PJC General Negligence 2024

PJC 19.1

W ORKERS ’ C OMPENSATION —O CCUPATIONAL D ISEASE

COMMENT When to use. PJC 19.1 submits the “occupational disease” theory of recovery in combination with the course-of-employment question. For submission of the acciden tal injury theory of recovery, see PJC 17.1. PJC 19.1 should be used if the evidence disputes the existence of an occupational disease occurring in the course of employment. Note, however, that the second para graph of the definition, dealing with repetitious, physically traumatic activities, should be submitted only if the evidence shows the worker’s occupational disease resulted from such activities. Otherwise, the second paragraph of the definition should be omit ted. Burden of proof. The burden of proof should be placed appropriately in accor dance with the decision of the appeals panel. See PJC 15.1. Source of question and instruction. PJC 19.1 is based on Tex. Lab. Code § 401.011(12), (26), (34), (36). Injury theory vs. occupational disease theory. Despite the inclusion of occupa tional disease in the statutory definition of injury (Tex. Lab. Code §401.011(26)), the traditional distinction between the accidental injury theory of recovery and the occu pational disease theory of recovery continues. The term “injury” is “an undesigned, untoward event that is traceable to a definite time, place, and cause. In other words it is the result of an accident.” Transportation Insurance Co. v. Maksyn , 580 S.W.2d 334, 336 (Tex. 1979); accord Brown v. Texas Employers’ Insurance Ass’n , 635 S.W.2d 415, 416 (Tex. 1982). An occupational disease, however, is gradual in development, and the time, place, and cause of the disease cannot necessarily be definitely ascertained. Texas Employers’ Insurance Ass’n v. Etheredge , 272 S.W.2d 869 (Tex. 1954); Aetna Casualty & Surety Co. v. Shreve , 551 S.W.2d 79, 81 (Tex. App.—Houston [1st Dist.] 1977, no writ); see also Fire & Casualty Insurance Co. v. Miranda , 293 S.W.3d 620 (Tex. App.—San Antonio 2009, no pet.), overruled on other grounds by Texas Mutual Insurance v. Chicas , 593 S.W.3d 284 (Tex. 2019). Types of occupational disease. The Labor Code identifies two types of occupa tional disease: classic occupational disease and damage or harm to the physical struc ture of the body as a result of “repetitive trauma injury.” Tex. Lab. Code § 401.011(34). A classic occupational disease is described in the first paragraph of the definition in PJC 19.1 and includes such diseases as anthrax, asbestosis, silicosis, and psittacosis, all of which are gradual in developing, so that the time, place, and cause cannot necessarily be ascertained. Etheredge , 272 S.W.2d 869; Shreve , 551 S.W.2d at 81. Repetitive trauma injury is covered in the second paragraph of the definition in PJC 19.1, but if there is no evidence of repetitious, physically traumatic activities, this part of the definition should be omitted. The legislative history of the word “physical” in the phrase “repetitious, physically traumatic activities” has been judicially deter mined to indicate an intent to exclude repetitious mental traumatic activities from

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