27 billion in costs related to work injuries and illnesses. Of that figure, Medicare and Medicaid paid more than $12.5 billion.

In a 2015 report, the Occupational Safety and Health Administration said that federal and state programs pick up 16% of the overall lost income and medical costs generated by occupational illnesses and injuries, with Medicare and Medicaid alone picking up almost 19% of all medical expenses.

But the largest burden is being carried by those the system was meant to assist — workers sickened by their jobs. The study by Leigh and Marcin estimates that workers and their families paid a whopping $125 billion out of their own pockets in 2007 for work-related injuries and illness.

Changes are needed. As currently constructed, the workers’ compensation system is not serving workers sickened by on-the-job exposure. A more equitable solution is needed — one that places the responsibility back on employers and insurers.

Related: OSHA’s asbestos regulations and litigation: What insurers should know

Samuel H. Pond (spond@pondlehocky.com) is the managing partner at Pond Lehocky Stern Giordano, a workers’ compensation firm. This article first appeared on Law.com, a sister publication of PropertyCasualty360, and the views expressed here are the author’s own.