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DEC-15-94 THU 14:27 HELLON INST. L1BRARY/CHU FAX NO. 412 268 6945 P.02 1? INDUSTRIAL HYGIENE FOUNDATION OF AMERICA, Inc. Legal Series, Bulletin No, 4 i DEC 15 '94 12:23 Current Status of Compensation for Pneumoconioses v PITTSBURGH, PENNSYLVANIA 1963 VL * r-* . --4 i .Sit : S iS 412 268 6945 PAGE.002 DEC-15-94 THU 14:28 MELLOH INST. LIBRARY/CHU FAX NO. 412 268 6945 P. 03 4 i legal survey BULLETIN NO. 4 CURRENT STATUS OP COMPENSATION FOR PNEUMOCONIOSES Prepared for T&e Legal Comittee 01 THE INDUSTRIAL HYGIENE FOUNDATION OP AMERICA, INC. By % THEODORE C. WATERS Partner Mllee fc Stockbridge Attorneys Baltimore, Maryland DEC 15 '94 12:24 412 298 6945 PAGE.003 '9 DEC-15-94 THU 14:28 MELLON INST. LIBRARY/CMU FAX NO. 412 268 6945 P.04 of employees for compensation for injuries caused by occupational diseases suffered during the course of their employment. This survey analyzed the Workmen's Compensation Acts and Occupational Disease Acts of the various States, with respect to their provis ions for compensation of occupational disease injuries and re viewed the State decisions dealing with the rights of employees to maintain actions at common lav against their employers for such injuries so sustained in the course of employment. Bulletin No. 1 Supplement No. 1 of the Legal Series, was published March 1, 1937, for the purpose of supplementing and bringing down to date the original Bulletin no* 1. Bulletin No. 2 of the Legal Series, presented "A Critical 8tud; of Provisions For Occupational Disease Legislation", deal ing with common law rights of action by an employee for occupa tional diseases injuries sustained, arising out of,sor in the course of, employment and dealing with speciflo provisions to be the subject of consideration in occupational disease legislation* Bulletin No. 3 of the Legal Series, presented the subject of ( "Compensation Legislation, A critical Review", dealing with i specific matters that were the subjeot of existing legislation, with charts summarizing the occupational disease acts then effective. The purpose of the present Bulletin is to analyze, In DEC-15-94 THU 14:29 MELLON INST. LiBRARY/CMU FAX NO. 412 268 6945 summary form, the existing laws of tbe several States relating to the pneumoconioses and to discuss* in gone detail* certain of the subjects and problems that are peculiar to these lass. It will he noted that subsequent to the National Silicosis Conference, the proceedings of which have heretofore been published . by the United States Department of Labor, Division of Labor Stand ards, there has been a great volume of legislation dealing with the matter of compensation for the pneumoconiosesparticularly the disease of silicosis. This disease has become the most important of the pneumoconiosesi from the standpoint of legislative activity, but it will be noted, in tbe enclosed Bulletin, that many States have increased their occupational disease coverage to provide % compensation for tbe pneumoconioses. The views herein expressed, do sot purport to be tbe views of tbe Foundation, or the views of its members with respect to matters therein contained. Due to current interest In legislative developments, dealing with the pneumoconioses, the Board of Trustees has requested Hr, Waters, Chairman of tbe Legal Committee of tbe Foundation, to prepare the enclosed Bulletin to tbe end that member- companies may be properly advised of tbe status of the law in tbose States wherein they operate. The same of the Foundation has now been changed to Industrial Hygiene Foundation of America, Inc., which the Board of Trustees believes is better descriptive of its activities. H. S. Schrenk, Managing Director - 2- The purpose legislative changes sat ion for the pneui have been Important which reference wii charts contained at serve a useful purp of particular legle legislative picture to these provisions selected as a cut-o Of necessity, there year 1962 and futur current information State, the reader a applicable in the Of all of t has been tbe matter 1936, Honorable Fri Labor called togett Public, Insurance C Engineering and Lei preliminary manner be made with resp' after, tbe Secrets #< DEL lb '94 12: 412 268 6945 PAGE.005 DEC-15-94 mu 14:29 MELLON INST. LIBRARY/CMU FAX NO. 412 268 6945 P. 06 tea relating 15,, certain ol se laws. .tional Silicosis re been published i of Labor Standx dealing with the rtleularly the a most important islative activity, hat many states e to provide t to be the views th respect to -st in legislative ,e Board oi Trustees Lowaittee of tbe .he end that memberI the law in those .hanged to thich the Board of Jtivities. itmr PREFACE Tbe purpose of the present Bulletin Is to set forth legislative changes in the several States dealing with compen sation for tbe pneumoconioses* During the past decade, there have been important legislative changes in the several States to which reference will be made. Attest ion is also called to the Charts contained at the end of the present Bulletin, which nay serve a useful purpose for reference with respect to the status of particular legislative provisions In the different States* The legislative picture has been consistently changing with respect to these provisions and the date ol June 30, 1962, has been selected as a cut-off date to which the present Bulletin refers. Of necessity, there say be further legislative changes during the year 1962 and future years. Therefore, in order to procure the exact current Information, with respect to the legislation in any given. State, the reader must refer to the latest legislative amendments applicable in the State that Is the subject of inquiry. Of all of tbe pneumoconioses, tbe disease of silicosis has been the matter of greatest eonoern to legislative bodies. In 1936, Honorable Francis M. Perkins, United States Secretary of Labor called together a group representing Labor, Industry, the Public, insurance Carriers and prominent members of the Medical Engineering and Legal' Professions, to explore tbe subject in a preliminary manner and to determine the nature of the studies to be made with respect to what had become a national problem. There after, the Secretary appointed four Committees as. follows! - 3 - mm DEC 15 '94 12:25 41226B6945PAGE7006 DEC-15-94 THU 14:30 MELLON INST. LIBRARY/CMU FAX NO. 412 268 6945 1, Committee 0& Prevention Of 8illcoEis Through Medical Control. 2, Committee Os The Prevention Of Silicosis Through Engineering Control, 3, Committee On The Economic, Legal And Insurance Phases Of The Silicosis Problem, 4, Committee On The Regulatory And Administrative Phases Ot The Silicosis Problem. The reports of these Committees, together with a summary report to the Secretary of labor by these Conference Committees, was submitted to the Secretary of Labor on February 3, 1937, and may be found la publications of the National Silicosis Conference, published by the United States Department of Labor,* Pursuant to these reports, various State legislatures enactea amendments to their compensation laws which were originally directed to specific provisions for compensation ot silicosis. Thereafter, as will be seen from the presentation of this Bulletin, numerous States enacted so-called "General coverage Lavs", which made all pneumoconioses compensable. The problems presented to legislative committee* and State administrative agencies dealing with compensation for the pneumoconioses are many and varied. These will be discussed in the course of this Bulletin. Practically all of the pneumoconioses are Insidious, slow of development, difficult of medical determin ation, with varying sequalae insofar as disability is coficer&ed. This reason has given rise to certain protective legislative pro visions applicable to compensation for these diseases. It will be noted, as hereinafter set forth, that most of the industrial States of the United States, now provide compensation for the -4 - pneumoconioses; in other: is sot provided. BuLletin No. 1, < of the Air Hygiene round, decessor to the Industrii dealt with a survey of t) the pneumoconioses; this No. 1, Supplement No. 1 < 1937, for the purpose of the original Bulletin No. published January 2, i$3I Tor occupational Disease Legal Series, Published l Legislation, A Critical J Bulletin is to bring thli in "the hope and expectat: to member-companies. DEC 15 '94 12:29 412 268 6945 PAGE.007 DEC-15-94 THU 14:30 HELLON INST. L1BMV/CMU FAX NO. 412 268 6945 P. 08 r ii ?! i; \] ... pneumoconioses; in others, provision for compensation ns such, is not provided. Bulletin No. 1, of the Legal Series, presented to members of the Air Eygiene Foundation of America, Inc., a corporate pre- i *. * decessor to the' Industrial Hygiene Foundation of America, Inc., dealt with a survey of the then existing statutes, dealing with the pneumoooniosesj this vae published April 1, 193d. Bulletin No, 1, Supplement No, 1 of the Legal Series, vas published March 1, 1937, for the purpose of supplementing end bringing down to date the original Bulletin No. 1. Bulletin No. 2 of the Legal \ published January 2, 1937, presented MA Critical Study of For Occupational Disease Legislation", Bulletin No. 3 of Series, Provisions \ the ly Legal Series, Published December 27, 1937, presented "Compensation Legislation, A Critical Review". The objective of the present Bulletin is to bring this information to date as of June 30, 1962, in the hope and expectation that it will be of interest and service to member-companies, Theodore C. Waters, Attorney-at-law iS r . ' Vy ii - J - DEC 15 '94 12:26 412 268 6945 PAGE.009 EC-15-94 THU 14:31 MELLON INST. LIBRARY/CHU FAX NO. 412 268 6945 P. 09 DEFINITION OF "PNEUHOCOHIOSES" AND LEGAL REMEDIES TO EMPLOYEES SUSTAINING SAME The tern "Pneumoconiosis" has been the subject of various definitions and the following definition expresses the most modern and medically accepted concept of that term: "Pneumoconiosis is a broad generic term used to describe all forms of pulmonary reaction to dust lodging within the lungs, with no implication as to the character, severity or the effect on function."2 At the time of the presentation of the panel discussion on the subject of "Emphysema, Pneumoconioses and Compensation", on October 26, I960, at a joist session of the Medloal and Legal Com mittees of this Foundation, Drs. 0. A. Sander, Arthur J. Vorwald and George W. Wright defined the tera as follows: "Pneumoconiosis simply means that inhaled particles of leas than ten microns in size have been trapped in the lungs. There should be no implication in the tera of fibrous tissue reaction to the retained particulate natter. As a matter of fact, we all have pneumoconiosis of varying degrees ever since the first dust particle was picked up by a phagocyte or dust cell and retained in the lungs. Residents living in highly polluted atmospheres of coal smoke, for example, always have blacker lungs than do those exposed to little air pollution. Even though such retention of carbon particles from coal smoke cannot be visualized by x-ray, it still is a pneumoconiosis pathologically. The radiologist, of course, cannot make a diagnosis of pneumoconiosis until he sees evidence of a sufficient retention of radlopague dusts or the development of small fibroue nodules due to fibrogenic dusts. The definition of pneumoconiosis, therefore, is quite different for tbe pathologist than it is for the radiologist." \ ''Pneumoconiosis is a generic term which connotes a pulmonary condition provided by the presence of inorganic dust in the lung. Accordingly the term is an all inclusive one and bears no reference to clinical manifestations in terms of health and disease, "This definition Is not In accord with all views throughout the world, as for example in Great Britain. The Rational Insurance - 6 Ac tc ti lr. tfc me ex th of Ev ap tb. th' fo. d: res at the ter dUs pro tio con law neg: exp< the assv gene sent DEC 15 '94 12:27 ' Jf)- .?/ ur-y>v. tr/w*s />{>----kw.-.V.' r' ~ *v.r 412 268 6945 PAGE.009 DEC-15-94 THU 14:32 MELLON INST. LIBRARY/CMU FAX NO. 412 268 6945 p; 10 .EGAL REMEDIES dffi :h subject of various sresses the most modern :m used to describe log within the lungs, rarity or the effect on :be panel discussion on id Compensation'1, on Medical and Legal Com- r, Arthur J, Vorw&ld Hows: ihaled particles of less vn the lunge. There ous tissue reaotion to ix of fact, we all have ; the first dust particle id retained in the lunge, tree of coal smoke, for hose exposed to little >f carbon particles from still is a pneumoconiosis cannot make a diagnosis a sufficient retention all fibrous nodules due moconiosis, therefore, is is for the radiologist," ich connotes a pulmonary ole dust in the lung. and bears ho reference h and disease. th all views throughout The National-'Xnsursnoe Act of 1946 defines pneumoconiosis as a fibrosis of the lungs due to silica dust, asbestos dust or other dust and Includes the condi tion known as dust reticulation." "In recent years, as more and sore individuals become Interested in the general problem of environmental pulmonary disease, the term pneumoconiosis has become progressively less specific in meaning. As cosmoaly used. It is obviously a term that embraces an extremely vide range of conditions in the lung which have only one thing in common, namely that they are attributed to the inhalation of particulate material of an inanimate or non-living character. Even in this regard, there is some question because some individuals appear to use the word to embrace all of those pulmonary conditions that conceivably might have an occupational or industrial origin even though a living particulate might be the cause of the disease as, for example, in bagaasosi*. * * " Illustrative of the problems incident to the attempted definition of the term is the following statement appended to tbe resolution passed at the National Conference on the pneumoconioses at Sydney, Australia, 1950, "The Conference deprecates further extension of terms beyond those already lo common use and suggests that for the future the terminology of 'Pneumoconioses' should take the form of naming tbe dust to which the worker is exposed or alternatively the industry or process concerned,"' Bulletins Noe, 1, 2, 3, heretofore published by the founda tion, dealt with the right of employees having Sustained tbe pneumo conioses to recover, either la legal actions or under compensation law actions. The common law actions were based upon .the alleged negligence of the employer for injuries sustained by employees exposed to the hazards of various types of duet. In such actions, the employer retained his common law defenses; (1) the employees assumption of risk (2) employees contributory negligence (3) negli gence of employees fellow servants. By the enactment of amend ments to the compensation statute of the various States, making - 7 - DEC 15 '94 12:28 412 268 6945 PfiGE.010 DEC-15-94 THU 14:32 MELLON INST. LIBRARY/CMU FAX NO. 412 268 6945 P. 11 4,'x . ArsSrrfe^v i i pneumoconioses compensable, the employer became an insurer Of the health of the employee against these diseases, the employers common law liability being abolished. Furthermore, an employee became limited to the benefits established by the Workmen's Compensation Law. The result accomplished prompt payment of benefits to the injured employee, the elimination of Jury trials, the abolishment of technical legal procedure and the transfer of such actions to administrative agencies established by the Workmen's Compensation acts of the several States. All of the States of the United States have enacted Workmen's Compensation.Laws and only the States of Miesisslppi and Wyoming have failed to extend the benefits of these lave for the payment of compen sation for occupational diseases. However, twenty-eight States5, the District of Columbia and all Federal Jurisdictions, under the Long shoremen and Harbor Workers Compensation Act6 provide so-called general i coverage which makes compensable any and all occupational diseases, including the disease of pneumoconiosis. Specifically the States of Alabama, Louisiana, Maine and New Hampshire scheduled pneumoconioses as being compensable. The diseases of silicosis and asbestosls are compensable in seven States.7 The diseases of silicosis, asbestosls and anthracosls are compensable in i Oklahoma; the disease of silicosis is scheduled to be compensable in Idaho, Iowa, Kansas, Maine and Montana; the diseases of silicosis and brucellosis are compensable In South Dakota. In summary, this means that some forms of the pneumoconioses are compensable in all States,5 except Mississippi and Wyoming, the District of Columbia and all Federal jurisdictions under the Federal Employees' Compensation Act and the Longshoreman and Harbor Workers' Act. Specifically forms of the pneumoconioses limited to named diseases are compensable in - 8 eighteen States, ms above set there are special legislative the disease of silicosis, vhic in tbs charts hereto annexed. Concc Io order to determine "Injury" in any given jurisdic the statute of the particular decisions defining that term, of the ters "Injury" are avail "Damage or hurt dose o of, person, character, feeling or the value of a thing." (We "Any wrong or damage d rights, reputation, or propert hurts." (Black's Law Dictiona The following citation dltion) relates to the term " tion acts: "In Workmen's Conpessat any harm or damage to the heal whether by aocident, disease, course of and out of hie eaplo whole or In part.9 A disease course of employment with noth setts act, but it must come fr injury need not be a single de continuous period of time.10 used is the Workmen's Cospens* In some part of the body, or s rather to the consequence or d Concept The objective of the e statutes of the various States DEC 15 '94 12:28 412 288 8945 PAGE.011 DEO-15-94 THU 14:33 MELLON INST. LIBRARY/CMU FAX NO. 412 268 6945 P. 12 i i the common aae tlon Law ared technical itive 3 several forkaen's mg have 5 coapem e, the Long ed general iasea, ind New diseases The ible In .hie in jsis and : means Jtatea,5 .11 n Act v ?rms of .n eighteen States, as above set forth. In twenty-seven states there are special legislative provisions applicable solely to the disease of sllleosis, which will be the subject of explanation In the eharts hereto annexed. Concepts Of Injury In order to determine the exact definition of the tern '`injury" in any given jurisdiction, reference should he made to the statute of the particular State in question or to Judicial decisions defining that term. However, tbe following definitions of the term "injury" are available; "Damage or hurt done or suffered; detriment to, or violation of, person, character, feelings, rights, property, or interests, or the value of a thing," (Webster's New collegiate Dictionary), "Any wrong or damage done to another, either in,his person, rights, reputation, or property. An act which damages, haras, or hurts." (Black's Law Dictionary). The following citation from Black's Law Dictionary (Fourth Edition) relates to the term "Personal Injury" aa used in compensa tion acts; "In Workmen's Compensation Acts, 'personal injury* means any harm or damage to the health of an employee, however caused, whether by accident, disease, or otherwise, which arises in the course of and out of his employment, and incapacitates him in whole or in part.* A disease of mind or body which arises in the course of employment with nothing more, Is not within the Massachu setts act, but it must come from or by an injury, although that injury need sot be a single definite act, but may extend over a continuous period of time.1 A 'personal injury* as that term is used in the Workmen's Compensation Act, refers not to some break in some part of the body, or some wouAd thereon, or the like, but rather to the consequence or disability that results therefrom." Concepts of Disability The objective of the enactment of the workmen's compensation statutes of tbe various States was to award monetary benefits for 9 - v ,1 r ii. i.. lb ve.-y V' .'| M ^Pl I I" DEC 15 *94 12:29 412 268 6945 PAGE.012 DEC-15-84 THU 14:34 HELLON INST. LiBmv/mj FAX NO. 412 268 6945 P. 13 disability resulting from injuries arising out of and in the course of employment. It rill be noted that the'benefits so payable are for disabilities resulting fro* injuries end not fros tbe diagnosis * of a disease or condition. There is a distinction between the diagnosis of tbe disease of pneumoconiosis and disability arising therefrom.*2 One common feature of all eonpensatioa statutes is to provide for tbe payment of compensation based upon a percentage of the claimant`s average weakly wage determined at the tlse the injury occurs. Generally, there is some monetary limitation of liability expressed In dollars payable per week, provision being nade so that compensation is paid at tbe rate of 66-2/3% of tbe A average veekly'wage of the claimant, not to exceed a certain monetary figure, Therefore, the principle was established tbat compensation was to provide payment of monetary benefits in lieu of wages that S tbe claimant was losing due to disability resulting iron tbe given injury. It is interesting to consider tbe various ooneepts of the term "disability*1, Tbe common law theory was tbat tbe term repre sented "injury to the body". Reference is here made to tbe follow ing definitions of tbe term ''disability" tbst have assumed general popular usage: "State of being disabled*, absence of competent physical, intellectual or moral power, fitness or tbe like; also the instance of much lack." (Webster's Hew Collegiate Dictionary). Without making reference to tbe ooncept of tbe term used in compensation statutes. Black's Law Dictionary (Fourth Edition) defines the term "disability" as follows: - IP - "Absence of compe power; impairment of earn Ing that reduces efficiec Since we >are deal in the occupational dieei statutes of the various l a variety of definitions language of tbe statute trative orjjudicial Ante important decisions is n } i State where it is not de compensation statutes ha term, re follows: Tbe first conce; Hew York:13 "Whenever used . tbe state of being dls&l at which tbe employee w This definition the States Of Iowa, Vic Island,1* It is to be loss la order for the < Assuming that an emplo; has sustained no wage ' not have a basis for c ently give effect to t compensation statutes, the period when tbe lr The second coi the law of the State . 15 '94 52:29 412 268 6945 PAGE.B13 DEC-15-94 THU 14:34 MELLON INST. LIBRARY/CHU FAX NO. 412 268 6945 P. 14 the course y&ble are e diagnosis n the y arising cutes Is percentage iiae the tion of on being of the cain nonetary ompensation ages that the given ''Absence of competent physical i Intellectual or aoral power; impairment of earning capacity; loss of physical function ing that reduces efficiency; inability to work." Since we are dealing with the concept of the tern as used in the occupational disease provisions of workmen's compensation statutes of the various States, examination of these statutes shows a variety of definitions. Where the tern Is not defined In the s language of the statute itself, such definition is left to adminis trative or Judicial interpretation, and to that end a review of the important decisions is neoeesary to define the tern in any given State where it is not defined by statute. Occupational disease compensation statutes have adopted three distinct concepts of the tent, as follows: N I The first concept is found under the law of the State of Hew York:13 "Whenever used in this Article: ... 'Disability* seams the state of being disabled fron earning full wages at the work at which the employee was last employed," ;S of the sra repreibe follow ed general This definition is followed substantially in the lews of the States of Iowa, Michigan, Minnesota, North Carolina and Rhode Island,1* It is to be noted that this definition presupposes wags loss in order for the claimant to receive disability benefits, Assuming that an employee has the disease of pneumoconiosis but lysical, ie Instance has sustained no wage loss under this theory the claimant would not have a basis for compensation. Definitions of this type appar irn used ently give effect to the purpose and objective of the enactment of r Edition) compensation statutes, namely to substitute monetary benefits during the period when the injured employee has sustained a wage lose. The second concept of the term "disability" is found in the law of the State of Arizona:15 - 11 - .'v vrwfc:rv-r- : DEC 15 '94 12:30 412 268 6945 PAGE.014 DEC-15-94 THU 14:35 MELLON INST. UBfMRY/CflU FAX NO. 412 268 6945 P. 15 " 'Disablement* memo* physical incapacity by reason of any occupational disease, as defined In this chapter, to perform any work for remuneration or profit.'1 This concept Is followed substantially In the laws of the States of Georgia, Idaho, Montana, Nevada, Mew Mexico, South Carolina, and Utah.16 The third concept of the ter is found in the lav of the State of Kansas:1,7 "Except aa hereinafter otherwise provided in this chapter 'disablement' means the event of an employee's becoming actually and totally incapacitated, because of ao occupational disease, from performing bis work in the last occupation In which injuriously exposed to the hazards of such disease." ' This'defiaition is substantially followed in the lavs of the states of Maryland and Sooth Dakota.15 Examination of the Language set forth in the statutory N references above Indicates that the New York statute presents the fairest concept of this term to both the employer and the employee, providing that disability Is dependent upon loss of wage, The second concept set forth in the Arizona statute seems to be too extreme and unfair to injured employees. Compensation would be dependent upon The fact that the employee was permanently and totally disabled and unable to do any work for profit in any other trade or occupation. The third concept, referred to in the statute of Kansas, will present problems for the administrative agencies. It is possible lor an employee to be adjudged as permanently and totally disabled from pneumoconiosis on tbe theory that he should not be returned to work in s dusty trade. Be may be able to pro cure some employment in other trades or occupations where he has not sustained any wage loss and where, as a matter of fact, he may - 12 - procure wages in excess his injury occurred. I. Is complicated by an ac proper to provide that total disability. In s i the employee from the c eliminate tbe poesibill tubercle bacilli. The writer wisf the actual determlnatlc reference should be mac decisions within tbe $4 Indicated, there is la< inevitably give rise t> various State lavs. Metho In fourteen St with Federal jurlsdict conioses does not dlfJ other occupational di* legislative provision! ioses respecting comp respect to this coupeof interest. (1) Designati Boards Or Medical axt Ip~ Thelr~Determinatic Assuming that the principal quests \ DEC 15 '94 12*31 412 268 6945 PAGE.015 DEC-15-94 THU 14:35 MELLON INST. LIBRARY/CMU FAX NO. 412 268 6945 P.16 i ! I of any s any of the n Carolina, i the lapter sally je, from jcly vs of the `ry a the ployee, he too be 1 other st atute ?ies. and >ould pro- has .e may procure wages in excess of those received in the employment where his injury occurred. In the event the claimant's pneumoconiosis is complicated hy an active tuberculosis infection it would sees proper to provide that he should receive an award of permanent total disability, In such cases, it would be desirable to remove the employee from the continuing exposure to dust and also to eliminate the posalbility of the exposure of fellow employees to tubercle bacilli. The writer wishes to call attention to the fact that for the actual determination of the technical definition of the tern reference should be made to compensation statutes or judicial decisions within the State that is the subject of inquiry. As indicated, there is lack of uniformity in this concept which will inevitably give rise to differentials In administration of the various State laws. Methods Of Compensating The Pneumoconioses In fourteen States*- and the District of Columbia, together with Federal Jurisdictions, the method of compensating the pneumo conioses does not differ from legislative provisions applicable to other occupational diseases, in thirty-four States there are legislative provisions restrictive as to certain of the pneumocon ioses respecting compensation payable for the pneumoconioses. With respect to this compensation, the following summary review will be of interest. (l) Designation Of State Legislation To Provide Medical Boards Or Metrical'fseminarg to Assist The Aamiht8tratTve~3[gencIe8 Id1 Their Determination Of T<Kb~ dlaima. Assuming that a given claim for pneumoconiosis is contested, the principal questions presented for decision by the administrative - 13 - I SL:> .vV_- f [l 1. I< I i f .v*V DEC 15 '94 12:31 412 268 6945 PftGE.016 DEC-l5-94 THU 14:36 MELLON INST. L1BRARY/CMU FAX NO. 412 268 6945 P. 17 r Agency are medical questions, namely, the determination of the tion and would, tl following issues: Whether or not the claimant has sustained an occupational disease eoopensahle under the statute, and -- the nature and extent determination of f Of medioml consult legislative provU of disability. should be made to The following States sake provision for the appointment of medical boards, panels or consultants to resolve these questions i the powers, duties consultants, Fros or to serve in an advisory capacity to the industrial commission: i Arisons, Colorado, Georgia, Idaho, Iowa, Maine, Maryland, Montana, i i Nevada, New York, North Carolina, Ohio, Oregon, Rhode island, South I justice, it would i should have avails Involved in the ca Carolina, South Dakota, Texas, Utah and Vest Virginia. The uee of inations, history medical boards or special medical examiners has been tbe subject of % cr.lticiss-on the theory that it is practically impossible to procure totally impartial, unprejudiced medical opinion; furthermore, that the litigants have tbe right to present their own medical testimony extent of such exp i sent record. Inde i I each party should testimony as It de and that tbe use of medical boards and panels or medical examiners its case. belittles the honest opinion expressed by medical witnesses that It must be may differ from the decisions of such boards or examiners. The panels would vary purpose of the enactment of compensation statutes was to avoid conditions in any the express hazard and uncertainty of technical legal trials in activity within tb the determination of the issues presented during the course of of Utah would not the hearing by the least expensive method that is possible. It In those States tb may be that any Qualified doctor assigned to a panel or as a panels their open consultant to tbe administrative ageacy for the purpose of resolv effort should be a ing the medical issues in a given ease may have a background of panels to the end professional employment that tends to make Mb partial either to the particular dli one side or the ether. The fact remains that in a given case, bis made available to opinion would be independent of any allied interest in the lltiga- 14 DEC 15 '94 12:32 412 268 6945 PAGE.017 DEC-15-94 THU 14:37 MELLON INST. LIBRARY/GMU FAX NO. 412 268 6945 P. 18 of the jpational and extant .ntmeot of eatioae .mission; Montana, and, South he u*e of subject of to procure are, that test loony txaminers i6 that The void Is in e of . It a resolv ed of nar to xvc, his lltlg*- It tioa and would, therefore, serve the ends of justice for the determination of these issues, With respect to the appointment of medical consultants or hoards, there is no uniformity as to the legislative provisions involving their appointments and reference should he made to the statute of any given State to ascertain the powers, duties and effect of the opinion of medical hoards or consultants. Trom the standpoint of proper administration of justice, it would Been desirable that.the panel or medical board should have available to it all of the germane medical testimony involved in the case, including all medical reports, x-ray exam inations, history of the case, nature of exposure to duet, and the ^xtent of such exposure, together with full details of the employ ment record. Independent of the opinion of the board, or panel, each party should have the privilege of offering much medical testimony as it deeae necessary for the proper presentation of its case, It must be further borne in mind that the use of boards or panels would vary from State to State, depending upon the industrial conditions in any given State and the location of industrial activity within that State. What might be suitable for the state of Utah would not necessarily be suitable for the State of Mew York, In those States that have employed the use of medical board* or panels their operations have generally been .successful'. Every effort should be made to avoid political appointments to boards or panels to the end that the beat medical opinion with respect to the particular disease that is the subject of complaint oould be made available to the administrative agency. K - IS - . * .v. . :V-`> , r*''i%f DEC 15 '34 12:32 412 268 6345 PAGE.018 DEC-15-94 THU 14:37 MELLON INST.LIBRARY/CMU FAX NO, 412 268 6945 P. 19 <2) Time Limitations Tor The Filing 0f Claims. This subject has presented one of the moat troublesome legislative provisions incorporated in any of the State live, and again there la no uniformity among State lavs. All lavs !!. Include a period of limitation within which claims must be filed. Examples or these provisions are: A fixed period of time after injury. A fixed time after disablement, A fixed time after the employee knew ormhould have known of the existence of the disease or disability. ,A fixed tine after the first manifestation of the disease. A {ixed tine after last exposure. \ A fixed time after the last payment of compensation. A fixed time after disablement which must occur within a fixed number of years after last exposure. A fixed time after exposure vlthin vhlcb disablement must occur. With respect to the pneumoconioses, it must be remembered that a given claimant may have demonstrable evidence of the condi tion over an extended period of time vith no attendant disability, discomfort ia performing his normal duties, and without hie having sustained a wage loss. Query; From what date should the time limitation run in cases of this type? It is known that frequently disability does not occur until many years after the termination of employment or exposure. On their part, the employer or insurance carrier desire to determine liability during the year vhen the injury occurs or within a limited time thereafter. From the stand point of the employee who has sustained pneumoconiosis, he may not - 16 - wish to terminate hli until he la actually the result of the dll pounded l among the the pneumoconioses, tion, the use of pbya of the chest to demon eoniosiv should be ex sad upon termination -would not only serve i employee to be advise; the time limitations < the writer recommends of filing claims slmll of New Jersey, to wit: meat of compensation, have known of the cxieation of five years aft of this type were enact employer or Insurance c vlthin a fixed period e ainable fact, on their trade would have the be termination of exposure or not they had pneumoci for, within the time fi: pneumoconiosis is nedici . , -n- * ' ......................... 15* ' 94' IS': 33 . is. s ; : t- 412 268 6945 PAGE.019 DEC-15-94 THU 14:38 HELLON INST. LIBRARY/OT FAX NO. 412 288 8945 ....... P. 20 t-v. lied mown must gfed iadi.ity, vine atly on uraace -'and- not vlsb to terminate bis employment or sake claim for compensation until be la actually disabled or has sustained a loss of wages as tie result of the disease. The answer to the question Just pro pounded is among the imponderables of legislation dealing with the pneumoconioses, With enlightened labor leadership and coopera tion, the use of physical examinations, Including roentgenograms of the oheet to demonstrate whether or not the claimant has pneumo coniosis should be extended to pre-employment, during employment, and upon termination of employment. Veil planned medical programs would not only serve to protect the employer hut enable the employee to be advised of his condition. After careful study of the time limitations of the various statutes above referred to, N the writer recommends a provision with respect to the time limitation of filing claims similar to that contained in the laws of the State of New Jersey, to wit: Two years after last exposure or last pay.sent of compensation, or one year after employee knew or should have Jenown of the existence of the disease, with an overall limit ation of five years after last exposure.20 Assuming that a provision of this type were enacted in the State compensation law, the employer or insurance carrier would be able to terminate liability within a fixed period of time after last exposure which is a deter minable fact. On their part, the employees engaged in a dusty trade would have the benefit of a roentgen examination upon the termination of exposure and be advised at that time as to wbetber or not they bad pneumoconiosis, enabling them to file claims there for, within the time fixed by the statute. The exlstenoe of pneumoconiosis la medically determinable upon the termination of - 17 rs*\< f\ : 412 268 6945 PAGE.020 DEC-15-94 THU 14:39 MELLON INST. LIBRARY/OMU FAX NO. 412 268 6945 P.21 -V j. Mr exposure to dust and it is submitted that no prejudice would arise by the application of this rule. (3) Time Limitations Relating To Death Benefits, With reBpect to legislative provisions dealing with this subjecti there are again numerous differentials among the statutory provisions of the several States, but the basic problem is someThat simpler because of the certainty of death and the last that it is proper to require the filing of a claim within a reasonable period of time after death occurs. Examples of the provisions of the various statutes relating to time limitations for the filing of claim after dea^h Include the following: A fixed period of time after death. Death occurring within a fixed period of time after last exposure or following continuous disablement. A fixed period of time after injury. In all of the States, the requirements exist that pneumo coniosis must be the cause of death in order for death to be compensable. Upon death, autopsies would disclose the existence of the disease of pneumoconiosis and whether or not It was a causative factor of death. In certain instances, however, an employee with pneumoconiosis may die years after the termination of employment. This frequently happens and in many Instances employers and insurers are confronted with tbs problems of the loss of their records, inadequate records, or the change of insurance carrier. Furthermore, the older the individual becomes the more contributing - 18 - m factors may enter into the c to determine the reistioosbl and death. Legislative provide within a fixed period of tin continuous disablement, appe and employer. The date of 1 able date. Proof is availab meat, the evidence of dust 1: it would be potentially haza: bag suffered continuous, pen pneumoconiosis, the employer that fact and pays oompensat: it would seem to be proper t< death benefits until a fixed disablement. The provision relatln date of injury opens the ease sent about the time the injur are benign, while others say years with complications of t A given employee may properly bad the disease beoeuse be ex; hie normal duties nor did he : and Courts have tended to con' the employee the benefit of tt claim when he ,'knew or should DEC 15 '34 12:35 412 268 6345 PAGE.021 DEC-15-94 THU 14:39 MELLON INST.LIBRARY/CMU FAX NO. 412 268 6945 P.22 factors may enter into the cause f death, making It difficult to determine the relationship between the employee's pneumoconiosis pnd death. Legislative provisions requiring that death must occur within a fixed period of tine after last exposure or following continuous disablement, appear to be the fairest method to employee and employer, The date of last injurious exposure is a determin able date. Proof is available to show the nature of the employ ment, the evidence of duet in that employment, and whether or not it would be potentially hazardous. Assuming that the employee has suffered oontinuous, permanent disability as the result of pneumoconiosis, the employer or insurance carrier is apprised of' that fact and pays compensation for tbat disablement. Therefore, it would seem to be proper to extend the time for filing a claim for death benefits until a fixed period after death following continuous disablement. The provision relating to a fixed period of time after the date of injury opens the case to potential argument and disagree ment about the time the injury occurred, Many of the pneumoconioses are benign, while others may progress over an extended period of years with complications of tuberculosis or other pulmonary diseases, A given employee may properly testify that he did not know that he had the disease because he experienced no disability in performing hla normal duties nor did he suffer any wage loss. Our Commissions and Courts have tended to construe provisions of this type to give ag the employee the benefit of the doubt and to permit him to file a claim when he "knew or should have known he bad the disease". This * - 19 - ' t DEC 15 '94 12:36 412 268 6945 PAGE.022 DEC-15-94 THU 14:40 MELLON INST. LIBRARY/DMU FAX NO. 412 268 6945 P.23 - y-'.: presents in indeterminable time and is highly objectionable to employers or tbeir carriers who wish to terminate their liability in a given ease. (4) Provisions For Medical And Hospital Care, The poeuaooonioses assume an aspect separate and distinct iron other types of occupational diseases, primarily because no medical cure tor these diseases has been found and the basic pro tection of employees is dependent upon the installation o2 dust control and other engineering equipment that would prevent the Incidence of disease rather than to effect its cure, Tb most numerous examples of the pneumoconioses are silicosis with its variations and asbestosis, which say produce disability or death. There does not seem to be the need for extended medical care unless the pneumoconiosis progresses to the state where it is complicated by tuberculosis or cor pulmonale. Assuming that the claimant has compensable pneumoconiosis and needs medical care or hospital treatment these should be provided and the claimant should receive adequate medical attention. Legislative provisions dealing with this subject differ from State to State. Examples of these provisions are the follow ing: Same provision for accidental injuries. A monetary maximum. Time limitation generally expressed in a number of months of treatment, M D Twenty-six States and Federal jurisdictions provide full benefits with no limitation to the amount that is payable. Twenty-two States23 have limited benefits which may be readily - 20 - ascertained by reference t (Mississippi and Wyoming) benefits. The statutes ol the benefits for medical < Unfortunately, wit are dealing with what to < i in so far as.bospital car< I hoped, that medical sciene< factory answer to this qu< (5) Compensation ) Upon statutory an> sable in our various Stat< concerned with the impact from exposure to dust the to the enactment of the c< liability1' entered into <i was not accrued but poten compensation statute an e of the employee from the statute. As attempted an visions denying conpensat ing compensation lor pern legislative resistance in \ for the pneumoconioses, ? dust hazards from the Sti cable to some other State was the faot that in most DEC 15 *94 12:36 412 268 6945 PAGE.023 DEC-15-94 THU 14:41 MELLON INST.LIBRARY/CMU FAX NO. 412 268 6945 P. 24 to bility rtinct o pro- ust be st tfl "xth,21 unless .cited bis oeive er 110W- ths ascertained by reference to the State statutes. Two States (Mississippi and Wyoming) sake do allowance for medical or hospital benefits. The statutes of each State must be examined to determine the benefits lor medical care and hospitalization. Unfortunately, with respect to the pneumoconioses, we` are dealing with what to date has bees an insoluble nodical problem in so far as hospital care and cure are concerned. It is to be hoped that medical science nay ultimately provide a wore satis factory answer to this question, <S) Compensation for Partial And Total Disability, \ Upon statutory amendments asking the pneumoconioses compen sable in out various States, industry and insurance carriers were concerned with the impact of potential liability for compensation from exposure to dust that had been experienced by employees prior to the enactment of the compensating statute. The phrase "accrued liability" entered into discussion of thlB problem. The liability was not accrued but potential, because upon the enactment of the compensation statute an employer became an insurer of the health of the employee from the diseases made compensable under the statute. An attempted answer mas the enactment of legislative pro visions denying compensation for partial disability and only award ing compensation for permanent total disability. There was legislative resistance in many States with respect to compensation \ for the pneumoconioses, with the migration of industries having I dust hamards from the States where these diseases were made cospeo- ? sable to some other State. Allied to this phase of the problem was tbe fact that in most instances the extent of partial disability - 21 - .o. DEC 15 '94 12:37 412 268 6945 PAGE.024 DEC-15-94 THU 14:41 MELLON INST. LIBRARY/CMU FAX NO. 412 268 6945 P. 25 was not medically determinable until a given employee was unable to continue hie employment or had sustained some wsge loss as the result of the disease. Assuming that the employee had disabling pneumoconiosis, frequently accompanied by active tuberculosis, the medical profession had no difficulty In determining this fact and recommended that such cases should be compensated for on the basis oi permanent total disability. The medical profession was reluctant to recommend that a given employee should be removed from the hazards of exposure to dust in the employment where be bad worked all his lifetime and seek employment In some other trade. This is oertainly understandable. In some oases legislative provisions were enacted enabling a claimant to transfer from his employment where he would be exposed to the Inhalation of Injurious duet into other trades or occupations where dust hazards did not exist with compen sation to be paid for the injury that he had sustained.^ However, the number of-cases in most of the States where this practice was followed has been somewhat limited, primarily because of the reluct ance of long-term employees to give up the Jobe with which they were familiar and seek employment in other trades. Again, there la no uniformity with respect to this legislation and reference must be made to the statutes of the different States to determine the exact status of the rights of the claimant cr the liability of the employer or insurer. It is probable that in the event of an economic recession, claims may be filed for partial disability even though no actual disability exists, where x-ray evidence shows increased hilar markings as a result of some dust exposure. This - 22 - factor is an incentive to reti compensation for partial dieat pensation lor partial dimabili and Federal jurisdictions6 paj ability, (6) Monetary Limltatic It is practically lmpc to statutory provisions establ pneumoconioses and the laws oi determine the benefits that u above, industry and Insurance impact of the passage of laws due to the potential liability by the inhalation of dust pri< To ease the impact of this but known as escalator clauses, wl the first month the Act becont at a fixed rate per month unt: reached. Many of these laws ) the escalator clauses, althoui number of States maximum bene: States a part of the burden o: disability funds or by contril Undoubtedly, the so& a useful purpose when first e: monetary liability imposed up of claims of silicosis after as great as had been antlcipa DEC 15 '94 12:37 412 268 6345 PftGE.025 DEC-15-94 THU 14:42 MELLON INST. LIBRARY/CMU FAX NO. 412 268 6945 P. 26 ' tr able > the '.Inf , the end Deals luctant rked is is a* were aere >ther mpenever. Was eluct7 re lae ' of in even la factor ia ah Incentive to retain legislative provision* denying compensation for partial disability. Twenty States25 deny cobpensatlon for partial disability, whereas twenty-eight States26 and Federal Jurisdictions pay soae compensation for partial dis ability. (6) Monetary Limitations For Liability. It is practically impossible to be specific with respect to statutory provisions establishing monetary liability for tbe pneumoconioses and the laws of each State must be examined to determine tbe benefits that are payable thereunder. As stated above, industry and insurance carriers are concerned about tbe \ ^ impaot'of tbe passage of laws Baking the pneumoconioses compensable N due to the potential liability for injuries that had been Incurred by the inhalation of dust prior to the effective date of the Act. to ease tbe impact of this burden there was enacted what became known as escalator clauses, whereby a fixed amount becomes payable the first month the Act becomes effective with progressive increases at a fixed rate per month until the whole benefit of tbe law is reached. Many of these laws have since been amended to eliminate tbe escalator clauses, although some have been retained. In a number of states maximum benefits are fixed by law while in some States a part of tbe burden of compensability is shared by-special disability funds or by contributions fros the State. Undoubtedly, the escalator clauses above referred to served i a useful purpose when first enacted because of the limitation of monetary liability imposed upon the employer. Eovever, tbe number of claims of silicosis after the enactment of the statutes was not as great as had been anticipated and gradually State legislatures have - S3 - DEC 15 '94 12:38 412 288 6945 PAGE.026 DEC-15-94 THU 14:43 MELLON INST.LIBRARY/CMU FAX NO. 412 268 6945 R 27 seen lit to dispense with this Method of limitation of liability. The law now effective la New York State2* provides coapen- sation lor the pneumoconioses only in the event of total disability or death and further Bakes provision for the payment of compensation in the eveot that the claimant ia totally disabled by dust disease and imposes responsibility for the payment of such compensation upon the employer for the first 360 weeks; the employer continues the payment of compensation thereafter during; the claimant's permanent disability, but will have the right to be reimbursed from the Special Disability Fund created under this law. This method nay well provide the answer to this Bost troublesome problem. (7)' Statutory Requirements For Exposure Within The State : Ehere Compensation is sought. ~' Host of the State statutes contain legislative provisions of a specific term of residence and exposure to dust in the State wherein application for compensation is made. Again, there is no uniformity 'ia provisions of this type. The purpose of the require* sent is to avoid the possibility of a claimant having had exposure in one industrial State going to another State where the benefits under the compensation act were more liberal, or from procuring compensation in the second State unless he meets the statutory requirements with respect to exposure in that State, The term of years for exposure within a given State vary as well and reference must be made to individual State laws to ascertain the answer to the compensability of a claim in any given Jurisdiction, The sane rules are applicable to death benefits requiring an adequate term of exposure in the given State where compensation ia sought before a claim would be compensable. * 24 - (8) Legislation App ~Spec XA1 UiBnbii When careful consid the pneumoconioses, the nat could be employed to answer ttally, the answer may be f .Injury Funds or Special Die the Union. These Funds are Workaen's Compensation Laws objective the incentive to a previous injury and who 1 a subsequent injury on the objective of these Funds is receive full compensation f tlnuing employment, while t to the benefits due to the or Special Disability Fund disability representing the and previous injury. Enplc coniosis generally find It trades where dust hazards potential of liability in t permanently disabling. The returning war veterans the suffered some type of perma arm or other meaber of the cannot this ooncept be exte pneumoconiosis progressing dusty trade vhereia the eap DEC 15 '94 12:39 .ry*r 412 268 6945 PAGE.027 DEC-15-94 THU 14:43 MELLON INST. L1BRARY/CMU FAX NO. 412 268 6945 P.28 (8) Legislation Applicable To Second Injury Funds or 'Special Disability punas! When oareful consideration is given to compensation for the pneumoconioses, the natural question arises as to what Method could be employed to answer the questions above presented. Poten tially, the answer any be found in legislation creating Second Injury funds or Special Disability funds is the various States of the Union, These funds are administered is connection with the Workmen's Compensation Laws ol the several States and have as their objective the incentive to employ handicapped workers who sustained a previous 'injury and who later apply for employment and aay sustain a subsequent injury on the job to which they are assigned. The ^ objective of these funds is to enable the disabled employees to receive full compensation for disability that aay result from con tinuing employment, while the liability of the employer is limited to the benefits due to the second injury; the Second Injury Fund or Special Disability fund being responsible far permanent total disability representing the differential between the second injury and previous Injury, Employees who contract the disease of pneumo coniosis generally find It difficult to obtain employment in those trades where duet hazards exist and where they represent the potential of liability In the event their pneumoconiosis becomes' permanently disabling. These laws were given impetus to Insure returning war veterans the opportunity for employment if they had suffered some type of permanent injury, such as the loss of a leg, arm or other member of the body, as the result of war casualty. Why cannot this concept be extended to provide compensation for disabling pneumoconiosis progressing to disability after re-employment in a dusty trade wherein the employes is exposed to the continuing hazard - 25 - '-L 111 1 DEC 15 '94 12:39 412 268 6945 PAGE.028 DEC-15-94 THU 14:44 MELLON INST. LIBRARY/CMU FAX NO. 412 268 6945 P. 29 of harmful dust? With respect to legislation dealing with this matter, there is no uniformity in the statutes of the several | States* Second injury laws are now effective in all but four t States.28 As of June 30, 1962, only sixteen States2 and federal ! jurisdictions8 have broad coverage. in the remaining States the | coverage la bo narrow that the Funds apparently do not serve the i i purpose for which they were designed and would not .provide conpen- sation for disability from the pneumoconioses in the event of permanent disability. Why should not coverage afforded by this legislation be extended to prospective applicants for employment t in dusty trades who have had previous exposure to dust with demon strable' evidence of pneumoconiosis? Should these people be rele gated to the human scrap heap and he classed as unemployable? Would not the extension of the Second Injury Fund laws to cover this situation be the answer to what is perhaps one of the most trouble some problems in the field of occupational disease legislation? It is a fact that today applicants for new employment who j give a history of previous exposure to dust are generally submitted to x-ray examinations of their chests and if these examinations disclose potential pneumoconioses and a dust hazard exists in the particular plant or operation where they are to be assigned to work they will be denied employment in order to protect the prospective* employer from a compensation claim for total disability, which may be exceedingly costly under the statute. By extending the Second Injury Fund legislation to cover the pneumoconioses, the prospective employer would have his liability limited to a fixed amount for the second injury and the Fund would pick up the liability for- the difference between tbe second injury and total disability which had resulted from the accumulation of dust throughout the entire - 26 - period of the employee's designate these Funds as be changed to "Special D designated its Fund, 27 determination of compeos whether or act the admin imposition""of excessive created. With that In m monetary limitation of 1 which may later be incre administration of tbe la the interests Of the enp of reasonable eompensati the event of death. Consideration sb of -tbe compensation s&at Ohio, South Dakota, Texa solve the problem of tbe strable non-disabling pa not be subject to the oo Under the Workme event an employee bas a from employment in which ment and it is in fact 1 of the disease and be su or cessation of employme pensation on account the DEC 15 '94 12:40 412 268 6945 PftGE.029 14:45 ttELLOM IMST. LIBRARY/Cflii FAX NO. 412 268 8945 P. 30 DEC-15-94 * * / * ' . V h this eral our Federal ea the ve the coapenOf this jyment dSDOQ- rele5? Would iis irouble.on? t who .battled ona : the to work -t ivc :h way coad peotlve or the ch -re period of the employee 's employment. It is probably improper to designate these Funds as "Second Injury Funds" and the nine should be chanced to "Special Disability Lavs"; New York State has so 27 designated its Fuad, The difficulty presented is the actuarial determination of compensation costs. The question arises as to whether or not the administration of the lav will lead to the imposition of excessive burdens upon the Fund after it has been created, With that in mind, it may be desirable to place some monetary limitation of liability upon the Fund, in the first instance which may later be increased, dependent upon experience in the administration of the law. Such a method would be protective of the interests of the employers and insurers and assure the payment of reasonable compensation to the eaployee or his dependents in the event of death. Consideration should be given to the legislative provisions of the compensation statutes of Arkansas, Minnesota, North Carolina, Ohio, South Dakota, Texaa and Wisconsin,30 which have endeavored to solve the problem of the replacement of employees who have demon strable non-disabling pneumoconiosis in employment where they would not be subject to the continuing exposure to hazardous dust. Under the Workmen's Compensation Lav of Wisconsin,1 in the event an employee has a non-disabling silicosis and is discharged from employment in which he ia engaged or when he ceases bis employ ment and It is in fact inadvisable for him to continue on account of the disease and. be suffers a wags loss by reason of such discharge or cessation of employment, the Commission may allow such com pensation on account thereof as it may dean just, not exceeding - 27 - rr . DEC 15 '34 12:41 412 268 6945 PAGE.030 dec-15-94 rau 14:45 MELLON INST.L1BRARY/CMU FAX NO. 412 268 8945 P. 31 $7,000. The statute provides for an examination by a physician or physicians to he appointed by the industrial Commission and the i employer and employee may have the opportunity of a hearing before | the order is passed. Refusal of the employee to submit to examlna- 1i tioo would bar bis right to compensation and the payment of poapeaaa- { tloa as ordered by the Commission estops the claimant from any j further recovery. These plans referred to say be beneficial or detrimental to the employee and to the employer. With respect to the employee, he Is removed from the continuing hazard of exposure to dust. On the other band, he may be deprived of continuing in a trade or occupa- ! Ij ; tion with which he is familiar and become expert and thereby required iI to change to some other occupation free from the exposure of dust j . s j where be may not be able to command the wage scale that had previ ously been his. From the standpoint of the employer, there is imposed upon him immediately the financial cost of compensation, on the other band he is relieved of the potential of the claim becoming one of permanent total disability. Neither of these methods seem to be as equitable as a system providing compensation by way of a Special Disability Fund, j Incident to legislation dealing with the Second Injury Funds ] or Special Disability Funds is the method by which these Funds should | ba financed. Two states, California and Pennsylvania, wholly finance j their Funds with appropriations* Two other States, Sanaa* and | Wyoming, originally financed their Funds in this manner but both ! now require payment to the Fund by carriers or self-insurers in f. death eases where there are no dependents. The State of Massachusetts provided a Second Injury Fund for war veterans, appropriating funds for that purpose and ap the State Treasurer gho out specific appropriat. accomplishment for the tioxi poses many diffieul reluctant to appropriate industry. Therefore, it these fund's should rest self-insurers, or insure such financing differ un generally speaking provi where there art no depen to insurance carriers. * actuarial data that mouli of the cost. Assuming tl monetary liability for t< of the cost upon employes could be increased depend revealed by experience ov ft would seem dee entirely separate and die effective in the various is that the problems of d eet forth differ from oth< would be desirable to pla< employer, the amount of o< time to time. The basic % from the pneumoconioses it research belore a satisfac i ! DEC 15 '34 12:41 412 268 6945 PAGE.031 DEC-16-94 THU 14:46 MELLON INST. LIBRARV/CMU FAX NO. 412 268 6945 F, 32 .ental to .loyee, be On the OCCupaby required of dust <3 previe is ation. On a becoming s & system jury Funds mds should -ly fin Lust and . both. s in .asechusette .ns funds m for that purpose and specifying that when the Fund became exhausted the State Treasurer should pay the benefits from a general fund with out specific appropriation. As a practical political natter the accosplishsent for the financing of these funds by public appropria tion poses many difficulties, Legislatures generally would be reluctant to appropriate public funds for injuries that occur in industry. Therefore, it seeas proper that the burden of financing these funds should rest upon contributions to be made by employers, self-insurers, or insurance carriers. The methods prescribed for such financing differ under the laws of many of the States, but generally speaking provide for contributions either la death cases where there are no dependents or a percentage of the premium paid to insurance carriers. The underlying difficulty is the lack of \ actuarial data that would provide a sound basis for determination of the cost. Assuming that the law provided for limitations of monetary liability for totally disabling pneumoconiosis, the impact of the cost upon employers and curlers would be eased; benefits could be increased dependent upon the cost of compensation as revealed by experience over a number of yens, It would seem desirable to have a Special Disability Fund entirely separate and distinct from the Second Injury Funds presently effective in the various States. The reason for this suggestion la that the problems of compensating for the pneuaocoaloees as above set forth differ from other types of injuries. Assuming that It would be desirable to place some limitation of liability upon the employer, the amount of compensation payable could be increased from time to time. The basic problem of the evaluation of disability from the pneumoconioses is one which mu6t be resolved by medical research before a satisfactory legislative answer can be found - 29 - ;..-T , , it DEC-15-94 THU HU? MELLON INST, L18RARV/CKU FAX NO. 412 26^6945 for compensation lor partial disability. Much has been accomp lished is the edical Held with respect to the determination of disability but Mich remains to be accomplished. The problems preseated by the paeusoconioeee are unique and undoubtedly distinct iron those of other occupational diseases. (9) Waivers Of Compensation. Another legislative provision occurring A& the laws of % number of States relates to the permitting of waivers for disabled siltcotics. la the original enactment of legislation making pneumoconiosis compensable, some of the States permitted handle capped workers, particularly those who had served in dusty trades, to waive their rights to benefits for an injury that had been caused or contributed to by a previous disability. The objective was 'to assure the continuance is employment of those who had demonstrable evidence of the disease of pneumoconiosis and to avoid their release from employment. Si* States32 permit waivers by affirmative Legislative provisions. Sixteen States33 permit waivers upon the approval of the workmen's compensation agencies. Ia twentysix States3^ and Federal jurisdictions waivers are not permitted. Assuming that a given applicant for employment has demonstrable evidence of the disease of pneumoconiosis, he may be unable to obtain employment ia some other industry where he would be exposed to the continuing hazard of dust. Representatives of labor, most Insurance carriers and most employers have refused to resort to the waiver system although it is available for legal use as above set forth. While there has sot been uniform agreement among employers, employees, administrative agencies and insurance carriers with respect to the use of waivers, they oertalnly do not solve the - 30 - Eiblam of the pbysie employed in a du ether employer is a pad. Therefore, i f, ie basic purpose of t Srt c*tbe pneumoconioses C<`die*blllty that the age of. employment, uloyee although a soi t'tatutes of Arkansas, 1 30 can and Wisconsin. The above prose the compensation for tn j^elly changed in an effo: gel the next several yeai Legislative changes, A v.v- ixiet relates to the ext ^Special Disability Funds [of the employer and the equitable that is avail* Prospectively, tj medical and engineering < in industry. It may well some method for the cure event occurs, legislation pensation for those who a UtU-lb-b4 1HU 14:4/ ntLLUN INbi. LlBKHKY/UflU hHX NU. 41* *t>8 bb4b V, 34 1 f OBp- Oh 'leas distinct f problem of the physically handicapped worker who has previously been employed in a dusty trade and seeks further employment with another employer in a trade similar to that in which be has been engaged, Therefore, It may be stated that the use of waivers defeats the basic purpose of the compensation law, Certainly, with respect of a sabled to the pneumoconioses and the inability to evaluate the percentage of disability that the employee has sustained at the time of his change of employment, waiver provisions appear to be unfair to the dirades, o ctive employee although a modification of this, rule nay be found in the statutes of Arkansas, Minnesota, Horth Carolina, 30 Texas and Wisconsin. \ _____________ Ohio, South Dakota, The above presentation indicates the problems incident to 9 avoid the coapensation for the pneumoconioses. The law is being continu ally changed in an effort to solve these problems. Over the period of the next several years, there will undoubtedly be further waivers legislative changes. A possible answer to the many problems that * tweaty- exist relates to the extension of the Second Injury Funds or the itted, Special Disability Funds as above set forth. From the standpoint )le of tbe eaployer and the employee, this method seems to be the moat :o equitable that is available. :poaed most Prospectively, the ultimate answer must be found in effective medical and engineering control of potential hazards that' exist to in industry. It may well be that the medical profession will find bove i some method lor the cure of these diseases. Until that happy r event occurs, legislation must be adjusted to provide adequate com arriers pensation for those who are the victims of our industrial process. ve the - 31 - 1I i 7 DEC 15 '94 12:43 412 268 6945 PAGE.034 -15-94 THU 14*. 48 MELLON 1KST. LIBRARV/CHU FAX NO, 412 26MS945 DEC 15 DEC-15-94 THU 14:49 HELLOH INST. LIBRARY/CMU FAX NO. 412 268 6945 't~. ................................... CHABT h States Id Which There Are Special. Legislative Provisions of Compensation Fox The Disease Di Silicosis. Alabama, Arirona, Arkansas, Colorado, Delaware, Florida. Georgia, Idaho, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, Minnesota, Montana, Nevada, New Kaspahire, New Mexico, New York, North Carolina, South Dakota, Texas, Utah, Vermont, lest Virginia, Wisconsin, \ ;.,4> - 33 - DEC 15 '94 12:45 412 268 6945 PAGE.036 DEC-15-94 THU 14:49 MELLON INST. LIBRARY/CMU FAX NO. 412 268 6945 P. 37 CHART XU The Following States Provide Compensation For Partial Disability For Silicosis. Alabama, Alaska. Arkansas {compensated if 23-1/SS or sore), California, Connecticut, Hawaii, Illinois, Indiana, Kentucky, Massachusetts, Missouri, Nebraska, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oregon, Rhode Island, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin. \ 00 a A. States Providing Full Bene: Alaska Arizona* Arkansas* California Connecticut Delaware Florida Hawaii" Idaho Illinois* Indiana Maine* Maryland Massachusetts Michigan Minnesota Missouri Full benefits are not payabl Arizona or Utah, or for silic Illinois, Maine, Nevada, Nort In Colorado the 6 months liai diseases. As to monetary ben authorize up to $500. additio worker's condition will be ma silicosis or aebestosis (up t ized by the Commission after materially -improve the worker Kansas: in extreme cases, tb to furnish care for a longer itional period is Halted to Kentucky: The Board may orde and shoving Of need. Montana: In cases of total d slent to meet all hospitalize be allowed. New Mexico: Additional monet the first $1,500.) may he tut - 34 - DEC 15 '94 12:45 412 268 6345 Pft6E.037 DEC-15-94 THU 14:50 MELLON INST. LIBRARY/OMU FAX NO, 412 268 6945 P. 38 ) ~i . " ' jX ; nSc****** ' k CHART IV Providing Pull Benefits for Medical Care. y Alaska Nebraska Arizona* Nevada* Arkansas* Mew Hampshire California Hew Jersey Connecticut Kev York Delaware North Carolina* X Florida North Dakota Hawaii Ohio * Idaho Oklahoma Illinois* Oregon Indiana Pennsylvania Maine* Rhode Island Maryland South Carolina Massachusetts Texas* Michigan Utah* Minnesota Washington Missouri Wisconsin Pull benefits are tot payable for occupational diseases la Arizona or Utah, or for silicosis and asbestosis in Arkansas, Illinois, Maine, Nevada, North Carolina, or Texas. in Colorado the 6 months limitation does not apply to occupational diseases. As to monetary benefits, the Industrial Commiesion may authorise up to $500. additional for occupational diseases if the worker's condition will be materially improved. Benefits for silicosis or asbestosis (up to $2,000,} axe payable only if author ized by the Commission after determination that such care will materially improve the worker's condition. Kansas; In extreme cases, the Commissioner may require the employer to furnish care for a longer period. In case of eilieosia, eucb add- ; itlonal period is limited to B0 days. I i Kentucky: The Board may order an additional $1,000, on application and showing of need. ! Montana: in eases of total disability where the $2,500. is lnsufli- 1 elent to meet all hospitalization expenses, additional benefits may be allowed. 5 Mew Mexico: Additional monetary benefits up to $15,000. (including the first $1,500,} may be authorized in cases of accidental injuries. - 35 - 1 DEC 15 '94 12:46 412 266 6945 PAGE.038 DEC-15-94 THU 14:50 MELLON INST. LIBRARY/CMU FAX NO. 412 268 6945 P. 89 T *v**?" \ # *\* a CHART IV continued South Dakota; The Industrial Commission may order an additional 51,000. for medical, eurgioal, and hospital service upon proof of necessity therefor. Vermont: Maximum for silicosis sad asbestos!* set at $500. payable during a 3 year period, Virginia: Kay be extended for 2 years, including the first 60 dayB. nest Virginia: An additional S8O0, nay be authorised by the Commissioner with the approval of the employer, Ho medical benefits ia ease of silicosis. B. States Providing Limited Benefits For Medical Care Alabama Colorado Georgia lows Kansas Kentucky Louisiana Montana Mew Mexico South Dakots Tennessee Vermont Virginia Vest Virginia i f i ** i. i 36 i 1. National Silicosis Co: Summary Report sub* 1937, by Conferen< Final Report to th< through Medical C Final Report to th< through Bnginearii Final Report to tb< Phases of Silicos Final Report to thPhases of Silicot published by the Standards. 2. "The Pneumoconiosis P published by Chari Dr, L. V. Gardner in a Journal of th 3. See Archives of Snvir Pr. O, A. Sander, Marquette Dniversi hr, George V. trig St. Luke's Sosplt* Dr. Arthur J. Vor? Industrial Medici: Detroit 7, Miehigj 4.* Industrial Medicine i Marevetber, publii 6. See Chart I. 6. 0, S. Code Annotated 7. Arlsona, Colorado, 0> Vermont, 8, See Chart II. 9, Bines v, Norwalk Loc Born A Bardaxt fia A.L.fU 963; Hanso 924. 10. In re Magelet, 229 M Taylor v. Swift * i u! DEC 15 '94 12:46 412 268 6945 PAGE.039 DEC-15-94 THU 14:51 MELLON INST. LIBRARY/CMU - i*-A* *.V / FAX NO. 412 268 6945 REFERENCES 1. National Silicosis Conference; Susaary Report submitted to Secretary of Labor, February 3, 1937, by Conference Committee, Bulletin No. 12, 1937, Final Report to the Committee on the Prevention of Silleosls through Medical Control, Bulletin Mo, 31, 1938, Fart X, Final Report to the Coaalttee on the Prevention of Silicosis through Engineering Control, Bulletin No, 21, 1938, Part IS. Final Report to the Coaalttee on Economic Legal and Insurance Phase* of Silicosis Problem, Bulletin No..21, 1938, Part III. Final Report to the Coaalttee on Regulatory and Administrative Phaees of Silicotic Problens, Bulletin No. 21, 1938, Part XV, published by the U.s. Department of Labor, Division of Labor Standards. 2. "The Pneumoconiosis Froblen", pg, 13, by Dr. Bugene P. Pendergrass. published by Charles C. Thoaae, 1938, Proa an article by Dr, lV-V. Gardner on the "Etiology of Pneumoconiosis" appearing 1 in a Journal of tbe A.M.A., 111:1925-1936, 1938. 3. See Archives of Environaental Health, Vol.2, No. 3, pg. 309, 1961 Dr. 0. A. Bander, Associate Clinical Professor of Medicine, Marquette University, Milwaukee 3, Wisconsin, Dr. George W. Wright, Bead, Medical Research Department, St, Luke's Hospital, 11311 Shaker Boulevard, Cleveland 4, Ohio. Dr. Arthur J. Vorvald, Professor and Chairman, Department of Industrial Medicine and Bygiene, Wayne State University, Detroit 7, Michigan. 4. Industrial Medicine and Bygiene, Vol. 3, page 6. 1956, E.R.A, Merevetfcer, published by Butterworth and Co, 5. See Chart X. 6. U. S, Code Annotated, Title 33, Chapter 16, 7. Arizona, Colorado, Georgia, North Carolina, Tennessee, Texas, Vermont, 8. See Chart IX. 9. Bines v, Norwalk Lock Co., 100 Conn. S3S, 124 A, 17, 20; Lane v. Horn fc Bardart Baking Co., 261 Pa. 329, 104 A., 615, 616, 13 A.L.R. 963; Banson v. Dickinson, 186 lo*a, 728, 176 K.Y, 823, 824. 10. In re Magelet, 228 Mass. 57, 116 N.E. 972, 973, L.R.A. 1918P, 864; Taylor v. Swift h Co., 114 Kan. 431, 219, p. 516, 519. DEO-15-94 THU 14:51 MELLON INST. LIBRARY/CMU FAX NO. 412 268 6945 P.41 11. Indian Creek Co&l It Mining Co. v. Calvert, 68 lad, App, 474, h, 116 N.E, 519, 525. 12. See Chapter 1 "Pneumoconioses" by Dr. A. J. Lanza, published by Grune-Stratton Inc., 1952. 13, Compensation Lave f Hew York, Chapter 67, as amended, Article 14, Jova, Code of 1958, as amended, 985A.4 Michigan, Compiled Lave of 1948, as amended to date, Part Viz, 417.1, 91(a); Minnesota, statutes of 1937, as amended to date, 9176.66(1); North Carolina, General statutes of 1943, Chapter 67, as amended, 597-54; Rhode Island, General Lave of 1953, as amended, 928-34-1(a). 15. Arizona, Rev. Statutes of 1956, Chapter 7, as amehded to date, 923-11-1, Subsection 5. 16. Georgia Code, 1933, as amended, 5114-802; Idaho Code, 1947, as amended to date, 972-1205; Montana General Statutes, as amended (Occupational Disease Act), 992-1303(5); Nevada Revised Statutes, 1956, 9617.060; New Mexico Statutes Annotated, 1653, as amended, |59-ll-4(a); South Carolina Code of Lavs, 1952, 572-252; Title 35, Chapter 2, Utah Code Annotated, as amended, 935-2-12(a). 17. General Statutes of Kansas, as amended, |44-5a04. 18. Maryland, Article 101, Annotated Code, as amended, 967(15); South Dakota, Chapter 64,08, Title 64, Code 1939, as amended, 964.0804(b). 19. Alaska, California, Connecticut, Delaware, Hawaii, Louisiana, Massachusetts, Missouri, Nebraska, North Dakota, Ohio, Rhode Island, Virginia, Washington. 20. New Jersey, Rev. Statutes, 1937, Title 34, Chapter 15, 1940, Annotated Supplement, with amendments to date, 934:15-34, t 21. The Pneumoconiosis Problem, By Eugene.P, Pendergrass, M.D., Published by Charles C, Thomas, 195B, Page 13, 22. Alaska, California, Connecticut, Delaware, Florida, Hawaii, Idaho,* Indiana, Maryland, Massachusetts,' Michigan, Minnesota, Missouri, Nebraska, New Hampshire, sew Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Washington, Wisconsin. 33. Alabama, Arizona, Arkansas, Colorado, Georgia, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Montana, Nevada, New Mexico, North Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, 24. North-Carolina, General Statutes of 1943, Chapter 97, as amended, 561,1-61,6; Minnesota General Statutes, 1957, as amended, a - 38 - 9176.662; Wisconsin, : Arizona, Colorado, Fieri* Maine, Maryland, Mich Hampshire, New Work, < South Dakota, Vermont in stone or mineral i> Alabama, Alaska, Arkansas Connecticut, Delaware Louisiana, Massacbuse- New Mexico, North Care Island /"Tennessee (pe: Utah, Virginia, Wash!) 27. Chapter 816 of the Lavs < re-enacted by Chapter Chapter 67 of the Con: 915, Subdivision 8, P. Article 3, Section 39 be payable for partis! dust disease", 28, Georgia, Louisiana, Neva: 29, Alaska, California, Gonni Minnesota, Missouri, 1 Utah, Washington, Wes' 30. See revised Statutes, as Arkansas, 914-(S); ML 97, as amended, 997.6! 426, as amended, 564,< 1957, as amended, 910! 31. Wisconsin, Statutes, 195' 32, Connecticut, Illinois, 1< 33, Arkansas, Colorado, Geor; Nevada, North Caroltm Tennessee, Texas, Ven 34. Alabama, Alaska, Arizona Kentucky, Louisiana, ] Nebraska, New Mampshi North Dakota, Oregon, Washington, West Ylrg DEC 15 *94 12:47 412 268 6945 PAGE.041 DEC-15-94 THU 14:52 MELLON INST. LIBRARY/CMU FAX NO. 412 268 6945 P. 42 |176t662; Wisconsin, Statutes, 1957, as amended, fl02,525(l)-(3) '4, d by icle 25, Arisons, Colorado, Florida, Georgia, Idaho, Iowa, Kansas, Vain*, Maryland, Michigan, Minnesota, Montana, Nevada, New Hampshire, New York, Oklahoma, Pennsylvania, South Carolina, South Dakota, Vermont (Nose for employees who began employment in stone or mineral industry prior to January 1, 1959), 26, Alabama, Alaska, Arkansas (if 39-1/3* more), California, i Laws nnesota, Carolina, i 4; Rhode i } Connecticut, Delaware, Hawaii, Illinois, Indiana, Kentucky,* i Louisiana, Massachusetts, Mlss'nirl, Nebraska, New Jersey, i Hew Mexico, North Carolina, North Dakota, Ohio, Oregon, Rhode Island, Tennessee (permitted upon election of employer), Texas, Utah, Virginia, Washington, West Virginia, Wisconsin, ate, 27, Chapter 616 of the Laws of New York, 1913, as amended and re-enacted by Chapter 41 of the Lavs of 1914, constituting Chapter 67 of the Consolidated Laws as amended, Article 2, f15, Subdivision 9, Paragraph ee. nnotated, vs, , SB Article 3, Section 39, provides "That compensation shall not be payable for partial disability due to silicosis or other duet disease". ' V 28, Georgia, Louisiana, Nevada, Virginia. 29, Alaska, California, Connecticut, Delaware, Florida, Hawaii, i Minnesota, Missouri, Mew Jersey, New Mexico, Mew York, Oregon, i Utah, Washington, West Virginia, Wisconsin, SO. See revised Statutes, ms amended, of the following States: Arkansas, #14-(S); Minnesota, {176.662; North Carolina, Chapter 97, as amended, 997.616; Ohio, (4123.67; South Dakota, Chapter 426, as amended, 164.0818; Texas, 18(e); Wisconsin Statutes, 1957, as amended, |102.525(l)-(5). 31, Wisconsin, Statutes, 1957, as amended, 5J02.525(l)-(5), 32. Connecticut, Illinois, Iowa, Maine, Maryland, Massachusetts. Idaho, liseourl, tot a, ;b Mexico, rmont, 33, Arkansas, Colorado, Georgia, Idaho, Indiana, Kansas, Minnesota, Nevada, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, 34. Alabama, Alaska, Arizona, California, Delaware, Florida, Hawaii, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Mew Hampshire, New Jersey, New Mexico, Mew York, North Dakota, Oregon, Pennsylvania, Rhode island, Utah, Washington, Vest Virginia, Wyoming, - 39 - jendsd, - I 412 268 6345 PAGE.042