[Cross reference: Date of Injury (C05)]
The term "injury" includes an occupational disease. Section 401.011(26). An occupational disease is defined as a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body, including a repetitive trauma injury. The term includes a disease or infection that naturally results from the work-related disease. The term does not include an ordinary disease of life to which the general public is exposed outside of employment unless that disease is an incident to a compensable injury or occupational disease. Section 401.011(34).
An injury or disease may be compensable provided the IE shows a causal connection between the injury or disease and the work. APD 91002. It is not enough for the IE to show there was potential exposure to the illness or disease due to his or her work. The IE must establish the injury was actually caused by his or her employment. APD 94103. Whether the necessary causation exists is a question of fact for the ALJ to resolve. APD 94266.
Insufficient Evidence Of Causal Connection.
In his work as a plumber, the IE was frequently exposed to various animal, bird, and human feces. Following a separate work-related injury the IE was hospitalized. During this hospitalization, he was diagnosed with atypical tuberculosis. The IE filed a claim based on this diagnosis. The case proceeded to a jury trial. The jury found the IE suffered a compensable injury that caused disability. At the trial the IE failed to present evidence showing the presence of bacterium in the soil the IE worked in. The Court of Appeals reversed the jury's decision based on this lack of evidence. The Supreme Court affirmed this ruling, indicating evidence showing a mere possibility of a connection between the injury and the employment is not sufficient to establish an occupational disease. Schaefer v. Texas Employers' Ins. Assoc., 612 S.W.2d 199 (Tex. 1980).
The deceased employee's beneficiaries filed a claim for death benefits, contending that the employee died of a compensable occupational disease because the asthma attack causing his death was exacerbated or triggered by exposure to chemicals at his work. The court held that expert medical testimony is necessary to prove the cause of asthma and to prove that employment aggravated a pre-existing disease such as asthma. The court found no evidence from a qualified medical expert that workplace emissions were a producing cause of the employee's fatal asthma attack. Marts v. Transp. Ins. Co., 111 S.W.3d 699 (Tex. App.-Fort Worth 2003, pet. denied).
Sufficient Evidence Of Causal Connection.
In his work as a sandblaster, the IE was exposed to silica and dust particles for approximately 20 years. The IE's physician diagnosed the IE with chronic obstructive pulmonary disease (COPD). The court found there was sufficient evidence to determine that the IE's exposure to silica and other dusts in his work caused his COPD based on the testimony of the work conditions and the expert medical opinion of the IE's doctor. Texas Workers' Compensation Ins. Fund v. Lopez, 21 S.W.3d 358 (Tex. App.-San Antonio, 2000 pet. denied).
While working as an electrician in the attic of a vacant house, the IE was exposed to bacteria and other substances. Following the exposure, the IE was diagnosed with interstitial lung disease caused by exposure to bacterium. A CCH was held to determine compensability, and the ALJ ruled in favor of the IE. At the CCH, the IE presented evidence showing that cultures taken from the attic tested positive for bacteria, that the IE suffered an immediate onset of symptoms, and that the IE had no history of lung disease prior to the exposure. The record contained medical opinions relating the IE's condition to his exposure to the substances in the attic. On appeal the AP affirmed the ALJ, concluding the IE had presented sufficient evidence for the ALJ to find a causal connection between the IE's lung disease and his work. APD 000651.
Ordinary Disease Of Life.
Ordinary diseases of life are those illnesses the general public are exposed to outside the scope of employment. APD 93885. An IE with an injury considered an ordinary disease of life 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
1. no causal connection between the injury and the work, and
Repetitive Trauma Injury.
A repetitive trauma injury, as opposed to a specific injury, occurs when there is repeated exposure to harmful activities in the work place. In order to recover for an occupational disease of this type, an IE must prove that repetitious, physically traumatic activities occurred while on the job and that there is a causal connection between those activities and the harm or injury complained of. Davis v. Employer's Ins. of Wausau, 694 S.W.2d 105 (Tex. App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.). Once the causal connection is proven, the IE does not need to further prove that the disease is inherent in or present in the IE's employment to a greater degree than employment generally. APD 961008. Proof of a repetitive trauma injury should consist of some presentation of the duration, frequency, and nature of the activities claimed to be traumatic. APD 960929.
Sufficient Evidence Of Repetitive Trauma Injury.
The IE, a seamstress, was diagnosed with carpal tunnel syndrome (CTS). Although the IE failed to present any expert testimony on the causation of her CTS, the IE presented her own testimony regarding causation. The IE testified that her wrists became sore after she began sewing elastic bands into "rain pants" in 1997. The IE asked her employer for a pair of wristbands to ease the pain. The wristbands did not alleviate the pain so the IE went to a doctor. The IE testified that she had previously suffered from CTS in 1994, but that the pain was not as severe as the pain she felt in 1997. The court believed this evidence established a sequence of events from which the jury might have inferred, without the aid of expert medical testimony, that the IE's work was a cause of her CTS. Saenz v. Ins. Co. of the State of Pennsylvania, 66 S.W.3d 444 (Tex. App.-Waco 2001, no pet.).
The Date Of Injury.
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; APD 972321. This 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.).
Last Injurious Exposure.
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). The date of injury controls which IC is liable for compensation of an occupational disease. However, when an IE has worked for several employers over a period of time and was exposed to similar causes of the occupational disease throughout his or her employment but had no distinct manifestation of the disease, the employer's IC liable for compensation will be the employer the IE 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).
Firefighter and Cancer.
Pursuant to Government Code § 607.055, a firefighter who suffers from cancer resulting in death or total or partial disability is presumed to have developed the cancer during the course and scope of employment as a firefighter if certain prerequisite conditions under Government Code § 607.052(a) are met. Government Code § 607.055(a)(1) and (2) must be satisfied in order for a presumption to be established that the firefighter developed cancer during the course and scope of employment. See Chapter 607 of the Government Code, Subchapter B, Disease or Illnesses Suffered by Firefighters and Emergency Medical Technicians, effective September 1, 2005. See also Government Code § 607.058(b), added by amendment, effective May 29, 2015 (to include a statement by person offering the rebuttal).
Sec. 607.055. CANCER.
(a) A firefighter or emergency medical technician who suffers from cancer resulting in death or total or partial disability is presumed to have developed the cancer during the course and scope of employment as a firefighter or emergency medical technician if:
(1) the firefighter or emergency medical technician:
(A) regularly responded on the scene to calls involving fires or fire fighting; or
(B) regularly responded to an event involving the documented release of radiation or a known or suspected carcinogen while the person was employed as a firefighter or emergency medical technician; and
(2) the cancer is known to be associated with fire fighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as described by Subsection (b).
(b) This section applies only to a type of cancer that may be caused by exposure to heat, smoke, radiation, or a known or suspected carcinogen as determined by the International Agency for Research on Cancer (IARC).
Cancer Associated with Firefighting and IARC under Government Code § 607.055.
Deceased employee developed pancreatic cancer during the course and scope of his employment as a firefighter. The employee's certificate of death listed cause of death as "metastatic pancreatic undifferentiated carcinoma.” The ALJ determined that the employee met the requirements of Government Code § 607.055(a)(1); however, the employee did not establish that pancreatic cancer is known to be associated with firefighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as determined by the IARC, based on the written opinion and testimony of a doctor. In evidence was a publication by the IARC, entitled “IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, Volume 98, Painting, Firefighting, and Shiftwork” (2010), which referenced evidence-based medicine on firefighters developing types of cancer that included pancreatic cancer. The AP held there was sufficient evidence to establish the employee met the statutory presumption that the employee’s cancer is known to be associated with firefighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as determined by the IARC. The ALJ misplaced the burden of proof on the employee's beneficiaries to show causation, and by doing so applied the wrong legal standard to determine whether the employee sustained a compensable injury in the form of an occupational disease resulting in his death. APD 151156.
Once the IE establishes he or she meets the presumption and Government Code § 607.055(a)(1) and (2), the burden then shifts to the IC to rebut that presumption by a preponderance of the evidence as provided by Government Code § 607.058. APD 150098-s. In that case, the ALJ correctly determined that the IE met the presumption under Government Code § 607.055. However, rather than shifting the burden of proof to the IC as provided for in Government Code § 607.058, the ALJ required the IE to provide “direct and unequivocal evidence” that the IE’s multiple myeloma is caused by heat, smoke, radiation or a known or suspected carcinogen of which the IE was exposed during the course and scope of her employment as a firefighter. The AP held that the ALJ applied the wrong legal standard when she failed to shift the burden of proof and remanded the case to the ALJ to apply the proper legal standard.
NOTE: Government Code § 607.055 (a)(2) and (b) were amended pursuant to SB 2551 of the regular session of the 86th Texas Legislature as follows:
(a)(2) A firefighter or emergency medical technician who suffers from cancer resulting in death or total or partial disability is presumed to have developed the cancer during the course and scope of employment as a firefighter or emergency medical technician if the cancer is described by Subsection (b).
(b) This section applies only to: (1) cancer that originates at the stomach, colon, rectum, skin, prostate, testis, or brain; (2) non-Hodgkin’s lymphoma; (3) multiple myeloma; (4) malignant melanoma; and (5) renal cell carcinoma.
The rebuttable presumption in Government Code § 607.058 was also amended by SB 2551 as follows:
(a) A presumption under Sections 607.053, 607.054, 607.055, or 607.056 may be rebutted through a showing by a preponderance of the evidence that a risk factor, accident, hazard, or other cause not associated with the individual's service as a firefighter or emergency medical technician was a substantial factor in bringing about the individual's disease or illness, without which the disease or illness would not have occurred.
(b) A rebuttal offered under this section must include a statement by the person offering the rebuttal that describes, in detail, the evidence that the person reviewed before making the determination that a cause not associated with the individual's service as a firefighter or emergency medical technician was a substantial factor in bringing about the individual's disease or illness, without which the disease or illness would not have occurred.
(c) In addressing an argument based on a rebuttal offered under this section, an administrative law judge shall make findings of fact and conclusions of law that consider whether a qualified expert, relying on evidence-based medicine, stated the opinion that, based on reasonable medical probability, an identified risk factor, accident, hazard, or other cause not associated with the individual's service as a firefighter or emergency medical technician was a substantial factor in bringing about the individual's disease or illness, without which the disease or illness would not have occurred.
The amendments to Government Code §§ 607.055 and 607.058 are effective for a claim for workers’ compensation benefits filed on or after June 10, 2019 (the date on which SB 2551 was signed into law by Governor Greg Abbott). A claim filed before that date is governed by the former version of the law.
Presumptions for Certain First Responders Relating to Diseases or Illnesses Other Than Cancer.
Subject to the prerequisite conditions listed under Government Code Section 607.052(a), effective September 1, 2005, death or total or partial disability is presumed to be in the course and scope of employment for the following diseases or illnesses:
• immunization-related death or total or partial disability; smallpox (Government Code Section 607.053);
• tuberculosis or other respiratory illness (Government Code Section 607.054); and
• acute myocardial infarction or stroke (Government Code Section 607.056).
The presumption for these diseases or illnesses applied only to firefighters and emergency medical technicians until they were extended effective September 1, 2019, to peace officers under SB 1582 of the 86th Texas Legislature.