The statutory formula for compensability for occupational disease is similar to that for accidental injuries, that is, “compensation for personal injuries to or for death of such employee by any “compensable” occupational disease arising out of and in the course of the employment” Section 30. There appears to me to be three essential elements of Section 30. There must be an injury or death – due to a “compensable” occupational disease – which must arise out of and in the course of the employment. There is an exception for willful self-exposure but that exception has never been established, to my knowledge, so it is not that important.
OCCUPATIONAL DISEASES BEFORE 1950
Let us look first at what the law was before our present occupational disease statute was enacted. In 1911 when the Workers’ Compensation Act was first enacted there was no coverage for occupational diseases. Partly this was due to the fact that compensation laws were an alternative to the common-law tort actions and no common law claim had ever succeeded for occupational diseases. There was thought to be no quid pro quo to the employer to justify including occupational diseases in the Workers’ Compensation system. Coverage of diseases also developed slowly because of a fear that employers and their carriers could not meet the financial burdens of occupational diseases.
Many of the filing requirements were designed to protect employers and carriers from future liability, which was unpredictable. We have seen recently a resurgence in the use of these filing requirements to deny compensation for occupational injuries.
In 1924 New Jersey enacted its first occupational disease law, which consisted of a list of diseases with no catchall provision such as “or any other similar disease”. Specific diseases were added by amendment until 1949 when the general occupational disease act was enacted was effective, Jan. 1, 1950. There were two exceptions initially for asbestosis and silicosis. These exceptions were eliminated in 1951.
Between 1924 and 1949, if a disease was not on the list it was not compensable unless it could be an accident. The Compensation Court had no power to expand coverage beyond the diseases listed in the Act. You have these curious cases where the employer is arguing the worker has an occupational disease. So, in Glick v. Wright Aeronautical, the employer argued that the petitioner’s carpal tunnel syndrome was caused by continuous strain on his fingers while polishing over the 11 weeks of his employment. The Compensation Court found petitioner’s injury compensable. Because of credibility problems of the petitioner, who alleged an accident when he was struck on the wrist by a piece of metal, the Court of Common Pleas in a trial de novo found the injury was an occupational disease and not compensable.
This determination was affirmed by the Supreme Court, which was the equivalent of the Appellate Division now.
Ptak v. General Electric Co., was decided in 1951 but the employment and injury were before 1950. On Nov. 21, 1949 at 3:30 p.m. the petitioner was assigned to a new job, to make cardboard boxes, which required bending repeatedly. At 9:00 p.m. she could not straighten up and had developed a sacroiliac sprain. The Compensation Court concluded this was an occupational disease not an accident and, therefore, not compensable. The County Court in a Trial de novo rejected this conclusion which was affirmed by the Appellate Division which held this was an accident. Incidentally, these old cases are a great place to look for law holding that a RSD is an occupationally related disease.
THE CURRENT OCCUPATIONAL DISEASE STATUTE
Let us look at what kind of occupational disease statute we have now in Section 30. The effective date was January 1, 1950. It is a general occupational disease statute – including all diseases even those resulting from repetitive stress. The Liberal Construction doctrine is applied to the definition of “disease” so that it is broadly defined to be “any departure from the state of health presenting marked symptoms. Giambatista v. Thomas Edison. By applying this standard courts are trying to distinguish between diseases of ordinary life and diseases which are due to the employment. So, courts are asking the question, was there something in the employment which either caused, accelerated, exacerbated or aggravated the petitioner resulting in injury.
One other principle in Workers’ Compensation to understand occupational diseases is that the employer takes the worker “as is” with all his/her weaknesses or individual susceptibilities and is responsible for the end result if the work activates, aggravates, accelerates or exacerbates some pre-existing problem. Belth v. Anthony Ferrante & Son. An Amendment to Section 12(d) in 1979 helps the employer by allowing a credit for pre-existing disability.
COMPENSABLE OCCUPATIONAL DISEASE DEFINED
The key to Section 30 is that only “compensable” occupational diseases fit into the statutory formula. Compensable occupational disease is defined in Section 31 (a) to include all diseases arising in out of and in the course of the employment, which are due in a “material” degree to causes or conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment”.
Subsection (b) of Section 31 states that deterioration of a tissue, organ or part of the body in which the function of such tissue or part of the body is diminished due to the natural aging process thereof is not compensable.
So what does this all mean? First you must establish that a repetitive stress disorder arises out of and in the course of the employment. There must be proof of causation to a material degree. The condition must be characteristic of or peculiar to the employment. There must be proof the worker’s problem is more than that he or she is getting old. This last requirement is especially a problem with conditions of old age such as arthritis.
ARISING OUT OF AND IN THE COURSE OF THE EMPLOYMENT
Let us now look closer at these elements in establishing a compensable disease. Arising out of deals with the nature of the risk. You must establish that a stress disorder is a risk of the employment.
The old view of occupational disease was that it developed gradually and was the kind of condition that would be expected from the work being done. Accidents were viewed as something unexpected. Looking from the viewpoint of the worker, if the event was an unlooked for mishap or untoward event which was not expected or designed then it was an “accident”.
This was the language used by the Appellate Division in Ptak and Court of Common Pleas in Glick. In Glick the Court of Common Pleas quoted the definition of occupational disease from Bollinger v. Wagaraw Building Supply Co., 122 N.J.L. 512: “An occupational disease is one that from common experience is visited upon persons engaged in the usual course of events. It is one that is incidental to the employment itself, e.g., painters become affected with lead colic or poisoning, telephone operators develop ear troubles . . . In such instances they are injuries or diseases common to workers in those particular trades. . .The term “accident” in Section 7 did not include “conditions as are regularly expected as a result of a person doing his regular work in the regular way.
OCCUPATIONAL DISEASE COMPENSABLE