Causation challenges for workers compensation claims

A report in today's New York Times tells of the causation challenges facing former workers at a now-shuttered Dresser Industries plant in Berea, Kentucky. The headline is "Exposed to Solvent, Worker Faces Hurdles," and in it Felicity Barringer writes of the refusal of Kentucky's workers compensation commission to pay claims by those who worked with a a solvent, trichloroethylene, which may have caused them to develop Parkinson's disease.

Barringer writes that the claimants are "caught between the conflicting imperatives of science and law — and there is a huge gap between what researchers are discovering about environmental contaminants and what they can prove about their impact on disease. The gap has ensured that only a tiny fraction of worker’s compensation payments are received by those who were exposed to harmful substances at work."

Among those quoted in the story is UC Davis professor of public health sciences, Dr. J. Paul Leigh: “It’s awfully difficult for any doctor or researcher to say to an individual: ‘You have this disease because you were exposed at this time.’ ”

Barringer reports that the causation element has been relaxed in other contexts, such as the Vertans Affairs Department's agreement last year to presume that Persian Gulf service caused Lou Gehrig's disease for any service member who served at least 90 days and subsequently developed the condition, also known as A.L.S.

And here's a quote from a Yale Law School Professor, E. Donald Elliott, who argues that mere exposure to such risks in the workplace should be compensable.

“You don’t have to prove you got the Parkinson’s because of the exposure . . . . From a policy standpoint, does it make sense for the entire burden of uncertainty or unknown science to fall on the injured parties rather than falling on the business or industry involved?”