Atlanta Workers Compensation Law : Atlanta Workers' Compensation Lawyer & Attorney : Seth Bader Law Firm : Construction Accidents, Repetitive Motion Injuries, Disability : Atlanta, Marietta, Roswell, Georgia

Jon Gelman, Esq., publisher of Workers' Compensation: Analysis of Trends and Developments in Workers' Compensation Law Throughout the United States, recently blogged about a New Jersey case in which a nurse was awarded workers' compensation benefits for a pre-existing pulmonary condition that was aggravated by exposure to perfume at work.

The facts of the case, as described by Gelman, are truly remarkable: The nurse was a 64-year-old woman who smoked one pack of cigarettes a day for more than 40 years, and, not surprisingly, suffered from a severe pre-existing obstructive lung disease when she began working for the employer.  Subsequently, in the course of her employment, she had a severe reaction when a co-worker sprayed herself with perfume on two occasions, and she eventually became "oxygen dependent" and was forced to stop working.

According to Gelman, the court found that "[t]he air [that the nurse] had to breathe . . . to fulfill her contract of service, contaminated by a co-employee, was a condition of [her] employment . . . and thus a risk of "this" employment."  For this reason, the court ruled that the nurse suffered a compensable injury that entitled her to workers' compensation benefits.  Not surprisingly, the court also explained that "[e]mployers take their employees as they find them, 'with all of the pre-existing disease and infirmity that may exist."

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Yes.  If you have suffered a lung injury or occupational disease as a result of hazardous exposure to harmful substances or toxins in the workplaces such as dust, fumes, smoke, or chemicals, you may be entitled to workers' compensation benefits just like any other injured worker in Georgia.

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Yes.  An employee who has been exposed to hazardous work-related noise and/or who has suffered work-related loss of vision may be entitled to workers' compensation benefits.

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(a)  As used in this Code section, the term:

(1)  "Harmful noise" means sound in employment capable of producing occupational loss of hearing as defined in paragraph (2) of this subsection.  Sound of an intensity of less than 90 decibels, A scale, shall be deemed incapable of producing occupational loss of hearing as defined in this Code section.

(2)  "Occupational loss of hearing" means a permanent sensorineural loss of hearing in both ears caused by prolonged exposure to harmful noise in employment.

(b)  Compensation based on 66 2/3 percent of average weekly wages, subject to limitations of Code Section 34-9-261, shall be payable for loss of hearing caused by harmful noise, subject to the following rules which shall be applicable in determining eligibility, amount, and period during which compensation shall be payable:

(1)  In the evaluation of occupational hearing loss, only the hearing levels at the frequencies of 500, 1,000, and 2,000 cycles per second shall be considered.  Hearing losses for frequencies below 500 and above 2,000 cycles per second are not to be considered as constituting compensable hearing disability.  No consideration shall be given to the question of whether or not the ability of an employee to understand speech is improved by the use of a hearing aid.  The board may order the employer to provide the employee with an original hearing aid if it will materially improve the employee's ability to hear;

(2)  The percentage of hearing loss shall be calculated as the average, in decibels, of the thresholds of hearing for the frequencies of 500, 1,000, and 2,000 cycles per second.  Pure tone air conduction audiometric instruments, properly calibrated according to accepted national standards such as American Standards Association, Inc. (ASA), International Standards Organization (ISO), or American National Standards Institute, Inc. (ANSI), shall be used for measuring hearing loss. If more than one audiogram is taken, the audiogram having the lowest threshold will be used to calculate occupational hearing loss.  If the losses of hearing average 15 decibels (26 db if ANSI or ISO) or less in the three frequencies, such losses of hearing shall not constitute any compensable hearing disability.  If the losses of hearing average 82 decibels (93 db if ANSI or ISO) or more in the three frequencies, then the same shall constitute and be total or 100 percent compensable hearing loss.  In measuring hearing impairment, the lowest measured losses in each of the three frequencies shall be added together and divided by three to determine the average decibel loss. For each decibel of loss exceeding 15 decibels (26 db if ANSI or ISO) an allowance of 1 1/2 percent shall be made up to the maximum of 100 percent which is reached at 82 decibels (93 db if ANSI or ISO).  In determining the binaural percentage of loss, the percentage of impairment in the better ear shall be multiplied by five.  The resulting figure shall be added to the percentage of impairment in the poorer ear, and the sum of the two divided by six.  The final percentage shall represent the binaural hearing impairment;

(3)  There shall be payable for total occupational loss of hearing 150 weeks of compensation and for partial occupational loss of hearing such proportion of these periods of payment as such partial loss bears to the total loss;

(4)  Except in instances of preexisting loss of hearing due to disease, trauma, or congenital deafness in one ear, no compensation shall be payable under this Code section unless prolonged exposure to harmful noise in employment has caused loss of hearing in both ears as hereinafter provided;

(5)  No compensation benefits shall be payable for temporary total or temporary partial disability under this Code section; and there shall be no award for tinnitus or a psychogenic hearing loss;

(6)  The regular use of employer provided protective devices capable of preventing loss of hearing from the particular harmful noise where the employee works shall constitute removal from exposure to such particular harmful noise.  No compensation benefits shall be payable for occupational loss of hearing caused by harmful noise if the employee fails to regularly utilize the employer provided protection device or devices which are capable of preventing loss of hearing from the particular harmful noise where the employee works;

(7)  The employer liable for the compensation in this Code section shall be the employer in whose employment the employee was last exposed to harmful noise in Georgia during a period of 90 working days or parts thereof; and an exposure during a period of less than 90 working days or parts thereof shall be held not to be an injurious exposure; provided, however, that, in the event an insurance carrier has been on the risk for a period of time during which an employee has been injuriously exposed to harmful noise and if after such insurance carrier goes off the risk said employee has been further exposed to harmful noise, although not exposed for 90 working days or parts thereof, so as to constitute an injurious exposure, such carrier shall, nevertheless, be liable;

(8)  An employer shall become liable for the entire occupational hearing loss to which his employment has contributed; but, if previous deafness is established by a hearing test or other competent evidence, whether or not the employee was exposed to harmful noise within six months preceding such test, the employer shall not be liable for previous loss so established, nor shall he be liable for any loss for which compensation has previously been paid or awarded.  The employer shall be liable only for the difference between the percentage of occupational hearing loss determined as of the date of disability and the percentage of loss established by preemployment and audiometric examinations excluding, in any event, hearing losses arising from nonoccupational causes.

(c)  No claim for compensation for occupational hearing loss shall be filed until six months have elapsed since exposure to harmful noise with the last employer.  The last day of such exposure shall be the date of disability.

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As used in this article, the term:

(1)  "Disablement" means the event of an employee becoming actually disabled to work, as provided in Code Sections 34-9-261, 34-9-262, and 34-9-263, because of occupational disease;

(2)  "Occupational disease" means those diseases which arise out of and in the course of the particular trade, occupation, process, or employment in which the employee is exposed to such disease, provided the employee or the employee's dependents first prove to the satisfaction of the State Board of Workers' Compensation all of the following:

(A)  A direct causal connection between the conditions under which the work is performed and the disease;

(B)  That the disease followed as a natural incident of exposure by reason of the employment;

(C)  That the disease is not of a character to which the employee may have had substantial exposure outside of the employment;

(D)  That the disease is not an ordinary disease of life to which the general public is exposed;

(E)  That the disease must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence.

For the purposes of this paragraph, partial loss of hearing due to noise shall not be considered an occupational disease.  Psychiatric and psychological problems and heart and vascular diseases shall not be considered occupational diseases, except where they arise from a separate occupational disease.

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(a)  Where the employer and employee are subject to this chapter, the disablement or death of an employee resulting from an occupational disease shall be treated as the occurrence of an injury by accident; and the employee or, in the case of his or her death, the employee's dependents shall be entitled to compensation as provided by this chapter.  The practice and procedure prescribed in this chapter shall apply to all the proceedings under this article except as otherwise provided.

(b)  Except as otherwise provided in this Code section, an employer shall be liable for compensation under this article only where:

(1)  The disease arose out of and in the course of the employment in which the employee was engaged under such employer, was contracted while the employee was so engaged, and has resulted from a hazard characteristic of the employment in excess of the hazards of such disease attending employment in general; and

(2)  The claim for disablement is filed within one year after the date the employee knew or, in the exercise of reasonable diligence, should have known of the disablement and its relationship to the employment; but in no event shall the claim for disablement be filed in excess of seven years after the last injurious exposure to the hazard of such disease in such employment; provided, however, that an employee with asbestosis or mesothelioma related to exposure to asbestos shall have one year from the date of first disablement after diagnosis of such disease to file a claim for disablement.  In cases of death where the cause of action was not barred during the employee's life, the claim must be filed within one year of the date of death.

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The provisions of Code Section 34-9-263 with respect to permanent partial industrial disabilities shall apply in the case of an occupational disease, save and except that there shall be no compensation due or payable for the partial loss of or for partial loss of use of a member or for partial loss of vision of an eye.

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Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and the insurance carrier, if any, by whom the employer was insured when such employee was last so exposed under such employer shall alone be liable therefor, without right of contribution from any prior employer or insurance carrier.  The amount of the compensation for any occupational disease shall be based upon the average weekly wages of the employee, as determined under Code Section 34-9-260.  The date upon which the employee first suffers disablement from the occupational disease or the last date the employee was employed by any employer, whichever date would provide the higher average weekly wage for such employee, shall be deemed the date of the injury for the purpose of determining the average weekly wage; and the notice of injury and claim for compensation, as required by Code Sections 34-9-80 through 34-9-82, 34-9-85, and 34-9-86, shall be given and made to such employer.

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Where an occupational disease is aggravated by any other disease or infirmity not itself compensable or where disability or death from any other cause not itself compensable is aggravated, prolonged, accelerated, or in any other way contributed to by an occupational disease, the compensation payable shall be reduced and limited only to such proportion of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease, as the causative factor, bears to all the causes of such disability or death.  Compensation shall be adjusted by reducing the number of weekly payments or the amounts of such payments as, in the circumstances of the particular case, may be determined by the board.

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Whenever an employer and employee are subject to this chapter, the liability of the employer under this article for the disablement or death of the employee from an occupational disease in any way incurred by such employee in the course of or because of his employment shall be exclusive and in place of any and all other civil liability whatsoever at common law or otherwise to such employee or to his personal representative, next of kin, spouse, parents, guardian, or any others.

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No compensation shall be payable for an occupational disease if the employee, in the course of or in the course of entering into the employment of the employer by whom the compensation would otherwise be payable, falsely represented himself in writing to such employer as not having previously been disabled, laid off, or compensated in damages or otherwise because of such disease.

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