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Defending an Occupational Disease Claim

E. Courtney Gruber

Having recently tried several cases wherein the claimants alleged pulmonary problems caused by exposure to molds and unspecified airborne particles one might encounter while working in crawlspaces afforded me the opportunity to revisit Chapter 11 of the Workers Compensation Act.  Below are 3 statutes of the Act that I found salient in my cases.

 Occupational disease is addressed in Chapter 11 of Title 42.  Under 42-11-10, a claimant must prove each of the following elements to establish a compensable occupational disease:  (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 in the claimant’s continuous exposure to the normal working conditions of the particular trade, process, occupation, or employment.

 S.C. Code Ann. Section 42-11-40 states:  “….  In no case shall an employer be liable for compensation for an occupational disease unless such disease was contracted by the employee while in the employ of the employer as a direct result of the employment.”

 S.C. Code Ann. Section 42-11-60 states:  “No compensation shall be payable for any pulmonary disease arising out of the inhalation of organic or inorganic dust or fumes unless the claimant suffers disability as described in Section 42-9-10 or Section 42-9-20 and shall not be compensable under Section 42-9-30.  ….”

 Occupational exposure cases are complicated to litigate from both the claimant and defense side.  The claimant must prove all six elements in 42-11-10 and must have expert medical testimony to support his claim.  Likewise, the defendants must rebut the claim with their own expert medical testimony, and the cases often become battle between pulmonary specialists expressing conflicting opinions “to a reasonable degree of medical certainty.”  Pulmonary function testing is dependent upon patient effort meaning the results can be skewed if the claimant simply doesn’t blow hard enough.  Pulmonary specialists are widely conflicted on the value of such testing and the implications of PFT results on patient diagnosis.  I recently tried an occupational exposure claim with 3 different pulmonary specialists and 3 different diagnoses for the claimant.  Pulmonary medicine does not appear to be an exact science, from my layman perspective.

 42-11-60 is important because, in cases involving pulmonary diseases, it requires a showing of loss of earning capacity for the case to be payable, even if the other elements of 42-11-10 have been met.  Compensation cannot be based upon loss of use of a scheduled body part, such as the lungs, bronchi, or any other body part that may be listed in 42-9-30 or Regulation 67-1101.  This was detailed in Skinner v Westinghouse Electric Corporation, 394 S.C. 428, 716 S.E. 2d 443, 2011 wherein the South Carolina Supreme Court held that in pulmonary disease cases,  in particular, asbestosis, was not compensable under the scheduled loss provisions, and was only compensable if the claimant  wage loss was proven.

 In summary, occupational exposure claims are difficult for the claimant to prove and can be successfully defended.  They are complicated and costly to defend largely because of the necessity of expert medical testimony critical to both sides.  It is likely that we could see an increase in claims alleging mold exposure in light of recent flooding caused by Florence.