What Did You Know and When Did You Know It? The Meaning and Impact of Knowledge in Occupational Disease Claims
There are statutes of limitation relating to occupational diseases which reference the claimant’s knowledge of their condition and other factors. Generally, I find that people tend to misinterpret the meaning of knowledge in these contexts; as such, I will endeavor to provide you with a general idea of what this means in a workers’ compensation context in New York claims.
The first reference I’ll discuss comes from New York Workers’ Compensation Law Section 28. This section governs the timely filing of claims and limits filing to two years after an accident, or, in the case of occupational diseases, to “within two years . . . after the claimant knew or should have known that the disease is or was due to the nature of the employment.” Similarly, notice of an occupational disease is timely per Section 45 so long as it is given “to the employer within two years after . . . the claimant knew or should have known that the disease is due to the nature of the employment.”
A different knowledge standard is given for hearing loss claims per Section 49-bb. Claims for hearing loss are considered timely filed within two years and ninety days “after knowledge that the loss of hearing is or was due to the nature of the employment.”
We essentially have two knowledge standards here. The first, as it relates generally to occupational diseases, is “knew or should have known.” The second, in hearing loss claims, is “knowledge” that the loss was due to the nature of employment.
Statutes of Limitation Generally
First, let’s address briefly what is meant by a statute of limitation and why they exist. A statute of limitation places a cap on how long one has to file a claim. As to why, the New York Court of Appeals, citing the U.S. Supreme Court has held that “[s]tatutes of limitation represent the balance struck by the Legislature between the competing concerns of plaintiffs in being afforded a reasonable time to bring their claims and defendants in not having to resist stale claims.” Depczynski v. Adsco/Farrar & Trefts, 84 N.Y.2d 593 (N.Y. App. Div. 1993).
Essentially, there are competing interests, the first is making sure that parties have a reasonable time to file a claim. The second is in not having to defend “stale claims.” We could expand on why having to defend a stale claim is difficult and potentially violates due process but that is a lengthy discussion for another time. Suffice it to say that one of the most important reasons is that the further removed from something a claim is filed the more difficult it becomes to develop and verify the facts that are relevant to litigation.
Knowledge Under Sections 28 and 45
Most occupational disease claims must be filed and notice given to the employer within two years of when the claimant knew or should have known about the disease and its relationship to employment. Generally, this knowledge comes down to a diagnosis from a medical professional and an indication from a medical professional as to the cause of the disease. See Storm v. Phillips Lighting Co., 117 A.D.3d 1312 (N.Y. App. Div. 2014).
The court in Storm noted that the claimant “obtained medical treatment for her shoulder pain beginning in 2007 and, while she thought that the pain was related to her work, the record does not establish that she actually knew that it was until [the doctor] made his diagnosis in November 2011.” So, while the standard here is knowledge, the actual threshold is usually a diagnosis and an indication of work-relatedness from a doctor. This standard is also spelled out by the Department in Hastings v. Fairport CSD, 274 A.D.2d 660 (N.Y. App Div. 2000), “although claimant suspected that her respiratory ailments were work related in 1992, based upon our review of the record we cannot conclude that she knew or should have known of the causal relationship prior to June 20, 1995, when her physician definitively concluded that such a causal relationship existed.” There are, of course, exceptions to this general rule but that is for another article.
Knowledge in Hearing Loss Claims Under Section 49-bb
In hearing loss claims, the statute of limitations is extended to two years and 90 days “after knowledge that the loss of hearing is or was due to the nature of the employment.” The basis for the 90-day extension is that occupational hearing loss may change or improve after being removed from the harmful noise. The claimant in Depcynski, cited above, acknowledged that he was aware of his condition and its cause. The court found that this was sufficient to trigger the statute of limitations, and that an actual medical diagnosis of the condition and its cause is not required. Unlike in the examples above concerning occupational diseases in general, the court held that for the purposes of Section 49-bb knowledge requires only that the claimant “was aware of both the injury and its probable cause.” As noted in Con Edison, an admission of knowledge as to the probable cause is not needed. The fact that the claimant’s hearing was tested and was provided with hearing protection was sufficient to infer knowledge. With that said, mere suspicion that hearing loss is work-related is not enough.
This is obviously a difficult distinction to make; where is the line between knowledge of a “probable cause,” and “mere suspicion?” The real answer is that this distinction has to be made on a case-by-case basis. As noted above there are factors that can be somewhat determinative such as being supplied with hearing protection, a clear admission, or strong assumption by the claimant. Important also is the claimant’s testimony about what they knew and when it was known. Statements that the claimant had a suspicion or inkling may not be enough, but an indication from the claimant that they assumed it was related or that they inferred it was related due to being supplied with hearing protection could be enough. In American Felt & Filter Co., the Board found that the claimant’s discovery of hearing loss and notification to the employer that his work place was noisy was sufficient to infer knowledge.
The long and short of knowledge of hearing loss and its probable cause is a question which should be assessed after review of each individual claim. The conclusion to be drawn here is that knowledge in the sense of Workers’ Compensation is not as clear cut and straight forward as you may have thought. You must be careful when examining new occupational disease claims to be on the lookout for documentation of the claimant’s knowledge of their conditions and its cause. Pay particular attention to medical findings, statements to employers, and the indications made by claimant’s regarding noise levels in the work place.