We represent insurance carriers and self-insureds in Texas workers compensation litigation, and have often have litigated disputes regarding whether or not the claimant has sustained a compensable injury in the course and scope of his or her employment, rather than a non-compensable ordinary disease of life.
In the Texas workers’ compensation system, ordinary diseases of life are illnesses or conditions that the general public is exposed to outside the scope of employment. If an employee has an injury that is considered to be an ordinary disease of life, he or she is generally not entitled to receive benefits. An illness or injury is considered an ordinary disease of life, and therefore not compensable, when there is no causal connection between the injury and the work, and the disease is not indigenous to the workplace or present at an increased degree with the employment. Congenital heart disease, cancer and diabetes are common ordinary diseases which usually are determined to be non-compensable. But that is not always true.
Claimant’s attorneys are sure to remind us that not all diseases are ordinary diseases of life. Some diseases are instead, occupational diseases. There has to be some substantial connection to the employment, and the disease must not be an ordinary disease of life. Although workers’ compensation law draws a distinction between ordinary diseases of life and occupational diseases, the distinction between the two is often difficult.
When injuries are occupational, the date of injury for an occupational disease is the date on which the employee knew or should have known the disease may be related to the employment. Section 408.007 of the Texas Labor Code. This date is not necessarily the date on which symptoms first appeared, but is the date on which a reasonable person recognizes the nature, seriousness, and work-relatedness of the disease. Commercial Ins. Co. of Newark, New Jersey v. Smith, 596 S.W.2d 661, 665 (Tex. Civ. App.—Ft. Worth 1980, writ ref’d n.r.e.).
If an injury is an occupational disease, the employer in whose employ the employee was last injuriously exposed to the hazards of the disease is considered to be the employer of the employee. Section 406.031(b)of the Texas Labor Code. The date of injury is the determining factor as to which of various workers compensation insurance carriers is liable for compensation of an occupational disease. However, when an employee has worked for several employers over a period of time and is exposed to similar causes of the occupational disease throughout his or her employment but had no distinct manifestation of the disease, the insurance company liable for compensation will be the one that insured the employer that the injured employee worked for when last injuriously exposed to the causes of the disease. Hernandez v. Travelers Indemnity Co. of Rhode Island, 855 S.W.2d 786 (Tex. App.—El Paso 1993, no writ).
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas workers’ compensation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
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