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John F. Burton Jr., professor emeritus at the School of Management and Labor Relations at Rutgers University, is regarded by many as the dean of American research in workers' compensation.

After obtaining a law degree in 1960 and a doctorate in economics in 1965, he directed the National Commission on State Workmen's Compensation Laws, set up by the Nixon administration.

Risk & Insurance® workers' comp columnist Peter Rousmaniere reached Burton by phone at his Rutgers University office to respond to questions about disease claims in workers' compensation.

Rousmaniere: Has anyone to your knowledge done an in-depth study of the prevalence, severity and outcomes of work-related diseases?

Burton: Other than one study which attempted to estimate the prevalence of work-related diseases by using epidemiological data, I am not aware of any. (Paul Leigh, at the University of California at Davis, performed the study. He estimated that thousands of deaths from work-related cancers are not reported in OSHA statistics. He drew upon the studies of the causes of cancers. A more direct approach, to examine claims data, is tricky by the fact that some diseases' claims are thought to be disguised at injury claims to ensure coverage.)

Rousmaniere: Do state systems recognize disease claims?

Burton: Superficially, yes. The U.S. Department of Labor's periodic survey of state laws asks one question about disease claims: simply whether disease claims are covered. For most if not all states, the answer is yes. The survey does not account for legislative and judicial restrictions on coverage.

Rousmaniere:What states might have the most restrictive laws on disease coverage?

Burton: In the original state laws from the 1920s, disease claims had to be associated with accidents. It became clear by the 1930s that this was not working, and most states revised their laws to allow disease claims to stand on their own. Idaho may be the only state which continues to use that original formulation.

Rousmaniere: What are the chief problems with state laws today regarding disease claims?

Burton: States need to remove two barriers that today severely restrict benefits on disease claims. One is the use of approved disease lists, which can only be changed by legislation. Some of these lists do not appear to have been changed for years. We now know a lot more about some exposures than we did when these lists were prepared. If a list is to be used, then the director of workers' compensation for the state should have the legal authority to add entries.

The second barrier is the standard that the disease exposure must be peculiar to the nature of the work. This is not used for injuries. For example, if a bus driver breaks her leg, an unusual injury for a bus driver, that injury is covered. But if the driver catches a disease from a patron, that is not covered.

What I'm saying is that injuries and diseases need to be governed by the same standard of coverage.

Rousmaniere: What do you think of a proposal to federalize disease claims of disaster rescue and recovery workers?

Burton: There is some merit to it, but I think that all injuries as well as diseases should be included, as I don't know how it would work to put them on separate tracks. And what system? Rather than use the system for federal employers, I would use the Longshore and Harbor Workers Act. That act is used to cover civilian workers for overseas defense contractors, under the name of the Defense Base Act. So there is some precedent.

November 1, 2007

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