Tuesday, December 1, 2015

Occupational Disease and the Zadroga Act

Most of us recently took a pause in our daily lives to be thankful for something. It is an annual ritual during which many of us eat too much, do too little, and hopefully take some time to reflect. 

In the days leading up to Thanksgiving 2015, a couple of minor headlines caught my attention, as did another headline from Joan Collier's blog regarding occupational disease. I have heard a great deal about occupational disease, at conferences, from lawyers, from doctors. 

On November 18, the New York Daily News published an update on the case of Diane DiGiacomo. She worked for the American Society for the Prevention of Cruelty to Animals (ASPCA). Following the terrorist attacks of September 11, this "single mother spent three month near the shadow of the soldering footprints of the World Trade Center." Her assignment was to save "dogs and cats left behind in nearby apartments." 

On November 16, the News reported on DiGiacomo's efforts to have Congress act to reauthorize the James Zadroga 9/11 Health and Compensation Act. According to the News, this "provides medical treatment and compensation to Ground Zero workers." The story laments that this law included time limitations for seeking compensation. In the story, her sister asked "how could you put a deadline on people's lives?" 

The News articles were less than informative regarding the Zadroga Act. According to The Hill, "we now know 33,000 first responders and survivors across the country suffer from at least one 9/11-related illness or injury." The Hill asserts that as many as 4,000 of these first responders are suffering from cancer. Ms. DiGiacamo "was diagnosed with cancer last year" (breast) according to the News. in a very short period of time, it had spread to her brain and bones. When the stories were published in November, she weighed only 60 pounds and was essentially "confined to her bed." 

The Zadroga Act provided medical care and monitoring for first-responders, according to the Center For Disease Control (CDC). The proof required appears to be somewhat less than for workers' compensation. According to the CDC, care is available "As long as the reason you are hospitalized is for treatment of a strongly suspected or certified WTC-related health condition." The Zadroga Act was passed in 2010. By its language, it has now expired and there is a move afoot to pass the "Zadroga Reauthorization Act." 

The CDC provides a list of conditions that are covered, including: asthma, gastroesophageal reflux disorder, interstitial lung diseases. reactive airways dysfunction syndrome, sleep apnea, upper airway hyperreactivity, WTC-exacerbated chronic obstructive pulmonary disease (COPD), and chronic cough syndrome, laryngitis, nasopharyngitis, respiratory disorder—fumes/vapors, rhinosinusitis. There is also a long list of "covered" cancers, female breast cancer among them. 

On November 16, the News Reported, that Ms. DiGiacomo had lost her claim for workers' compensation benefits for her cancer. The News reports that "In his Monday ruling, Judge Marc Grodsky says there is 'no dispute in the medical evidence' that DiGiacomo’s breast cancer developed at least in part due to her exposure to the site’s toxic fumes."

The News provides little explanation of the judge's order beyond this quote. WorkCompCentral (WCC) had a brief report on November 20, in which some further details of Judge Grodsky's order were provided. According to WCC, "Grodsky concluded DiGiacomo did not suffer from an 'occupational disease,' because the exposure did not 'derive from the very nature' of her work as an animal rescuer." Instead, he concluded, "her exposure arose from ‘an environmental condition' specific to the place of work." 

Some contend that this logic could preclude any 9/11 first- responder from prevailing in a claim for workers' compensation benefits. They point to the judge's conclusion that “the dust and particulates were a result of the environmental conditions in the area in the aftermath of the attack. If she was doing her job in a different area, there would be no exposure.” Critics contend that this distinction would be as true for any firefighter, police officer or other professional responding that Tuesday morning 14 years ago. 

On the same day WCC provided these details of the order denying Ms. DiGiacomo's claims, the News ran another story regarding Diane DiGiacomo, reporting she had passed away.

There are burdens of proof for demonstrating that disease is in fact occupational. The 9/11 example provides an illustration, and the attacks are familiar to everyone. The general familiarity with the events that day provides a commonality within which discussion can be had. That is an academic exercise, which is interesting, but we all must remember that it is a debate which profoundly affects people's lives. 

Occupational disease in Florida is compensable as set forth in Fla. Stat. §440.151. This section provides the generality that "the disablement or death of an employee resulting from an occupational disease as hereinafter defined shall be treated as the happening of an injury by accident." 

The statute then defines restrictions on the generality, stating: 

"in no case shall an employer be liable for compensation under the provisions of this section unless such disease has resulted from the nature of the employment in which the employee was engaged under such employer." 

“'Nature of the employment' means that in the occupation in which the employee was so engaged there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations." 

The employee will have to prove that such disease "was actually contracted while so engaged." 

And that for such disease "the nature of the employment was the major contributing cause of the disease," which cause "must be shown by medical evidence only, as demonstrated by physical examination findings and diagnostic testing." 

The burden of proof is not a preponderance of evidence ("more likely than not"), but is higher in Florida occupational disease. The statute provides that "both causation and sufficient exposure to a specific harmful substance shown to be present in the workplace to support causation shall be proven by clear and convincing evidence."

The Florida standard is beyond "the strongly suspected or certified WTC-related health condition" which has been stated as the burden of proof regarding the 9/11 disease claim program.

There has been discussion of the burden of proof in occupational disease cases. This example provides a view of the law interpreted in New York. Would the result be the same using the provisions of Florida's law?

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