As the title explains, below is a guest submission. It is meant to inform and offer her interpretation of the law.
By Allison Lowry
At this year’s Bureau of Workers’ Compensation Educational Conference, the Bureau celebrated the 100-year anniversary of the enactment of workers’ compensation laws in Tennessee. Among the numerous topics featured at the conference, my contribution involved a presentation on occupational disease cases—particularly when an occupational disease injury occurs for the purposes of subject matter jurisdiction. This article highlights the main points of that presentation.
So, what is an occupational disease? Perhaps Montgomery Burns can offer some insight.
While “Three Stooges Syndrome” isn’t a likely claim the courts will encounter, serious diseases, including multiple types of cancers, pulmonary diseases, and various autoimmune diseases, are regularly alleged in claims for Tennessee workers’ compensation benefits.
Before July 1, 2014, a separate statute contained the definition and requirements for occupational diseases, Tennessee Code Annotated section 50-6-301. It gave a six-part test for determining whether an occupational disease arose out of the employment. This statute was eliminated in the 2013 Reform Act, and the definition and requirements for occupational diseases were absorbed into the statutory definition of “injury” in Tennessee Code Annotated section 50-6-102(14). The remaining statutes governing occupational diseases, sections -302 to -307, were left intact—including the notice requirement. The notice statute (T.C.A. § 50-6-201) was amended for accidental injuries occurring on or after July 1, 2016, reducing the time of written notice from 30 days to 15 days. However, the notice requirement for occupational diseases remains at 30 days (T.C.A. § 50-6-305(a)).
The definition of injury includes a non-exhaustive list of examples of occupational diseases: diseases of the heart, lung, and hypertension. Just like acute physical injuries and cumulative trauma conditions, to meet the definition of injury in an occupational disease case, it must be shown that the employment contributed more than 50% in causing the occupational disease considering all causes, and the opinion of the panel-selected physician is presumed correct on the issue of causation, rebuttable by a preponderance of the evidence.
The threshold concern
The most important question regarding occupational disease cases is how to determine whether the “old law” or the “new law” applies. The answer? It depends upon the date of injury. The Reform Act applies to injuries occurring on or after July 1, 2014. But unlike an employee falling from a ladder on a date/time certain, questions appear surrounding when an occupational disease occurs.
So, what is the date of injury in an occupational disease case?
The Tennessee Supreme Court Special Workers’ Compensation Appeals Panel addressed this important question in Shuler v. Eastman Chem. Co. & SIF. Many occupational diseases have a latency period before symptoms develop—sometimes years after an employee last worked for any employer—as was the case for Shuler.
Shuler was employed by Eastman Chemical from 1965 until his retirement in 1999 as an inspector and laborer. In 2016, he filed a complaint in the Sullivan County Circuit Court seeking workers’ compensation benefits for an occupational disease (bladder cancer) that was diagnosed in 2015. Shuler alleged exposure to cigarette smoke, asbestos, toluene, and other harmful substances while working for Eastman and that his bladder cancer developed from exposure to toxic chemicals from 1965 to 1999. His complaint asserted that he was forced to undergo surgery and was permanently and totally disabled.
The circuit court dismissed the complaint for lack of subject matter jurisdiction under Tennessee Code Annotated section 50-6-237. Shuler appealed, presenting four issues:
- Whether the trial court erred by concluding it lacked subject matter jurisdiction.
- Whether the trial court erred by applying section 50-6-237 (applicable to injuries on or after July 1, 2014) when his last work exposure was in 1999.
- Whether the trial court erred by retrospectively applying section 50-6-237, and if so, whether that application was unconstitutional.
- Whether sections 50-6-217(c), -237, and -238 are facially unconstitutional.
The Panel disposed of the last issue at the outset, holding that since Shuler didn’t raise the constitutional challenge before the trial court, he waived it on appeal.
As for the remaining issues, the Panel rejected Shuler’s assertions that his injury occurred in 1999—his “last day worked” or “last injurious exposure.”
Ultimately, the Panel concluded that “the partial or total incapacity for work or the death of an employee resulting from an occupational disease…shall be treated as the happening of an injury by accident or death by accident,” quoting Tennessee Code Annotated section 50-6-304.
Because Shuler alleged in his complaint that “on or about December 8, 2015, [he] discovered that he was suffering from cancer arising out of and in the course and scope of [his] employment with [Eastman] as a result of his exposure to various chemicals” and further alleged that “as a result of the discovery of [his] occupational disease [he] was rendered disabled to work and earn wages,” the Panel concluded, that according to the complaint, Shuler became disabled from working at the time of his diagnosis in December 2015. It therefore concluded that since his date of injury fell after July 1, 2014, the circuit court properly dismissed his complaint for lack of subject matter jurisdiction.
Concerning the arguments about the retrospective application of a statute for an alleged 1999 injury, the Panel held that “the fallacy of this argument is that Mr. Shuler’s injury did not occur in December 1999 but rather in December 2015” and that “the law in Tennessee regarding when an occupational disease injury occurs has remained the same for several decades.” Therefore, the Panel concluded, “[T]here has been no unconstitutional retrospective application of a statute in this case.”
Post-Shuler, many questions remain that will likely need to be addressed by the Court of Workers’ Compensation Claims and ultimately the Tennessee Supreme Court, including:
- What is the applicable average weekly wage if an employee hasn’t worked for more than one year before the date of disability?
- What happens if an employer is no longer in business on an employee’s date of disability?
- What is the lost earning capacity of an employee no longer in the workforce on the date of disability?
Finally, how can you tell whether subject matter jurisdiction is potentially an issue?
Some clues to look for are when an employee has multiple or potentially multiple “dates of injury.” Examples include:
- Listing multiple dates of injury: last day worked, date of diagnosis, date of discovery, and date of last injurious exposure.
- Filing an “old law” Request for Mediation; and
- Filing a circuit or chancery court complaint.
An important point to remember is that the employee has the burden to prove by a preponderance of the evidence “each and every element” of the claim. This includes the date of injury, average weekly wage and resulting weekly compensation rate.
Allison Lowry is a staff attorney with the Subsequent Injury Fund in the Bureau’s office in Knoxville. She is a recent graduate of the Bureau’s inaugural Leadership Academy. She can be reached at Allison.Lowry@tn.gov.