A recent decision by the Virginia Supreme Court will make it virtually impossible for workers in Virginia to secure compensation payments for most occupational diseases, according to government, labor and other experts in workman's compensation laws.
Under the little-noticed ruling, workers' compensation experts say only a handful of occupational diseases, such as black lung and asbestosis, will be covered by Virginia law. The decision is expected to bring major changes in the protections accorded workers in the state and has already allowed some insurance companies to deny benefits for some conditions that were routinely covered in the past, lawyers said.
"This is going to make it virtually impossible to get compensation for any occupational disease," except for a few ailments such as black lung, brown lung, asbestosis, silicosis and hepatitis, said an official close to Industrial Commisison of Virginia, the agency that reviews workers' compensation claims.
The claims now allowed constitute only a small percentage of the cases seen by the commission, the official said.
The court ruling said that any disease that is "gradually incurred on account of repeated, work-related trauma" is not covered. The condition must be caused by a sudden accident or mechanical change, such as a loud blast that immediately results in loss of hearing, or be a disease to which the general public is not exposed, state officials said.
The ruling thus covered conditions such a miner's black lung, but excluded any type of muscle problems, vision loss, hearing loss or other ailment that occurs because of regular work activity, according to several experts.
"I'm absolutely astounded by the decision," said James Ellenberger, a workers' compensation specialist with the AFL-CIO in Washington.
"I know of no other state in the union in which the injured worker has been so abandoned," said Alexandria lawyer Lawrence J. Pascal, chairman of the workman's compensation subcommittee of the Virginia Trial Lawyers' Association.
"We've gone backward 41 years in occupational disease efforts," said Jack T. Burgess of Fairfax, a lawyer for Brenda E. Gilliam, who repairs phones for the Western Electric Co. and brought the case before the Virginia court for severe pain in her hand. Burgess said that the ruling cannot be appealed to the U.S. Supreme Court, because there are no constitutional questions involved.
The April 26 ruling in the Gilliam case was little noticed when it was issued, but as word of its impact has spread it has generated enormous concern among labor groups and workers' compensation experts.
Citing the ruling, the Industrial Commission of Virginia, which handles such cases has already ruled that "hearing loss . . . . is not compensable as an occupational disease."
On May 15, the commission cited the Gilliam decision in denying benefits to a firefighter, who was found to have suffered hearing loss after repeated exposure to sirens and airhorns. The commission said that by applying the Gilliam standard, "it must be fairly said that hearing loss is also an ordinary disease of life suffered by much of the population for a variety of reasons, including . . . the aging process."
Gilliam had been working for Western Electric Co. in Northern Virginia for several years when she started getting severe pains in her hand, according to court records. An orthopedic surgeon diagnosed her condition as tenosynovitis, an inflamation of the tendon sheath, and said it was related to the repetitive motion involved in her job. The Industrial Commission directed Western to pay Gilliam's medical expenses, but Western Electric appealed to the state's high court.
It reversed the commission's ruling, citing a state law that says "an ordinary disease of life" is not covered unless it is contracted under certain specific conditions. The court noted that last October, in a case involving an inspector for a poultry company, the commission held that "back strain, which had its origin in repeated, work-related trauma, was an ordinary disease of life."
The court also noted that although tenosynovitis used to be cited as an occupational disease in the code, the entire list of diseases was removed by the state legislature in 1970. Western argued that the legislature intended to narrow the scope of the law.
(A 1969 legislative task force report said, however, the schedule was removed to broaden the coverage, because it was feared that listing specific illnesses could cause other ailments to be omitted.)
Industrial Commission officials declined to comment, saying that each claim "will be decided on a case-by-case basis."
Pascal and Burgess said that efforts will be made to get the General Assembly to change the law next year, although they said that in the meantime, thousands of claims will be denied.
Pascal said he has written Gov. Charles S. Robb, requesting a special legislative session to change the law. Robb spokesman George Stoddart said yesterday the letter had not been received.
Burgess said that claims already awarded are presumed safe, although Pascal said the status of existing claims is unclear.
Burgess said he has one case in which a woman has been receiving workers' compensation for Carpal Tunnel Syndrome, a progressively painful and disabling hand condition frequently encountered by poultry workers. The woman recently developed the same disability in her other hand under the same circumstances, but will not be able to get compensation for the injury to the second hand.
About a dozen other states have "ordinary disease of life" provisions in their workman's compensation laws, but Ellenberger said he does not believe any other state applies it so narrowly.
"Most states cover occupational diseases," he said. "This is incredibly out of line with what the rest of the states are doing."