Latent Occupational Diseases and Reasonable Discovery
Have you been diagnosed with a disease such as Hepatitis,Tuberculosis, Silicosis, Pneumoconiosis, heart or lung diseases? Do you, or did you work in a profession that exposed you to infected blood, dust particles, asbestos, or hydrocarbon distillates? If you answered yes to these questions, or have another condition related to your work environment, you may be entitled to Workers’ Compensation benefits. You may also have a personal injury cause of action against your employer under certain circumstances.
In the majority of Workers’ Compensation cases an employee is injured at work and there is a “mechanism of injury” such as falling from a loading dock and injuring a shoulder, or injuring a back while moving a patient. In cases like this the employee has to give notice to their employer that they have been injured, and then they have three years from the date of their injury to file a claim for workers’ compensation. The employee is also stopped by law from filing a personal injury claim against their employer.
However it has been recognized that not all injuries occur in this manner. Sometimes an employee is exposed to a dangerous substance at work like infected blood, chemicals, or asbestos. Jobs that have higher instances of occupational disease include, but certainly aren’t limited to healthcare, law enforcement, firefighters, painters, EMT, EMS, sand blasters, chemical plant workers, jobs that work with chemicals, construction/renovation, and industrial reclamation. In cases like this the employee often doesn’t even know that they are sick until long after their three years to file a claim have gone by. In an instance like this an employee has 300 weeks, or five years and forty weeks from the time they were last exposed to the dangerous element in which to file a claim. An employee has 120 days from discovering their disease to give notice to their employer, and 3 years to file a Workers’ Compensation claim from the date their disease becomes disabling. If an employee and their attorney can prove that the employee has been exposed at work to an agent that causes the condition the employee has, it is then up to the employer to prove something else caused the disease.
What if you have been diagnosed with a disease that you think was caused by conditions at your job, but it has been more than 300 weeks since you were exposed? Don’t worry, you could still have a claim. As long as you give your employer notice within 120 days, and file a claim within 3 years of being diagnosed with your illness, or from when you should reasonably have known about your illness you have a potential Workers’ Compensation claim, and should contact an attorney.
Due to the immunity clause of the PA Workers’ Compensation act, employees that are injured at work can only make a Workers’ Comp claim for wage loss, and medical care against their employer, they cannot sue their employer for negligence. The employee is prevented from filing a personal injury suit with potentially much larger financial awards. However, since the Supreme Court of PA decision in Tooey v. AK Steel Corporation, occupational diseases reasonable discovered after 300 weeks have past (latent occupational diseases) are not barred by the exclusivity clause of the act. This means that if you have been diagnosed with an occupational disease after 300 weeks from your last exposure you may be able to file a Workers’ Compensation claim, and a Personal Injury claim. If you think this might apply to you, contact an attorney