Office of Workers' Compensation Programs (OWCP)

Printer-Friendly Version

Division of Longshore and Harbor Workers' Compensation (DLHWC)

CHAPTER 3-400 — OCCUPATIONAL DISEASE

1. Purpose and Scope. This Chapter introduces the general policies and procedures for handling secondary occupational disease cases. More specific information can be found in PM 3-401 (Hearing Loss), and PM 3-402 (Asbestosis). Chapter 3-300 (Secondary Case Review) also provides guidance on handling secondary cases in general.
2. References.
   1. The sections of the Act pertaining to occupational diseases are: sections 2(10), 8(c)(23), 9(e)(2), 10(d)(2), 10(i), 12(a), and 13(b)(2).
   2. The sections of the regulations pertaining to these diseases are: sections 702.212(b), 702.222(c), 702.601 to 702.604.
   3. The Law of Workmen's Compensation, by Arthur Larson, Section 41.00.
   4. Guides to the Evaluation of Permanent Impairment, published and revised from time to time by the American Medical Association.
3. Definitions.
   1. Average Weekly Wage.
      1. Use the average weekly wage at the time of injury if this date is prior to retirement.
      2. Where the time of injury is after retirement and
         1. Within the first year after retirement, use 1/52 part of average annual earnings in the fifty-two week period prior to retirement, or
         2. More than one year after retirement, use the National Average Weekly Wage at the time of injury.
   2. Date of Last Injurious Exposure. The last date the claimant was exposed to the implicated harmful substance while working in employment covered by the LHWCA.
   3. Date of Manifestation. The date the claimant becomes aware of the relationship between a disease and his or her employment or should have been aware of the relationship.
   4. Disability.
      1. Where the time of injury is prior to retirement, disability is based upon a loss of earnings or earning capacity.
      2. Where the time of injury is after retirement, disability is based upon the amount of physical impairment.
   5. Impairment. The amount of permanent loss, or loss of use of, an organ, body part, or bodily function, as determined in accordance with the Guides to the Evaluation of Permanent Impairment. If the Guides do not measure the impairment, any other professionally recognized standards or system of evaluation may be used.
   6. Occupational Disease. An illness or condition which develops over a period of time in response to repeated exposure to harmful or injurious stimuli.
   7. Retirement. The claimant has voluntarily withdrawn from the work force and there is no realistic expectation that he or she will return to the work force.
   8. Time of Injury.
      1. For purposes of determining coverage and for sections 10, 12, and 13: the date on which the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability.
      2. For purposes of determining identity of responsible EC: the date of last injurious exposure.
4. Evaluation of Evidence.
   1. General. The CE must first determine: 1)whether or not the disease caused disability or impairment, and if so, when; 2)whether the date of manifestation was before or after retirement; and 3)whether the retirement was voluntary. From these basic facts, the claimant's entitlement may be established. The claimant must assist in this process by providing any information necessary to make these determinations.
   2. Time.
      1. If the occupational disease does not cause immediate disability or death, the time to give notice of injury and make a claim for compensation are one year and two years respectively. These time periods extend from the time of injury as defined in subparagraph 3h(1), above. In making this determination, particular attention must be given to the medical evidence and the statement of the claimant regarding his/her awareness of the disease. The section 20(b) presumption aids the claimant in establishing the timeliness of his/her claim.
      2. If the disease immediately causes disability or death, the time periods to give notice and make a claim are thirty days and one year respectively. These time periods extend from the time of injury as defined in subparagraph 3h(1), above.
   3. Causal Relationship. The claimant has the burden of making a prima facie case, i.e., submitting evidence of an injury and an accident, or working conditions, which could have caused the injury. To satisfy this initial burden, the claimant must submit a medical report which contains a diagnosis and evidence that he or she was exposed to the implicated injurious stimuli.
   4. Extent of Disability. In addition to s 10, 12, and 13, the time of injury also affects the extent of the claimant's disability within the meaning of section 8.
      1. If the time of injury was prior to retirement, the claimant's extent of disability is determined by the amount of lost wages caused by the injury. This may extend to total disability.
      2. If the time of injury was after retirement, the claimant may not receive compensation for more than partial disability. While this disability may be based on 100% impairment of the whole person, the claimant is not entitled to annual adjustments under section 10(f) of the Act.
      3. The time of injury does not similarly distinguish the type of death benefits to which a widow/widower is entitled.
   5. Responsible Employer/Carrier.
      1. Employer during the last employment in which the claimant was exposed to the injurious stimuli prior to the date the claimant becomes aware of the disease and its relationship to employment.
      2. The carrier who insured the employer at the time of the last injurious exposure.
   6. Entitlement to Compensation.
      1. Time of Injury Prior to Retirement and No Disability or Impairment:
         1. No injury for purposes of statute of limitations,
         2. No need to file notice of injury,
         3. No need to file protective claim,
         4. Claimant eligible for medical treatment if required for condition causally related to factors of employment.
      2. Time of Injury Prior to Retirement and Disability:
         1. Compensation based upon loss of wages or earning capacity,
         2. Compensation calculated in usual manner (i.e., TTD, PPD etc.),
         3. Claimant can receive benefits for PTD with annual adjustments.
      3. Time of Injury After Retirement and No Disability or Impairment:
         1. No injury for purposes of statute of limitations,
         2. No need for notice of injury,
         3. No need to file protective claim,
         4. Claimant eligible for medical treatment if required for condition causally related to factors of employment.
      4. Time of Injury After Retirement and Disability:
         1. For this class of claims disability means impairment, as measured by the AMA Guides (see subparagraph 3e, above),
         2. Convert all impairments to whole person amount,
         3. Multiply percent of whole person impairment times AWW times 66 2/3%, (see 20 C.F.R. section 702.604(a)).