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CHAPTER 2-203 - OCCUPATIONAL DISEASE

1. Purpose and Scope. This Chapter provides an introduction to the handling of cases involving occupational diseases. Topics covered include: the changes brought about by the 1984 Amendments; and what evidence is necessary to make determinations on the level of disability, the average weekly wage and the timeliness of the claim for compensation.

2. References.

a. The sections of the Act pertaining to occupational diseases are: sections 2(10), 8(c)(23), 9(e)(2), 10(d)(2), 10(i), 12(a), and 13(b)(2).

b. The sections of the regulations pertaining to these diseases are: sections 702.212(b), 702.222(c), 702.601 to 702.604.

c. The Law of Workmen's Compensation, by Arthur Larson, section 41.00.

d. Guides to the Evaluation of Permanent Impairment, published and revised from time to time by the American Medical Association.

e. Longshore (LHWCA) Procedure Manual, PM 3-400, 3-401, and 3-402.

3. Definitions.

a. Average Weekly Wage.

(1) Use the average weekly wage at the time of injury if this date is prior to retirement.

(2) When the time of injury is after retirement and

(a) Within the first year after retirement, use 1/52 part of average annual earnings in the fifty-two week period prior to retirement,

(b) More than one year after retirement, use the National Average Weekly Wage at the time of injury.

b. Date of Last Injurious Exposure. The last date the claimant was exposed to the pernicious substance while working in employment covered by the Act.

c. Disability.

(1) Where the disease becomes disabling prior to retirement, disability is based upon a loss of earnings or earning capacity.

(2) Where the disease becomes disabling after retirement, disability is based upon the amount of physical impairment.

d. Impairment. The amount of permanent loss, or loss of use of, an organ, body part, or bodily function, as determined in accordance with the Guides to the Evaluation of Permanent Impairment. If the Guides do not measure the impairment, any other professionally recognized standards or system of evaluation may be used.

e. Occupational Disease. An illness or condition which develops over a period of time in response to repeated exposure to harmful or injurious stimuli.

f. Retirement. The claimant has voluntarily withdrawn from the work force and there is no realistic expectation that he or she will return to the work force.

g. Time of Injury.

(1) For purposes of coverage and jurisdiction and for sections 10, 12, and 13: the date on which the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability.

(2) For purposes of determining responsible EC: the date of last exposure to injurious stimuli prior to the disease becoming disabling.

4. The 1984 Amendments. The LHWCA Amendments of 1984 specifically addressed certain issues with respect to occupational disease cases. Disability, relative to a disease which becomes manifest after retirement, is defined as permanent impairment. The time of injury for purposes of determining the rate of pay and filing a claim for compensation is now defined as the date on which the employee becomes aware of the relationship between the employment, the disease and the death or disability. The pay rate for a retired employee is deemed to be his or her wage at retirement if the disease becomes manifest within one year of retirement, and the National Average Weekly Wage if the disease becomes manifest more than one year after retirement. A retiree who becomes impaired due to an occupational disease may receive 66 2/3 percent of his or her pay multiplied by the percentage of the impairment. This amount is not subject to an annual adjustment but can be increased to cover a worsening of the condition.

The widow of a deceased employee whose employment related disease became manifest and caused death after retirement may receive 50 percent of the National Average Weekly Wage at the time of death. These benefits cannot exceed the decedent's wage at retirement.

The requirements for filing notice of injury and claim for compensation have been extended to one and two years respectively. These time periods are measured from the newly defined time of injury.

5. Primary Case Review.

a. In addition to the normal procedures for Primary Case Review (see PM 2-200), the DO should insure that the file contains sufficient evidence to make a determination on the following:

(1) The time of injury.

(2) The date of manifestation of the disease.

(3) The date of last injurious exposure.

(4) The date of disability.

(5) The date of death.

(6) The date and cause of retirement.

(7) The claimant's, or decedent's, wages in the fifty-two week period prior to retirement.

(8) Claimant's SSN.

b. To assist in making these determinations the CE should request the following information:

(1) A detailed history of the disease from the date it started;

(2) The way in which the employee was exposed to the implicated injurious stimuli and the length of exposure;

(3) Statements from any witnesses concerning the degree and length of exposure;

(4) The date the employee was last exposed to the injurious stimuli;

(5) The date and circumstances when the claimant first became aware of a possible relationship between the disease and the employee's work; and

(6) The names and addresses of all physicians and hospitals which have provided the employee with medical care for a disease which is related to exposure to the implicated injurious stimuli.

6. Secondary Case Review. For further information on occupational disease cases please refer to PM 3-400.